The Libel – Slander Distinction and the Indian Law

What is the position of law in India as regards the distinction between libel and slander? The position of law in India is different from that of England. The difference is mainly in the law relating to slander. As opposed to Common Law, where slander is not actionable per se except for a few highly technical situations27 in India both libel and slander are treated at par i. e. no special damages need to be proved to maintain an action for slander. Added to this, as per Section 499 of the Indian Penal Code both libel and slander are criminal offences.

The Indian Law Commission headed by Lord Macaulay demonstrated the inconsistency and irrationality of the English law pertaining to defamation. The recommendation to not include the distinction was accepted and approved by the British Indian Legislature, who justified their stand saying that the rule was "not founded on natural justice and should not be imported into British India. " They rejected the Crown's stand that no civil remedy can be availed of unless pecuniary damages are proved.

Instead they came up with the concept that if a person has a reasonable apprehension that the alleged slanderous statement made will injure his reputation, under the given time and circumstances, as a consequence of which he undergoes a mental hardship, he has a valid claim. 29 Similar to the exceptions that are prevalent in England, cases in India fall under the following categories as regards to slander; (1) imputation of crime, (2) imputation of unchastity to women, (3) vulgar abuse and (4) aspersions on caste. 30

In the case of imputation of a criminal act, an action is maintainable for a cognizable offence. If, however, the words alleging slander are made in a bout of anger or haste or in such a like manner; or if they are so incredible that no person would believe in them; then such words are not actionable. 31 An imputation of unchastity to a woman is actionable per say in England under the Slander of Women Act, 1891. 32 This law however does not extend to India but is applicable "only as nearly as the circumstances of the place and the inhabitants admitted". 33 In Sukan Teli v.

Bipal Teli34 the High Court of Calcutta held that such words were actionable without proof of special damage. 35 A similar judgement was passed by the Madras High Court in Narayana Sah v. Kannamma Bai. 36 Any imputation that a person belongs to a lower caste, when in fact he does not, and such imputation not being bona fide, entitles a plaintiff to recover damages. If such imputations are made of a woman her husband may recover too, as such an imputation implies that that husband married into a lower caste. 37 The position of Indian law on vulgar abuse is most distinct from common law.

A distinction has been made as regards speech which is only insulting and abusive and that which is insulting as well as defamatory. While in the former case, English law has been adopted and there is no cause for action; in the case of the latter, there has been a complete and welcome departure from common law. If the imputation is insulting as well as slanderous, action lies without proof of special damages. 38 The leading case in this is that of Parvathi v. Mannar. 39 In this case the defendant alleged that the plaintiff was not the legally married wife of her husband and that she was unchaste.

Held that the defendant was liable; for though words that are merely insulting and cause mental distress are not actionable, words that are insulting as well as defamatory – casting direct aspersions on a persons character – and lead to mental distress and actionable without special damages. In this case the common law rule was not followed in India. The decision is this case has been followed on numerous occasions. Four years later, in Dawan Singh v. Mahip Singh,40 the High Court of Allahabad further emphasised the distinction between the common law and the law in India regarding the libel – slander distinction.

The above to precedent was upheld Harakh Chand v. Ganga Prasad Rai41 where the Allahabad High Courts held that; "an abuse uttered in circumstance tending, if not vindicated, to lower the person addressed in the estimation of the people present or to bring him into ridicule or contempt, will amount to defamation and is actionable without proof of special damage. "42 Therefore it can be observed that the law in India regarding the contentious issue of slander developed quiet differently from the law in England. Such a departure has been hailed by many.

However the question remains as to why this disparity exists between the law regarding libel and slander and whether such a disparity is justified. Chapter 3 The Debate: "Libel & Slander" – Two Torts or One? The libel – slander distinction has the makings of a very interesting debate. Libel being written was of a more permanent nature and the fact that the defamer to the trouble to put in down in writing was indicative of greater degree of malice; and was distinguished from slander which being oral was transient and hence not capable of causing as much harm to reputation. 43

Holdsworth upheld the distinction stating its advantages as follows (1) it shifted the importance of the cause for action from damage to the insult, (2) it pulled the courts out of the morass of deciding whether the words spoken could have led to a temporal damage as a natural consequence and (3) being actionable per se, the courts were no longer required to determine which special category a particular imputation fell into. 44 Not only did this achievement stabilise the provisions of the tort of defamation, but by abolition of the rule of mitiori sensu and various other necessary changes the law relating to slander was also corrected.

An unfortunate impact of the improvement though was the distinction that became permanent. As is apparent from the Thorley judgement, even the obvious logical reasons for the distinction were pushed into the background and forgotten once the law was reformed. In this case Mansfield C. J. would have liked to assimilate libel and slander but was prevented from doing so because it would have resulted in a return to the previous confusion that had existed. His decision was a result of circumstances. Hence today too, circumstances must dictate whether judges should uphold this "absurd" distinction.

Due to the advent of modern communications media such as televisions, radios, tape recorders, compact discs and gramphones and the internet into out lives the libel – slander distinction is becoming increasingly blurred. 45 The new forms of media though need to be categorised. A compact disk has a permanent form but any sound that emanates from it is experienced in a transient manner. Therefore is it libel or slander if a compact disk contains defamatory speech? 46 Due to this conflict the permanent – transient criterion now also includes audible – visual criterion.

Under this rule anything with an audible quality will constitute slander while that having a visual quality will constitute libel. 47 The same holds for the internet. It is generally accepted that what is illegal offline is illegal online as well, and that in general the current laws will hold good except with some modification. 48 Though in every new case that arose concerning modern technology, the court has managed to classify every situation into libel and slander how long will it continue to do so before these distinctions to take on the fine nature of the past? Libel and slander then need to be assimilated.

However the researcher believes that there can't be a permanent removal of the distinction, as some slanders do not deserve the degree of damages of others which holds true for libels as well. One cant advocate a complete revamping of the law, but instead of doing away with the distinction which is some scenarios might actually be valid, what should be done is the removal of the gross biasness that exists towards libel. That is, certain libels can be made actionable only on proof of special damages or the strictness of special damages in case of slanders can be removed in those countries where it exists.

This, the researcher believes is how the law relating to defamation should evolve further in order that the present confusion can be solved. Conclusion The libel – slander distinction arose due to a deficiency in the law that preceded it. As the distinction gained solid footing however its true meaning was made obscure by the various decisions passed in the courts. Moreover this obscure and incorrect distinction became the accepted norm, to the extent that it could not be changed even by the best of judges despite several attempts.

But the researcher believes that to make this distinction obsolete would return the law of defamation to its previous morass. Other viable steps must be taken to correct this seemingly absurd distinction. Hence, this distinction is too entrenched in the law to be completely discarded. It is justified, if implemented properly and if one considers the real reason as to why the distinction came about in the first place. However it must be modified to the extent that it incorporates the changes that have occurred in contemporary times and this is the next step that should be taken by the courts and judges in evolving the law of defamation.