Section 356 BNS 2023 — what the new law says
The Bharatiya Nyaya Sanhita, 2023 (BNS) replaced the Indian Penal Code from 1 July 2024. Defamation moved from Sections 499–500 IPC to Section 356 BNS. The core definition is substantively the same, but BNS adds community service as a punishment option and the structure is reorganised across sub-sections.
Section 356(1) — the definition
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 to defame that person — except in the cases hereinafter excepted.
Three elements are essential:
- The statement is defamatory — it lowers the person in the estimation of right-thinking members of society. The test is objective: what would ordinary, reasonable people think?
- It refers to an identifiable person — must be about a specific, identifiable individual or entity. Vague statements about "someone in the finance industry" may not qualify. However, the subject need not be named — if the description is clear enough to identify them, it suffices.
- It is published — communicated to at least one third party. A defamatory statement communicated only to the subject themselves is not defamation in law. Communication to even one other person constitutes publication.
The intent requirement
Unlike civil defamation (which in some jurisdictions is strict liability), criminal defamation under Section 356 BNS requires: intent to harm the reputation; or knowledge that the statement would harm reputation; or reason to believe it would harm reputation. This mens rea (mental element) requirement protects innocent mistakes and legitimate speech from criminal prosecution.
Section 356(2), (3), (4) — punishments
| Sub-section | Covers | Punishment |
|---|---|---|
| 356(2) | General defamation (spoken, written, any form) | Simple imprisonment up to 2 years, or fine, or both, or community service |
| 356(3) | Defamation through printed or engraved material (newspapers, books, pamphlets) | Simple imprisonment up to 2 years, or fine, or both |
| 356(4) | Selling or offering for sale printed/engraved material containing defamatory matter (while knowing it is defamatory) | Simple imprisonment up to 2 years, or fine, or both |
Criminal defamation is a non-cognizable offence — the police cannot arrest the accused without a Magistrate's warrant and cannot register an FIR. You cannot walk into a police station and report defamation expecting the police to arrest the person. The correct procedure is to file a private complaint before the Judicial Magistrate of First Class under Section 223 of BNSS 2023. The Magistrate takes cognisance, issues summons to the accused, and the trial proceeds. Many people lose valuable time by going to the police station first — go directly to the Magistrate's court.
IPC 499 vs BNS 356 — what changed
| Feature | IPC Section 499 (before July 2024) | BNS Section 356 (from July 2024) |
|---|---|---|
| Basic definition | Same | Same — no substantive change |
| Punishment — maximum | 2 years imprisonment | 2 years imprisonment |
| Community service | Not available | Added as an option under Section 356(2) |
| Exceptions (defences) | 10 exceptions | 10 exceptions — same |
| Companies and associations | Explanation 2 to Section 499 | Explanation 2 to Section 356 — same |
| Deceased persons | Explanation 1 to Section 499 | Explanation 1 to Section 356 — same |
| Cognizable? | Non-cognizable | Non-cognizable |
Civil defamation vs criminal defamation — choosing the right route
These are two independent legal routes that can be pursued simultaneously or alternatively.
| Feature | Criminal defamation (Section 356 BNS) | Civil defamation (tort law) |
|---|---|---|
| Objective | Punish the wrongdoer; deter repetition | Compensate the victim; injunct against repetition |
| Forum | Judicial Magistrate of First Class (private complaint) | Civil Court (civil suit) |
| Outcome | Imprisonment up to 2 years; fine; community service | Monetary damages; injunction; retraction order; apology order |
| Standard of proof | Beyond reasonable doubt (higher) | Balance of probabilities (lower) |
| Limitation period | 3 years from date of publication | 1 year from date of publication |
| Legal notice required? | Advisable but not mandatory | Strongly advisable — often triggers settlement |
| Can be pursued together? | Yes — both can be filed simultaneously | |
Which route is more effective in practice?
