Section 356 of BNS, 2023: Defamation, Punishment, Exceptions, Examples and Important Case Laws
A comprehensive guide to criminal defamation under the Bharatiya Nyaya Sanhita, including online posts, social media allegations, reputation, statutory exceptions, legal procedure and the relationship between freedom of speech and the right to reputation.
Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with defamation. It defines when an imputation concerning a person may amount to defamation, identifies ten statutory exceptions and prescribes punishment for defamation and certain activities involving defamatory printed or engraved material.
In the age of social media, online reviews, viral videos, public allegations and digital journalism, the law of defamation has become relevant to everyday communication. A statement made in a private dispute may eventually reach thousands of people through a screenshot or forwarded message. However, not every criticism, disagreement, negative review or inaccurate statement automatically amounts to criminal defamation. The statutory ingredients, the circumstances of publication, the applicable exceptions and the available evidence must be examined.
Table of Contents
- Overview of Section 356 BNS
- Statutory framework and structure
- Meaning of defamation in simple language
- Essential ingredients of criminal defamation
- Four explanations under Section 356(1)
- All ten exceptions explained
- Punishment under Section 356
- Social media and online defamation
- Civil and criminal defamation compared
- Difference between IPC and BNS
- Complaint procedure and legal remedies
- Evidence and digital records
- Important judgments and legal principles
- Practical illustrations and case scenarios
- Defences and common misconceptions
- Exam-oriented questions and answers
- Frequently asked questions
- Conclusion and official references
1. Overview of Section 356 of BNS, 2023
The Bharatiya Nyaya Sanhita, 2023 replaced the Indian Penal Code, 1860, for offences governed by the new law. The BNS came into force on 1 July 2024, subject to the applicable commencement provisions.
Section 356 consolidates the law relating to defamation. Its first subsection defines the offence and sets out explanations and exceptions. The remaining subsections address punishment for defamation, printing or engraving defamatory matter with the required knowledge, and selling or offering for sale printed or engraved material containing defamatory matter with the required knowledge.
| Particular | Legal position |
|---|---|
| Statute | Bharatiya Nyaya Sanhita, 2023 |
| Section | Section 356 |
| Subject | Defamation |
| Corresponding IPC provisions | Sections 499, 500, 501 and 502, respectively, for the principal definition and related punishment, printing and sale provisions |
| Principal punishment | Simple imprisonment up to two years, fine, both, or community service under Section 356(2) |
| Special statutory protection | Ten exceptions under Section 356(1) |
| Related procedural law | Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) |
The provision is not confined to newspapers or formal publications. Its wording includes spoken words, words intended to be read, signs, visible representations and imputations made or published “in any manner.” This broad wording makes the context of electronic communication particularly important.
For the complete statutory text, consult the official India Code portal and locate the Bharatiya Nyaya Sanhita, 2023, Act No. 45 of 2023, Section 356.
2. Statutory Framework and Structure of Section 356
Section 356 has four principal subsections. Understanding their different purposes prevents a common mistake: treating the definition of defamation, punishment for defamation and liability connected with printed material as though they were one identical rule.
| Subsection | Subject | What it addresses |
|---|---|---|
| 356(1) | Definition of defamation | Imputations concerning a person, the required intention or knowledge, four explanations and ten exceptions. |
| 356(2) | Punishment for defamation | Punishment for a person who commits defamation. |
| 356(3) | Printing or engraving defamatory matter | Printing or engraving material with knowledge or good reason to believe that it is defamatory. |
| 356(4) | Selling defamatory printed or engraved material | Selling or offering material for sale with knowledge that it contains defamatory matter. |
The opening words of subsection (1) are important because they establish that the definition operates subject to the exceptions that follow. A statement should not be classified as criminal defamation merely because someone finds it offensive. The legal ingredients and the possible application of an exception must be considered.
Equally, the fact that a person describes a statement as an opinion, joke, warning or public-interest comment does not automatically make it lawful. Courts assess the substance and circumstances rather than relying only on the label chosen by the speaker.
3. What Is Defamation? Meaning in Simple Language
Defamation generally concerns an imputation that harms a person's reputation in the estimation of others. Reputation is different from personal hurt or embarrassment. An insulting statement may hurt someone's feelings without necessarily satisfying the statutory test for defamation. Conversely, an apparently polite statement can be defamatory if it communicates an allegation that lowers another person's reputation.
Consider a simple example. A person publicly alleges that a local shopkeeper steals customers' money. If the allegation is communicated in circumstances satisfying the statutory ingredients and no exception applies, it may give rise to a defamation complaint. The exact result depends on the words used, their meaning in context, the required mental element and the available evidence.
Now consider a different situation. A customer writes that a shop delivered a damaged product, describes the transaction accurately and provides supporting records. A negative review of this kind is not automatically criminal defamation merely because it damages the shop's image. Truth, good faith, the purpose of the communication and the relevant statutory exceptions may be significant.
- Insult: Language that offends or humiliates someone.
- Criticism: An assessment of conduct, work, services or performance.
- Defamation: A legally actionable imputation satisfying the statutory requirements and not protected by an applicable exception.
These categories may overlap, but they are not interchangeable. The surrounding circumstances determine the legal character of a statement.
