Section 222 of BNSS, 2023 — Prosecution for Defamation

Introduction

Section 222 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the prosecution of offences relating to defamation.

The provision lays down who may make a complaint for defamation and provides a special procedure where the alleged defamation is committed against certain persons in connection with their public functions.

The provision therefore regulates the taking of cognizance of defamation offences and identifies the persons who are entitled to initiate proceedings.

Object and Purpose

The main purposes of Section 222 are:

• to regulate prosecution for defamation;
• to ensure that a defamation complaint is ordinarily initiated by the person aggrieved;
• to provide a special mechanism for certain public functionaries;
• to prevent unrelated persons from unnecessarily initiating defamation proceedings;
• to establish a separate procedure for specified cases involving public servants and public functions.

General Rule

The general rule is that a Court cannot take cognizance of an offence punishable under Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS) except upon a complaint made by the person aggrieved by the offence.

Thus, the person whose reputation is allegedly harmed ordinarily has the right to initiate the prosecution.

Section 356 BNS

Section 356 of the BNS deals with the substantive offence of defamation.

Therefore, the relationship between the two provisions is:

Section 356 BNS → Substantive offence of defamation

Section 222 BNSS → Procedure for prosecution of defamation

Section 222 does not itself create the offence of defamation. It establishes the procedural requirements for bringing a defamation prosecution before the Court.

Complaint by the Person Aggrieved

The ordinary route for prosecution is a complaint by the person aggrieved.

For example, if a person makes a statement that allegedly harms another person’s reputation and the conduct amounts to defamation under Section 356 BNS, the person whose reputation is allegedly harmed may initiate proceedings through a complaint.

The provision therefore recognises the personal nature of defamation.

Special Procedure for Certain Public Functionaries

Section 222 also provides a special procedure where the alleged defamation concerns certain persons who are or have been:

• the President of India;
• the Vice-President of India;
• the Governor of a State;
• the Administrator of a Union Territory;
• a Minister of the Union;
• a Minister of a State; or
• another public servant in connection with the discharge of public functions.

Where the conditions prescribed by Section 222 are satisfied, a Public Prosecutor may institute a prosecution with the required sanction.

Public Functions

The special procedure is connected with statements concerning a public functionary in relation to the conduct of that person in the discharge of public functions.

The provision therefore distinguishes between:

ordinary personal defamation, and

defamation connected with specified public functions.

The special procedure is not intended to apply merely because a person happens to hold or have held public office.

Previous Sanction

For prosecution under the special procedure, previous sanction of the appropriate Government is required.

The relevant sanctioning authority depends upon the public office involved.

The purpose of the sanction requirement is to ensure that a prosecution involving the specified public functionary is initiated through the prescribed governmental process.

Central Government and State Government

The appropriate sanctioning authority depends on the person concerned.

For specified Union-level public functionaries, the Central Government is relevant.

For specified State-level public functionaries, the State Government is relevant.

The statutory requirements of Section 222 must therefore be examined according to the office held by the person concerned.

Role of the Public Prosecutor

The special procedure under Section 222 involves the Public Prosecutor.

This is different from the ordinary procedure where the aggrieved person directly initiates a complaint.

The Public Prosecutor acts in accordance with the statutory requirements after the necessary sanction has been obtained.

Time Limit

Section 222 also provides a specific time framework for initiation of proceedings under the special procedure.

The prosecution must be initiated within the period prescribed by the section, subject to the statutory provisions concerning extension of time where applicable.

This ensures that the special procedure is not used to initiate proceedings indefinitely after the alleged defamatory publication or statement.

Ordinary Defamation vs Special Procedure

Ordinary Defamation

• Complaint by the person aggrieved.
• Proceedings follow the ordinary criminal procedure.
• The special governmental sanction mechanism is not automatically applicable.

Defamation of Certain Public Functionaries

• Special statutory conditions apply.
• Previous sanction is required.
• The Public Prosecutor has a role.
• The alleged defamation must relate to conduct in the discharge of public functions.
• The special time requirement under Section 222 applies.

Procedure Under Section 222

The general framework can be understood as follows:

1. An allegation of defamation under Section 356 BNS arises.
2. The Court determines whether it is an ordinary defamation case or falls within the special procedure.
3. In an ordinary case, the person aggrieved may make the complaint.
4. In a special public-function case, the required governmental sanction must be obtained.
5. The Public Prosecutor may then institute the prosecution in accordance with Section 222.
6. The competent Court considers the complaint and may take cognizance according to law.
7. The criminal proceedings continue under the applicable provisions of the BNSS.

Important Distinction: Defamation and Criticism

Section 222 governs the procedure for prosecution. Whether a particular statement actually constitutes defamation depends upon the substantive law contained in Section 356 BNS, including its ingredients and statutory exceptions.

Therefore, criticism of a person or public official does not automatically amount to defamation.

