J.Ravindran vs K.J.Rebello on 13 February, 2013

[Cites 19, Cited by 0]

Madras High Court

J.Ravindran vs K.J.Rebello on 13 February, 2013

The plaintiff/applicant has filed an application under Order XIV Rule 8 of O.S. Rules read with Order XXXIX Rule 1 & 2 of C.P.C. for interim injunction restraining the respondents/defendants, their men, agents, servants, person or persons claiming through them form publishing any article concerning the applicant/plaintiff or his family, his private life, private life of his family members, his business activities carried on by him lawfully, in "DINAMALAR", a daily newspaper printed and published by the respondents/defendants without ascertaining the truth from the applicant/plaintiff, till the disposal of the suit.

2 It is submitted that the plaintiff/applicant is a renowned businessman and carrying on business of television network in a laudable manner. The applicant is a MBA graduate and law abiding citizen hailing from a well-known and reputed family of India. The plaintiff/applicant is the Chairman of Sun Group of Companies which command a commendable respect and enjoy a high reputation among the general public. The plaintiff/applicant has received various awards including Young Businessman awards from CNBC, ERNST & Young and Prestigious USA title from "Forbes" Magazine.

3 The plaintiff/applicant has filed a suit for defamation and damages for publication of defamative article in "DINAMALAR", Chennai edition, dated 14.7.2011 under the heading "ESCAPE".

4 It is submitted that the entire article is false, outrageously scandalous, atrocious, baseless published with a sole object to tarnish and malign his reputation and his family members. The article is said to have been published without ascertaining the truth.

5 The case of the applicant is that the caricature depicts the plaintiff/applicant in a very bad manner as if the applicant/plaintiff is an accused and has escaped from the clutches of law. The article relates to an enquiry based on a complaint by one of the distributor against one Mr.Hansraj Saxena, then C.E.O. of Sun Pictures. In the said complaint, the applicant was called by police for enquiry. The applicant has pleaded his inability to appear on the date mentioned on the notice by informing the police that he would be available on the next date and are agreed to co-operate with the investigation.

6 It is the case of the applicant that article was written with the motive to defame the applicant by publishing without ascertaining the true facts.

7 The case set up by the plaintiff/applicant is that freedom of speech under Article 19(1) of the Constitution cannot be taken to mean absolute freedom to write whatever a person chooses recklessly without regard to another person's honour and reputation. The allegation of the plaintiff/applicant is that the respondent/defendant carelessly published defamative article by giving prominence in their newspaper issue with an object to defame the plaintiff/ applicant. The reason for publication is that tamil dailies, viz., "Dinakaran" and "Tamil Murasu" owned by the plaintiff/applicant has overtaken the circulation of tamil daily "Dinamalar". The allegations in the article have been denied being baseless.

8 It is the case of the plaintiff/applicant that by publishing article, the defendants/respondents have intruded into the private life of the applicant and his family members without any authority of law.

9 That in view of the false publication, the reputation of the plaintiff/applicant and his family members has been lowered down in the public esteem as there were several enquiries from different section which also caused mental agony besides loss of reputation.

10 It is on the pleadings noted above, the suit has been filed. In the pending suit, the plaintiff/applicant has filed the present application for injunction against the defendants.

11 Counter affidavit has been filed denying the allegations. It is the stand of the respondents/defendants that in the affidavit filed by the plaintiff/applicant, it is not disputed that any of the events mentioned in article shows admission of the plaintiff/ applicant admitting the incident to be true. That the newspaper is entitled to give its inference on the conduct of the applicant who avoided the enquiry by the Police. It is also stated that the article cannot amount to defamation. It is mentioned that it was due to the registration of F.I.R. and arrest of top executive who avoided arrest that the article was published.

12 It is also the stand of the respondent that being the Editor, Printer and Publisher of newspaper is entitled to publish matter which are of public interest and this right is protected under Article 19(1) (A) of the Constitution of India.

