Abstract
In today’s competitive business environment, reputation is one of the most valuable commercial assets. It directly shapes public trust, customer confidence, and long term growth. False or misleading statements made by competitors can severely damage goodwill, especially when such content spreads rapidly across digital platforms and social media. To address this, the Bharatiya Nyaya Sanhita, 2023 (BNS) recognises criminal defamation under Section 356, while the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) prescribes the procedure for initiating criminal proceedings before the competent court.
This article explains the legal framework governing criminal defamation in India and examines when slander by a competitor may attract criminal liability. It provides a practical overview of the complaint process, the evidentiary requirements, the statutory defences available to the accused, and the safeguards that balance the right to reputation with freedom of speech. By simplifying the substantive provisions and procedural rules, the article aims to assist businesses, professionals, entrepreneurs, and legal practitioners in understanding the remedies available to protect reputation against unlawful defamatory conduct.
Introduction
In today’s competitive business environment, reputation is one of the most valuable assets for any individual or organisation. A single false statement whether spread through traditional media or amplified across digital platforms can erode public trust, weaken customer confidence, and cause significant commercial loss. While businesses are encouraged to compete through innovation and quality, competition must remain fair. It cannot cross into false allegations or malicious attacks aimed at undermining a rival’s goodwill.
To address such conduct, Indian law recognises criminal defamation as an offence under Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS). The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides the procedural framework for initiating criminal proceedings, while constitutional safeguards ensure that freedom of speech is preserved through statutory exceptions and reasonable restrictions.
Understanding the distinction between legitimate criticism and unlawful defamation is particularly important in commercial disputes, where misleading statements can damage reputation and consumer confidence. This article explains the legal framework governing criminal defamation, examines when slander by a competitor may attract liability, and provides a practical guide to filing complaints under the BNS and BNSS. It also discusses the evidence required, available defences, judicial developments, and key considerations for businesses and professionals.
Understanding Criminal Defamation under the Bharatiya Nyaya Sanhita, 2023
Reputation is recognised as a valuable legal interest, and the Bharatiya Nyaya Sanhita, 2023 (BNS) protects it through Section 356, which criminalises defamation.
Criminal defamation arises when a person makes or publishes a false imputation against another individual or legal entity with the intention, knowledge, or reasonable belief that it is likely to harm their reputation. Such imputations may be communicated through spoken or written words, printed material, images, electronic communications, social media posts, advertisements, or any other medium capable of reaching third parties.
Essential Ingredients
For liability to arise, three elements must generally be established:
• The statement must concern an identifiable person or legal entity.
• It must be communicated to a third party, since reputation is harmed only when others receive the imputation.
• It must be made with the intention, knowledge, or reasonable belief that reputational harm will result.
Application in Commercial Disputes
In business contexts, criminal defamation often arises when a competitor knowingly circulates false allegations about another company’s products, services, or practices.
For example, claims that a rival sells counterfeit goods, operates without licences, or engages in fraud without factual basis may attract criminal liability.
Statutory Exceptions
The law does not prohibit every negative statement. Honest criticism, fair comment, and truthful statements made for the public good are protected. Courts carefully distinguish between legitimate criticism and malicious falsehood before determining liability.
Ultimately, whether a statement amounts to criminal defamation depends on the facts of the case and the application of statutory provisions. This ensures that the law protects reputation without stifling free expression or genuine consumer feedback.
Slander by a Competitor: When Does It Become Criminal?
Healthy competition drives innovation and benefits consumers. But it crosses into unlawful territory when a business deliberately spreads false statements to damage a rival’s reputation and gain unfair advantage. Such conduct may amount to criminal defamation under Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS), provided the statutory requirements are satisfied.
Traditionally, slander referred to spoken defamatory statements. Today, similar harm can arise through interviews, live broadcasts, podcasts, webinars, or other digital communications. Where such statements are false, communicated to third parties, and intended to harm reputation, criminal liability may follow.
