Chapter IV.: Defamation.

Preliminary Note.—In dealing with assault and false imprisonment, the definitions of the Penal Code have been followed. With regard to defamation, it is much more difficult to determine the course to be taken. The common law presents—

As to (1), the Penal Code makes no distinction between slander and libel. In this I think it ought to be followed. The common law rules defining what words are and are not “actionable per se” seem to have been already disregarded in practice in suits between natives in British India.

As to (2), the Penal Code does not make wrongful intention, but does make knowing or having reason to believe that the imputation uttered will harm the reputation of the person it concerns, an essential part of the offence. It seems doubtful whether for the purpose of civil liability this caution is necessary. The test of words being defamatory or not is, according to English authority, an “external” one; the question is what their natural effect would be, not whether the utterer knew or might have known it; see per Lord Blackburn in Capital and Counties Bank v. Henty, 7 App. Ca., at pp. 771-72. Practically it can seldom make any difference in which form the question is put, but the language of the Penal Code, if applied to civil liability, would be open to misconstruction. On the other hand, the Explanations of the Penal Code, section 499, seem dangerously wide.

(3) As to exceptions, in the Penal Code (following English criminal law) truth is a justification only if the publication is for the public good. Such is not the English rule as to civil liability; the truth of the imputation, on whatever occasion and for whatever purpose made, is an absolute defence. And this appears to be accepted in civil suits in British India. The other exceptions are not free from over-definition, and, if they were adopted for civil purposes, troublesome questions might arise as to their effect on the existing law.

There are obvious inconveniences in having the criminal offence and the civil wrong of defamation differently defined. But these seem less than the inconvenience of following the Penal Code; and it seems best, on the whole, to take an independent line, with an express warning that the civil and criminal rules are to be kept distinct. If the text of the Penal Code were now adopted for civil purposes, British India would either lose the benefit of modern English jurisprudence, or (what seems more likely) the text of the Code would be strained to make it fit the English decisions.

(4) The peculiar difficulty of distinguishing questions of fact from questions of law depends on the relation of the judge to the jury in a trial by jury, and therefore does not arise in British India.

In the event of the Government of India being of opinion that the Penal Code ought to be substantially followed, these alternative clauses are submitted:—

A. Every one who defames any person within the meaning of the Indian Penal Code, s. 499, commits a wrong for which he is liable to that person.