Defamation under BNS Section 356: Offence and Defences

Defamation under BNS is the offence of harming a person’s reputation by words, signs or visible representations, and it is dealt with in Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced Sections 499 and 500 of the Indian Penal Code. The Supreme Court upheld criminal defamation as constitutional in *Subramanian Swamy v. Union of India* (2016), holding that the right to reputation is part of the right to life under Article 21. This guide explains the offence, the exceptions, the procedure and the practical points for complainants and accused persons.

What is defamation under BNS?

A person commits defamation if, by words (spoken or written), signs or visible representations, he makes or publishes an imputation concerning any person, intending to harm, or knowing or having reason to believe that it will harm, that person’s reputation. The Sanhita also covers imputations made through electronic means, so social media posts, messages and videos can be covered.

Some points to remember:

• The imputation must be published, which means communicated to someone other than the person defamed.
• Harm to reputation is judged by how right-thinking people would view the person, not by the person’s own hurt feelings.
• An imputation about a deceased person, or about a company or a group of persons, can amount to defamation in certain conditions.

Punishment

The Sanhita provides for simple imprisonment up to two years, or fine, or both, or community service. Community service is a new form of punishment introduced by the BNS. Printing or engraving defamatory matter, and selling printed defamatory material, are separate offences with their own punishment.

Exceptions

The Sanhita lists exceptions under which an imputation is not defamation. The main ones are:

• Imputation of truth for the public good, which is made or published for the public good.
• Public conduct of public servants and opinions on their conduct made in good faith.
• Conduct of any person touching a public question, expressed in good faith.
• Publication of reports of court proceedings, if substantially true.
• Merits of a case decided by a court, or the conduct of witnesses and parties, in good faith.
• Merits of a public performance, such as a book or film review, in good faith.
• Censure passed in good faith by a person having lawful authority over another.
• Accusation made in good faith to an authorised person, such as a complaint to the police or an employer.
• Imputation made in good faith for protecting one’s own or another’s interest.
• Caution conveyed in good faith for the good of a person, or for the public good.

Good faith is the key. A statement made carelessly or with malice is not protected.

How to file a complaint

Defamation is a non-cognizable, bailable and compoundable offence in the usual scheme of the Code. The police cannot investigate without the Magistrate’s order, so the aggrieved person files a private complaint before the Magistrate.

• The complaint must set out the words, the date, the persons to whom it was published, and the harm caused.
• The Magistrate records the complainant’s sworn statement and may examine witnesses.
• Under Section 223 of the BNSS, the Magistrate must give the accused an opportunity to be heard before taking cognizance of a complaint, which is a new safeguard.
• If satisfied, the Magistrate issues summons, and the case is tried as a summons case.

Sending a legal notice first is not required by the criminal law, but it often helps to settle the matter or to prove the intention to resolve.

Online defamation

Posts on social media, WhatsApp groups, blogs and YouTube videos can be defamatory. Section 66A of the Information Technology Act was struck down in *Shreya Singhal v. Union of India* (2015), so complaints for online defamation proceed under the Sanhita. You can also ask the platform to remove content, and in cases involving obscene or morphed images, use the cybercrime reporting mechanisms. See our guide on cybercrime and online fraud under BNS and the IT Act. Always preserve screenshots with the URL, date and time, and the profile details.

Civil defamation

A person can also sue in a civil court for damages and a permanent injunction against the publication. Criminal and civil remedies can run together. For interim relief, see our guide on temporary injunction under Order 39 CPC.

Defending a defamation complaint

• Check whether the statement was published, whether it identifies the complainant, and whether it was a statement of fact or opinion.
• Rely on an exception, such as truth for the public good or good faith.
• Challenge the complaint if it is vague, if the accused has no connection with the publication, or if it is an attempt to silence legitimate criticism.
• Consider an apology or a settlement, since the offence is compoundable.
• Where the allegations are plainly an abuse of process, a petition for quashing of FIR or proceedings under BNSS Section 528 may be possible.

The Sanhita is available on India Code.

Frequently Asked Questions

This article is general legal information and not a substitute for advice on your specific case. Consult an advocate before acting.