13 It is submitted that if the prayer is granted, it will contravene the fundamental right of the defendant/non applicant and that the freedom of Press will be jeopardised. That no where in the affidavit filed in support of the application, it is stated that the respondents will publish news in the future concerning the applicant and his family members. The defendants/respondents have also denied that the article was defamative and have taken a stand that it was for the plaintiff/applicant to deny contents of the article.

14That in view of the registration of cases and summoning by the Police that it was duty of the respondents to publish the news as the public had the right to know it. It is also the case of the respondents that there is no mention that the applicant has fair chance of success. Therefore, he is not entitled to injunction as prayed for.

15 It is also the case of the respondents that in the year 2008, the applicant/plaintiff had published news item concerning the respondents' newspaper and the respondents/defendants had filed a suit in C.S.No.626 of 2007 which is still pending in this Court in which application for interim injunction against the applicant herein was filed, but was dismissed holding that publication of news item cannot be prevented. It was held that this Court had no jurisdiction to make inroads into the constitutionally guaranteed press freedom recognized under Article 19(1)(a) of the Constitution of India and that no blanket interim order can be granted.

16 On merit, the averments made in the affidavit have been denied. In sum and substance, the stand of the respondents is that it is the fundamental right to publish article in public interest, and that the plaintiff/applicant cannot claim relief of injunction in blanket form restraining the respondents/defendants from publishing news item.

17 The learned Senior counsel appearing on behalf of the plaintiff/applicant vehemently contended that the plaintiff/applicant has right to safeguard his privacy as well as his family members. Therefore, it is not open to the respondents to publish any article about the personal life of the plaintiff/applicant or his family members without ascertaining the true facts.

18 In support of this contention, the learned senior counsel placed reliance on the judgment of this Court in R.Rajagopal alias R.R.Gopal alias Nakkheeran Gopal and another (A.I.R. 2006 MADRAS 312) wherein the Hon'ble Division Bench of this Court was pleased to lay down as under:

"28. The right to publish and the freedom of press as enshrined in Article 19(1)(a) of the Constitution of India are sacrosanct. The only parameters of restriction are provided in Article 19(2) of the Constitution. As observed by Mudholkar, J. in Sakal Papers (P) Ltd. Vs. Union of India (AIR 1962 SC 305) the courts must be ever vigilant in guarding perhaps this most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments and must be preserved. The interim order granted by the learned single Judge is a blanket injunction. The order virtually amounts to a gag order or censorship of press. Such censorship cannot be countenanced in the scheme of our constitutional framework. Even assuming that the articles published by the appellants amount to character assassination of the respondents, there is no justification for granting a blanket injunction restraining the appellants from publishing any articles, in future. It would not be appropriate for us to examine the articles at this stage on the touchstone of defamation, but what we do observe is that they are not of such a nature warranting a restraint order, especially when the appellants are willing to face the consequences in a trial in case the same are held to be defamatory, and the plea of the appellants of truth is yet to be analysed by the Court.

29. The fundamental right of freedom of speech is involved in these proceedings and not merely the right of liberty of the press. If this action can be maintained against a newspaper, it can be maintained against every private citizen who ventures to criticise the ministers who are temporarily conducting the affairs of the government. In a free democratic society those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. As observed in Kartar Singh's Case (supra) the persons holding public offices must not be thin-skinned with reference to the comments made on them and even where they know that the observations are undeserved and unjust, they must bear with them and submit to be misunderstood for a time. At times public figures have to ignore vulgar criticisms and abuses hurled against them and they must restrain themselves from giving importance to the same by prosecuting the person responsible for the same. In the instant case, the respondents have already chosen to claim damages and their claim is yet to be adjudicated upon. They will have remedy if the statements are held to be defamatory or false and actuated by malice or personal animosity.