4. Essential Ingredients of Defamation Under Section 356(1)
For an allegation under Section 356(1) to succeed, the relevant statutory requirements must be established. The following elements provide a useful framework for studying the provision.
4.1 An imputation concerning a person
The statement must communicate an imputation concerning an identifiable person or another legally covered subject. An imputation may attribute misconduct, dishonesty, incompetence, disgraceful behaviour or another characteristic capable of lowering reputation.
Identification does not always require the person's full legal name. Depending on the context, a photograph, job title, business description, nickname or combination of details may make the subject identifiable to the audience.
4.2 Making or publishing the imputation
Section 356(1) refers to making or publishing an imputation in the specified forms and “in any manner.” The mode of communication can include spoken statements, written material, signs and visible representations.
For example, an allegation may be conveyed through a letter, a public speech, a newspaper article, a social media post or a misleading image. Whether the legal requirements are satisfied must still be examined separately.
4.3 Intention, knowledge or reason to believe
The section refers to an intention to harm reputation, or knowledge or reason to believe that the imputation will harm reputation. This mental element is a central part of the statutory definition.
A dispute about the accuracy of a statement is therefore not resolved merely by asking whether the statement later turned out to be wrong. The circumstances in which it was made, the information available to the speaker, the purpose of communication and other relevant evidence may help establish the applicable mental element.
4.4 Reputational harm of the kind recognised by the statute
Explanation 4 describes the types of reputational lowering relevant to the provision. These include lowering a person's moral or intellectual character, character in relation to their caste or calling, creditworthiness, or creating certain disgraceful perceptions about their body.
The statutory inquiry concerns the effect of the imputation on reputation in the estimation of others. A purely private feeling of anger, standing alone, does not replace this requirement.
4.5 The statutory exceptions must be considered
Even where a statement appears to fall within the definition, it is necessary to examine all relevant exceptions. These cover subjects such as truth published for the public good, good-faith opinions on specified matters, fair reports of judicial proceedings and certain complaints or cautions made in good faith.
| Ingredient | Question to examine |
|---|---|
| Imputation | What exactly does the statement communicate? |
| Identification | Can the person concerned be identified from the words or context? |
| Communication | How was the imputation made or published? |
| Mental element | Is the required intention, knowledge or reason to believe established? |
| Reputation | Does the imputation fall within the reputational harm described by the statute? |
| Exceptions | Does any of the ten exceptions apply to the facts? |
5. Four Explanations Under Section 356(1)
The four explanations clarify the scope of the definition. They are particularly useful in cases involving deceased persons, companies, sarcastic comments and allegations about professional integrity.
Explanation 1: Imputations concerning deceased persons
An imputation concerning a deceased person may amount to defamation if it would harm that person's reputation if they were living and is intended to hurt the feelings of their family or other near relatives.
This provision does not mean that every historical criticism of a deceased person is criminal. The statutory conditions must be examined, including the intended harm to the feelings of the family or near relatives and the effect the imputation would have had on reputation if the person were alive.
Example: A person circulates a fabricated allegation about a deceased community leader with the specific intention of hurting the person's family. The explanation may become relevant, subject to the other requirements and applicable exceptions.
Explanation 2: Imputations concerning companies and associations
The section recognises that imputations may concern a company, an association or a collection of persons as such. A business or organised group may therefore be the subject of a defamatory imputation where the law's requirements are met.
Example: A person publishes an allegation that a named business systematically steals customer payments. Whether the allegation is actionable depends on the particular words, their truth or evidentiary basis, the legal interests involved and the statutory requirements.
A complaint concerning a company's reputation should not automatically be confused with a complaint concerning the personal reputation of every director, employee or shareholder. The relevant subject must be identified carefully.
Explanation 3: Alternative or ironic imputations
An imputation expressed as an alternative or in an ironic manner may amount to defamation. The speaker cannot necessarily avoid legal scrutiny by using sarcasm, rhetorical questions or indirect language.
Example: A person writes, “Perhaps our treasurer is simply a genius at making public funds disappear,” in circumstances intended to communicate an allegation of theft. The sarcastic form does not by itself determine whether the statement is defamatory.
At the same time, context matters. Obvious humour, political satire and ordinary criticism should not be automatically treated as criminal defamation. The actual meaning conveyed and all relevant legal protections must be assessed.
Explanation 4: What counts as harm to reputation?
Explanation 4 states that an imputation does not count as harming reputation unless it directly or indirectly lowers, in the estimation of others, the person's moral or intellectual character, character in relation to their caste or calling, credit, or causes specified disgraceful perceptions concerning their body.
This explanation gives the court a statutory framework for evaluating the nature of the alleged reputational injury.
| Type of reputational lowering | Illustration |
|---|---|
| Moral character | An allegation that a person is dishonest or corrupt. |
| Intellectual character | A statement intended to portray someone as intellectually incapable in a way that harms their standing. |
| Character relating to a calling | An allegation that a professional habitually cheats clients. |
| Credit | An imputation that a person is financially dishonest or unworthy of credit. |
| Specified disgraceful bodily perceptions | An imputation falling within the particular bodily or disgrace-related language of Explanation 4. |
These illustrations explain the statutory categories; they do not mean that every statement in each category automatically establishes an offence. The remaining ingredients and exceptions continue to matter.
