INTRODUCTION
An employment reference is generally issued after an employment relationship ends. This blog examines employer liability for misleading employment references in India by considering four situations: (i) false and malicious statements, where an employer provides false information with malice; (ii) negligent but non-malicious misstatements, where inaccurate information is provided without an intention to cause harm; (iii) accurate but materially incomplete references, where important information is left out despite the disclosed information being factually correct; and (iv) inaccurate references where the employer may claim privilege as a defence. These situations raise different questions about employer liability and the remedies available to affected employees.
India has no dedicated statute governing the preparation, content, and disclosure of employment references. In the United Kingdom, the House of Lords held in Spring v Guardian Assurance plc that an employer providing a reference may owe the employee a duty of care.[1] In India, disputes involving employment references may be examined through principles of defamation, contract, negligence where applicable, and constitutional protections.
DEFAMATION AS A POSSIBLE ROUTE
Where an employment reference contains a false and defamatory statement, defamation law may provide a remedy, subject to the applicable legal requirements and defences.[2] Distinguish civil and criminal defamation because they rest on different legal frameworks and lead to different consequences.[3]
Civil Defamation: Civil defamation in India is a tort. A claimant generally must show that the statement was defamatory, that it referred to the claimant, and that it was published, that is, communicated to a person other than the claimant. The statement must tend to lower the claimant’s reputation in the estimation of others. The employer may raise defences such as truth (justification) or privilege.[4] The absence of an intention to cause harm does not by itself exclude civil liability, although malice remains relevant to defeating qualified privilege.[5]
Criminal Defamation: Criminal defamation is governed by section 356 of the Bharatiya Nyaya Sanhita 2023 (BNS), in force from 1 July 2024, which replaced sections 499 and 500 of the Indian Penal Code 1860.[6] Under section 356(1), a person defames another by making or publishing an imputation concerning that person, intending to harm the person’s reputation or knowing or having reason to believe that it will do so, except in the cases excepted by the section.[7] Section 356(2) prescribes simple imprisonment of up to two years, a fine, both, or community service.[8]
Criminal liability therefore requires proof of the statutory ingredients and consideration of the exceptions, and not merely that a reference contains inaccurate information.[9] Unlike in a civil claim, truth is not by itself a complete answer: under Exception 1 the imputation must also have been made for the public good. In the reference context, the more relevant protections are Exception 9, which covers an imputation made in good faith for the protection of one’s own or another’s interest, and Exception 10, which covers a caution conveyed in good faith to a person for that person’s benefit. [10]These exceptions are comparable to qualified privilege in civil law. Because good faith is assessed by reference to due care and attention, a carelessly prepared reference may struggle to qualify, and protection is lost where the statement is made in bad faith, exceeds what the occasion required, or is motivated by malice.[11]
Whether compelled self- publication can satisfy the requirement that an imputation be “made or published” under section 356 is an open question, because Mishra was a civil suit.[12] Separately, Subramanian Swamy v. Union of India[13] upheld the constitutionality of criminal defamation as a reasonable restriction on free speech under Article 19(2) and recognised reputation as part of the right under Article 21.
The Delhi High Court’s decision in Abhijit Mishra v Wipro Ltd 2025 SCC Online Del 4976 provides a recent illustration of defamation in the employment context. The case concerned a termination letter containing allegations of “malicious conduct” and “complete loss of trust”, which was issued to the employee. The Court held that the requirement of publication was satisfied through the doctrine of compelled self-publication, reasoning that the employee’s foreseeable disclosure of the termination letter to prospective employers constituted publication in the circumstances of the case.
CONTRACTUAL OBLIGATIONS
Employment relationships are shaped by the Indian Contract Act 1872 and, depending on the sector, by labour legislation, standing orders, and service rules.[14] A duty to provide a reference does not arise merely because employment has ended; it must be traceable to a valid contract or a binding statutory instrument. [15] Two sources are commonly relied upon.
First, a settlement or separation agreement is an ordinary contract and is enforceable where the requirements of sections 2(h) and 10 of the Contract Act are met, including lawful consideration (such as the employee’s resignation, release of claims, or withdrawal of proceedings), free consent, and a lawful object.[16] An undertaking to provide a reference is more likely to be enforceable where it is express and sufficiently certain under section 29, for instance where the agreement annexes an agreed form of reference or specifies who will give it and what it will contain. Such an undertaking also cannot oblige the employer to make a statement it knows to be untrue, and a term to that effect may be unlawful under section 23.