The criminal route (Section 356 BNS complaint) is primarily used as leverage — the prospect of criminal prosecution and the associated stigma often prompts the accused to retract, apologise, and settle. Full criminal trial outcomes are rare; most cases settle after the Magistrate issues summons and the accused feels the pressure of a criminal process.
The civil route (damages suit) is better for cases where you have suffered quantifiable financial harm — loss of business, contracts cancelled, clients lost. Civil courts can award substantial damages — Indian courts have been increasingly willing to award real compensation rather than nominal amounts, particularly in corporate defamation cases.
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Section 356 BNS provides 10 specific exceptions — statements that are not defamation even if they harm someone's reputation. These protect free speech, journalism, and legitimate criticism. Understanding these is critical both for plaintiffs (to anticipate defences) and defendants (to know if you have a defence).
| Exception | What it protects |
|---|---|
| 1. Truth for public good | Imputation of truth that it is for public good to make or publish. Key: both elements needed — the statement must be true AND it must be in the public interest to publish it. Private true gossip does not qualify. |
| 2. Public servant's official conduct | Fair comment in good faith about the conduct of a public servant in the discharge of their public functions. Politicians, judges (in their official capacity), police officers — their official conduct can be commented on. |
| 3. Public institution's conduct | Fair comment in good faith respecting the conduct of any person touching any public question. Broader than Exception 2 — covers public companies, NGOs, educational institutions on public matters. |
| 4. Court proceedings | A true report of the proceedings of a Court of Justice — or the result of such proceedings. Journalists and lawyers who accurately report court hearings are protected. |
| 5. Merit of decided cases | Expression in good faith of any opinion about the merits of any decided case. Post-judgment criticism and legal commentary on decided cases is protected. |
| 6. Merit of literary/artistic work | Expression in good faith of any opinion about the merits of any performance which its author has submitted to the judgment of the public. Book reviews, film criticism, product reviews submitted for public scrutiny. |
| 7. Censure of others over oneself | Censure passed in good faith by a person having lawful authority over another in matters to which that authority relates. An employer criticising an employee's work performance is protected. |
| 8. Accusation to authorised person | Accusation in good faith against the accused to a person who has lawful authority over the subject matter. Filing a complaint in good faith with police or regulators. |
| 9. Good faith communication | Communication made in good faith for the protection of the interests of the person making it or of any other person, or for the public good. Whistleblowing to regulators, genuine warnings given in good faith. |
| 10. Warning in good faith | Caution conveyed in good faith to one person about another if the caution is intended for the good of the person to whom it is conveyed, or of some other person, or for public benefit. Genuine safety warnings are protected. |
The most important defences in practice
Exception 1 — Truth for public good is the most commonly invoked. The burden of proving truth lies on the defendant. Note: truth alone is NOT sufficient — it must also be for public good. A true statement made purely to settle scores or damage someone's reputation without public benefit is still potentially actionable.
Fair comment (Exceptions 2, 3, 6) protects opinions, criticism, and commentary — but only opinions genuinely held and expressed in good faith, not statements of fact stated as opinions to evade liability. "In my opinion, X is a fraudster" is defamatory if stated as a disguised fact, not a genuine belief.
Social media and cyber defamation
Section 356 BNS applies fully to online defamation — tweets, Instagram posts, Facebook posts, WhatsApp messages forwarded to groups, YouTube videos, blog posts, and online reviews are all covered by the phrase "makes or publishes in any manner."
