Delhi High Court
Ram Jethmalani vs Subramaniam Swamy on 3 January, 2006
Equivalent citations: AIR2006DELHI300, 126(2006)DLT535, AIR 2006 DELHI 300, 2007 (1) AJHAR (NOC) 158 (DEL), 2007 A I H C (NOC) 20 (DEL), (2006) 126 DLT 535
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. Needless to state, to appreciate an action for libel or slander, knowledge of the facts constituting the backdrop against which the battle of words was fought is essential. Briefly stated, origin of the present suit are the proceedings which commenced pursuant to a notification dated 23.8.1991 issued by the Central Government under Section 3 of the Commissions of Inquiry Act, 1952.
2. Justice M.C.Jain Commission of Inquiry was constituted under the Commissions of Inquiry Act, 1952 with the mandate to make an inquiry with respect to the following matters :-
'(a) The consequences of events leading, and all the facts and circumstances relating to, the assassination of Shri Rajiv Gandhi at Sriperumbudur (other than the matters covered by the terms of reference for the Commission of Inquiry headed by Shri Justice J.S.Verma);
(b) Whether any person or persons or agencies were responsible for conceiving, preparing and planning the association and whether there was any conspiracy in this behalf and, if so all its ramifications.'
3. Having regard to the nature of inquiry, notification directed that all provisions of Sub-sections 2, 3, 4 and 5 of Section 5 of the Commission of Inquiries Act, 1952 would be made applicable to the Commission.
4. Commission proceeded to hold an inquiry. When the proceedings of the Commission were in progress, on 2.6.1993, the defendant called a press conference at Madras. In the daily newspapers published in India on 3.6.1993, news items were published in relation to the press conference held by the defendant.
5. Briefly stated, press reports quoted the defendant as having stated that the then Chief Minister of Tamil Nadu, Ms.J.Jayalalitha had been tipped of by the Liberation Tigers of Tamil Ellam (LTTE) on the assassination of late Shri Rajiv Gandhi, former Prime Minister of India. Defendant was stated to have informed the press that information of the assassination bid was passed on to Ms.J.Jayalalitha around April 17, 1991 in Madras. Quoting the defendant, newspaper reports stated that source of information claimed by the defendant was a LTTE informer in London.
6. Since the information published by the press on 3.6.1993 related to the assassination of late Shri Rajiv Gandhi, Justice M.C.Jain Commission of Inquiry took cognizance thereof. On 18.6.1993, the Commission sent a questionnaire to the defendant, to be answered by him.
7. In response to the question 'Was the information verified or cross checked ' Vide letter dated July 7, 1993, defendant replied to the Commission as under :-
"It is significant that Ms.J.Jayalalitha neither went to receive Mr. Rajiv Gandhi at the Madras Airport not did she make any attempt to contact him. It will be best for the Commission to examine Ms.J.Jayalalitha and ask her about her whereabouts on or around May, 201. In specific answer to this question, the informant enjoys credibility with me and what he said had cross checked the behavior of Ms.J.Jayalalitha.
8. Based on the defendant's reply, on 20.10.1993, the Commission sought the comments of Ms.J.Jayalalitha on the afore-noted statement made by the defendant in his letter dated July 7, 1993.
9. The Commission summoned the defendant as a witness under Section 4 of the Commissions of Inquiry Act, 1952. At the outset, it may be noted that no summons were issued to the defendant under Section 8(b) of the Commissions of Inquiry Act, 1952.
10. Defendant appeared in response to the summons issued to him under Section 4 of the Commissions of Inquiry Act, 1952. He was administered oath for the first time on 20.3.1995. In his statement recorded on oath by the Commission on 20.3.1995, defendant stated as under :-
I have no intention of disclosing the source of information regarding what is going on in LTTE not in confidence even to the Commission. I have full faith in the Commission. If the Commissioner (Justice M.C.Jain) calls me personally, then I am prepared to disclose the source of information to him. This I can even do without informing the source of information. I am prepared to share that information, in time when the Commission will ask me to do so.
