Madras High Court
S.P. Shenbagamoorthy vs Dr. Chenna Reddy, The Governor, State Of ... on 3 March, 1994
Equivalent citations: (1994)2MLJ23, 1995 A I H C 321, (1994) 2 MAD LJ 23 (1994) WRITLR 259, (1994) WRITLR 259
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. The prayer in the writ petition is as follows:
...to issue a writ of quo warranto or any other appropriate writ, order or direction in the nature of writ, calling upon the respondent to show as to under what authority the respondent is holding the office of the Governor of Tamil Nadu and pass such further or other orders.
2. It is claimed by the petitioner that he is a social worker doing social work by collecting old clothes and giving them to the poor and needy. He also claims to have participated in the freedom movement. The case of the petitioner is as follows:
According to the petitioner, the respondent has been delaying the files that have been sent for his approval and is deliberately postponing to give assents to laws that have been passed by the Legislature sent for his consent in absolute disregard to the present Government and that he is making speeches at functions attended by him on several occasions, creating apprehension in the mind the people of Tamil Nadu that he would dismiss the Government and that he is identifying himself as a politician and has got affinity to the Congress-I and acting at the instance of the leaders of the Congress-I and the leaders of the Congress-I are making use of the Office of the Governor to dismiss the Government of Tamil Nadu. It is further stated in para. 6 of his affidavit as follows:
I submit that during his latest speech by the respondent herein namely the Governor of Tamil Nadu at Salem published in Hindu under the caption 'Action at proper time: Governor' dated 6th February, 1994 he has openly stated 'I do not know where the recent University Bill, re-structuring of the Legislative Assembly business Rules, were all heading to. He further stated T am aware of the people and will take action against injustice before damage is done. No wrong, nor person, who has done it, can get away.
All these things would go to show that in a function where he has attended as a chief guest made all these speeches without any provocation whatsoever from the Government, diverting from his usual speech of the social function, made the abovesaid comments and thereby expressed his intention to dismiss the present Government of Tamil Nadu at any time and thus created an apprehension in the minds of the people of Tamil Nadu as well as the Government of Tamil Nadu would be dismissed without any reason on an improper and illegal ground and thus to cause embarrassment to the present Chief Minister of Tamil Nadu and to favour of the leaders of the Congress-I of the Tamil Nadu and thus he has violated the oath that he has taken under the Article 159 of the Constitution of India". According to the petitioner, the comments made by the respondent are unwarranted. Therefore, the respondent is not fit to hold the office of the Governor for the reasons stated above since he is acting against the interests of Tamilnadu, and acting to the dictates of the leaders of the Congress-I of Tamil Nadu. Along with the writ petition, the petitioner has also filed a newspaper cutting in 'The Hindu' issue dated 6.2.1994.
3. Mr. T.K. Sampath, learned Counsel appearing for the petitioner at the time of hearing would only rely on the news item published in the Hindu dated 6.2.1994 under the caption 'Action at proper time-Governor' and would submit that the respondent has violated the oath he has taken under Article 159 of the Constitution of India. He has also reiterated the other allegations made in the affidavit. In support of his contentions, Mr. T.K.L. Sampath, placed reliance on the following decisions:
K.A. Mathialagan v. The Governor (F.B.), G. Vasantha Pai v. C.K. Ramaswamy A.I.R 1978 S.C. 342, Hardwari Lal v. Bhajan Lal .
4. K.A. Mathialagan v. The Governor , Full Bench decision was relied on to show that personal immunity afforded by Article 361(1) to the Governor did not avail where his bona fides were questioned. Courts have held that where his bona fides are questioned he can personally be called to enter his defence and that mala fides or want of bona fides is made against the Governor in respect of his official act, there is an obligation or duty on the Governor to make an affidavit for assistance of the Court in deciding the question.
5. G. Vasantha Pai v. C.K. Ramaswamy A.I.R. 1978 S.C. 342, was cited to say that the immunity given to the Governor under Article 361 against answerability to any court is in respect of the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those duties.
6. Hardwari Lal v. Bhajan Lal , was cited by the learned Counsel for the petitioner to show that the petitioner has locus standi to maintain the writ petition when information conveyed by the Governor is such as justly requiring the court to exercise jurisdiction to pro tea rights and liberties of citizens.
