Defamation (Sections 499–502 IPC)

Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS) — re-enacting Sections 499 to 502 of the Indian Penal Code, 1860 (IPC) — codifies the criminal law of defamation in India. The four old IPC sections have been folded into a single BNS section with four sub-sections: Section 356(1) BNS reproduces the definition (Section 499 IPC), Section 356(2) BNS the punishment (Section 500 IPC) — with the addition of community service as an alternative penalty, Section 356(3) BNS the printing offence (Section 501 IPC), and Section 356(4) BNS the sale offence (Section 502 IPC). The structural compression is a textual tidying-up; the substantive law of defamation, the four Explanations, and the ten statutory Exceptions are carried into the BNS without alteration. The wider Indian Penal Code and BNS framework on offences against the person continues to host this cluster.

The doctrinal core of the offence is the protection of reputation. The Supreme Court in Mehmood Azam v. State, AIR 2012 SC 2573, treated the right to reputation as a facet of the right to life under Article 21 — a constitutional anchor that the Court relied on in Subramanian Swamy v. Union of India, 2016 Cr LJ 3214, to uphold the constitutional validity of the criminal-defamation regime against the challenge that it violated the freedom of speech under Article 19(1)(a). The reasoning is settled: criminal defamation is a permissible reasonable restriction under Article 19(2) and serves the social interest of protecting reputation as a personal-security right.

Statutory anchor and the BNS scheme

Section 356(1) BNS reproduces Section 499 IPC verbatim. Whoever, by words spoken or intended to be read, by signs, or by visible representations, makes or publishes any imputation concerning any person intending to harm — or knowing or having reason to believe that such imputation will harm — the reputation of such person, is said, except in the cases excepted, to defame that person. The definition is followed by four Explanations and ten statutory Exceptions. Section 356(2) BNS prescribes the punishment: simple imprisonment up to two years, or fine, or both, or community service. Section 356(3) BNS punishes the printing or engraving of matter known to be defamatory. Section 356(4) BNS punishes the sale of a substance known to contain defamatory matter.

The single substantive change worth flagging is the introduction of community service as an alternative to imprisonment and fine in Section 356(2) BNS. The change reflects the wider BNS innovation of bringing community service into the sentencing menu for low-gravity offences — see the discussion in the community-service chapter. The trial court can now, in an appropriate case, sentence a defamation convict to community service rather than imprisonment, which is particularly suited to first-time offenders and to cases involving casual or impulsive speech that does not warrant a custodial term.

The four Explanations to Section 356(1) BNS

Explanation 1 makes it defamation to impute anything to a deceased person, if the imputation would harm the reputation of the deceased if living, and is intended to be hurtful to the feelings of the family or near relatives. The Indian rule is therefore broader than the English common law, which historically treated defamation as a personal action that died with the person.

Explanation 2 makes it defamation to make an imputation concerning a company or an association or collection of persons as such. The collective-imputation rule is the doctrinal hook used in cases of imputations against trade associations, professional bodies, and identifiable groups. The imputation must, however, target the group as such — vague references to a general class do not suffice unless the targeted persons can be identified.

Explanation 3 covers the imputation in the form of an alternative or expressed ironically. The defamatory edge of an utterance is not lost merely because it is wrapped in irony or alternation. The text gives the classic illustration: A says "Z is an honest man; he never stole B's watch", intending it to be believed that Z did steal B's watch. The utterance is defamation despite the surface compliment.

Explanation 4 is the operative test of "harm to reputation". An imputation is said to harm a person's reputation if, in the estimation of others, it lowers his moral or intellectual character; or lowers his character in respect of his caste or calling; or lowers his credit; or causes it to be believed that his body is in a loathsome state, or in a state generally considered disgraceful. The test is community-perception based — the imputation must lower the person in the eyes of others, not merely upset the person himself.

The three essentials and the publication requirement

The Supreme Court in BRK Murthy v. State, 2013 Cr LJ 1602 (AP), set out the three essentials of defamation: first, the words must be defamatory; second, they must refer to the aggrieved party; third, they must be maliciously published. The publication requirement is essential — the imputation must be communicated to a third person. A defamatory letter sent only to the person defamed is not defamation; communication to a third party is the gist of the offence. The reasoning aligns the criminal definition with the civil-law principle that publication is the ingredient that produces the harm to reputation.