6. All Ten Exceptions Under Section 356(1), Explained
The exceptions are a vital part of the law of defamation. They identify circumstances in which an imputation that might otherwise appear defamatory is protected under the statutory definition.
Several exceptions expressly require good faith. Good faith is not simply a person's assertion that they acted honestly. Under the general principles of the BNS, due care and attention are important to the assessment of good faith. The specific wording of each exception must also be followed.
Exception 1: Imputation of truth required for the public good
It is not defamation to impute anything that is true concerning a person if making or publishing the imputation is for the public good. Whether publication is for the public good is a question of fact.
Simple explanation: Truth alone is not the entire statutory test. The public-good requirement must also be considered.
Example: A carefully researched report reveals verified facts concerning misuse of public funds, and publication is shown to serve the public good. This exception may be relevant.
Important: A person should not assume that every true but private or irrelevant allegation automatically satisfies this exception.
Exception 2: Public conduct of public servants
An opinion expressed in good faith concerning the conduct of a public servant in the discharge of public functions, or concerning their character so far as it appears in that conduct, may fall within this exception.
Example: A citizen examines a municipal officer's documented handling of a public project and expresses a reasoned opinion about the officer's official performance.
The protection concerns the specified public conduct and the character reflected in it. It is not an unlimited licence to make unrelated personal allegations.
Exception 3: Conduct of a person touching a public question
A good-faith opinion concerning a person's conduct in relation to a public question, and their character so far as it appears in that conduct, may be protected.
Example: A person participates in a public debate about the management of a community project and offers a reasoned assessment of the conduct of those involved.
The connection with a public question and the requirement of good faith are important. Personal hostility does not automatically become protected merely because a dispute attracts public attention.
Exception 4: Reports of proceedings of courts of justice
Substantially true reports of the proceedings of a court of justice, or the result of those proceedings, may be protected.
Example: A journalist accurately reports that a court has framed charges against an accused person, while clearly distinguishing that procedural development from a finding of guilt.
A report should not distort the judicial record or present an allegation as a conviction when the court has not reached that conclusion. The statutory wording and the precise report must be examined.
Exception 5: Merits of a case decided by a court and conduct of persons concerned
A good-faith opinion concerning the merits of a case, civil or criminal, that has been decided by a court, or concerning the conduct of a person as a party, witness or agent in that case, may be protected within the terms of this exception.
Example: After a judgment, a legal commentator explains why a witness's testimony was considered unreliable and supports the analysis by referring to the judicial findings.
The exception is not an automatic shield for every allegation made about a litigant or witness. The connection with the case, the good-faith requirement and the wording of the provision matter.
Exception 6: Merits of a public performance
A good-faith opinion concerning the merits of a performance that its author has submitted to the judgment of the public, or concerning the author's character so far as it appears in that performance, may fall within this exception.
Example: A film critic explains that an actor's performance was unconvincing, identifies weaknesses in the script and provides a reasoned review.
The exception recognises the importance of criticism of work presented for public evaluation. It does not automatically protect unrelated accusations about a performer's private life.
Exception 7: Censure by a person having lawful authority
A person who has lawful authority over another may, in good faith, censure that person's conduct in matters to which the lawful authority relates.
Example: A college principal issues a proportionate, good-faith disciplinary assessment of a student's conduct within the principal's lawful authority.
The existence and scope of the authority, the connection between the conduct and that authority, and good faith are all relevant.
Exception 8: Accusation made in good faith to an authorised person
An accusation concerning a person may be protected where it is made in good faith to someone who has lawful authority over the person with respect to the subject of the accusation.
Example: An employee submits a documented complaint about suspected workplace misconduct to the officer or authority responsible for investigating such complaints.
Making a responsible complaint to the appropriate authority is different from publishing the same allegation indiscriminately to an unrelated audience. Evidence of good faith and due care may be important.
Exception 9: Imputation made in good faith to protect interests
An imputation made in good faith to protect the interests of the person making it, another person or the public may fall within this exception.
Example: A business owner, relying on credible transaction records, privately warns a manager to require payment in advance from a customer where there are genuine grounds for concern about payment.
The exception is not a blanket permission to spread accusations. The protective purpose and good faith must be assessed in the circumstances.
Exception 10: Caution conveyed in good faith
A caution concerning one person and communicated in good faith to another may be protected if it is intended for the good of the recipient, someone in whom the recipient is interested, or the public good.
Example: A person privately warns a friend about a specific, documented risk in a proposed transaction so that the friend can take reasonable precautions.
The purpose and circumstances of the warning are crucial. A malicious rumour circulated under the pretence of caution should not automatically be treated as protected.
Quick revision table: Ten statutory exceptions
| No. | Exception | Key requirement or subject |
|---|---|---|
| 1 | Truth for public good | Truth and public good; public good is a question of fact. |
| 2 | Public servant's conduct | Good-faith opinion on official conduct and character reflected in it. |
| 3 | Conduct relating to a public question | Good-faith opinion connected with the public question. |
| 4 | Judicial proceedings | Substantially true report of proceedings or their result. |
| 5 | Merits of a decided case | Good-faith opinion on the case or specified conduct of persons concerned. |
| 6 | Public performance | Good-faith opinion on the performance or character reflected in it. |
| 7 | Lawful censure | Good-faith censure by a person with relevant lawful authority. |
| 8 | Accusation to an authorised person | Good-faith accusation to a person with relevant lawful authority. |
| 9 | Protection of interests | Good-faith imputation for protection of specified interests or public good. |
| 10 | Good-faith caution | Caution intended for the recipient's benefit or another specified good. |
7. Punishment Under Section 356 BNS
Section 356 provides different rules for defamation itself and for specified activities involving printed or engraved defamatory matter.