What constitutes "publication" online
- A tweet visible to followers — published
- A WhatsApp message forwarded to a group — published (communicated to third parties)
- A private WhatsApp message sent only to the subject — NOT published (no third party)
- A defamatory post on Instagram — published when first posted
- Each "share" or "retweet" — each share is a fresh publication; the original poster and each sharer can be liable
IT Act provisions that supplement BNS 356
| Provision | What it covers | Note |
|---|---|---|
| IT Act Section 66 | Dishonest or fraudulent computer acts — applicable where hacking or unauthorised access was used to post defamatory content | Applicable alongside BNS 356 |
| IT Act Section 67 | Publishing obscene material electronically — applies when morphed images or explicit content is used to defame | Applicable alongside BNS 356 |
| IT Act Section 66A | Online offensive content | STRUCK DOWN — unconstitutional per Shreya Singhal (2015). Do NOT cite this section. |
| IT (Intermediary Guidelines) Rules 2021 | Social media platforms must remove defamatory content within 24 hours of a court order or valid government/regulatory notice | Platform takedown mechanism |
Getting content removed from social media
For urgent removal of defamatory content:
- File a platform report using the platform's own flagging/reporting mechanism
- Approach a civil court for an urgent injunction ordering the platform to take down the content — courts have granted ex-parte interim injunctions in hours for serious cases
- Send a legal notice to the platform citing IT Rules 2021 — platforms respond faster to legal notices than public reports
- File a complaint with the Grievance Officer of the platform (platforms must have one under IT Rules 2021)
Key cases shaping defamation law in India
Subramanian Swamy v. Union of India (2016) — criminal defamation is constitutional
The Supreme Court upheld the constitutionality of criminal defamation (then Sections 499–500 IPC, now Section 356 BNS). The Court held: criminal defamation is a reasonable restriction on freedom of speech under Article 19(2); the right to reputation is part of the right to life under Article 21; "reputation of one cannot be allowed to be crucified at the altar of the other's right of free speech." This remains binding precedent.
MJ Akbar v. Priya Ramani (2021) — truth and dignity as defences
In a prominent #MeToo case, MJ Akbar filed a criminal defamation complaint against journalist Priya Ramani for her account of sexual harassment. The Delhi court acquitted Ramani, holding: the right to speak in self-defence about sexual harassment outweighs a reputation claim; truth is a complete defence; a woman has a right to dignity and cannot be silenced by a defamation case. This judgment established important precedent for the right of harassment victims to speak out.
Supreme Court September 2025 — hint at decriminalisation
While hearing a criminal defamation case (*JNU professor v. The Wire*, 22 September 2025), a Supreme Court bench comprising Justices MM Sundresh and Satish Chandra Sharma observed: "It's time to decriminalise all this." The bench questioned whether criminal sanctions are proportionate for defamation in a modern democracy and noted the chilling effect on free speech. Important caveat: this was an observation during hearing, not a binding ruling. The 2016 Subramanian Swamy precedent remains binding law. A fresh constitutional challenge is needed to change the law. But this observation signals that the Supreme Court may be receptive to such a challenge in the future.
Shreya Singhal v. Union of India (2015) — Section 66A struck down
The Supreme Court struck down Section 66A of the IT Act as unconstitutional — it was vague, overly broad, and had a chilling effect on free speech. Critical practical point: Section 66A is dead law. Filing a complaint citing Section 66A is legally incorrect. For online defamation, cite BNS Section 356 + IT Act Sections 66 and/or 67 as applicable.
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Step 1: Preserve all evidence immediately
Screenshots with timestamps, URL preservation, video recordings with metadata, witness statements (people who saw the publication), printed copies of articles. Evidence that has been deleted can sometimes be recovered through digital forensics or cached copies — preserve what you can immediately.
Step 2: Issue a legal notice
Through a lawyer, send a formal legal notice demanding: retraction of the defamatory statement; public apology; deletion of online content; damages (specify the amount you will claim); and a deadline (15–30 days). The legal notice serves multiple purposes: it often triggers settlement; it demonstrates that you gave the accused an opportunity to remedy the situation before litigation; it establishes the date from which damages may accrue; and it is evidence of the accused's knowledge that their statement was considered defamatory.
Step 3: Criminal complaint before the Magistrate
File a private complaint under Section 223 BNSS before the Judicial Magistrate of First Class in your jurisdiction (where the defamatory statement was published or where you reside). Attach all evidence. The Magistrate will examine the complaint, may record your statement, and if satisfied that a prima facie case is made out, will issue summons to the accused. A lawyer is essential for drafting the complaint — it must set out all required elements of the offence clearly.