7. To my query as to the basis or foundation of the present writ petition, Mr. T.K. Sampath, would submit that it is based only on the news item published in the English daily 'The Hindu'. He also invites my attention to para.6 of the affidavit wherein the petitioner has referred to the latest speechg of the respondent at Salem and published in The Hindu' under the caption 'Action at proper time-Governor' dated 6th February, 1994. In view of the above submission, it becomes necessary for this Court to consider whether a newspaper report by itself is admissible in evidence. It is settled principle of law that news-items published in the newspapers are only hear-say evidence and no judicial notice can be taken of the news-items which are in the nature of hear-say secondary evidence, unless proved by evidence. In this context, I may usefully refer to the decision of the Supreme Court in Laxmi Raj Shetty v. State of Tamil Nadu, . In the said judgment, the Supreme Court has considered the question of admissibility of the news-items appearing in a press report in the newspaper and opined as follows:
We cannot take judicial notice of the facts stated in a news-item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsary evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein. It is now well settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in absence of the maker of the statement appearing in court and deposing to have perceived the fact reported.
8. In a recent pronouncement in the case of Quamarul Islam v. S.K. Kanta (1994) 1 J.T. 452, the Supreme Court has observed as follows: That was a case of an election dispute. The appellant before the Supreme Court was the successful candidate in the election whose election was set aside by the High Court of Karnataka by allowing the Election Petition filed by the defeated candidate S.K. Kanta. The aggrieved unseated candidate filed the appeal before the Supreme Court under Section 16-A of the Representation of the People Act, 1951. The appellant contested the election as a candidate of Muslim League from 10 Gulbargh Assembly Constituency. The defeated candidate S.K. Kanta questioned the election of the appellant in the election petition on various grounds alleging commission of corrupt practice by him within the meaning of Sections 123(2), 123(3), 123(3A) etc., of the Act. The learned single Judge considered the election petition found that the appellant had committed corrupt practices defined under Sections 123(2), 123(3), 123(3A) and 123(4) of the Act and therefore declared the election of the appellant void. The election petition was allowed with costs. Reliance was also placed on certain advertisements and messages issued by the Iuml seeking vote for the appellant. Reference was also made to the Bahmani News, an Urdu newspaper, published from Gulbarga and it was contended that the advertisements issued and published therein were aimd at furthering the election prospects of the appellant. Reliance was also placed on the alleged speeches delivered by the appellant and his election agent and other agents with his consent, seeking votes on ground of religion etc., as published in the newspapers. The High Court of Karnataka dealt with issues 1 to 4 and decided in the affirmative and held that the appellant had committed corrupt practices attracting provisions of the Representation of People Act. It was argued on behalf of the appellant among other things the newspapers referred to and relied upon by the election petitioner had not been filed alongwith the petition and the copies of the newspapers and some other documents have been filed subsequently and that those documents were filed after the evidence is commenced. The returned candidate, viz., the appellant raised objection to the production of those documents at that last stage. Amongst the documents which the election petitioner sought to produce at that late stage were some advertisements allegedly issued by the luml and Myl in the newspapers between 1.11.1989 and 24.11.1989 as also reports of speeches allegedly made by the appellant during the election campaign. The learned Judge however allowed the application of the election petitioner. The Supreme Court however observed that the approach of the trial court was not correct and that he was treating the trial of the election petition in a rather casual manner, unmindful of the provisions of the Act and the Rules framed thereunder as also the law laid down by the Supreme Court on the relevant aspect.
9. The following question was raised before the Supreme Court for its consideration : Can the mere production of the copy of the newspaper be treated as proof of the report of the speech (news item) contained therein?
10. The Supreme Court answered the said question as follows"
Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled. Since, in this case, neither the reporter who heard the speech and sent the report was examined nor even his reports produced, the production of the newspaper by the Editor and published, P.W. 4 by itself cannot amount to proving the contents of the newspaper reports. Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Indian Evidence Act. The learned trial Judge could not treat the newspaper reports as duly 'proved' only by the production of the copies of the newspaper. The election petitioner also examined Abrar Razi, P.W.5 who was the polling agent of the election petitioner and a resident of the locality in support of the correctness of the reports including advertisements and messages as published in the said newspaper. We have carefully perused his testimony and find that his evidence also falls short of proving the contents of the reports of the alleged speeches or the messages and the advertisements, which appeared in different issues of the newspaper. Since, the maker of the report which formed basis of the publications, did not appear in the court to depose about the facts as perceived by him, the facts contained in the published reports were clearly inadmissible. No evidence was led by the election petitioner to prove the contents of the message and the advertisements or the messages were not produced at the trial. No witness came forward to prove the receipt of the manuscript or any of the advertisements or the messages or the publication of the same in accordance with the manuscript. There is no satisfactory and reliable evidence on the record to even establish that the same were actually issued by Iuml or Myl ignoring the time being, whether or not the appellant had any connection with Iuml or Myl or that the same were published by him or with his consent by any other person or by any other person with the consent of his election agent.