7.1 Punishment under Section 356(2)
Whoever defames another may be punished with:
- Simple imprisonment for a term that may extend to two years; or
- Fine; or
- Both simple imprisonment and fine; or
- Community service.
The phrase “may extend to two years” sets a maximum term, not an automatic sentence. The court determines the appropriate lawful outcome based on the case and applicable sentencing principles.
7.2 Printing or engraving defamatory matter under Section 356(3)
A person who prints or engraves matter, knowing or having good reason to believe that it is defamatory of a person, may be punished with simple imprisonment for up to two years, fine, or both.
This subsection addresses the specified printing or engraving conduct. Its mental element must not be confused with the wording of subsection (2).
7.3 Selling defamatory material under Section 356(4)
A person who sells or offers for sale printed or engraved material containing defamatory matter, knowing that it contains such matter, may be punished with simple imprisonment for up to two years, fine, or both.
| Provision | Conduct | Maximum imprisonment | Other punishment |
|---|---|---|---|
| 356(2) | Defamation | Two years, simple imprisonment | Fine, both, or community service |
| 356(3) | Printing or engraving with the specified knowledge | Two years, simple imprisonment | Fine or both |
| 356(4) | Selling or offering for sale with the specified knowledge | Two years, simple imprisonment | Fine or both |
There is no single fixed fine amount specified in these subsections. The provision uses the term “fine” without setting out a specific monetary ceiling within these punishment clauses. Community service is expressly included in subsection (2), but not in subsections (3) and (4).
7.4 Is criminal defamation bailable?
Under the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023, ordinary defamation under Section 356(2) is generally classified as non-cognizable and bailable, with trial by a Magistrate of the first class. The Schedule also contains distinct classifications for the special public-function defamation provision described in Section 222 of the BNSS and the related printing and sale offences.
For a specific complaint, verify the exact offence, applicable procedural provision, relevant statutory schedule and current law. Classification should not be inferred solely from a summary table or from the punishment printed in Section 356.
8. Section 356 BNS and Online Defamation
Online communication creates particular challenges because a statement can be copied, forwarded, edited and circulated far beyond its original audience. Section 356(1)'s reference to making or publishing an imputation “in any manner” is relevant when evaluating modern forms of communication.
8.1 Defamatory social media posts
A public post alleging that an identifiable person commits fraud may be examined under Section 356 if the statutory ingredients are present. The number of people who viewed the post, its wording, the available evidence and the circumstances of publication may all be relevant to the legal analysis.
A person should not assume that adding “allegedly,” a question mark or a disclaimer makes an accusation legally harmless. Equally, an unfavourable opinion about public conduct does not automatically become criminal defamation.
8.2 WhatsApp messages and private groups
Messages in private groups may also require legal scrutiny. Whether a particular communication constitutes publication for the purposes of the applicable law depends on its circumstances and the legal principles applied by the court. A group message is not automatically immune merely because the group is described as private.
Forwarding an unverified accusation may create additional risks, particularly when the person forwarding it knows that the material may be false or has reason to believe that it will harm reputation.
8.3 YouTube videos, reels and edited images
Videos, captions, voice-overs, thumbnails, memes and edited images may communicate an imputation through words or visible representations. A video does not need to contain a formal written allegation to raise a defamation issue.
Context is important. Satire, parody, opinion, fair criticism and factual allegations should not be treated as identical categories. The meaning a reasonable audience would understand, the content as a whole and any relevant statutory exception may affect the assessment.
8.4 Online reviews and consumer complaints
A customer may generally describe a genuine experience and provide an honest assessment of a service. The law does not require every business review to be positive. A review that explains a delayed delivery or defective product is different from an unsupported allegation that the owner commits criminal fraud.
Consumers should retain invoices, order details, photographs, correspondence and other records supporting their statements. They should distinguish verifiable facts from assumptions and avoid exaggerating beyond what the evidence supports.
- Verify information before publishing serious allegations.
- Keep records supporting factual statements.
- Distinguish personal opinion from claims of fact.
- Avoid presenting an accusation as a proven conviction unless that is accurate.
- Use appropriate complaint channels where possible.
- Correct or remove inaccurate material when appropriate, without assuming that deletion automatically resolves every legal issue.
9. Civil Defamation and Criminal Defamation
Defamation may lead to civil proceedings, criminal proceedings or both, depending on the facts and applicable law. These are distinct legal routes with different objectives and requirements.