Illustration
Imagine a pharmaceutical company deliberately advertising that a rival’s medicines are unsafe and lack regulatory approval without any evidence. If these allegations erode customer confidence, reduce sales, and damage the competitor’s reputation, the aggrieved company may seek criminal remedies under Section 356 of the BNS.
Lawful vs. Unlawful Competition
The law does not prohibit fair competition or genuine criticism. Businesses may:
• Make truthful comparisons supported by facts.
• Express honest opinions in good faith.
• Advertise their own products responsibly.
Criminal liability arises only when false imputations are intentionally or knowingly published to injure reputation.
Judicial Scrutiny
Courts carefully distinguish between legitimate commercial speech and malicious falsehood. They examine:
• The truthfulness of the statement.
• The intention of the speaker.
• The medium and audience of communication.
• Applicability of statutory exceptions.
Merely proving that a statement is unfavourable is not enough it must be shown that it unlawfully harmed reputation.
Legal Framework Governing Criminal Defamation
The law of criminal defamation in India rests on a combination of substantive, procedural, and constitutional provisions. The Bharatiya Nyaya Sanhita, 2023 (BNS) defines the offence, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) prescribes the procedure for initiating proceedings, and the Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the admissibility of evidence including electronic records that are now central to most defamation disputes.
Substantive Law under the BNS
The offence is contained in Section 356 of the BNS, which penalises the making or publication of defamatory imputations intended—or reasonably believed—to harm another’s reputation. Reputation is recognised as a legal interest deserving protection, but the section also preserves statutory exceptions for truthful statements made for the public good, fair criticism, and communications in good faith.
Procedural Law under the BNSS
Unlike many offences that begin with a police FIR, criminal defamation is ordinarily initiated by filing a private complaint before the jurisdictional Magistrate. The Magistrate examines the complaint, records the complainant’s statement if required, considers supporting material, and decides whether sufficient grounds exist to proceed against the accused.
Evidentiary Rules under the BSA
The Bharatiya Sakshya Adhiniyam, 2023 governs how evidence is admitted and appreciated. With defamatory statements now commonly published through social media, websites, emails, and messaging apps, electronic records often play a decisive role. Courts require reliable, legally admissible evidence to establish claims.
Constitutional Principles
The framework is anchored in constitutional guarantees. Article 19(1)(a) protects freedom of speech, while Article 19(2) permits reasonable restrictions including defamation. At the same time, the Supreme Court has consistently recognised reputation as part of the right to life and personal liberty under Article 21. Criminal defamation law therefore seeks to balance free expression with protection against false and malicious attacks.
Understanding this framework provides the foundation for appreciating how a criminal defamation complaint is instituted and pursued under the BNSS. The next section explains the step by step procedure for filing a complaint.
Important Judicial Developments
Judicial decisions have played a pivotal role in shaping the law of criminal defamation in India. Although the Bharatiya Nyaya Sanhita, 2023 (BNS) now governs the offence, the principles laid down by the Supreme Court under the earlier framework continue to guide courts in balancing the right to reputation with freedom of speech.
1. Subramanian Swamy v. Union of India, (2016) 7 SCC 221
• Facts: Dr. Subramanian Swamy and others challenged the constitutional validity of criminal defamation provisions under the Indian Penal Code, arguing that criminalising defamation violated the fundamental right to free speech under Article 19(1)(a).
• Issue: Whether criminal defamation imposes an unconstitutional restriction on freedom of speech.
• Judgment: The Supreme Court upheld the validity of criminal defamation, holding that freedom of speech is not absolute and is subject to reasonable restrictions under Article 19(2), including defamation. The Court also recognised reputation as an integral part of the right to life and personal liberty under Article 21.
• Significance: This landmark ruling confirmed that while citizens enjoy freedom of expression, it cannot extend to false or malicious statements that unjustifiably harm another’s reputation.
2. Jeffrey J. Diermeier v. State of West Bengal, (2010) 6 SCC 243
• Facts: Criminal proceedings were initiated based on allegedly defamatory statements. The accused argued that the complaint did not disclose the essential ingredients of criminal defamation.