11. Defendant stood by the veracity of what was reported by the press as stated by him at the press conference.
12. Defendant was cross-examined by the counsel for All India Congress Committee (I), Tamil Nadu Congress Committee (I), Shri V. Gopalaswamy, Dr.B.L.Vadhera, Sh.B.Dutta, counsel for the Commission, counsel for the State of Tamil Nadu and needless to state by counsel engaged by Ms.J.Jayalalitha.
13. The plaintiff, Shri Ram Jethmalani, Senior Advocate practicing in the Supreme Court of India was engaged as the senior counsel by Ms.J.Jayalalitha. Plaintiff cross-examined the defendant. In cross-examination, defendants stated that the number of informants who gave him the information was 3. He stated that he knew them but was not prepared to disclose their particulars. The defendant summarized his justification for the statement made by him that Ms.J.Jayalalitha had prior information of the assassination bid by referring to five circumstances being: (a) Prior to the assassination, three weeks after the assassination and the first week of July, Ms.J.Jayalalitha functioned as a propagandist of LTTE; (b) Her refusal to address public meetings with Late Shri Rajiv Gandhi even though she was a partner in charge of the elections jointly being fought in the State of Tamil Nadu by Congress (I) and AIADMK; (c) Her refusal to receive Late Shri Rajiv Gandhi at the Madras Airport which was contrary to her conduct as on previous occasions, she had received him at the airport; (d) the systematic pattern of escape from jail of hardcore LTTE personnel; (e) And lastly, the directions to the police to enable pro-LTTE organisations to hold public meetings.
14. As evidenced from the cross-examination of the defendant, plaintiff, as senior counsel representing Ms.J.Jayalalitha grilled the defendant on various aspects of activities of LTTE; political environment in the State of Tamil Nadu and in relation to various statements made by the defendant before other forums.
Evidenced by a question to the defendant that defendant's press conference was nothing but a stunt, the purport of the cross-examination conducted by the plaintiff was to totally demolish the credibility of the defendant. Plaintiff's endeavor was to demolish the testimony of the defendant and try and establish before the Commission that the defendant was nothing but a publicity hungry stunt man.
15. Tenor of the cross examination shows that as and when the plaintiff questioned the defendant on the credibility of his statements and called upon the defendant to disclose the source, repeatedly, defendant refused to disclose the source.
16. Cross examination became gruelling and by 11.9.1995 took shape of an attempt to corner the defendant by trying to bring home the point that since the party to which the defendant belonged, namely, Janta Dal(S) lost all seats it had contested at the election, defendant was unnecessarily trying to malign Ms.J.Jayalalitha. Probably, plaintiff wanted to establish political rivalry between the defendant and his client, Ms.J.Jayalalitha.
17. The line of cross examination appears to have created some rancor between the defendant and the plaintiff evidenced by the proceedings of the Commission held on 12.9.1995. Following stands recorded by the Commission during course of cross examination of the defendant :-
"The witness was asked to apologise for his remarks against Mr. Jethmalani to the effect that he has two wives which was not at all relevant. The witness did not apologise and said that it was not derogatory and it is fact.
It was a repartee. It was a irrelevant repartee. Even for this irrelevant repartee, I would not apologise. If Mr. Jethmalani feels hurt by my remarks, I express my apology. I apologise to the Commission if the remark has hurt him.'
18. After cross-examination of the defendant was over, Commission permitted all parties before it to make submissions on the issue whether Ms.J.Jayalalitha should be summoned as a witness.
19. The plaintiff made oral submissions which can be culled from the order dated 22.11.1995 passed by the Commission.
20. It appears that during his arguments, in reference to the cross examination of the defendant, the plaintiff urged the Commission to discard the testimony of the defendant labelling the same as fanciful and a tissue of lies. This evoked a strong response from the defendant, evidenced by defendant's statement made before the Jain Commission of Inquiry on 14.10.1995. The statement being the 'Written Concluding Arguments' of the defendant. The tenor of the written arguments can be ascertained from the preamble to the written arguments wherein the defendant penned as under :-
I shall divide my submissions in two parts :-
(1) Why Ms.J.Jayalalitha has to be summoned, and (2) To rebut Mr. Jethmalani's irrelevant but willful lies, and to argue why the Commission is duty bound to henceforth make him a material witness before the Commission. Some of his unethical tactics here make it imperative that the Commission move the Bar Council to debar him.'