Step 4: Civil suit for damages
Simultaneously (or instead of the criminal complaint), file a civil suit in the appropriate civil court claiming: compensatory damages (actual financial loss); aggravated damages (for deliberate or reckless defamation); exemplary (punitive) damages (for cases of gross malice or repetition); injunction restraining further publication; order for retraction and apology. India has no cap on civil defamation damages — courts award based on the extent of harm and the defendant's conduct.
If you have been accused of defamation
If you receive a legal notice or court summons for defamation, your key defences are:
Defence 1: Statement is true (and for public good)
Truth is an absolute defence under Exception 1. You must prove the statement is factually accurate AND that publishing it served the public good. Gather all evidence of truth — documents, witnesses, records. The burden of proving truth is on you as the defendant.
Defence 2: Fair comment
If the statement was an opinion rather than a statement of fact — a genuine, honestly-held opinion on a matter of public interest — it may be protected as fair comment. The opinion must be based on facts that are either true or privileged, and must be recognisable as opinion rather than fact.
Defence 3: No publication to third parties
If the statement was made only to the subject themselves (a private email to the person criticised, for example), there is no publication and therefore no defamation.
Defence 4: Statement was not about the complainant
Challenge whether the statement is sufficiently specific to identify the complainant. If the description is too vague to identify a specific person, there is no defamation of that person.
Defence 5: No intent or knowledge of harm
Criminal defamation requires intent, knowledge, or reason to believe that harm would result. An innocent mistake — a genuine misunderstanding — may not satisfy the mens rea requirement.
Defence 6: Privilege
Statements made in legislative proceedings, court proceedings, or in good faith to authorised persons (police, regulators) are absolutely or conditionally privileged under the exceptions to Section 356.
Defamation — questions people actually ask
Can I sue a newspaper for a defamatory article?
Yes. You can file a criminal complaint against both the editor and the publisher, and a civil suit against the newspaper company, the editor, and the author of the article. Section 356(3) BNS specifically covers defamation through printed material. Newspapers often settle defamation cases with a retraction and apology rather than face prolonged litigation — a strong legal notice is often sufficient to prompt a correction.
Can I file a defamation case for a fake Google review?
Yes, if the review contains false statements of fact that harm your reputation or business. A false one-star review stating "this doctor misdiagnosed me when he never treated me" or "this company cheated me" when neither happened is potentially defamatory. First: report the fake review to Google through the platform's process. If Google does not remove it, file a complaint with the Grievance Officer of Google India. If still unresolved, approach a civil court for a mandatory injunction directing removal and separately file a defamation complaint against the reviewer if you can identify them.
Is truth always a complete defence to defamation in India?
Not automatically. Under Exception 1 to Section 356 BNS, truth is a defence only when the imputation is made for public good. A true statement made purely out of malice, to injure someone's reputation without any public benefit, may still be actionable. However, in practice, courts are reluctant to convict where the truth of the statement is established — the public good element is often inferred from the context.
Can a politician claim defamation for criticism of their political conduct?
With significant limitations. Exceptions 2 and 3 to Section 356 protect fair comment on the official conduct of public servants and public figures. Politicians who exercise public power must expect rigorous scrutiny of their official acts. However, personal life accusations (unrelated to public duties), family members (who have not entered public life), and false factual claims (as opposed to fair comment) are not protected. The broader the person's public role, the wider the permitted scope of criticism.
What is the limitation period to file a defamation case?
For civil defamation: 1 year from the date of publication (Limitation Act, 1963 — Article 75). For criminal defamation: 3 years from the date of commission of the offence. For ongoing defamation (where the defamatory statement remains published and accessible), courts have sometimes held that each continued publication restarts the limitation clock — but this is a developing area of law, and you should file early rather than rely on this.