• Issue: Whether every statement affecting reputation automatically amounts to criminal defamation.
• Judgment: The Supreme Court clarified that criminal defamation cannot be presumed merely because a statement is unpleasant or critical. The complainant must establish all legal ingredients, including publication and intent or knowledge of harm.
• Significance: The decision emphasises judicial caution. Courts must carefully examine facts before allowing prosecution, ensuring that genuine criticism, fair comment, or statements protected by statutory exceptions are not treated as criminal defamation.
Together, these judgments highlight the judiciary’s role in striking a balance: protecting reputation as a fundamental right while safeguarding free speech from undue restriction. They remain guiding authorities for interpreting Section 356 of the BNS in contemporary disputes.
Step by Step Procedure for Filing a Criminal Defamation Complaint under the BNSS
An aggrieved person whose reputation has been harmed by a defamatory statement may initiate criminal proceedings under Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS) by following the procedure prescribed under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Step 1: Identify the Defamatory Statement
The complainant must identify the statement alleged to be defamatory, the person responsible for making or publishing it, the manner of publication, and the harm caused. It is equally important to distinguish between false imputations and fair criticism.
Step 2: Preserve the Evidence
All relevant material should be preserved screenshots, emails, social media posts, advertisements, audio or video recordings, and other supporting documents. Prompt preservation is vital, especially for digital publications that can be altered or deleted quickly.
Step 3: Prepare the Complaint
The written complaint should clearly state the facts, identify the accused, explain how the statement damaged reputation, and include supporting documents. A well drafted complaint enables the Magistrate to assess whether a prima facie case exists.
Step 4: File Before the Competent Magistrate
Criminal defamation is ordinarily initiated by filing a private complaint before the Judicial Magistrate with jurisdiction. Unlike many offences, it is generally not commenced through an FIR.
Step 5: Examination by the Magistrate
The Magistrate examines the complaint and supporting material to determine whether sufficient grounds exist. If satisfied, the court may issue process against the accused.
Step 6: Trial
Both parties are given an opportunity to present evidence and arguments. The complainant must establish the ingredients of the offence, while the accused may rely on statutory exceptions or other defences. The court then delivers its judgment based on the evidence and applicable law.
This structured procedure ensures that criminal defamation complaints are handled fairly, with proper documentation and judicial oversight. Following these steps strengthens the complainant’s case and helps the court reach a just outcome.
Evidence Required in Criminal Defamation Cases
The success of a criminal defamation complaint depends on the strength of the evidence presented. The complainant must prove not only that the defamatory statement was made or published but also that it caused reputational harm.
Evidence may include:
• Emails and business correspondence
• Screenshots of social media posts or comments
• Online reviews and advertisements
• Audio or video recordings
• Newspaper publications or printed material
Since digital content can be altered or deleted quickly, prompt preservation is essential. The admissibility of such records is governed by the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
Witness Testimony
Witnesses who read, heard, or observed the defamatory statement can confirm that it was communicated to third parties an essential element of defamation. Their testimony strengthens the complainant’s case by establishing circulation beyond private communication.
Evidence of Commercial Harm
In business disputes, additional documents may demonstrate the impact of defamation, such as:
• Cancelled contracts
• Loss of customers
• Decline in sales or enquiries
• Withdrawal of business opportunities
Such evidence helps the court appreciate the seriousness of reputational damage.
Timely Preservation
Reliable evidence must be preserved immediately upon discovery. Proper documentation enables the court to determine whether the ingredients of criminal defamation under Section 356 BNS have been established.
This section underscores that credible, admissible, and promptly preserved evidence is the backbone of a successful criminal defamation complaint. Without it, even strong allegations may fail in court.
Defences Available to the Accused
The Bharatiya Nyaya Sanhita, 2023 (BNS) recognises statutory exceptions to ensure that criminal defamation does not unduly restrict legitimate freedom of speech. Not every statement that affects reputation amounts to an offence.