The substantive offence and available exceptions must be examined separately.

Important Distinction: Complaint and Sanction

A complaint is the means through which the alleged offence is brought before the Court.

A sanction is prior governmental approval required for the special prosecution mechanism in the circumstances specified by Section 222.

They are separate procedural requirements.

Relationship with Section 210 BNSS

Section 210 contains the general provision relating to cognizance of offences by Magistrates.

Section 222 operates as a special provision governing cognizance of defamation offences.

Therefore, the general rules relating to cognizance must be read together with the specific requirements prescribed for defamation under Section 222.

Relationship with Section 219 BNSS

Section 219 deals with prosecution for specified offences against marriage.

Section 222 deals specifically with defamation.

Both provisions regulate who may initiate prosecution, but they apply to entirely different categories of offences.

Relationship with Section 221 BNSS

Section 221 concerns cognizance of an offence in specified circumstances.

Section 222 specifically establishes the procedure for prosecution for defamation.

Thus, Section 222 is the specific procedural provision for defamation cases.

BNSS and CrPC

Section 222 of BNSS substantially corresponds to Section 199 of the Code of Criminal Procedure, 1973 (CrPC).

The basic principle has been retained: defamation is ordinarily prosecuted upon a complaint by the person aggrieved, while a special procedure exists for specified public functionaries in relation to their public functions.

Relationship with BNS

The BNS contains the substantive law concerning defamation.

Section 356 BNS deals with the offence of defamation and its punishment.

Section 222 BNSS deals with the procedural mechanism for prosecution.

Therefore:

BNS Section 356 = Defamation

BNSS Section 222 = Prosecution procedure for defamation

Example 1 — Ordinary Defamation

A person publishes a statement alleging that another individual has committed dishonest conduct.

The individual claims that the statement has harmed their reputation and amounts to defamation.

The aggrieved person may initiate prosecution through the complaint procedure recognised under Section 222.

Example 2 — Public Functionary

Suppose a statement allegedly defames a specified public functionary concerning conduct in the discharge of public functions.

Where the special conditions of Section 222 apply, prosecution may be instituted through the Public Prosecutor after obtaining the required previous sanction.

Common Confusions

Can any person file a defamation complaint?

Ordinarily, no.

The general rule requires a complaint by the person aggrieved.

Is every criticism of a public official defamation?

No.

Whether a statement constitutes defamation depends upon the substantive requirements and exceptions under Section 356 BNS.

Does Section 222 create the offence of defamation?

No.

The substantive offence is contained in Section 356 BNS.

Is government sanction required for every defamation case?

No.

The special sanction requirement applies to the specific public-function cases covered by Section 222.

Can a public servant use the special procedure merely because they hold public office?

No.

The statutory conditions relating to the person and the alleged conduct must be satisfied.

Does filing a defamation complaint establish guilt?

No.

A complaint only initiates criminal proceedings. Guilt must be established through the judicial process.

Key Features

• Deals with prosecution for defamation.
• Relates to the substantive offence under Section 356 BNS.
• Ordinarily requires a complaint by the person aggrieved.
• Provides a special procedure for specified public functionaries.
• Requires previous sanction in cases covered by the special procedure.
• Gives the Public Prosecutor a role in such special cases.
• Contains a specific time framework for the special prosecution.
• Corresponds substantially to Section 199 CrPC.

Topic at a Glance

• Topic: Prosecution for defamation
• BNSS Section: Section 222
• Substantive offence: Section 356 BNS
• General complainant: Person aggrieved
• Special category: Specified public functionaries
• Special procedure: Public Prosecutor with required sanction
• Nature: Procedural provision
• CrPC counterpart: Section 199 CrPC
• Core principle: Defamation is ordinarily prosecuted through a complaint by the person aggrieved, subject to the special procedure prescribed for certain public-function cases.

Quick Revision

• Section 222 BNSS deals with prosecution for defamation.
• The substantive offence is contained in Section 356 BNS.
• Ordinarily, the complaint must be made by the person aggrieved.
• A special procedure applies to specified public functionaries.
• The special procedure requires previous sanction of the appropriate Government.
• The Public Prosecutor has a role in the special procedure.
• The alleged defamation must concern conduct connected with the discharge of public functions for the special procedure to apply.
• Section 222 is procedural and does not itself create the offence.
• It substantially corresponds to Section 199 CrPC.

ALSO READ: Section 221 – Cognizance of offence

Conclusion

Section 222 of BNSS establishes the procedural framework for prosecuting defamation. While the ordinary rule requires the person aggrieved to initiate the complaint, the provision creates a special mechanism for specified public functionaries where the alleged defamation concerns their conduct in the discharge of public functions. The requirement of governmental sanction and the involvement of the Public Prosecutor in such cases provide an additional procedural filter before prosecution is initiated.