11. Again at page 474 it has been observed as follows:
In the present case, we find that no legally admissible evidence has been led by the respondent election petitioner, in proof of the facts contained in the newspaper reports (news items), messages and advertisements. The appellant, returned candidate, denied the making of the offending statements. The various newspaper reports, advertisements and messages as published in Bahmani Newspaper cannot be treated as proof of the facts stated therein and cannot be used against the appellant in the absence of any evidence aliunde.
12. In the case reported in Kasturi Radha Krishnan v. President of India A.I.R. 1990 Mad. 217, my learned brother Justice K.S. Bakthavatsalam, while dismissing a public interest litigation filed on the basis of newspaper reports has stated as follows:
As has already been stated, the Governor shall hold office during the pleasure of the President under Article 156 of the Constitution. As such, it is not open to the petitioner to make allegations in an affidavit based on mere newspaper reports and come to this Court as if it is a public interest litigation. Further, before approaching this Court for issuance of a writ of mandamus, there should be definite allegations made in the affidavit. The allegations made in the affidavit are based only on newspaper report and nothing else.
13. Thus, it is clear from the foregoing judgments that the contents of news items can be treated only as hearsay secondary evidence. In the present case, the petitioner is completely basing his case solely on the news items published in the daily newspaper The Hindu' dated 6.2.1994. The petitioner has not given any other materials before this Court. The learned Counsel for the petitioner has also relied on the newspaper report only in support of his contention in this writ petition. Consequently, I have to repel his contention based only on the news item published in the daily newspaper. Admittedly, the allegations made against the respondent are not based on the personal knowledge of the petitioner. I don't find any merit in the writ petition, and the writ petition is therefore liable to be dismissed.
14. Before concluding, I would like to emphasise the following aspects in a public interest litigation. Nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others, particularly persons who are occupying very high constitutional positions. Further, it is worth noticing of the view observed by the Division Bench of this Court consisting of Srinivasan and Thangamani, JJ. reported in The Dravida Munnetra Kazhagam v. The Governor of Tamilnadu (1994) 1 L.W. 145, which runs as follows:
It is next contended by learned Counsel for the petitioner that the immunity will not be available in the case ofmala fide. According to him, mala fide have been alleged in the affidavit filed in support of the petition from paragraph 20 onwards. Allegations have been made as against the Governor that he has acted mala fide. It is not necessary for us to go into the question whether the allegations would amount to acts of mala fide on the part of the petitioner. But we are of the view that even in case in mala fide no writ petition can be maintained as against the Governor and no relief can be sought against him. He will not be subjected to the process of court. Article 361(1) of the Constitution of India is absolute in terms and does not make a distinction between the bona fide act and mala fide act and in fact the article applies even if the Governor purports to have done something in the performance of the powers and duties of the office.
The Full Bench of this Court in K.A. Mathialagan v. The Governor (F.B.). Has considered the position and taken the view that even if the Governor acts mala fide he will be entitled to the protection under Article 261 of the Constitution of India. The relevant passage reads as follows:
Neither the Supreme Court in this case, nor the other cases we referred to of the High Courts, was held that the personal immunity afforded by Article 361(1) to the Governor did not avail where his bona fides were questioned. They have not held that where his bona fides are questioned, he can personally be called to enter his defence. In our opinion, his personal immunity extends to such a case as well.
15. As pointed out by me earlier, Article 361 of the Constitution of India, is absolute in terms and even in the case of mala fide the protection of immunity will apply. Courts have considered the question of admissibility of news items appeared in press reports in the newspapers in the two Supreme Court judgments referred to supra, as observed by the Supreme Court, I cannot take judicial notice of the facts stated in the news items they being in the nature of hearsay secondary evidence which is not proved by any other material. Since the statement of fact contained in the newspaper is merely hearsay, the same is inadmissible in evidence. The petitioner has also failed to let in any other material in proof of the facts contained in the newspaper. Further, the learned Counsel has not also put forward any other points before this Court. The writ petition therefore fails and is dismissed. However, there will be no order as to costs.