KembaraXtra - Bharatiya Nyaya Sanhita - Defamation under Section 356

Q1. What is defamation under Section 356 of the Bharatiya Nyaya Sanhita?

Answer:

Section 356 of the Bharatiya Nyaya Sanhita (BNS) defines defamation as making or publishing an imputation concerning any person with the intention, knowledge, or reason to believe that such imputation will harm that person's reputation.

The provision expressly requires the presence of mens rea (guilty mind) and also provides ten statutory Exceptions, which protect certain statements made in circumstances recognised by law.

Defamation is an offence against a person's reputation, which the law considers a valuable personal right.

Example / Application:

A person knowingly publishes a false article accusing a businessman of fraud, intending to damage the businessman's reputation. If none of the statutory Exceptions apply, the publication amounts to defamation under Section 356.

Q2. Is defamation both a criminal offence and a civil wrong?

Answer:

Yes. In India, defamation gives rise to both criminal and civil liability.

Criminal Defamation is governed by Section 356 of the Bharatiya Nyaya Sanhita, where the offender may be prosecuted and punished.

Civil Defamation is governed by the Law of Torts, where the injured person may claim monetary compensation for the damage caused to their reputation.

These two remedies are independent of each other.

Example / Application:

A newspaper publishes false allegations against a doctor. The doctor may:

File a criminal complaint under Section 356 seeking punishment of the publisher; and

File a civil suit claiming compensation for the injury to reputation.

Q3. Can an aggrieved person file both a criminal case and a civil suit for defamation?

Answer:

Yes. A person whose reputation has been harmed may simultaneously pursue:

A criminal prosecution under Section 356 of the Bharatiya Nyaya Sanhita; and

A civil suit for damages under the Law of Torts.

Both proceedings are legally maintainable because they serve different purposes.

Criminal proceedings punish the offender.

Civil proceedings compensate the victim.

Example / Application:

A journalist falsely accuses a company director of financial misconduct. The director may prosecute the journalist for criminal defamation while also claiming compensation through a civil suit.

Q4. Does withdrawing a criminal complaint prevent a civil suit for defamation?

Answer:

No. The withdrawal or compromise of a criminal complaint, even after receiving an apology, does not automatically prevent the filing of a civil suit for damages.

However, if the parties enter into a written agreement expressly providing that no civil action will be brought, the aggrieved person may be bound by that agreement.

Example / Application:

A newspaper publishes a defamatory article and later issues a public apology. The victim withdraws the criminal complaint but has not signed any agreement giving up the right to claim damages. The victim may still institute a civil suit for compensation.

Q5. What are the essential ingredients of the offence of defamation?

Answer:

The offence of defamation consists of the following essential ingredients:

Making or publishing an imputation concerning a person.

The imputation must be made by:

Words spoken;

Words written;

Signs; or

Visible representations.

The accused must have acted with the intention, knowledge, or reason to believe that the imputation would harm the person's reputation.

The case must not fall within any of the ten statutory Exceptions under Section 356.

Example / Application:

A person circulates a false poster accusing a neighbour of theft, intending to damage the neighbour's reputation. Since the allegation is made through a visible representation and is intended to harm reputation, the ingredients of defamation are satisfied.

Q6. In what forms can a defamatory imputation be made?

Answer:

Section 356 recognises that a defamatory imputation may be communicated through various forms, including:

Words spoken (oral statements).

Words written (letters, books, newspapers, emails, or social media posts).

Signs (gestures or symbolic acts).

Visible representations (photographs, cartoons, drawings, caricatures, videos, or other visual depictions).

Thus, defamation is not limited to spoken or written words.

Example / Application:

A person publishes a manipulated photograph falsely suggesting that another individual committed a crime. The image constitutes a visible representation capable of amounting to defamation.

Q7. Why is mens rea important in the offence of defamation?

Answer:

Section 356 expressly requires mens rea, meaning the accused must have:

Intended to harm another person's reputation;

Known that the statement would probably harm the person's reputation; or

Had reason to believe that such harm would result.

Without the required mental element, criminal liability for defamation may not arise.

Example / Application:

A person unknowingly republishes false information believing it to be genuine and without any intention or reason to believe it would harm another's reputation. The absence of the required mens rea may be relevant in determining criminal liability.

Q8. Why is Section 356 important?

Answer:

Section 356 provides a comprehensive legal framework for protecting a person's reputation while safeguarding the constitutional right to freedom of speech and expression.

The provision:

Defines the offence of defamation.

Requires proof of the necessary mens rea.

Recognises different forms of defamatory communication.

Provides four Explanations clarifying the scope of the offence.

Includes ten statutory Exceptions protecting truthful, fair, and good-faith communications.

This balanced approach ensures that honest criticism and legitimate public discussion are protected, while malicious attacks on reputation remain punishable.

Example / Application:

A journalist honestly reports judicial proceedings or fairly criticises a public servant's official conduct. Although these statements may affect reputation, they may be protected under one of the statutory Exceptions to Section 356.

Key Ingredients of Defamation

To constitute the offence of defamation under Section 356, the following ingredients must be present:

Making or publishing an imputation.

The imputation must concern a specific person or identifiable persons.

The imputation may be made by:

Spoken words.

Written words.

Signs.

Visible representations.

The accused must possess the required mens rea, namely:

Intention to harm reputation;

Knowledge that reputation is likely to be harmed; or

Reason to believe that reputation will be harmed.

The case must not be protected by any of the ten statutory Exceptions.

Key Takeaway

Section 356 of the Bharatiya Nyaya Sanhita defines defamation as making or publishing an imputation concerning another person with the intention, knowledge, or reason to believe that it will harm that person's reputation. Defamation is both a criminal offence under the Bharatiya Nyaya Sanhita and a civil wrong under the Law of Torts, allowing an aggrieved person to pursue criminal prosecution, a civil suit for damages, or both. The offence requires proof of specific statutory ingredients and is subject to four Explanations and ten Exceptions, ensuring a balance between protection of reputation and freedom of speech and expression.