21. Thrust of the written arguments of the defendant to justify not to disclose the source of information to the commission was brought out by the defendant, to quote, as under :-
'Now I come to the two charges made against me by Mr. Jethmalani, and dutifully attested in Ms.Jayalalitha's October 4thaffidavit. The first is my refusal to divulge my sources of information, Mr. Jethmalani contradicts himself when on one hand he argues that the sources are concoted and on the other hand he alleges with his client in affidavit that I am the LTTE. Both cannot be valid at the same time.
My refusal to make public my sources has a valid reason. Their lives are in danger. Mr. Jethmalani's demand that he be told the sources is illegitimate because he has been the counsel for those with close connection with LTTE, such as Ms.Sasikala's relatives, Swami Permananda (a Sri Lankan Tamil in jail), and in fact he would have been the LTTE counsel itself, but for his heart by-pass surgery. Hence, his obsession with my sources is at the LTTE's behest.
According to my information, Mr. Jethmalani has been receiving money from the LTTE being deposited in his son's account in CITIBANK in New York. That such deposits take place has been admitted by Mr. Jethmalani. My sources have not been wrong; it is that which is important.
I will now in passing refer to his allegation that I asked the LTTE to assassinate Mr. Rajiv Gandhi because Mr. Gandhi was four years younger than me and because of my ambition to become the Prime Minister. If this standard of argument is permissible, then every politician is suspect we can conclude that since Mr. Jethmalani has a declared ambition to become the President of India, therefore he being older than Dr.Shankar Dayal Sharma, he should be plotting his murder with his Dawood Ibrahim connection.
How Mr. Jethmalani has weaved a tissue of lies to allege that I am in fact the LTTE is a fit case for the Bar Council to consider and reprimand him. The core of his argument is my August 1988 speech and the India Abroad alleged interview. The 1988 Rajya Sabha speech he says that it is pro-LTTE speech. Let us first read what Mr. Gopalasamy says in the same proceedings which Mr. Jethmalani failed to read out. Next, what I actually said, and what he read out.
As for the India Abroad alleged interview, Mr. Jethmalani lied when he said that I had not denied it in the original source (i.e., IA itself). He further says that I should have demanded an apology published or launched legal proceedings to establish my bonafides. It is established that I did address a press conference and I did not speak about the subject at all. The claim that there was an interview is denied by me, and Mr. Jethmalani has produced no evidence except an affidavit from the person committing the crime of fabrication. If it was an interview, is there a tape Any independent witnesses Mr. Hanifa is a Sri Lankan Sinhalese, whose links with the Sri Lankan intelligence needs to be probed. The Sinhala opinion has always been hostile to me because one of the solutions I have advocated is the merger of the island with India and therefore the book written by an intelligence officer of Sri Lanka giving undocumented gossip cannot be a basis for forming an opinion. Mr. Jethmalani also lied when he said that another book (written by a Mossad defector) and also asserted that I had introduced the LTTE to the Mossad. When challegned to state the page number of the book, Mr. Jethmalani said this was his inference without even having seen the book. Such is the standard of Jethmalani.
About the fact that I did not pursue matters to get an apology printed: even if I had the time and money for it, I would not. Yellow journalism is the curse of the day. In any case, in this particular manner, the period was hectic. VP Singh's government was falling, and a government that I was helping to put together in its place was in full swing. At that time, I was not going to waste time (except a denial) on a third rate racketeer writing a fabricated story in a tabloid for NRIs in New York. And to what end To obtain a worthless apology During the Commission proceedings, the PTI wrongly reported that I had released Mr. S.B.Chavan's letter addressed to Ms.Jayalalitha. Even though I raised the matter the next date, and the Commission promised to write to the PTI, they have not creeded my denial or the Commission's assurance. Am I to initiate legal action every day In any case, all this is irrelevant for whether or not Ms. Jayalalitha is to be summoned. Mr. Jethmalani's irrelevant and false side-arguments have actually proved my point that Ms.Jayalalitha has a lot to explain before the Commission. We can no more afford to delay summoning, Mr. Jethmalani."