Civil defamation generally concerns remedies for reputational injury, such as damages or appropriate injunctive relief where legally available. Criminal defamation involves the statutory offence and the criminal procedure applicable to it.
| Basis | Civil defamation | Criminal defamation |
|---|---|---|
| Legal framework | Applicable civil law and judicial principles. | Section 356 BNS and applicable criminal procedure. |
| Main purpose | Relief for legally recognised injury, subject to the applicable requirements. | Determination of criminal liability and any lawful punishment. |
| Possible relief or outcome | Damages or appropriate injunctive relief, where available. | Imprisonment, fine, both, or community service under Section 356(2), if applicable. |
| Procedure | Relevant civil court procedure. | Relevant provisions of the BNSS and criminal court procedure. |
| Standard of proof | Generally the civil standard of preponderance of probabilities. | Criminal guilt must be established beyond reasonable doubt. |
These broad distinctions are useful for study, but the actual remedy, burden and procedural route depend on the particular claim and the applicable law. A civil claim does not automatically establish criminal guilt, and the absence of a criminal conviction does not by itself resolve every possible civil claim.
10. Difference Between Section 356 BNS and the Earlier IPC Provisions
Before the BNS came into force, defamation was primarily addressed by Sections 499 to 502 of the Indian Penal Code, 1860. Section 499 contained the definition and exceptions, Section 500 prescribed punishment, Section 501 dealt with printing or engraving defamatory matter, and Section 502 dealt with selling printed or engraved defamatory material.
| Earlier IPC | Current BNS | Subject |
|---|---|---|
| Section 499 | Section 356(1) | Definition of defamation, explanations and exceptions. |
| Section 500 | Section 356(2) | Punishment for defamation. |
| Section 501 | Section 356(3) | Printing or engraving defamatory matter with the specified knowledge. |
| Section 502 | Section 356(4) | Selling or offering for sale printed or engraved defamatory material with the specified knowledge. |
The BNS expressly includes the phrase “in any manner” in subsection (1), which is relevant when considering contemporary methods of communication. Subsection (2) also expressly includes community service among the possible punishments for defamation.
However, it would be misleading to say that every aspect of the law of defamation was newly created in 2023. Much of the structure derives from the earlier IPC provisions. The relevant statutory text, commencement rules and procedural framework must be considered when comparing old and new law.
Which law applies to conduct before 1 July 2024?
For alleged conduct occurring before the commencement of the BNS, the applicable substantive law must be determined under the relevant commencement, repeal and savings provisions, as well as the constitutional rule against retrospective criminal punishment. The date of the alleged publication or other relevant conduct can be important.
For conduct on or after 1 July 2024, Section 356 BNS is the principal statutory reference for defamation under the new criminal code, subject to the applicable legal circumstances.
11. Complaint Procedure for Criminal Defamation
A person who believes that their reputation has been harmed should first distinguish between a disagreement, an online platform complaint, a potential civil claim and a possible criminal offence. Not every reputational dispute requires criminal litigation.
Step 1: Preserve the original material
Save the original post, message, publication or recording. Preserve the URL, date, time, account details and available context. A cropped screenshot may be useful for reference, but the complete original material is generally more informative.
Step 2: Identify the alleged imputation
Record the exact words or images said to be defamatory. Explain who is identifiable, what the audience would understand and how the material allegedly lowers reputation. Avoid relying only on a general statement that the content is offensive.
Step 3: Examine possible exceptions and the factual basis
Consider whether the statement is a truthful account, an opinion about a public matter, a report of judicial proceedings, a good-faith complaint or a communication protected by another exception. Review the evidence supporting the allegation and the circumstances of publication.
Step 4: Obtain legal advice on the appropriate route
Depending on the facts, options may include a correction request, a demand for removal, a platform complaint, a civil remedy or a criminal complaint. The correct choice depends on the seriousness of the allegation, the available evidence, the applicable procedure and the desired outcome.
Step 5: Understand the complaint requirement under the BNSS
Section 222 of the Bharatiya Nagarik Suraksha Sanhita, 2023 governs prosecution for defamation. In the ordinary case, a court generally takes cognizance upon a complaint made by a person aggrieved by the offence, subject to the statutory provisions.
Section 222 also provides a special procedure for specified alleged defamation of the President, Vice-President, Governor, Administrator of a Union territory or a Minister concerning conduct in the discharge of public functions, including the role of the Public Prosecutor and the Court of Session under the statutory conditions.
It is therefore inaccurate to assume that every ordinary defamation complaint begins with a police FIR in the same way as a cognizable offence. The classification and the applicable complaint procedure must be checked against the current BNSS and the specific allegations.
Step 6: Follow the court process
The court considers the complaint, the relevant procedural requirements, the supporting material and the legal ingredients. Depending on the case, the proceedings may involve examination of the complainant, consideration of process, evidence and arguments concerning the alleged offence and any applicable exceptions.
12. Evidence Relevant to a Defamation Case
Evidence may be important both for the person alleging defamation and for the person defending the statement. It can help establish what was communicated, who was identified, the surrounding context, the state of knowledge and the possible application of an exception.
| Evidence | Possible relevance |
|---|---|
| Original publication or message | Shows the words, images and surrounding context. |
| URL and account information | May assist in identifying the publication and its source. |
| Dates and timestamps | Help establish the chronology of events. |
| Emails and messages | May show the circumstances, purpose or prior communications. |
| Documents supporting the allegation | May be relevant to truth, good faith, reasonable care or another issue. |
| Witness testimony | May explain how the communication was understood or circulated. |
| Correction or removal records | May establish later conduct and the history of the dispute. |
| Records of professional or commercial dealings | May help explain the factual context and any claimed reputational injury. |
Digital evidence and electronic records
Digital evidence should be preserved in its original form wherever possible. Keep complete conversations rather than only isolated messages, and avoid altering files or metadata. Where appropriate, obtain the original source or a reliable export.
