Sections 499-502 IPC vs Section 356 BNS — Defamation

In India, Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS) replaces IPC Sections 499 to 502 on criminal defamation for offences from 1 July 2024. The definition and ten Exceptions carry over with drafting changes, including the words "in any manner". The maximum stays at two years' simple imprisonment, and s.356(2) adds community service as a sentence.

At a glance

The classification matches the CrPC First Schedule for IPC ss.500–502, except that the BNSS punishment column for s.356(2) adds community service.

What changed

• Expanded — Definition: "makes or publishes any imputation" → "makes or publishes in any manner, any imputation".
• Identical — The mental element: "intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person".
• Minor edit — Explanations 1–4 are carried over. The original IPC text we hold misprints "feelings" as "fellings" (Explanation 1) and "loathsome" as "loothsome" (Explanation 4); the BNS spells both correctly. Illustrations: "unless it fall" → "unless it falls"; Exception 5, Illustration (a): "no farther" → "no further".
• Minor edit — Exceptions renamed: "First Exception.—Imputation of truth which public good requires to be made or published.—" becomes "Exception 1.—", and so on to Exception 10. The descriptive titles are dropped; the operative words of each Exception are carried over.
• Minor edit — Exceptions 4 and 5: "a Court of Justice" → "a Court".
• Minor edit — Explanation to Exception 4: "A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice" → "A Magistrate or other officer holding an inquiry in open Court preliminary to a trial in a Court".
• Expanded — s.500 → s.356(2): "or with fine, or with both" → "or with fine, or with both, or with community service".
• Identical — s.501 → s.356(3) and s.502 → s.356(4): same words, same punishment, no community service.
• Identical — Non-cognizable, bailable, same trial courts; compoundable in the same way (BNSS s.359; CrPC s.320).
• Minor edit — BNSS s.222 replaces CrPC s.199. "under the age of eighteen years, or is an idiot or a lunatic" becomes "a child, or is of unsound mind or is having intellectual disability". The sanction clause is regrouped, with no change to who sanctions.
• New (procedure) — BNSS s.223(1) first proviso: no cognizance on a complaint without giving the accused an opportunity of being heard. CrPC s.200 had no such proviso.

Statutory text (relevant extract)

IPC s.499 (original text, opening words)

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

BNS s.356(1) (Gazette text, opening words)

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner, any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

IPC s.500 and BNS s.356(2) (extracts)

IPC 500: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

BNS 356(2): Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both, or with community service.

How it works — ingredients and Exceptions

The offence (s.356(1)) needs:

1. An imputation concerning a person, made or published by words (spoken or intended to be read), signs or visible representations, "in any manner".
2. Intention or knowledge: intending to harm, or knowing or having reason to believe that the imputation will harm, that person's reputation.
3. Harm to reputation as the Act defines it (Explanation 4): the imputation must, in the estimation of others, lower the person's moral or intellectual character, his character in respect of caste or calling, or his credit, or cause it to be believed that his body is in a loathsome or disgraceful state.
4. No Exception applies.

Who can be defamed. A deceased person, if the imputation would harm his reputation if living and is intended to hurt his family or near relatives (Explanation 1). A company, association or collection of persons as such (Explanation 2). An imputation "in the form of an alternative or expressed ironically" may amount to defamation (Explanation 3).

The ten Exceptions, in short:

Worked examples from the Act's illustrations. A says "Z is an honest man; he never stole B's watch", intending it to be believed that Z did steal the watch: defamation unless an Exception applies (Illustration (a)). A shopkeeper tells his manager "Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty": within Exception 9 if said in good faith to protect his own interests (Exception 9, Illustration (a)). A reviewer who calls Z's book foolish is within Exception 6; one who says Z is "a weak man and a libertine", not founded on the book, is not (Exception 6, Illustrations (d)–(e)).

What this means in practice

For the person defamed. File a complaint before the Magistrate. No FIR route exists: every limb is non-cognizable, and BNSS s.222(1) allows cognizance only "upon a complaint made by some person aggrieved by the offence". Where the aggrieved person is a child, of unsound mind or with intellectual disability, or unable through sickness or infirmity, another person may complain with the court's leave (proviso). The complaint must be filed within three years (BNSS s.514(2)(c)).

For high functionaries. Where defamation concerns the President, Vice-President, a Governor, an Administrator, a Minister or another public servant in respect of public functions, a Court of Session may take cognizance directly on the Public Prosecutor's written complaint (s.222(2)). The complaint needs prior sanction of the State or Central Government (s.222(4)) and must be made within six months (s.222(5)). The individual may still file his own complaint before a Magistrate (s.222(6)).

