When the primordial system of law comes into existence, each part of the law is instructed systematically but not every part of the legal system would be more illuminating than a law relating to defamation.
The law of defamation was established for the protection of personal character and public institutions from the devastating effects without harming the people’s instincts and reputation of any institution and disposition. Unfortunately, the English law of defamation is not the deliberate product of any period.
Early in the middle of the era reputation was merely protected by the combined form of secular and spiritual authorities. After a long struggle of the English people, the jurisdiction of the ecclesiastical courts was accounted for by the royal tribunals.
However, the king’s courts acquired jurisdiction over defamation, during the latter half of the sixteenth century,, various social and political conditions combined to contract the actionable right or remedy.
A person can be insulted in many ways by direct force, as by assault and battery; or without direct force, as by shouting after him at a public place that causes the crowd to go after him. Accusatory and condemnatory language can ally someone’s good fame so it was also an injury to such person.
In Indian Law:
Section 1, Defamation Act, 1952 provides that broadcasting of words by means of wireless telegraphy shall be treated as publication in permanent form. Slander is the publication of a defamatory statement in a transient form e.g of it may be spoken by words or gestures.
The label is a representation made in some permanent form, e.g, writing printing, picture .effigy or statue. In Indian law, it made some distinction between libel and slander. Their label is a crime but slander is not. Slander is a civil wrong in England.
Criminal law in India does not make any such distinction between libel and slander. Both libel and slander are criminal offences under section 499, I.P.C.
Essentials of Defamation:
*The statement must be defamatory.
*The said statement must refer to the plaintiff. The statement must be understood by the right-thinking or reasonable-minded person, as referring to the plaintiff.
*The statement must be published i.e, to say, it must be communicated to some person other than the plaintiff himself.
*In case of slander, either there must be proof of special damage, or the slander must come within serious classes of cases in which it is actionable per se.
The defences to the action of defamation are:
- Justification or Truth;
- Fair comment;
- Privilege, which may be either absolute or qualified.
Justification or Truth:
In the matter of civil action, we account for the truth as the defence for defamation. Under Criminal Law, merely proving that the statement was true is no defence. First Exception; to sec. 499, I.P.C. requires that in spite of being true, the imputation must be shown to have been made for the public good.
Under Civil Law, merely proving that the statement was true is a good defence. The reason for the defence is that “the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to maliciously.
If the statement is substantially true but incorrect in respect of certain minor particulars, the defence still is available.
Attainment of any fair comment on the hype of public interest can be a defence to an action for defamation. For this defence to be available, the following essentials are required:
*It must be a comment,i.e, an expression of option rather than an assertion of fact;
*The comment must be fair; and
*The matter commented upon must be of public interest.
There are certain occasions when the law recognizes that the rights of free speech outweigh the plaintiff’s right of reputation: the law treats such occasions to be “privileged” and a defamatory statement made on such occasions is not actionable. Privilege is of two kinds: ‘Absolute’ privilege’ and ‘qualified’ privilege.
In matters of absolute privilege, no action lies for the defamatory statement even though the statement is false or has been made maliciously. In such cases, the public interest demands that an individual’s right to reputation should give way to the freedom of speech.
In certain cases, the defence of qualified privilege is also available. Unlike the defence of absolute privilege, in this case, it is necessary that the statement must have been made without malice. For such a defence to be available, it is further necessary that there must be an occasion for making the statement.
Generally, such a privilege is available either when the statement is made in discharge of a duty or protection of interest or the publication is in the form of a report of parliamentary, judicial or other proceedings.
“Chowkidar Chor” Comment as a part of political debate accounted as the Defamation, Oct 2019
Referring to the constitutional guarantee of freedom of speech and expression many political parties made statements in the adverse of other parties that can ally the reputation of any person or organization.
A defamation case was filed by BJP member Mahesh Shrishrimal. Mahesh has filed a complaint against Rahul over the ‘ Chowkidar hi Chor Hai’remarks, pointing Prime Minister Narendra Modi over the Rafale fighter jet deal in 2018.
A Mumbai Metropolitan Magistrate court had issued summons to Rahul Gandhi in October 2019 in connection with the case. Rahul Gandhi has so far refrained from appearing in person before the magistrate.
Shrishrimal has condemned the statement of Rahul Gandhi, he had hurt the sentiments of the supporters of the prime minister and he had not only defamed the PM but also members of BJP, he stated.
Gandhi, in his petition, said, “In a democracy, political debate is the lifeblood of the country and such debate should be encouraged rather than curtailed by frivolous complaints filed in the name of defamation. A magistrate court in Mumbai has issued summons to Gandhi in Oct 2019.
The petition to quash the defamation case was filed before justice S.K Shinde of the Bombay high court by Rahul Gandhi’s lawyer Kushal Mor, stated that he said remarks was made against the prime minister and the complaint is not the aggrieved party and subsequently, he expressed regret for dragging the top court’s name into the comments he made and also admitted that the Supreme Court has never used phrase chowkidar chor hai.
Subsequently, Rahul Gandhi has tendered an unconditional apology to SC.
Rahul Gandhi has filed a fresh affidavit with an unconditional apology to the Supreme Court in a contempt of court case against him.
The affidavit states, “Unconditional apology to the Supreme court for unintentionally and inadvertently linking SC order in Rafale review plea to his “Chowkidar hi chor hai” political jibe against PM Narendra Modi.
By the means of freedom of speech, in Indian democracy, no one could be allowed to ally the dignity of someone’s reputation and gives the glee of self- regard.
In the previous case law, we studied how; the law of defamation can be implemented to protect people’s reputations from unfair attacks.