The Bharatiya Sakshya Adhiniyam, 2023 governs evidence in the cases to which it applies, including rules concerning electronic and digital records. The applicable requirements for admissibility and any necessary certificates must be checked for the particular evidence and proceeding.
A screenshot alone may not resolve every factual dispute. Questions can arise about authenticity, authorship, editing, context and whether the displayed material is complete. Proper preservation and authentication can therefore be important.
13. Important Judgments and Legal Principles
Judgments under the former IPC remain important when interpreting provisions that carry forward substantially similar statutory language. However, each judgment must be read in its factual and legal context. A case decided under the IPC should not be described as a direct ruling on every aspect of the BNS.
13.1 Subramanian Swamy v. Union of India (2016)
Supreme Court of India
Citation: (2016) 7 SCC 221; judgment dated 13 May 2016.
The Supreme Court considered constitutional challenges to the criminal defamation provisions in Sections 499 and 500 IPC. The Court upheld the constitutional validity of the challenged criminal defamation framework.
The decision is significant because it examines the relationship between freedom of speech and expression under Article 19(1)(a), the reasonable restrictions permitted by Article 19(2), and the protection of reputation.
The Court recognised that freedom of speech is fundamental but not absolute. Reputation also has legal and constitutional significance. The judgment is frequently discussed in debates about whether criminal defamation can coexist with democratic criticism and public discussion.
13.2 R. Rajagopal v. State of Tamil Nadu (1994)
Supreme Court of India
Citation: (1994) 6 SCC 632.
This decision is important in discussions of privacy, publication and the relationship between freedom of the press and individual rights. It addressed questions about the publication of material concerning a person's life and the circumstances in which public authorities may interfere with publication.
Its principles should be applied with care. The case is not a universal rule that any publication about a public figure is protected or that every disputed publication is defamatory. The legal context and the precise issues decided matter.
13.3 S. Khushboo v. Kanniammal (2010)
Supreme Court of India
Citation: (2010) 5 SCC 600.
This decision is relevant to the limits of criminal proceedings arising from public statements and controversial opinions. The Court examined the context of the statements at issue and the requirements for the alleged offences.
The case is useful for understanding why unpopular or controversial speech cannot automatically be treated as a criminal offence without examining the applicable legal ingredients. It should not be read as granting unrestricted immunity to every public statement.
13.4 Jeffrey J. Diermeier v. State of West Bengal (2010)
Supreme Court of India
Citation: (2010) 6 SCC 243.
This judgment is relevant to the interpretation of criminal defamation under the IPC and the importance of examining the statutory ingredients and the circumstances of the alleged imputation.
For legal study, it is useful to read the court's reasoning alongside Section 499 IPC and then compare the relevant language with Section 356 BNS. The procedural and factual background should not be ignored when applying the principles to a new dispute.
What should students take from these cases?
- Reputation is a legally recognised interest, but the law must also be applied consistently with constitutional freedoms.
- Controversial speech does not automatically establish criminal defamation.
- The statutory ingredients and the context of the particular statement remain central.
- Where earlier IPC cases interpret language carried into the BNS, their reasoning may remain relevant, subject to differences in wording and the applicable legal framework.
- A judgment must be cited for the proposition it actually supports, not for a broader rule that it did not decide.
14. Practical Examples and Case Scenarios
The following hypothetical scenarios illustrate how Section 356 may be analysed. They are educational examples, not predictions of the result in any real case.
Scenario 1: An allegation of theft on social media
A person publicly posts that a named neighbour stole money from a community fund. The poster has no supporting material and admits that the allegation was made to humiliate the neighbour.
Legal analysis: The post may raise issues under Section 356(1) because it identifies a person, communicates an allegation of dishonesty and may be intended to harm reputation. The exact statutory ingredients, evidence and any applicable exception must still be considered.
Scenario 2: A documented consumer complaint
A customer publishes a review describing a defective product, attaches the invoice and photographs, and explains the steps taken to obtain a refund.
Legal analysis: A factual and proportionate account of a genuine experience is not automatically criminal defamation. Truth, public good where relevant, good faith and the precise wording of the review may be important. The outcome depends on the circumstances.
Scenario 3: A complaint to a college authority
A student submits a complaint to the appropriate college authority about suspected misconduct by a staff member, attaches relevant messages and requests an investigation.
Legal analysis: Exception 8 may be relevant if the complaint is made in good faith to a person with lawful authority over the subject. The facts, purpose and supporting material matter. Merely labelling a complaint “good faith” does not conclusively establish the exception.
Scenario 4: Criticism of a public official
A citizen reviews a public procurement decision, refers to official documents and explains why the decision appears wasteful.
Legal analysis: Exceptions 2 and 3 may be relevant, depending on the statement and circumstances. The distinction between criticism of official conduct and unrelated personal allegations is important.
Scenario 5: An accurate report of a court hearing
A news website reports that a criminal complaint has been filed against a businessperson but clearly states that the allegations have not been proved.