30. As observed in R.Rajagopals Case (supra) the right to privacy has two aspects which are but two faces of the same coin. First the general law of privacy which offers a tort action for damages resulting from an unlawful invasion of privacy and secondly, the constitutional recognition given to the right to privacy which protects personal privacy against unlawful government invasion. Though the right to privacy can be characterized as a fundamental right, as held in R. Rajagopals Case it is not an absolute right. In Time, Inc Vs. Hill (385 U. S.374) it was pointed out that in the case of public officials, insofar as their official function is involved, they are substantially without a right to privacy and factual error and content defamatory of official reputation or both, are insufficient for the award of damages for false statements unless actual malice knowledge that the statements are false or reckless disregard of the truth is alleged and proved. In a democratic set up a close and microscopic examination of private lives of public men is the natural consequence of holding of public offices. What is good for a private citizen who does not come within the public gaze may not be true of a person holding public office. What a person holding public office does within the four walls of his house does not totally remain a private matter. We agree with Mr.Jothi that the scrutiny of public figures by media should not also reach a stage where it amounts to harassment to the public figures and their family members and they must be permitted to live and lead their life in peace. But the public gaze cannot be avoided which is necessary corollary of their holding public offices.

31. We are also unable to accept the submission advanced by Mr.Jothi that the appellants should be asked to seek prior verification from the respondents before publishing any articles and publish the denial, if any, of the respondents. According to Mr.Jothi rule of prior verification is laid down in R.Rajagopals Case (supra). We are afraid that the submission of the learned counsel is based on total misinterpretation of the observations of the Supreme Court. The Supreme Court has not laid down that the prior verification of the facts is must in all such cases. All that the Supreme Court indicated is that the proof that the member of the press or media acted after a reasonable verification of the facts would be sufficient. However, at the same time, it must be noted that the Supreme Court in R.Rajagopals Case has clearly held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education, among other matters, and none can publish anything in reference to the above matters without his/her consent whether laudatory or critical. Therefore, if an article is purely relating to the personal life of a public official, it would be necessary for the member of the press or media to publish such article only after a reasonable verification of the facts. The position may, however, be different if a person voluntarily thrust himself or herself into a controversy or voluntarily invites or raises a controversy. In the circumstances, we direct the appellants that whenever they propose to publish any article purely concerning personal life of the first respondent or the second respondent or both, the appellants shall forward their queries and/or the gist of the proposed article, as the case may be, to the fax number furnished by the learned counsel appearing for the respondents. The first respondent or the second respondent or both, as the case may be, shall respond to the queries of the appellants in relation to their proposed article to the fax number of the appellants. However, if there is no response to the queries either from the first respondent or the second respondent within 36 hours from receiving such queries, the appellants will be entitled to proceed to publish the proposed article in their bi-weekly. It is true that the press cannot be compelled to also publish the version of the official, about whom the article is written, with reference to the article published against him/her. We, however, feel that it is expected of any responsible member of the press to also indicate the version of the official concerned in their proposed article"

19 The learned Senior counsel vehemently contended, that the plaintiff/applicant is not seeking injunction in blanket form as stated by the defendant/respondent, but has prayed for limited injunction to protect his privacy and that of his family members, by directing the respondents not to publish article relating to private life thereby causing damage to the reputation of the applicant/plaintiff, without ascertaining the true facts.

20 In support of this contention, reliance was placed on the judgment of the Hon'ble Division Bench of this Court in O.S.A.Nos.230 and 231 of 2009 decided on 1.10.2009 (A.Raja and another vs. P.Srinivasan and others) wherein the Hon'ble Division Bench was pleased to lay down as under:

"22.In view of the discussions made above, this Court is of the considered opinion that the order of the learned Single Judge has got to be set aside and the appellants have made out a prima facie case to get an order of interim injunction to the extent as indicated below. Hence the order of the learned Single Judge including the exemplary costs is set aside. Interim injunction is granted as follows: (a) The respondents 1 to 3 are restrained from in any way printing, publishing and circulating the defamatory news items and the photographs of the second appellant or publishing any caricature or fudged photographs of the second appellant and the minor daughter, except by getting clarification from the second appellant. (b) The respondents 1 to 3 are also restrained from in any way printing, publishing and circulating the defamatory news items or publishing any caricature or fudged photograph of the first appellant in respect of or connected to his private life causing damage to the reputation except by getting clarification from the first appellant"

21 The application is vehemently opposed by the learned counsel for the respondents by contending that the relief claimed cannot be granted as the plaintiff wants to interfere with the freedom of Press by claiming right to privacy which cannot be granted by this Court as the relief claimed if granted would violate the fundamental right guaranteed under Article 19(1)(A) and (2) of the Constitution of India.

22 In support of this contention, the learned counsel for the respondents placed reliance on the judgment of the Hon'ble Supreme Court in R.Rajagopal alias R.R.Gopal and another vs. State of Tamil Nadu and others (1994)6 SCC 632) wherein the Hon'ble Supreme Court to draw a balance between right of privacy with freedom of Press, has laid down as under:

"(1)The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, 650 his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2)The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.

(3)There is yet another exception to the rule in (1) above indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.

(4) So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.

(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.

(6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.

The principles above mentioned are only the broad principles. They are neither exhaustive nor all-comprehending; indeed no such enunciation is possible or advisable. As rightly pointed out by Mathew, J., this right has to go through a case-by-case development. The concepts dealt with herein are still in the process of evolution. However, the impact of Article 19(1)(a) read with clause (2) thereof on Sections 499 and 500 of Indian Penal Code has not been gone into here. That may have to await a proper case."

23 Reliance was also placed on the judgment of this Court in Dinamalar vs. Sun T.V. Ltd. (O.A.No.853 of 2007 in C.S.No.626 of 2007 (decided on 25.9.2008) wherein the application for grant of interim injunction was rejected by holding that if a blanker order of ad-interim injunction as sought for is granted, freedom of Press guaranteed under the Constitution of India will be jeopardised and by further holding that balance of convenience is in favour of the respondents.

24 Reliance also placed on the judgment of this Court in S.Mohankumar Jain and another vs. R.Lakshmipathy and another (O.A.No.276 of 2012 in C.S.No.231 of 2012, decided on 14.9.2012) wherein this Court by taking note of various judgments came to the conclusion that the applicant is required to make out strong case for restraint order on newspaper and therefore, on notice, it was found that no case was made out for grant of restraint order against the respondents. Findings recorded reads as under:

"5.In this context, it is necessary to refer to certain decisions of the Supreme Court and of this court, which may have bearing on the relief claimed by the applicants.

6.Speaking about the freedom of the press, the Supreme Court vide its judgment in Odyssey Communications Pvt. Ltd. Vs. Lokvidayan Sanghatana and others reported in (1988) 3 SCC 410 has observed in para 6 "Freedom of expression is a preferred right which is always very zealously guarded by this Court."

7.While reiterating the same principle, the Supreme Court in its judgment in S.Rangarajan Vs. P.Jagjivan Ram and others reported in (1989) 2 SCC 574 has held as follows:

"45.The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg"."

8.The Supreme Court vide its judgment in Indian Express Newspapers (Bombay) Private Ltd. and others Vs. Union of India and others reported in (1985) 1 SCC 641 had laid down the primary duty of the Courts is to invalidate all laws and administrative actions which interferes with press freedom, thereby interfering with constitutional freedoms. The following passage found in para 32 in the judgment may be extracted below:-