The maker and the publisher are both liable. Section 356(1) BNS uses both the words "makes" and "publishes" — a deliberate choice to fasten liability on the originator of the imputation as well as on the person who disseminates it. The newspaper editor, the radio broadcaster, the television anchor, the social-media reposter, and the original author may each be charged. The cognate offence under Section 356(3) BNS catches the printer or engraver, and Section 356(4) BNS catches the seller. The chain of liability runs from creation to circulation.

The ten statutory Exceptions — overview

The Exceptions to Section 356(1) BNS are the field within which most defamation litigation is fought. They are not afterthoughts; they are integral parts of the offence. The accused who falls within an Exception is not guilty of defamation in the first place — the Exception negates the offence rather than excusing it. The Supreme Court has repeatedly held that the burden of bringing oneself within an Exception lies on the accused, but the standard is the civil standard of preponderance of probabilities, not the criminal standard of beyond reasonable doubt. The Exceptions are exhaustive: a defence not falling within one of the ten cannot succeed, however worthy on the merits.

Truth and public good — the First Exception

The First Exception requires both truth and public good. The English common-law defence of justification (truth alone) is not enough under Indian criminal-defamation law — the truthful imputation must also be one that the public good required to be made or published. The two-element test is the Code's calibrated response to the recognition that not every truth deserves to be told. A truthful but private imputation that serves no public purpose remains defamation. The trial court evaluates public good as a question of fact, with reference to the position of the person defamed, the position of the speaker, and the social context of the publication.

Public conduct of public servants — the Second and Third Exceptions

The Second Exception protects opinions expressed in good faith respecting the conduct of a public servant in the discharge of his public functions, or his character so far as it appears in that conduct. The Third Exception extends the same protection to opinions on the conduct of any person on a public question and on his character so far as it appears in that conduct. The two Exceptions together protect the political speech that the cognate criminal-intimidation regime in Section 351 BNS and Sections 189 to 197 BNS on offences against public tranquillity would otherwise leave exposed. The qualifying language is "good faith" — defined in Section 2(11) BNS as nothing being said or done without due care and attention.

Reports of court proceedings and merits of decided cases — the Fourth and Fifth Exceptions

The Fourth Exception protects the publication of a substantially true report of proceedings of a court of justice, or of the result of any such proceedings. The protection extends to inquiries before a Justice of the Peace or other officer holding an inquiry in open court preliminary to a trial. The Fifth Exception protects opinions expressed in good faith on the merits of any case, civil or criminal, decided by a court of justice, or on the conduct of any party, witness or agent in the case. The two Exceptions together secure the constitutional value of open justice — the public interest in being able to follow and discuss what happens in court — without exposing the press and the public to liability for accurate reporting.

Performance reviews and lawful authority — the Sixth and Seventh Exceptions

The Sixth Exception protects opinions in good faith on the merits of any performance which the author has submitted to public judgment — books, speeches, films, plays, music, and so on. The protection is the criminal-law parallel to the civil-law fair-comment defence. The opinion must respect the character of the author only so far as it appears in the performance, no further. The Seventh Exception protects censure passed in good faith by a person having lawful authority over another in matters to which the authority relates — the judge censuring a witness, the head of department censuring a subordinate, the parent censuring a child, the schoolmaster censuring a pupil, the master censuring a servant.

Accusations to authority and protection of interests — the Eighth and Ninth Exceptions

The Eighth Exception protects an accusation in good faith preferred against any person to one who has lawful authority over that person in respect of the subject matter of the accusation. The complaint to the police, the report to the employer, the petition to the magistrate, the report to the regulator — all are within the Exception, provided the accuser acted in good faith. The Ninth Exception protects an imputation made in good faith on the character of another for the protection of the interests of the person making it, or of any other person, or for the public good. The shopkeeper's caution to his manager about a customer's solvency, the magistrate's report to his superior about another officer's conduct — both are classic illustrations.

The Tenth Exception — caution for good

The Tenth Exception protects a caution conveyed in good faith to one person against another, intended for the good of the recipient or of some person in whom the recipient is interested, or for the public good. The Exception covers the parent's caution to a child about a friend, the elder's caution to a younger relative about a marital prospect, and the warning to a stranger about a known fraudster.

Constitutional validity — Subramanian Swamy

The constitutional validity of Sections 499 and 500 IPC was challenged before a two-judge bench of the Supreme Court in Subramanian Swamy v. Union of India, 2016 Cr LJ 3214. The Court (Dipak Misra and Prafulla C. Pant JJ.) upheld the provisions. The reasoning rested on three pillars. First, the right to reputation is itself a fundamental right under Article 21, and the criminal-defamation regime is a constitutionally permissible mechanism for its protection. Second, the right to free speech is not absolute and is subject to the reasonable restrictions in Article 19(2), including "defamation". Third, the ten Exceptions in Section 499 IPC supply a sufficiently calibrated framework that prevents the criminal-defamation provision from operating as a disproportionate restraint on speech. The reasoning has been carried into the BNS framework with no constitutional doubt.