22. Needless to state, contents of second sub-para noted above in italics was a direct attack against the plaintiff that he was in direct contact with LTTE and had been receiving money from LTTE which was deposited by the plaintiff in his son's account with Citibank, Newyork. Further that the attempt of the plaintiff to compel the defendant to give information of his source was actuated by plaintiff's obsession and was at LTTE's behest.
23. Since thrust of the arguments of the defendant was not the client represented by the plaintiff but the plaintiff himself, plaintiff took offence to what was stated before the Commission in the form of defendant's concluding written arguments.
24. Present suit was filed alleging that the defendant was guilty of vicious and gross libel for which the plaintiff claimed to be entitled to exemplary damages. Cause pleaded in para 6 of the plaint is the under-noted assertions of the defendant in his written concluding submissions :-
"Hence his (plaintiffs) obsession with my source is at the LTTE's behest.
According to my information, Mr. Jethmalani has been receiving money from the LTTE being deposited in his son's account in Citibank in Newyork. That such deposits takes place has been admitted by Mr. Jethmalani."
25. Plaintiff has pleaded that he is a Senior Advocate of the Supreme Court of India and a Member of the Indian Parliament. He is a Professor, Symbiosis Law College, Pune and Hony. Member of the Teaching Faculty, National Law School of India, Bangalore. He had been elected Chairman of the Bar Council of India 3 times. Plaintiff has asserted that he enjoys considerable reputation and respect both within and outside the country. It is pleaded in the plaint that the defendant is an active politician who claims to be the President of a party called Janta Party.
26. Taking offence to the afore-noted extracts penned by the defendant in his written concluding argument submitted to the commission on 14.10.1995, plaintiff states that the statement made by the defendant that the plaintiff has been receiving money from LTTE is totally false. The innuendo that the plaintiff was obsessed to elicit the source of information from the defendant as the plaintiff was receiving money from LTTE was baseless. It is pleaded that the plaintiff was bound, in the discharge of his professional duty to Ms.J.Jayalalitha to expose the falsehood of the defendant. Since defendant had claimed before the commission that his allegations against Ms.J.Jayalalitha were based not on his personal knowledge but on source, plaintiff was duty bound to cross-examine the defendant about the alleged source. That the cross- examination was relevant and the commission had allowed all questions to be put to the defendant. It is further asserted by the plaintiff that the defendant's statement that the plaintiff had admitted receiving money from LTTE being deposited in his son's account was equally false.
27. It is asserted by the plaintiff that the statement, apart from being false and reckless was inspired by malice and vicious animosity. It is asserted that the object of the defendant was to damage the personal, political and professional reputation of the plaintiff. Damages in sum of Rs.50 lacs have been prayed for.
28. In his written statement, defendant has stated that he is a public man and believes that he has a duty to his country to expose and eradicate corruption and misdeeds of people in public life. That he is the President of Janta Party. That he received his Ph.D. in 1964 in Economics from Harvard University, USA, at which University he taught economics for several years. That the defendant is an author of many research publications having international acclaim.
29. By way of preliminary objections, defendant has stated that the offending portion from the concluding written arguments submitted by the defendant was expunged by the commission. Hence, in the eyes of law the said statements do not exist. In other words, defendant claims that in law there was no publication at all.
30. Second preliminary defense taken is that the statement in question was presented as a summary of the defendant's deposition and arguments. It was submitted only to the commission with a copy to counsel for Ms.J.Jayalalitha, accordingly defendant claims protection under Section 6 of the Commissions of Inquiry Act, 1952.
31. It is pleaded by the defendant that the onus is on the plaintiff to establish that the offending statements are not only defamatory and false but that the defendant made them knowing them to be false.