Truth Published for the Public Good
A statement that is true and made in the interest of the public may not amount to criminal defamation. For example, exposing unsafe practices or warning consumers about genuine risks can be protected if the information is accurate and serves a legitimate public purpose.
Fair Comment or Honest Opinion
Opinions expressed in good faith on matters of public interest such as product reviews, professional performance, or industry practices are generally protected, provided they are based on facts and not motivated by malice.
Complaints Made in Good Faith
Reports made honestly to competent authorities, such as regulators or law enforcement, are protected even if they adversely affect reputation. The safeguard applies only when the complaint is made for a legitimate purpose and without malicious intent.
Fair and Accurate Reporting
Journalists and media organisations may report judicial proceedings or official records, provided the reports are substantially accurate and not deliberately misleading. This defence encourages transparency while preventing misuse of reporting to spread falsehoods.
Whether a defence applies depends on the facts of each case. Courts examine the intention behind the statement, the circumstances in which it was made, and whether it falls within a recognised statutory exception. If an exception is established, criminal liability will not arise even if the statement adversely affects reputation.
Critical Analysis
Criminal defamation plays an important role in protecting individuals and businesses against false statements that can cause serious reputational harm. Yet, its application in commercial disputes requires careful judicial scrutiny. Businesses may sometimes invoke criminal defamation not to protect goodwill but to discourage criticism or silence competitors—even when the statements amount to fair comment or genuine consumer feedback. Courts must therefore ensure that Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS) is applied only when the essential ingredients of the offence are clearly established.
At the same time, businesses should recognise that litigation is not always the most effective solution. Disputes arising from misunderstandings or inaccurate information may be resolved more efficiently through corrective communication, professional clarification, or alternative dispute resolution mechanisms such as negotiation or mediation. These approaches often provide quicker, less adversarial remedies while preserving commercial relationships.
Ultimately, the law must continue to strike a fair balance protecting reputation as a valuable legal interest while safeguarding the constitutional right to freedom of speech and expression. Criminal defamation should remain a remedy of last resort, reserved for deliberate and malicious attacks, rather than a tool to suppress legitimate criticism or consumer voice.
Practical Tips for Businesses and Individuals
Preventing defamation is often more effective than resolving disputes through litigation. Businesses and professionals can reduce risk by adopting responsible communication practices and taking timely steps to safeguard their reputation.
Responsible Communication
Before making public statements about competitors, ensure that information is accurate, verifiable, and supported by reliable evidence. Comparative advertising should rely on factual claims rather than exaggerated or misleading allegations. Employees handling marketing, PR, or social media should be trained to avoid statements that could expose the organisation to liability.
Preserve Evidence Promptly
If defamatory content is discovered, preserve all available material immediately screenshots, emails, posts, videos, or reviews. Since digital content can be edited or removed quickly, early preservation is essential.
Seek Legal Advice Early
Consulting a lawyer at the initial stage helps assess whether the matter warrants criminal proceedings, civil remedies, or alternative resolution. Legal advice also ensures evidence is preserved in a manner that complies with the Bharatiya Sakshya Adhiniyam, 2023.
Respond Professionally
False allegations should be addressed with professionalism. In some cases, issuing a clarification or requesting removal of misleading content may resolve the issue without litigation. Where false statements are deliberate and malicious, legal proceedings under the BNS may become necessary.
Proactive Reputation Management
A proactive approach combining responsible communication, accurate documentation, and awareness of legal rights significantly reduces the risk of disputes. Ethical competition and transparent practices not only minimise liability but also strengthen consumer trust and credibility.
By integrating preventive measures with legal awareness, businesses and individuals can protect their reputation more effectively while promoting fairness and integrity in the marketplace.
Conclusion
In today’s competitive business environment, reputation is one of the most valuable assets an individual or organisation can possess. While businesses are free to compete through innovation, quality, and effective marketing, the law does not permit unfair practices that rely on false or malicious statements to damage a competitor’s standing. Criminal defamation under Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS) serves as a crucial safeguard, protecting individuals and businesses against unlawful attacks on their goodwill while maintaining balance with the constitutional right to freedom of speech.
