Dr Banusri Velpandian
Senior Law Specialist
Bhavya Jha
Law Graduate
Co-author
Though it sounds very personal, the nature of harm caused to one’s reputation and dignity also has public aspect inherent to it. Even the Apex Court of our country gives reasoning that individuals constitute the community and the law relating to defamation protects the reputation of each individual in the perception of the public at large.
In this age of all pervasive freedom and preference to privacy, a delicate balance between free speech and expression that is considered to be a fundamental right, and certain reasonable restrictions have to be arrived at.
Starting July 1 last year, three criminal laws, of the British-era viz; The Indian Penal Code of 1860, the Code of Criminal Procedure of 1973 and the Indian Evidence Act, 1872 have been replaced by the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) respectively.
Not only are these laws a part of the Government’s efforts to decolonising our legal system, but they also seek to create a more accessible and efficient justice delivery mechanism. The laws are more comprehensive and in tune with the needs of the present-day system. For instance, the BNS places greater emphasis on national security and public order, removes colonial terminologies and expands the scope of some definitions in sexual offences. On the other hand, the BNSS has integrated technology into criminal proceedings, is transparent and more citizen-centric. The BSB makes a massive difference by adopting 21st Century evidence standards and greater reliance on electronic data.
This article specifically focuses on the basic principles and established norms related to harms caused to any ones’ reputation and associated dignity. It also focuses on the growing role of AI and IT in harming reputation, and to gain a basic understanding on the subject.
Harm to Reputation under India’s new Criminal Laws: Legal continuity, Digital threats, and Emerging jurisprudence
The right to reputation is fundamental for individual dignity and personal liberty, and is protected under Article 21 of the Indian Constitution. It operates in harmony with the freedom of speech and expression guaranteed under Article 19(1)(a), subject to reasonable restrictions under Article 19(2). The constitutionality of criminal defamation was also upheld by the Supreme Court in Subramanian Swamy v. Union of India, (2016) 7 SCC 221, stating that reputation is intrinsic to Article 21, and that reasonable restrictions under Article 19(2) are justified.
The implementation of the new criminal laws set in motion a transformative shift in its criminal justice framework. One key area of continuity and adaptation is the law relating to harm to reputation. Now that the world is perpetually online, and new technologies such as AI are emerging every day, the facets of both harm to and protection of reputation are increasingly evolving. In light of this, the matter of how the legal system deals with these issues becomes even more pertinent. As far as defamation under tort (Civil wrongs) law is concerned, as a general rule, the focus is on libel (i.e., written defamation) and not on slander (i.e., spoken defamation). In order to establish that a statement is libelous, it must be proved that it is (i) false, (ii) written; (iii) defamatory, and (iv) published.
Defamation under BNS: Retaining the Legacy of the IPC
The Bharatiya Nyaya Sanhita, 2023, which replaces the Indian Penal Code, retains the offence of criminal defamation under Section 354, reproducing nearly verbatim the language of Section 499 of the IPC. It defines defamation as ‘making or publishing any imputation concerning a person with intent or knowledge that it will harm their reputation.’ The punishment is prescribed under Section 354(2) as imprisonment up to two years, or fine, or both.
The essential elements in causing harm to reputation involve the following and it depends upon their interpretation:
a. Imputation and targeting.
b. Means of communication and causal link.
c. Harmful intent or knowledge or reason to believe. Further, the principle of noscitur a sociis, a Latin term meaning ‘it is known by its associates,’ is a rule of legal interpretation. It states that the meaning of an unclear or ambiguous word should be determined by considering the other words and phrases surrounding it
The ten exceptions listed under the IPC have been retained without any changes. This continuity ensures doctrinal consistency while simultaneously allowing for newer procedural and evidence mechanisms under BNSS and BSA. The exemption will also include certain privileged communications such as the statements made during Parliamentary proceedings.