32. In para 11 (b) of the written statement, the defendant has specifically pleaded as under:-
Nevertheless, by way of abandon caution, it is hereby denied that the said statement is defamatory or has been made with reckless disregard for the truth. The defendant states that the said statement was made in good faith with a full sense of responsibility and without malice, upon the said acts which are matter of deep public interest. Furthermore, in so far as the allegations are the allegations of fact, they are true in substance and in fact, and in so far as they consist of information, they are fair comments made in good faith and without malice upon the said facts which are matters of deep public interest in relation to a person like the plaintiff who has held a public office of importance. Furthermore, both are irresistible conclusions from the authentic documents available to the defendant.
33. On the pleadings of the parties, vide order dated 12.10.1998, following issues were framed:-
(i) Whether the suit is barred under Section 6 of the Commissions of Inquiry Act, 1952
(ii) Whether the offending statements/ submissions were not published by the defendant
(iii) Whether the offending statements/ submissions were made in good faith and without malice
(iv) To what amount of damage is the plaintiff entitled to recover from the defendant
(v) Relief and costs
34. Plea of the defendant that issue No.1 may be treated as a preliminary issue was rejected when issues were framed.
35. Defendant thereafter filed IA.9989/2000, invoking Order 7 Rule 11 CPC for rejection of the plaint. He relied upon Section 6 of the Commissions of Inquiry Act, 1952.
36. Defendant's application was dismissed vide order dated 27.11.2000.
37. Order dated 27.11.2000 notes the provisions of Section 6 of the Commissions of Inquiry Act, 1952 which reads as under:-
6. Statements made by persons to the Commission No statement made by a person in the course of giving evidence before the Commission shall subject him to, or be used against him in, any civil or criminal proceeding, except a prosecution for giving false evidence by such statement:
Provided that the statement-
a) is made in reply to a question which he is required by the commission to answer, or
b) is relevant to the subject-matter of the inquiry.
38. It was held as under:-
Bare reading of this section reveals that before it is invoked it must be shown (a) that civil or criminal proceedings have been launched against the applicant on the basis of the statement made by the defendant/accused in the course of giving his evidence before the Commission (b) that the statement was made in reply to a question which he was required answer by the Commission and (c) that such statement was relevant to the subject-matter of the inquiry. If these conditions are not fulfillled, the protective umbrella provided under this section cannot be availed. Further, this protection is also not available against the prosecution of such witness for giving false evidence.
In this case, admittedly the defendant has appeared as a witness. He was cross- examined by the plaintiff in discharge of his professional duties. In order to determine whether the cause of action against the defendant is based on his statement given during the course of his evidence before the Commission or not relevant paras of the plaint are reproduced hereinbelow:-
5. On instructions of the client, Ms. Jayalalitha through the instructing Advocate the plaintiff conducted the cross-examination of the defendant. The relevant portions of the defendant's deposition are hereto annexed and marked as Exhibit D. After the deposition of the defendant was concluded the plaintiff at the instance of the Commission addressed the Commission and strongly opposed the request made by the defendant to summon Ms. Jayalalitha before the Commission for her cross-examination by the defendant.
After the submissions of the plaintiff were over the defendant in reply chose to put before the Commission submissions in writing styled as Concluding Arguments of Dr. Subramaniam Swamy, President of the Janta Party made before Jain Commission for summoning of Tamil Nadu Chief Minister Ms. Jayalalitha to depose on her links with the LTTE and knowledge of the conspiracy behind Rajiv Gandhi's Assassination. The plaintiff is not concerned with the merits of the said arguments or submissions.
6. On page 6 of the submissions, the defendant has made the following assertions :-
Hence his (Plaintiffs) obsession with my sources is at the LTTE's behest. According to my information, Mr. Jethmalani has been receiving money from the LTTE being deposited in his son's account in CITIBANK in New York. That such deposits take place has been admitted by Mr Jethmalani.
The plaintiff has chosen to ignore other less important averments, and insulting references made by the defendant in respect of the plaintiff. The present suit is based upon the assertion quoted above from page 6 of the defendant's submissions.