For the accused. Before taking cognizance, the Magistrate must give the accused an opportunity of being heard (BNSS s.223(1), first proviso). The offence is bailable. An accused relying on an Exception carries the burden of proving it on a preponderance of probability (Diermeier, Subramanian Swamy), so gather evidence of good faith, public good and any inquiry made before the statement.

On sentence. Community service is available only under s.356(2). BNSS s.23 lets Magistrates of the first and second class pass it and defines it as unpaid work that benefits the community. BNS s.8(4) allows the court to impose imprisonment in default of community service, and s.8(5) makes it simple, and caps its term, where the offence is punishable with fine or community service.

Settling. The person defamed may compound s.356(2)–(4) without permission; a s.356(2) case begun by the Public Prosecutor needs the court's permission (BNSS s.359(1)–(2)).

Judgments that still matter

Section 356(1) repeats the operative words of s.499, adding "in any manner", and the Exceptions keep their operative words. On a reading of the text, judgments construing s.499 and its Exceptions remain relevant. No judgment applying BNS s.356 was read for this page.

Chaman Lal v. State of Punjab, [1970] 3 S.C.R. 913 — decided 6 March 1970 by A.N. Ray and I.D. Dua JJ; judgment by Ray J. The president of a municipal committee wrote to the Civil Surgeon making imputations against the character of a nurse, whom the Court described as a poor and helpless widow; the charge based on remarks at a public meeting failed for want of a dependable record, and he was given the benefit of doubt on it. He pleaded the First, Eighth and Ninth Exceptions. The Court held that the First Exception needs both truth and public good, with the onus on the accused. "Public good is a question of fact. Good faith has also to be established as a fact." It added: "Good faith requires care and caution and prudence in the background of context and circumstances," and "the position of the person making the imputation will regulate the standard of care and caution." The conviction under s.500 was upheld. Why it matters: Exceptions 1, 8 and 9 of s.356(1) keep these words.

Jeffrey J. Diermeier v. State of West Bengal, [2010] 7 S.C.R. 128 (2010 INSC 325) — decided 14 May 2010 by D.K. Jain and H.L. Dattu JJ; judgment by Jain J. The Court held that the offence is complete if the accused intended, knew or had reason to believe the imputation would harm the complainant's reputation, "irrespective of whether the complainant actually suffered" (para 24). Where the accused invokes the Tenth Exception, good faith and public good "have both to be established by him", on a preponderance of probability, not beyond reasonable doubt (para 32). Because these were questions of evidence, the complaint over a published "Word of Caution" could not be quashed (paras 33–34). Why it matters: the Tenth Exception is now Exception 10 to s.356(1), in the same words.

Subramanian Swamy v. Union of India, Ministry of Law, [2016] 3 S.C.R. 865 (2016 INSC 427) — decided 13 May 2016 by Dipak Misra and Prafulla C. Pant JJ; judgment by Misra J. The Court upheld ss.499 and 500 IPC and s.199 CrPC (para 199). It held that reputation is "an inherent component of Article 21" (para 140) and that the provision, Explanations and Exceptions are "neither vague nor excessive nor arbitrary" (para 184). Criminal defamation "is not a restriction on free speech that can be characterized as disproportionate" (para 186). It rejected the argument that Exceptions must be weighed before summons: "those who plead Exception must prove it" (para 198). Magistrates must scrutinise complaints carefully before issuing process (para 197). Why it matters: BNS s.356 and BNSS s.222 re-enact the provisions upheld. The judgment did not consider the added words "in any manner" or community service.

Which law applies to your case

BNS s.358(2) keeps penalties and proceedings for offences committed against the IPC alive "as if that Code had not been repealed". Article 20(1) of the Constitution bars a penalty greater than the one available under the law in force when the offence was committed. On a reading of those provisions, defamation published before 1 July 2024 is prosecuted under IPC ss.499–502. The text of s.358 does not say whether community service under s.356(2) may be imposed for such an offence. BNSS s.531(2)(a) keeps complaints pending on 1 July 2024 under the CrPC, so the s.223(1) hearing before cognizance applies, on a reading of the text, only to proceedings governed by the BNSS. See Offence before 1 July 2024 — which law applies.

