Section 199(2) of the CrPC- In a landmark decision the High Court of Madras, on May 21, 2020, in the case of N Ram v State of Tamil Nadu[1], quashed 28 complaints of criminal defamation against several editors and journalists. The complaints were lodged in 2012 overs reports against the then Chief Minister of the State J Jayalalithaa.
What is Defamation?
Defamation is a false statement of fact that can harm the reputation of a person, where the statement is spoken or published with a mala fide intention. It is an intentionally spoken false statement to decrease the reputation and confidence that the person holds. Defamation is said to have occurred when the character or business reputation of someone is called in question. Defamation can be written (libel) or spoken (slander).
Laws against Defamation in India
In India defamation of a person is both a criminal as well as a civil wrong. A person defamed can seek remedy in form of monetary compensation from the accused under the civil law and in form of punishment under the criminal law. Section 499 of the IPC provides for criminal defamation. Section 500 of the same deals with the punishment for the offence of defamation. A person found guilty of criminal defamation can be sent to jail for a period of two years.
Defamation is a compoundable, non-cognizable offence. In criminal defamation the element of mens rea that is intention is necessary. The accused must have an intention to harm the reputation of the person against whom the words have been spoken or published.
Section 199: A brief introduction
The section 199 of CrPC, 1973 talks about the prosecution for the offence of defamation. The sub-section 1 of section 199 states that no court should take cognizance of an offence which is punishable under chapter XXI of the IPC, except on the complaint of the aggrieved party.
According to Section 199(2), when any offence under chapter XXI of the IPC is committed against a person who at the time of commission of the said offence belongs to any of the constitutional functionaries or public service mentioned in the sub section, the court may take cognizance of such offence based on a complaint in written made by the public prosecutor. A very important facet of this sub section is that the statement made by the accused should be in relation to the discharge of public functions of the said public servant.
Sub-section 3, 4, and 5 further provide clarity on sub-section 2.
Section 199 (3) states that the nature of the offence and such other such particulars of the offence must be reasonably sufficient to give notice to the accused.
Sub-section 4 states that for a complaint made under the sub-section 2, the public prosecutor needs to obtain previous sanction from:
- Of the State government, for a person who is or has been a Governor of that state or a Minister of that government.
- Of the State government, in the case of any other public servant employed in the connection of state government.
- Of the Central government, in any other case.
Sub-section 5 states that no Sessions Court must take cognizance of an offence under sub-section 2 unless the complaint is made within six months of the date of commission of alleged crime.
While the sub-section 2 is for launching prosecution when the defamation is against the state, the sub-section 6 is for personal defamation and also includes cases where a public servant or a constitutional functionary is defamed but not the state. In the case of Kartar Singh v State of Punjab[2], the court held that vulgar abuses hurled at the Chief Minister and the Transport Minister do not amount to defamation of the state but may amount to defamation of the concerned functionaries and are therefore personal in nature.
What is section 199(2) of the CrPC?
Reputation is considered a part of the man just like his limbs and arms. Reputation of a person is his personal right. When a person’s reputation is derogated, his personality is injured, his personal absolute right is injured.
In Subramanian Swamy v Union of India[3], the Court held that there cannot be defamatory remarks on public functionaries mentioned in this sub-section because of discharge of their due function. In this sense they are said to hold a different class.
The court distinguished criticism from defamation and observed that while one is bound to tolerate dissenting opinions and criticism, he cannot be expected to tolerate defamatory attacks.
Here is a brief discussion on the essential constituents of the sub-section 2:-
Public Prosecutor
In Bairam Muralidhar vs. State of AP[4], the Court stated that the role of a public prosecutor is not that of a post man of the state government. The public prosecutor is expected to apply his mind, consider the material and have good faith. He should not be a machine instead have an independent opinion. He should remember his duty and lawful obligations to the court as well as to the collective.
Sanctioning power of the State
In the case of Central Bureau of Investigation v Ashok Kumar Agarwal[5], the Hon’ble Supreme Court observed that the sanctioning authority has a duty to give or withhold sanction only after it has gained the full knowledge of the material facts of the offence.
The order of sanction granted by the state must ex facie prove that the state had considered the materials and evidence placed before it before granting the sanction. It should not be done as a mere formality. There should be application of mind by the state before granting the sanction.
In the case of N Ram v Union of India, the Hon’ble court stated that the state cannot be impulsive like an ordinary citizen in cases involving defamation. It can invoke section 199(2) only in the cases where there is fool proof material and launching of prosecution under this section is inevitable. This section should not be invoked by the state to ‘throttle democracy’.
Cognizance by the Court
The level of scrutiny by a Sessions Judge is greater than that of the magistrate in section 199(6) because there is no police report or charge sheet available unlike the cognizable offences.
Hence to avoid misuse of this provision the Sessions Judge can even order for further investigation. Only when satisfied with the material and evidence should the Sessions Judge take cognizance of the complaint.
In N Ram v Union of India, the Hon’ble Supreme Court observed that the Sessions Court cannot just mechanically take up the case instead it should apply its judicial mind to assess the material.
Misuse of Section 199(2)
‘Everyone has right to freedom of speech and expression; this right includes freedom to hold opinion and to seek receive and impart ideas and information through any media and regardless of frontiers’
–Article 19, United Nations, Universal Declaration on Human Rights
There have been many instances where the state granted the sanction to the public prosecutor wrongly to settle score and to shut the free voices present in the state.
In the case of Bennett Coleman v State of Jammu and Kashmir[6], the Hon’ble Supreme Court held that the right to criticize people holding public offices and the right to criticize the public policies comes under the right to comment on public affairs.
In the case of R. Rajagopal v State of Tamil Nadu[7], when few public officials tried to stop publication of the autobiography of a prisoner saying it may defame the state, the expression of the subsection was expanded by the Court stating that the state cannot prevent publication of a possibly defamatory article. The state and its officials do not have the right to impose prior restraint on articles that may be defamatory to the state.
In the case of N Ram v Union of India, the court quashed the criminal complaints against the editor of the Hindu and other reporters stating that the reports published by the appellants lacked the intention to harm the reputation of the respondent and nor was there was any harm to the reputation. Hence both the elements of mens rea and actus rea were stated to be absent. The Court stated that the criminal defamation law is meant for real laudable subjects in cases of real necessity and should not be misused to settle scores.
Conclusion
Section 199(2) is an efficient check on the Article 19(a) which of lately is being misused to pass any statement on anyone without checking the veracity of the same. But the state should keep in mind that criticism of the government or an opinion mentioning loopholes in a government’s state policy does not necessarily mean defamation. Before granting the sanction to the public prosecutor, it should check whether the core ingredient of ‘defamation of the state’ is present or not. The state government should sparingly use section 199(2).
The Hon’ble Court very accurately compared the state to the parents of its citizens and urged the state to develop their tolerance level akin to that of a parent in cases of defamation.
Sources:
[1] AIR 2017 UP 3395
[2] 1962 SCR (2) 395
[3] (2017) 7 SCC 221
[4] (2014) 10 SCC 380
[5] 2001 CriLJ 1905
[6] 1975 CriLJ 211
[7] 1995 AIR 264
This blog is written by Mansi Mishra, Damodaram Sanjivayya NLU
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