The averments made in the plaint quoted above clearly reveal that the cause of action is being claimed by the plaintiff against the defendant on the basis of the written submissions filed by the defendant before the Commission and not on the basis of the statement made by the defendant during the course of his evidence before the Commission. There is nothing on record to show that the written submissions were filed by the defendant in reply to any question by the Commission which the defendant was bound to answer and that the offending portion of the written submission against the plaintiff was in any way relevant to the inquiry before the Commission. Therefore, the basic ingredients for the applicability of Section 6 of the Act are not fulfillled. Thus, in my view, for the averments made in the plaint the protection provided by this section cannot be availed by the defendant.
39. While passing the order dated 27.11.2000, learned single Judge noted issue No.1 which was framed.
40. In view of the order dated 12.10.1998, I accordingly hold that issue No.1 stands already concluded in favor of the plaintiff and against the defendant. I need not, therefore, elaborate on the said issue, save and except to note that in his evidence, plaintiff has stated on oath that the written submissions were filed during arguments and that the defendant has not led any evidence to the contrary. Argument of the defendant that while making the oral submissions and filing the written submissions, he was acting as his counsel and therefore counsels privilege was available to him is worthless as the defendant was not acting as his own counsel but was espousing/advocating his own cause.
41. On issue No.2, defendant who appeared in person urged that the commission expunged the portions of his concluding written submissions, offence whereto has been taken by the plaintiff. The offending portions were expunged by the commission vide its order dated 22.11.1995. Defendant urged that the effect of expunction was that the said comments stood obliterated from the record of the commission and, therefore, in law, were deemed not to exist at all. Defendant urged that when he presented the concluding written submissions before the commission on 14.10.1995, plaintiff immediately called upon the commission to expunge the same. According to the defendant, where during course of proceedings before a court or a commission of inquiry, objection is taken to anything said or written, on the ground that it is defamatory, remedy lies only before the forum at which the statement was made and seek expunction of the same. It was further urged that the defendant did not publish the statement for the reason he handed over a copy of his concluding written submissions to the commission with copy thereof to the plaintiff.
42. Sh.Arvind Nigam, learned counsel for the plaintiff rebutted the submissions of the defendant and urged that the suit was filed on 16.11.1995. When the suit was filed, offending portions existed in the records of the commission. Publication envisages communication to a third person. As pleaded in para 13 of the plaint, publication was in open proceedings before the Jain Commission of Inquiry. After tendering his concluding written submissions, defendant read out extensively there from including the offending portions. Counsel urged that the defendant also circulated the same to the press.
43. In his examination-in-chief, plaintiff has categorically deposed as under:-
The written submissions Ex.PW.1/C were submitted and read in the open court by the defendant.
44. Defendant has not challenged plaintiff's statement as afore-noted, in that, there is no cross-examination on this aspect of the matter. I may additionally note that the defendant has chosen not to enter the witness box. Defendant has chosen not to depose on the manner in which the concluding written arguments were submitted.
45. The inevitable conclusion has to be that the plaintiff's assertion of the manner in which the concluding written submissions were tendered and read out have to be accepted. I accordingly hold that it stands established that the defendant not only tendered the concluding written submissions before the commission but even read out the same in open court (Commission).
46. On the issue of publication, in the context of expunction, defendant relied upon the Constitutional Bench decision of the Hon'ble Supreme Court reported as M.S.N. Sharma v. Sri Krishna Sinha and Ors.
47. Decision was in an action brought before their Lordships of the Supreme Court by a professional journalist working as editor of a newspaper called SEARCHLIGHT having wide circulation in the State of Bihar.
48. During course of proceedings of the Bihar Legislative Assembly on 30.5.57, Sh. Maheshwar Prasad Narain Sinha delivered a speech which one could amply describe as a bitter attack against the way the Chief Minister was conducting the administration of the State. Objection was taken to the speech. Speaker gave his ruling. Portions of the speech containing reference to the Hon'ble Chief Minister were expunged. Next day i.e. 31.5.1957, the newspaper SEARCHLIGHT reported the speech delivered by Sh.Maheshwar Prasad Narain Sinha. The news item included the portions which were expunged.