Frequently asked questions

What is the BNS equivalent of Section 499 and Section 500 IPC? Section 356 of the Bharatiya Nyaya Sanhita, 2023 replaces IPC Sections 499 to 502 for offences committed on or after 1 July 2024. Section 356(1) carries the definition of defamation from Section 499, and Section 356(2) the punishment from Section 500. Printing or engraving defamatory matter (Section 501) is now Section 356(3), and selling it (Section 502) is Section 356(4).

What is the punishment for defamation under the BNS? Under Section 356(2) BNS, simple imprisonment for a term which may extend to two years, or fine, or both, or community service. Under Section 500 IPC the options were the same except community service. Printing or selling defamatory matter under Sections 356(3) and 356(4) carries simple imprisonment up to two years, or fine, or both, without the community service option.

What is community service as a punishment for defamation? Community service is one of the punishments listed in BNS Section 4(f). BNSS Section 23 defines it as work the court may order a convict to perform as a form of punishment that benefits the community, for which he is not entitled to any remuneration. Section 8 BNS allows imprisonment in default of community service, which must be simple where the offence is punishable with fine or community service.

Can the police register an FIR for defamation? No. Every limb of Section 356 is non-cognizable under the BNSS First Schedule, and BNSS Section 222(1) bars any court from taking cognizance except on a complaint made by some person aggrieved by the offence. The complaint goes to a Magistrate, who must give the accused an opportunity of being heard before taking cognizance (BNSS Section 223(1)).

Is truth a defence to criminal defamation? Only with public good. Exception 1 to Section 356(1) BNS protects an imputation of anything true concerning a person if it is for the public good that it be made or published, and whether it is for the public good is a question of fact. In Chaman Lal (1970) the Supreme Court held that the accused must establish both truth and public good.

Can a defamation case be settled? Yes. Under BNSS Section 359(1), the person defamed may compound offences under Sections 356(2), 356(3) and 356(4) without the court's permission, except a Section 356(2) case instituted by the Public Prosecutor for a high constitutional functionary or Minister. That case may be compounded by the person defamed with the court's permission under Section 359(2). Compounding has the effect of an acquittal.

Is criminal defamation constitutionally valid? In Subramanian Swamy v. Union of India (2016), a two-judge Bench of the Supreme Court upheld Sections 499 and 500 IPC and Section 199 CrPC. It held that criminal defamation is not a disproportionate restriction on free speech and that reputation is part of Article 21. BNS Section 356 re-enacts those provisions with the drafting changes listed on this page; the judgment did not consider the BNS.

What is the time limit for a defamation complaint? Defamation is punishable with up to two years, so BNSS Section 514(2)(c) bars cognizance after three years, as CrPC Section 468 did. Where the Public Prosecutor files the complaint for the President, Vice-President, a Governor, an Administrator, a Minister or other public servant under BNSS Section 222(2), it must be made within six months of the alleged offence (Section 222(5)).

Related

• Community service — the new punishment
• Private complaint — CrPC s.200 vs BNSS s.223
• Compromise in a criminal case — BNSS s.359 vs CrPC s.320
• Fake news and false statements — BNS 353, 197 vs IPC 505
• Offence before 1 July 2024 — which law applies
• Section 320 CrPC vs Section 359 BNSS — Compounding of Offences
• Sections 29–31 CrPC vs Sections 23–25 BNSS — Sentencing Powers of Magistrates and Sentences for Several Offences at One Trial

Sources

Acts and sections read (primary text):

• Bharatiya Nyaya Sanhita, 2023 (Gazette of India, CG-DL-E-25122023-250883): ss.4, 8, 356, 358.
• Indian Penal Code, 1860 (original text): ss.499–502.
• Bharatiya Nagarik Suraksha Sanhita, 2023: ss.23, 222, 223, 359, 514, 531(2)(a); First Schedule entries for BNS s.356(2)–(4).
• Code of Criminal Procedure, 1973: ss.199, 200, 320, 468; First Schedule entries for IPC ss.500–502.
• Constitution of India: Article 20(1).

Judgments read (Supreme Court, judgment text):

• Chaman Lal v. State of Punjab, [1970] 3 S.C.R. 913 — corpus file 1970_3_913_919_EN.md.
• Jeffrey J. Diermeier v. State of West Bengal, [2010] 7 S.C.R. 128 — corpus file 2010_7_128_153_EN.md.
• Subramanian Swamy v. Union of India, Ministry of Law, [2016] 3 S.C.R. 865 — corpus file 2016_3_865_1017_EN.md.

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.