"32.In today's free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to governments and other authorities. The authors of the articles which are published in newspapers have to be critical of the actions of Government in order to expose its weaknesses. Such articles tend to become an irritant or even a threat to power. Governments naturally take recourse to suppress newspapers publishing such articles in different ways. Over the years, Governments in different parts of the world have used diverse methods to keep press under control. They have followed carrot-and-stick methods. Secret payments of money, open monetary grants and subventions, grants of lands, postal concessions, Government advertisements, conferment of titles on editors and proprietors of newspapers, inclusion of press barons in cabinet and inner political councils etc. constitute one method of influencing the press. The other kind of pressure is one of using force against the press. Enactment of laws providing for pre-censorship, seizures, interference with the transit of newspapers and demanding security deposit, imposition of restriction on the price of newspapers, on the number of pages of newspapers and the area that can be devoted for advertisements, withholding of Government advertisements, increase of postal rates, imposition of taxes on newsprint, canalisation of import of newsprint with the object of making it unjustly costlier etc. are some of the ways in which Governments have tried to interfere with freedom of press. It is with a view to checking such malpractices which interfere with free flow of information, democratic constitutions all over the world have made provisions guaranteeing the freedom of speech and expression laying down the limits of interference with it. It is, therefore, the primary duty of all the national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate."

9.While going through a news item, the courts have emphasized the culture of "responsible reading". The Supreme Court vide its judgment in Ajay Goswami Vs. Union of India and others reported in (2007) 1 SCC 143 had dealt with such an issue and the passages found in paras 78 and 79 may be extracted below:-

"78.Be that as it may, the respondents are leading newspapers in India and they have to respect the freedom of speech and expression as is guaranteed by our Constitution and in fact reaches out to its readers any responsible and decent manner. In our view, any steps to ban publishing of certain news pieces or pictures would fetter the independence of free press which is one of the hallmarks of our democratic set-up. In our opinion, the submissions and the propositions of law made by the respective counsel for the respondents clearly established that the present petition is liable to be dismissed as the petitioner has failed to establish the need and requirement to curtail the freedom of speech and expression. ...

79.We are also of the view that a culture of "responsible reading" should be inculcated among the readers of any news article. No news item should be viewed or read in isolation. It is necessary that a publication must be judged as a whole and news items, advertisements or passages should not be read without the accompanying message that is purported to be conveyed to the public. Also the members of the public and readers should not look for meanings in a picture or written article, which are not conceived to be conveyed through the picture or the news item."

10.The applicants have filed the suit for a lump sum amount for damages towards defamation. The same will have to be decided during trial in the suit. The applicants will have to make out a very strong case for the grant of a restraint order on the news paper. The respondents have denied any reckless publication and have stated that it is based upon information available and that public interest requires publication. This court do not find that any motivated publication has been made by the respondents which warrants reasonable apprehension to be followed by a restraint order against the respondents. Hence the application will stand dismissed. No costs."

25 It was thus contended, that the application deserves to be dismissed.

26 On consideration, I find that the law is well settled that a citizen has right to safeguard his privacy, as well as of his family, marriage, procreation, motherhood, child-bearing, education among other matters and nobody can publish the matter without his or her consent. But this right is subject to be exception, i.e. such publication is based on public record including Court record, thus, it no longer remain right of privacy.

27 In the present case, though plaintiff is only claiming injunction restraining the respondents from publishing any article concerning the plaintiff/applicant or his family members about his private life and private life of his family members without ascertaining the true facts. The plaintiff/applicant is yet to prove that whether such publication was not true and that the article was published disregard to truth. But general direction as prayed for cannot be issued in view of the positive stand taken in the counter affidavit by the respondents that there is no material to form a basis or apprehension that the respondents are going to publish anything for their right. Even otherwise, the challenge in suit is to article based on public record that is complaint filed against him.

28 Therefore, in view of the law laid down by the Hon'ble Supreme Court, the application is dismissed.

No costs.

	
				13.02.2013
Index:    Yes/No
Internet: Yes/No
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VINOD K.SHARMA, J.
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Pre-Delivery  order in 
O.A.No.221 of 2012
C.S.No.195 of 2012








Dated:    13.02.2013

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