The ten exceptions under Section 354 are:
1. Truth for Public Good: True statements made for the public good are not defamation.
2. Public Servant Conduct: Good faith opinions on a public servant’s official conduct are exempt.
3. Public Questions: Good faith remarks on a person’s conduct in public affairs are allowed.
4. Court Proceedings: Accurate reports of judicial proceedings are not defamatory.
5. Merits of a Case: Fair comments on the merits of a case or conduct of involved parties are exempt.
6. Public Performances: Honest reviews of works submitted to public judgment are not defamation.
7. Censure by Authority: Lawful censure by someone in authority made in good faith is protected.
8. Accusation to Authority: Complaints made in good faith to proper authorities are not defamation.
9. Protection of Interests: Imputations made in good faith to protect one’s or another’s interests are exempt.
10. Caution for Good: Warnings given in good faith for someone’s or public benefit are not defamatory.
Comparison with the IPC-Era
Even as the substantive content of the law on defamation remains the same, the procedural and evidentiary frameworks have changed. The BNSS introduces faster timelines for investigation and trial [BNSS, 2023, Chapter XII], which can expedite defamation cases.
Legal explainer: Chapter XII of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with police procedures for investigation, mirroring CrPC’s Chapter XII but with modern upgrades.
Key points for defamation cases:
● Section 173: FIRs must be registered promptly for cognizable offences.
● Section 176: Police can investigate such cases without court approval.
● Section 193: Sets strict timelines – 60 days for offences with <10 years punishment, 90 days for serious crimes.
Digital FIRs: Allows filing and communication of complaints electronically – crucial for cyber defamation and AI-related offences.
Meanwhile, the Bharatiya Sakshya Adhiniyam, 2023, which replaces the Indian Evidence Act, 1872, brings clarity and legitimacy to digital evidence, metadata, and electronic records [BSA, 2023, ss. 61–65].
Legal explainer: These sections of the Bharatiya Sakshya Adhiniyam, 2023 are key for proving digital and electronic evidence, especially in online defamation or AI-driven reputation harm.
● Section 61: Allows electronic records as primary evidence if authentic.
● Section 62: Requires technical certification (like Section 65B certificate).
● Section 63: Courts may presume authenticity if digital integrity is verifiable (e.g., hashes, blockchain).
● Section 64: Recognises emails, chats, etc., as valid evidence of communication.
● Section 65: Covers digital signatures and timestamps to verify source and integrity.
These provisions help courts authenticate digital content, identify offenders, and ensure evidence is untampered.
Thus, while the previous, core idea of defamation in our legal framework endures, the mechanisms of enforcement, especially for digital harm, have been enhanced.
Role of the IT Act in Addressing Harm to Reputation
The Information Technology Act, 2000, has been a central instrument in addressing online harm to reputation.
The following sections are frequently invoked:
(a) Section 66C: Identity theft, applicable where reputational harm is caused through impersonation or fake profiles.
(b) Section 66D: Cheating by personation via computer resources.
(c) Section 67: Publishing or transmitting obscene material in electronic form.
Although Section 66A (offensive messages) was struck down in Shreya Singhal v. Union of India, (2015) 5 SCC 1, the Court clarified that online defamation remains a valid offence and can be prosecuted under existing IPC (now BNS) provisions in conjunction with the IT Act.
Section 79 of the IT Act, which offers safe harbour to intermediaries, also lays down due diligence responsibilities [Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3]. These are of prime essence in cases where defamatory or harmful content is hosted on platforms such as Facebook, Twitter, or WhatsApp.
Case Law Time:
Section 66A of the Information Technology Act, 2000 was a controversial provision which criminalised sending ‘offensive’ or ‘menacing’ messages through electronic communication.
Legal Tidbits:
Rule 3 of the IT Rules, 2021 sets due diligence standards for platforms like Facebook and Twitter. It requires them to publish content policies, appoint a Grievance Officer, act on complaints within 15 days, and take down flagged content within 36 hours of receiving legal notice. If they fail, they lose safe harbour protection under Section 79 of the IT Act.
In defamation and AI-based reputation harm cases, Rule 3 ensures platforms are held accountable and victims get timely redressal.
