Defamation: Truth as a defense
Truth is a defense for defamation but can it be considered as an absolute defense for a suit of defamation? Is there a difference in the application of this defense in case of a civil or criminal application for defamation?
Truth is not an absolute defense to defamation, whether you file for defamation as a tort (civil suit) or under Section 499/500 of the Indian Penal Code, 1860. In the judgment delivered by the Hon'ble Supreme Court of India in Subramanian Swamy v/s Union of India (Criminal Writ Petition No.184 of 2014 a/w others), the petitioners had challenged the constitutional validity of Section 499/500, IPC. The Supreme Court held that the "right to freedom of speech and expression" is not an absolute right, and can be curtailed including by way of making it an offence to defame persons. Furthermore, as far as Section 499 is concerned (defamation as an offence), the Section itself provides for 10 exceptions, the first among them being truth. The wording of the exception, and allied case law suggest that the truth of the statement made must be seen in the context of whether it is for the public good or not - it is possible to suggest that for Section 499, truth is not an absolute defence, rather the maker of the statement must show that the truthful statement was made for public good, despite being defamatory.
Truth cannot be considered as an absolute defence to the crime of defamation. This is because the penalising provision, Sec. 499 of IPC, sets out truth as a defence only in a particular context. As part of the first exception to Sec. 499, truth is a defence only when it is in the interest of public good that such truth be expressed publicly. Whether an expression of truth is in the interest of public good will have to be argued on a case to case basis, as it is a question of fact.
Truth is an absolute defence with respect to civil defamation cases.
Subamaniam Swamy vs Union of India Criminal Writ Petition No.184 of 2014