Legal analysis: Exception 4 may be relevant to a substantially true report of judicial proceedings. The accuracy of the report and the statutory conditions must be assessed. A complaint or charge should not be misrepresented as a conviction.
Scenario 6: A sarcastic accusation
An individual writes, “Our treasurer must have a magical way of making the accounts disappear,” alongside a post alleging missing public funds.
Legal analysis: Explanation 3 means that ironic or alternative wording does not automatically prevent an imputation from being defamatory. The meaning understood in context and the evidence supporting the statement are important.
Scenario 7: A warning to a prospective business partner
A person privately warns a business partner about a transaction, explains the records that caused concern and recommends independent verification.
Legal analysis: Exceptions 9 or 10 may be relevant, depending on the circumstances and purpose. A genuine, good-faith warning differs from spreading an allegation simply to damage someone's reputation.
Scenario 8: A negative review of a public performance
A reviewer explains that a stage performance was poorly directed and that the acting was unconvincing, giving examples from the production.
Legal analysis: Exception 6 may be relevant to a good-faith opinion on a performance submitted to public judgment. An unrelated accusation of criminal misconduct would require a separate legal assessment.
15. Defences, Practical Safeguards and Common Misconceptions
15.1 “The statement is true, so it can never be defamation.”
This is incomplete. Exception 1 expressly connects truth with publication for the public good. The statutory conditions should be stated accurately, rather than assuming that truth alone resolves every issue under Section 356.
15.2 “It was only a joke.”
Humour and satire can be relevant to the meaning and context of a statement, but the label “joke” is not conclusive. Explanation 3 specifically recognises that an ironic imputation may amount to defamation.
15.3 “The post was in a private group, so the law cannot apply.”
Privacy settings do not create a universal exemption. The circumstances and legal requirements must be considered, including how the statement was communicated and who could identify the person concerned.
15.4 “A public figure cannot complain of defamation.”
Public figures are not automatically excluded from the protection of reputation. At the same time, public conduct and public questions are expressly addressed by certain exceptions. The legal analysis must consider both interests.
15.5 “A person must prove actual financial loss in every criminal defamation case.”
Section 356(1) focuses on the statutory concept of reputational harm and the specified mental element. A claim of financial loss may be relevant to a particular dispute or civil remedy, but it should not be treated as a universal additional ingredient of every criminal defamation allegation.
15.6 “Deleting the post ends the matter.”
Deleting or correcting material may be a sensible step, but it does not automatically extinguish every potential legal claim. Copies may remain, and the applicable legal consequences depend on the facts and law.
15.7 “A complaint to the police always follows the same process.”
Ordinary criminal defamation is generally non-cognizable under the BNSS First Schedule and is ordinarily initiated through the statutory complaint procedure. The correct process must be determined by reference to the precise allegations and applicable law.
15.8 “A person can make any allegation if they call it an opinion.”
Not every statement framed as an opinion is protected. Courts may need to distinguish an evaluative judgment from an implied or express factual accusation. The exact language, context, good faith and relevant exception are important.
16. Exam-Oriented Notes for Law Students
16.1 Short note on Section 356 BNS
Section 356 of the Bharatiya Nyaya Sanhita, 2023 deals with defamation. Subsection (1) defines defamation and provides four explanations and ten exceptions. Subsection (2) prescribes simple imprisonment up to two years, fine, both or community service for defamation. Subsection (3) deals with printing or engraving defamatory matter with the specified knowledge, and subsection (4) addresses selling or offering for sale printed or engraved defamatory material with the specified knowledge. The section corresponds broadly to Sections 499 to 502 IPC.
16.2 What are the essential ingredients of defamation?
The answer should discuss an imputation concerning an identifiable person, making or publishing the imputation in a form covered by the section, the statutory intention or knowledge relating to reputational harm, the reputational effect described in Explanation 4, and the need to consider the ten exceptions.
16.3 Is truth always a defence?
No. Exception 1 requires the imputation to be true and the making or publishing of it to be for the public good. Whether the publication is for the public good is a question of fact.
16.4 What is the punishment under Section 356(2)?
Simple imprisonment for a term extending up to two years, fine, both, or community service. The court determines the appropriate outcome in accordance with the law and circumstances of the case.
16.5 Distinguish Sections 356(2), 356(3) and 356(4).
Subsection (2) concerns defamation itself. Subsection (3) concerns printing or engraving defamatory matter with the specified knowledge. Subsection (4) concerns selling or offering for sale printed or engraved material containing defamatory matter with the specified knowledge.
16.6 What is the relationship between Article 19(1)(a) and defamation?
Article 19(1)(a) protects freedom of speech and expression. Article 19(2) permits reasonable restrictions on that freedom, including in relation to defamation. In Subramanian Swamy v. Union of India (2016), the Supreme Court upheld the challenged criminal defamation provisions under the IPC.
16.7 Why are the exceptions important?
The exceptions prevent the law from being applied without regard to the circumstances and purposes of communication. They address truth for public good, good-faith opinions, judicial reporting, public performance, lawful censure, authorised complaints and specified protective communications.
16.8 Suggested answer structure for a 10-mark question
- Introduce Section 356 BNS and its subject.
- Explain the essential ingredients of defamation.