In December 2023, India’s Ministry of Electronics and IT (MeitY) issued an official advisory under the IT Rules, 2021, specifically referencing Rule 3(1)(b) and instructing all intermediaries to take steps against content such as misinformation and deepfakes. It directed platforms to communicate clear prohibitions, embed unique metadata or identifiers in synthetic media, and remove such material swiftly.
Intersection of BNS and IT Act for AI-Driven Harm to Reputation
The rise of AI-generated content such as deepfakes, synthetic voice, and manipulated images has brought with it cumbersome legal questions. These technologies enable simulation of speech or visuals of individuals in embarrassing and defamatory contexts, largely affecting their reputation.
‘Electronic Communication’ has also been defined under the Section 2(d) (i) of the BNSS as “communication of any written, verbal, pictorial information or video content transmitted or transferred (whether from one person to another or from one device to another or from a person to a device or from a device to a person) by means of an electronic device including a telephone, mobile phone, or other wireless telecommunication device, or a computer, or audio-video player or camera or any other electronic device or electronic form as may be specified by notification, by the Central Government.” Electronic Communication could potentially cover emails, WhatsApp messages, text messages and Instagram/ Facebook/ Twitter content.
In such cases, the joint application of BNS and IT Act provisions becomes crucial. This intersection provides a holistic legal framework to address modern challenges, especially those stemming from AI and algorithmic manipulation.
Example: A deepfake video spreading false information about an individual could attract Section 354 of BNS (defamation), Section 66C (identity theft), and Section 67 (obscenity, if applicable) of IT Act. Further, Sections 61 and 63 of BSA, 2023, allow for the admissibility of digital evidence, including logs, timestamps, blockchain verification, and expert analysis.
Judicial Precedents
Considering the short life that BNS has had until now, it is the existing jurisprudence under IPC and the IT Act which continues to be the foundation of interpretation and enforcement of these provisions.
Some pertinent case laws, in addition to the ones mentioned above are:
1. S. Khushboo v. Kanniammal, (2010) 5 SCC 600: Public expression of controversial views does not constitute defamation without malicious intent. This case underscores the importance of mens rea (intent) and context.
2. Kunal Kamra v. State of Maharashtra, 2021 SCC OnLine Bom 1003: Defamation complaints against a comedian for tweets criticising the judiciary were dismissed. The court emphasised the distinction between satire and malice.
Some relevant case laws from High Courts:
1. Smc Pneumatics (India) Pvt. Ltd vs Shri Jogesh Kwatra on 12 February, 2014: In this landmark cyber-defamation case, an employee sent ‘derogatory, defamatory, obscene, vulgar, filthy and abusive’ emails to colleagues and subsidiaries globally. The Delhi High Court restrained him from further circulation. It recognised email headers, server logs, and metadata as admissible digital evidence, underscoring courts’ readiness to rely on electronic records.
2. Kalandi Charan Lenka vs the State of Odisha 16 January 2017: The accused created a fake Facebook profile and posted morphed, obscene photos of the petitioner. The court convicted him under IT Act Sections 66C/ 66D (identity theft and impersonation) and IPC offences, and accepted digital evidence like screenshots and logs.
3. Mohd Imran Malik v. State of U.P. (2022, Allahabad HC): A WhatsApp group admin was accused of sharing a morphed image of the Prime Minister. The court refused to quash the FIR, holding the admin criminally liable under IT Act Section 66 and IPC offences (now BNS §354), observing that administering such content was injurious to society
Conclusion
The offence of defamation as under Section 354 of the Bharatiya Nyaya Sanhita, 2023 continues to provide a strong legal foundation for protection of reputation and dignity. However, the rise of digital platforms and AI technologies requires a coordinated enforcement of BNS, the IT Act, and BSA. Courts have also shown readiness that can be evinced from the evolving jurisprudence and the accountability obligations vested upon digital platforms and service providers for both offline and online harm. The effectiveness of India’s legal framework for protecting reputation and in preventing or remedying harm caused to reputation will depend on three main factors – the capacity of institutions to investigate digital evidence efficiently, greater awareness and preparedness amongst law enforcement, and the judiciary to tackle AI-based threats, and affordable public access to legal remedies.
