The right to reputation is a core aspect of personal dignity. In India, defamation is both a civil wrong and a criminal offense. The newly introduced Bharatiya Nyaya Sanhita, 2023 (BNS) continues to recognize defamation as a punishable act under Section 356.
This provision retains the spirit of the erstwhile Section 499 of the Indian Penal Code, 1860, but integrates it within the framework of modern legislative reform. Let us explore BNS Section 356 – Defamation, its scope, exceptions, punishment, relevant case law, and its relevance in today’s context.
Short Note on BNS Section 356 Defamation
Section 356 of the BNS 2023 defines defamation as the act of making or publishing any imputation concerning any person, by words spoken or intended to be read, by signs or visible representations, with the intent to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person.
Key Ingredients of Defamation
To constitute an offense under BNS Section 356, the following elements must be established:
- Publication or communication of an imputation.
- The imputation must refer to a specific person or identifiable class.
- There must be an intention to harm, or knowledge that it may harm reputation.
- The imputation should be injurious to the person’s reputation in the eyes of others.
Types of Defamation
- Libel – Defamation in a written, printed, or published form (including digital platforms).
- Slander – Defamation through spoken words or gestures.
Both forms are covered under Section 356, without distinction in penalty.
Exceptions under BNS Section 356
The section carves out ten exceptions, protecting acts done in good faith or for public interest. Some notable ones include:
- Truth published for public good
- Fair criticism of public servants or public conduct
- Commentary on judicial proceedings
- Criticism of literary or artistic performances
- Cautions and warnings issued in good faith
These exceptions aim to balance freedom of expression with the right to reputation.
Punishment under BNS Section 356
The punishment for defamation under the BNS is:
- Simple imprisonment up to 2 years, or
- Fine, or
- Both
The offense is non-cognizable, bailable, and triable by a Magistrate of the First Class.
Significant Judicial Pronouncements
1. Subramanian Swamy v. Union of India (2016)
The Supreme Court upheld the constitutional validity of criminal defamation. It emphasized that Article 21 (right to life) includes the right to reputation, and this right must be preserved alongside freedom of speech under Article 19(1)(a).
2. M.A. Rumugam v. Kittu (2009)
The Supreme Court held that a mere expression of opinion does not amount to defamation unless it crosses the threshold of malicious intent.
3. Jeffrey J. Diermeier v. State of West Bengal (2010)
The Court reiterated that good faith and public interest are strong defenses in criminal defamation, and the burden of proof lies on the accused to establish these defenses.
Digital Era and Defamation
With the growth of digital media and social platforms, defamation has expanded beyond traditional print and speech. A tweet, blog, video, or meme can now constitute cyber defamation, making BNS Section 356 highly relevant in the age of online expression.
Careless or malicious content, even forwarded messages, may invite criminal liability if they tarnish someone’s image without basis or fall outside the statutory exceptions.
Filing a Criminal Defamation Complaint
An aggrieved person can initiate proceedings by filing a private complaint under Section 200 of the Code of Criminal Procedure (CrPC). The magistrate may then call for evidence, and if satisfied, issue a summons to the accused.
Given its non-cognizable nature, the police cannot investigate the matter without prior approval from the magistrate.
Civil vs. Criminal Defamation
| Aspect | Civil Defamation | Criminal Defamation (BNS Section 356) |
|---|---|---|
| Objective | Monetary compensation | Punishment (imprisonment/fine) |
| Legal Procedure | Civil Suit | Criminal Complaint |
| Burden of Proof | Preponderance of probability | Beyond reasonable doubt |
| Outcome | Damages awarded | Penal action (sentence) |
An individual may pursue both remedies simultaneously if both civil injury and criminal offense are involved.
Importance of BNS Section 356 Defamation in Present Context
BNS Section 356 plays a crucial role in preserving individual dignity, especially in a socio-cultural landscape where public perception matters significantly.
It acts as a deterrent against baseless allegations, smear campaigns, and reckless public statements. At the same time, the inclusion of detailed exceptions ensures that free speech and healthy criticism are not compromised.
Criticism and Debate
Many legal scholars and activists argue that criminal defamation can have a chilling effect on free expression. It is often invoked against journalists, whistleblowers, or political dissenters.
Despite such criticism, courts in India have continued to uphold its constitutional validity, reiterating the importance of a balanced approach between speech and reputation.
Practical Illustration
Assume a person uploads a YouTube video falsely accusing a local doctor of medical negligence. The video goes viral, causing the doctor immense social and professional damage. If the accusations are unsubstantiated and made maliciously, the doctor can file a case under BNS Section 356.
However, if the video was based on truth, backed by evidence, and published for public interest, the uploader may be protected under the exceptions.
Conclusion
BNS Section 356 – Defamation is a robust legal provision designed to safeguard personal reputation. In a democratic society, freedom of speech must coexist with the responsibility not to harm others’ dignity.
While criticism and free opinion are essential pillars of democracy, malicious defamation is not protected. Section 356 ensures accountability in public discourse, both offline and online.
In the age of rapid communication, awareness about legal boundaries of expression is essential. Every citizen must be cautious, especially while sharing or publishing information that could potentially affect someone’s standing in society.
Disclaimer
This article is intended for informational purposes only and does not constitute legal advice. Readers are advised to consult a qualified legal professional for advice specific to their situation.