Second, an HR policy or handbook is not by itself a contract. It may bind the employer where (i) it is incorporated into the employment contract; (ii) it has been communicated to and accepted by the employee; and (iv) it neither disclaims contractual effect nor reserves an unrestricted right to amend or withdraw it, since either may indicate an absence of intention to create legal relations. Where the employer is a State instrumentality, or the obligation arises from statutory service rules or certified standing orders, enforceability may turn on public-law or statutory principles rather than contract alone.[17]
Where such a duty is established, issuing an inaccurate or bad-faith reference may amount to a breach. Section 73 of the Contract Act governs compensation, allowing damages for losses that arise naturally from the breach or that the parties knew, when contracting, to be likely to result, but not for remote and indirect loss.[18] The employee must therefore prove that a specific loss, such as a withdrawn job offer, was caused by the breach. Separately, section 14 of the Specific Relief Act 1963 (as substituted in 2018) excludes specific enforcement of contracts dependent on the personal qualifications of the parties and contracts that are by nature determinable,[19] which is why reinstatement is generally unavailable under a private contract of employment. That limitation concerns enforcement of the employment relationship itself and does not bar a claim for damages for breach of a separate reference undertaking.
REMEDIES AND LEGAL GAP
An aggrieved employee may sue for defamation damages, lodge a criminal complaint under section 356, subject to available defences and applicable procedure, or claim breach of contract where a contractual duty is established. Courts have also granted corrective relief following Abhijit Mishra v Wipro Ltd. A writ petition under Article 226 may lie against public sector employers where the respondent’s public character, a public-law element, and the right allegedly infringed justify judicial review.[20] Such a remedy is not automatic and is generally unavailable against private employers.[21]
Indian law is not silent on employment references, but it lacks a dedicated framework governing their preparation, disclosure, and consequences. Unintentional inaccuracies do not have a clearly defined remedy distinct from deliberately misleading statements, and the reach of Mishra beyond termination letters remains unsettled. The Industrial Relations Code 2020, now in force,[22] is not, on its face, a natural vehicle for regulating employment references without identified amendments.
A future framework should establish clear and proportionate safeguards for both employers and employees. These safeguards could include: (i) requiring references to be based on reasonably verified employment records; (ii) distinguishing between factual information, professional assessments, and allegations; (iii) prohibiting knowingly false, malicious, discriminatory, or irrelevant disclosures; (iv) requiring employers to communicate serious adverse information accurately and, where appropriate, provide the employee with an opportunity to respond or seek correction; (v) limiting disclosure to information relevant to the purpose of the reference and to authorised recipients; (vi) protecting good-faith disclosures made for legitimate purposes, subject to reasonable care and applicable legal exceptions; and (vii) providing accessible remedies, including correction of inaccurate records, written clarification, compensation for proven loss, and an appropriate complaint or review mechanism. Such a framework should also clarify the circumstances in which civil liability, criminal liability, or contractual remedies may arise, rather than treating every inaccurate reference as equivalent.
CONCLUSION
Employment reference disputes in India involve different legal questions depending on the nature of the statement, the circumstances of disclosure, and the legal duty involved. Existing legal doctrines may provide remedies in appropriate cases, while Abhijit Mishra v Wipro Ltd illustrates a possible approach to compelled self-publication. However, the broader application of this reasoning remains unsettled.
Future legal development should balance employee protection with employers’ legitimate interests by establishing clear standards for accuracy, relevant disclosure, good-faith communication, and correction of errors. Until then, several questions concerning employer liability and available remedies remain open.
Author(s) Name: Aarti Rani (S.G.T university, Gurugram)
References:
[1] Spring v Guardian Assurance plc [1995] 2 AC 296 (HL).
[2] Abhijit Mishra v Wipro Ltd 2025 SCC Online Del 4976, paras 56–58.
[3] Bharatiya Nyaya Sanhita 2023, s 356; Subramanian Swamy v Union of India (2016) 7 SCC 221.
[5] ibid; Mahaveer Singhvi v Hindustan Times Ltd 2024 SCC Online Del 4409.
[6] Bharatiya Nyaya Sanhita 2023, s 356; Bharatiya Nyaya Sanhita 2023 (Act 45 of 2023), s 358 (repeal and savings).
[7] Bharatiya Nyaya Sanhita 2023, s 356(1).
[8]Bharatiya Nyaya Sanhita 2023, s 356(2).
[9] Bharatiya Nyaya Sanhita 2023, s 356(1) and Exceptions 1–10.
[10] ibid, Exceptions 9 and 10.
[11] Chaman Lal v State of Punjab (1970) 1 SCC 590.
[12] Abhijit Mishra v Wipro Ltd 2025 SCC Online Del 4976, paras 61–68.
[13] Subramanian Swamy v Union of India (2016) 7 SCC 221.
[14] Indian Contract Act 1872; Industrial Relations Code 2020;
[15] Spring v Guardian Assurance plc [1995] 2 AC 296 (HL).
[16] Indian Contract Act, 1872, ss 2(h) and 10.
[17] Binny Ltd v. Sadasivan (2005) 6 SCC 657.
[18] Indian Contract Act 1872, s 73.
[19] Specific Relief Act 1963, s 14(d).
[20] Constitution of India, art. 226.
[21] Binny Ltd v Sadasivan (2005) 6 SCC 657.
[22] Industrial Relations Code 2020, s 1(3); Ministry of Labour and Employment, Notification S.O. 5320(E), 21 November 2025.