- Discuss the four explanations.
- Describe all ten exceptions, using concise illustrations.
- Explain punishment under subsections (2), (3) and (4).
- Refer to relevant case law, especially Subramanian Swamy v. Union of India.
- Conclude by balancing protection of reputation with lawful speech and good-faith communication.
17. Frequently Asked Questions on Section 356 BNS
1. What is Section 356 of the BNS?
Section 356 of the Bharatiya Nyaya Sanhita, 2023 deals with defamation. It defines the offence, provides four explanations and ten exceptions, and sets out punishment for defamation and certain activities involving printed or engraved defamatory material.
2. What is the maximum punishment for defamation under Section 356(2)?
The maximum term is two years of simple imprisonment. The court may instead impose a fine, both imprisonment and fine, or community service, as permitted by the section.
3. Which IPC section corresponds to Section 356 BNS?
Section 356(1) corresponds broadly to Section 499 IPC, Section 356(2) to Section 500 IPC, Section 356(3) to Section 501 IPC, and Section 356(4) to Section 502 IPC.
4. Can a WhatsApp message amount to defamation?
A WhatsApp message may raise a defamation issue if the applicable statutory requirements are satisfied. Its content, context, audience, mental element and possible exceptions must be examined. Not every offensive message automatically constitutes criminal defamation.
5. Is truth a complete defence under Section 356?
Not automatically. The first exception requires truth and publication for the public good. Other exceptions have their own conditions.
6. Are all negative reviews defamatory?
No. Fair, evidence-based criticism and a genuine account of personal experience are not automatically criminal defamation. The precise language, factual basis, good faith and applicable exceptions matter.
7. Can a company be defamed?
Explanation 2 expressly recognises imputations concerning a company, association or collection of persons as such. Whether a particular statement is actionable depends on the statutory ingredients and circumstances.
8. Can a deceased person be the subject of defamation?
Explanation 1 covers certain imputations concerning a deceased person where the statement would harm reputation if the person were alive and is intended to hurt the feelings of family or near relatives.
9. Is criminal defamation generally bailable?
Ordinary defamation under Section 356(2) is generally classified as non-cognizable and bailable under the BNSS First Schedule. Special categories and related subsections have distinct classifications, so the applicable entry should be checked.
10. Does a defamation case always require an FIR?
No. Ordinary criminal defamation generally follows the complaint procedure under the BNSS, including Section 222. The correct route depends on the nature of the allegation and applicable procedural provisions.
11. Can a person be sued for criticising a public servant?
Criticism is not automatically unlawful. Exception 2 addresses good-faith opinions concerning a public servant's conduct in the discharge of public functions. The facts, scope of the criticism and applicable legal conditions matter.
12. Does deleting an allegedly defamatory post automatically end a case?
No. Deletion may be relevant to the circumstances, but it does not automatically end every possible criminal or civil proceeding. The outcome depends on the facts, applicable law and procedural stage.
13. What is the difference between Section 356(3) and Section 356(4)?
Subsection (3) concerns printing or engraving defamatory matter with the specified knowledge. Subsection (4) concerns selling or offering for sale printed or engraved material containing defamatory matter with the specified knowledge.
14. Which judgment is important for the constitutionality of criminal defamation?
Subramanian Swamy v. Union of India (2016) is a leading Supreme Court judgment upholding the challenged criminal defamation provisions under the IPC and discussing reputation and freedom of speech.
15. Where can I read the official text of Section 356?
Use the official India Code portal to locate the Bharatiya Nyaya Sanhita, 2023, and consult Section 356 directly.
18. Conclusion
Section 356 of the Bharatiya Nyaya Sanhita, 2023 is the principal provision governing defamation under the new criminal code. It addresses imputations communicated through spoken or written words, signs, visible representations and other modes of publication. Its operation depends on the statutory mental element, the nature of the alleged reputational harm and the circumstances of the communication.
The ten exceptions are equally important. They cover truth published for the public good, specified good-faith opinions, reports of judicial proceedings, public performances, lawful censure, authorised accusations and certain communications made to protect legitimate interests. They help explain why a genuine complaint, responsible criticism or accurate report should not automatically be treated as a criminal offence.
At the same time, describing an accusation as an opinion, joke or warning does not guarantee legal protection. Statements that make serious allegations should be assessed carefully, particularly when published online and capable of rapid circulation.
For law students, the best way to understand Section 356 is to study its four subsections, memorise the ten exceptions, compare the provision with Sections 499 to 502 IPC, and read the relevant judgments alongside the statutory text. For individuals facing an actual dispute, the correct legal approach depends on the precise communication, available evidence, applicable exceptions and current procedural law.
Official Sources and Further Reading
- Bharatiya Nyaya Sanhita, 2023: India Code — official legislation portal.
- Supreme Court judgment: Subramanian Swamy v. Union of India (2016).
- Related criminal procedure: Bharatiya Nagarik Suraksha Sanhita, 2023, particularly Section 222 and the First Schedule, available through the India Code portal.
- Related evidence law: Bharatiya Sakshya Adhiniyam, 2023, available through the India Code portal.
- Related article on Law Zone: BNS 2023: All Important Sections Explained.
Published for educational purposes by Law Zone — The Indian Legal Education Portal.
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