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides a structured procedure for initiating criminal defamation proceedings, ensuring that complaints are examined by the court before prosecution begins. At the same time, the law recognises statutory exceptions truth published for the public good, fair criticism, and communications made in good faith so that genuine expression is not stifled.
For businesses and professionals, understanding these principles is essential. Timely preservation of evidence, responsible communication, and awareness of available remedies can help protect reputation and prevent unnecessary disputes.
Ethical competition and transparent practices not only reduce legal risk but also strengthen consumer trust and credibility.
Ultimately, the objective of criminal defamation law is not to restrict legitimate expression but to ensure that freedom of speech is exercised responsibly, fairly, and without unjustified harm to reputation. In this way, the law promotes both public confidence and fair competition, while upholding the rule of law in an increasingly interconnected commercial world.
Frequently Asked Questions (FAQs)
1. What is criminal defamation under the Bharatiya Nyaya Sanhita, 2023?
Criminal defamation is an offence under Section 356 of the BNS. It occurs when someone makes or publishes a false imputation against another person or legal entity with the intent or with knowledge or reasonable belief that it will harm their reputation.
2. Can a business file a criminal defamation complaint against a competitor?
Yes. Legal protection extends beyond individuals. Companies, LLPs, partnerships, and other recognised entities may file complaints if false statements damage their goodwill or reputation. Such complaints are usually filed through an authorised representative before the competent Magistrate.
3. Can social media posts or online reviews amount to criminal defamation?
Yes. False and malicious posts, reviews, videos, emails, or messages circulated through digital platforms may amount to criminal defamation if they satisfy the requirements of Section 356. Genuine customer reviews and honest opinions expressed in good faith, however, are protected.
4. What evidence is required to file a criminal defamation complaint?
Evidence may include screenshots, emails, social media posts, newspaper publications, audio or video recordings, online reviews, business correspondence, and witness testimony. Electronic records must comply with the Bharatiya Sakshya Adhiniyam, 2023 (BSA) for admissibility.
5. Can criminal and civil remedies be pursued together?
Yes. An aggrieved person may initiate criminal proceedings under the BNS and also seek civil remedies such as damages or injunctions. Since these remedies serve different purposes, they can proceed independently, subject to applicable law.
References
Statutes
1. The Constitution of India, 1950 (Articles 19(1)(a), 19(2) and 21).
2. Bharatiya Nyaya Sanhita, 2023, Section 356.
3. Bharatiya Nagarik Suraksha Sanhita, 2023.
4. Bharatiya Sakshya Adhiniyam, 2023.
Judicial Decisions
1. Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
2. R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
3. Jeffrey J. Diermeier v. State of West Bengal, (2010) 6 SCC 243.
4. Sewakram Sobhani v. R.K. Karanjia, (1981) 3 SCC 208.
5. M.C. Verghese v. T.J. Ponnan, (1970) 1 SCC 37.
6. John Thomas v. Dr. K. Jagadeesan, (2001) 6 SCC 30.
Books
1. K.D. Gaur, Textbook on Criminal Law, LexisNexis (Latest Edition).
2. K.N. Chandrasekharan Pillai, R.V. Kelkar’s Criminal Procedure, Eastern Book Company (Latest Edition).
3. Ratanlal & Dhirajlal, The Bharatiya Nyaya Sanhita, LexisNexis (Latest Edition).
Official Government Sources
1. Ministry of Home Affairs, Government of India, The Bharatiya Nyaya Sanhita, 2023.
2. Ministry of Home Affairs, Government of India, The Bharatiya Nagarik Suraksha Sanhita, 2023.
3. Ministry of Home Affairs, Government of India, The Bharatiya Sakshya Adhiniyam, 2023.
4. India Code Portal, Government of India.
5. Supreme Court of India, Official Website.
Author: Aditi Acharjee
Law Student | Author | Passionate about justice, literature, and the power of words. I write to inspire thought, spark conversation, and turn ideas into meaningful stories.