Procedure — Section 222 BNSS / Section 199 CrPC

The procedure for defamation prosecutions is governed by Section 222 BNSS (previously Section 199 CrPC). No court takes cognizance of an offence under Section 356 BNS except upon a complaint by some person aggrieved. Where the aggrieved person is the President, Vice-President, Governor of a State, Administrator of a Union Territory or a Minister or other public servant in respect of his conduct in the discharge of his public functions, the Public Prosecutor may file the complaint with the previous sanction of the State or Central Government as the case may be. The complaint must be filed within a limitation period of three years under the BNSS schedule (previously Section 468 CrPC).

Section 356 BNS is a non-cognizable, bailable offence triable by a Court of Session in cases involving the Governor and other dignitaries, and otherwise by a Magistrate of the First Class. The offence is compoundable with the consent of the aggrieved party. The cognate provisions on false evidence under Sections 227 to 269 BNS are commonly engaged where the parties advance fabricated counter-narratives.

Civil and criminal defamation in parallel

The criminal regime under Section 356 BNS runs in parallel with the civil regime of damages for defamation under the law of torts. The two are distinct in standard of proof, in available remedies, and in burden of proof. The civil action is on the preponderance-of-probabilities standard with damages as the remedy; the criminal action is on the beyond-reasonable-doubt standard with imprisonment, fine or community service as the consequence. A civil suit and a criminal complaint may be pursued in parallel; the civil court does not stay the proceedings on the ground of pendency of criminal proceedings or vice versa, except in narrow circumstances.

Defences and sentencing

The defences in a defamation prosecution fall into two layers. The first layer is the absence of one or more essentials — the words were not defamatory, they did not refer to the complainant, they were not published. The second layer is the ten statutory Exceptions. Beyond these, the cognate general exceptions framework of Sections 14 to 44 BNS applies in principle but rarely succeeds — mistake of fact under Section 14 BNS is occasionally pleaded but is hard to establish; private defence does not extend to verbal aggression; and consent under Section 26 BNS is a defence only if the publication was authorised by the person defamed.

Sentencing is moderate. Section 356(2) BNS carries up to two years, fine, or community service, or any combination. Trial courts typically impose a fine for first-time offenders and community service for cases involving casual speech. Imprisonment is reserved for cases involving deliberate, repeated, or commercially motivated defamation. The wider sentencing framework of Sections 4 to 13 BNS on punishments applies; community service under Section 4(f) BNS is now expressly available for this offence.

Cognate offences and the wider speech-and-reputation field

Defamation sits in a wider field of speech-related offences. Section 351 BNS on criminal intimidation applies where the imputation is accompanied by a threat. The provisions on offences relating to religion under Sections 298 to 302 BNS apply where the imputation targets religious sentiment. The unlawful assembly and rioting provisions of Sections 189 to 197 BNS apply where the publication incites public disorder. The Information Technology Act, 2000, applies in parallel for online publications, with Section 66A having been struck down in Shreya Singhal v. Union of India, (2015) 5 SCC 1, but the wider regime of intermediary liability and online speech being intact. The cognate abetment provisions of Sections 45 to 60 BNS apply to those who facilitate the defamatory publication.

The good-faith requirement — Section 2(11) BNS

Several Exceptions hinge on the accused having acted "in good faith". The expression is defined in Section 2(11) BNS — nothing is said to be done or believed in good faith which is done or believed without due care and attention. The standard is therefore objective and not merely subjective. The accused who acted impulsively, without checking facts, without weighing the consequences, fails the good-faith test even if his subjective belief in the truth of the imputation was sincere. The Supreme Court has applied the standard most rigorously in journalism cases — a reporter who publishes a serious imputation without making reasonable enquiries cannot rely on Exceptions Two, Three, Five, Six, Seven, Eight, Nine or Ten, however genuinely he believed the imputation to be true and however worthy his motive.

The Court's reading of "due care and attention" is calibrated to the position of the speaker. Higher standards of enquiry are expected of professional publishers than of ordinary citizens. A newspaper, with editorial staff and access to sources, is held to a higher standard than a passer-by who repeats what he has heard. The cognate distinction in defamation litigation between the originator and the secondary publisher tracks this calibration: the secondary publisher who merely repeats what is in circulation may have a thinner duty of enquiry, but cannot escape liability altogether by pleading ignorance of falsity.

Online publication and the digital field

The criminal-defamation regime under Section 356 BNS applies to online publications in the same way as it applies to print and broadcast. A defamatory tweet, blog post, social-media reel, or messaging-app forward attracts Section 356 BNS if it satisfies the three essentials and falls outside the ten Exceptions. The Supreme Court in Shreya Singhal v. Union of India, (2015) 5 SCC 1, struck down Section 66A of the Information Technology Act, 2000 — which had criminalised "grossly offensive" online speech — as overbroad. Section 356 BNS, by contrast, was upheld in Subramanian Swamy precisely because its calibrated Exceptions and the publication-to-third-party requirement narrowed its operation. The cumulative result is that online defamation is now prosecuted under Section 356 BNS as the principal head, with the Information Technology Act applying for collateral matters such as intermediary liability and procedural rules for the takedown of defamatory content.

Exam angle and quick recap

For any objective question on this cluster, the four anchors are: the four Explanations to Section 356(1) BNS (deceased persons, collectives, ironic alternatives, the harm-to-reputation test); the ten Exceptions and the good-faith requirement that runs through most of them; the constitutional validity ruling in Subramanian Swamy; and the BNS innovation of community service as an alternative sentence under Section 356(2) BNS. For prelims-style questions the most often-tested points are the requirement of publication to a third party, the truth-plus-public-good test in the First Exception, and the three-essentials framework in BRK Murthy. For mains-style answers, the constitutional debate around the criminalisation of defamation and the tension with free speech under Article 19(1)(a) are the headline policy frame.

Frequently asked questions

Is truth a complete defence to a charge of defamation under Section 356 BNS?

No. The First Exception to Section 356(1) BNS requires both truth and public good. The English common-law defence of justification (truth alone) is not enough under Indian criminal-defamation law — the truthful imputation must also be one that the public good required to be made or published. The two-element test is the Code's calibrated response to the recognition that not every truth deserves to be told. A truthful but private imputation that serves no public purpose remains defamation. The trial court evaluates public good as a question of fact, with reference to the position of the person defamed, the speaker, and the context.

Did the Supreme Court uphold the constitutional validity of criminal defamation?

Yes. In Subramanian Swamy v. Union of India, 2016 Cr LJ 3214, a two-judge bench of the Supreme Court (Dipak Misra and Prafulla C. Pant JJ.) upheld Sections 499 and 500 IPC against the challenge that they violated Article 19(1)(a). The Court reasoned that the right to reputation is itself a fundamental right under Article 21, that the right to free speech is subject to the reasonable restriction of 'defamation' under Article 19(2), and that the ten Exceptions in the section supply a sufficiently calibrated framework. The reasoning has been carried into the BNS framework where Section 356 BNS reproduces the same provisions.

What is the difference between the maker and the publisher of a defamatory imputation?

Both are liable under Section 356(1) BNS. The section uses both 'makes' and 'publishes' — a deliberate choice to fasten liability on the originator of the imputation as well as on the person who disseminates it. The author of a defamatory book, the editor of a newspaper that runs it, the printer who prints it, the seller who sells it, and the social-media user who reposts it may all be charged. Sections 356(3) and 356(4) BNS specifically catch the printer/engraver and the seller, supplementing the general rule of joint liability under Section 356(1) BNS.

Can a company be defamed under Section 356 BNS?

Yes. Explanation 2 to Section 356(1) BNS makes it defamation to make an imputation concerning a company or an association or collection of persons as such. The collective-imputation rule extends the protection of the offence to legal entities and to identifiable groups. The imputation must, however, target the group as such — vague references to a general class do not suffice unless the targeted persons can be identified. The complaint may be filed by an authorised representative of the company or by a person aggrieved on behalf of the collective.

What is the new community-service sentencing option under Section 356(2) BNS?

Section 356(2) BNS adds community service as an alternative to imprisonment and fine. The change reflects the wider BNS innovation of bringing community service into the sentencing menu for low-gravity offences. The trial court can now, in an appropriate case, sentence a defamation convict to community service rather than imprisonment, which is particularly suited to first-time offenders and to cases involving casual or impulsive speech that does not warrant a custodial term. The exact form of community service is determined by the trial court, with reference to the broader framework of Section 4(f) BNS on community service as a sentence.