49. Committee of Privileges of the Bihar Legislative Assembly served a notice dated 14.8.1958 upon the petitioner to show cause as to why action be not taken against him for breach of privilege of the Speaker and the Assembly. Gravement of the show cause notice was that by publishing the expunged portions of the speech delivered by Sh.Maheshwar Prasad Narain Sinha, the petitioner had committed a breach of privilege of the Speaker and the Assembly.
50. Their Lordships of the Supreme Court were confronted with the question of freedom of the press vis-a-vis powers of the Legislative Assembly pertaining to privileges of the House.
51. The decision analysis the freedom of speech enjoyed by the press and the powers and privileges of the Legislative Assemblies, and to that extent, being irrelevant for my present decision I eschew the discussion in the report, save and except to note that in para 32 of the report, the majority view expressed the following:-
32. ... the effect in law of the order of the Speaker to expunge a portion of the speech of a Member may be as if that portion had not been spoken. A report of the whole speech in such circumstances, though factually correct, may, in law, be regarded as perverted and unfaithful report.... Thus, such reporting may be in derogation of the orders of the Speaker passed in the House may, prima facie, be regarded as constituted as a breach of the privilege of the house.
52. However, the majority view did not express any final opinion whether as a matter of fact it amounted to a breach of the privilege of the house for the reasons their Lordships left it to the house to decide on the issue.
53. Every court or a tribunal having power to receive evidence must have an inherent power, quite independent of Order 6 Rule 16 of the Code of Civil Procedure to strike out scandalous matter in any record or proceedings. This power flows out of the duty of the Court towards the public and the suitors, in taking care that its records are kept free from irrelevant and scandalous matters (See Christie v. Christie 1873 LR 8 CH 499).
54. Whenever a statement is made, whether oral or in writing, making of the statement would be a matter of fact and therefore a reality. That it was expunged as the Court or the Tribunal found it to be scandalous would not take away the factual existence of the making of the statement. Observations of the Supreme Court in M.S.N. Sharma's case (Supra) relied upon by the defendant have to be understood in the context of the said decision. Their Lordships of the Supreme Court were concerned with an action where the newspaper had published expunged portions of the speech and the issue was whether the Legislative Assembly had a right to summon the newspaper for an action relating to breach of privilege of the House. It was a converse situation which their Lordships of the Supreme Court were dealing with and the situation being dealt with by me in the present case. Observations of their Lordships of the Supreme Court on the legal effect of expunction has to be understood in the context of the said case i.e. publication of something expunged from the records of the House. Besides, their Lordships did not express any final opinion on the issue as is evident from the use of the word may in the sentence: may be regarded as not having been spoken.
55. Be that as it may, suit was filed before the Commission passed its order expunging the offending portion. The cause of action which had accrued cannot be stultified by subsequent orders of the Commission. Additionally, it may be noted that the case of the plaintiff is not restricted to the mere filing of the written concluding arguments but also to the same being read out after they were presented to the Commission.
56. I accordingly decide issue No.2 in favor of the plaintiff and against the defendant by holding that the offending statements were published by the defendant.
57. Notwithstanding the unhappy manner in which issue No.3 is framed, learned counsel for the petitioner and the defendant who appeared in person submitted that in the context of law following be decided by this court:-
(i) Whether the suit is not maintainable much less sustainable on account of absolute privilege; (ii) Assuming that defense of absolute privilege was not available, whether there was active malice proved by the plaintiff against the defendant;
(iii) Whether the defendant has established and proved what he had stated and whether he was required to prove the same or was it enough for the defendant to establish that he held an honest bona fide belief.
58. In the decision reported as , Panday Surinder Nath Sinha v. Bageshwari Prasad, distinction between absolute and qualified privilege was brought out as under :
(i) In absolute privilege, it is the occasion which is privileged and when once the nature of the occasion is shown, it follows, as a necessary inference, that every communication on that occasion is protected; in qualified privilege, the occasion is not privileged, until the defendant has shown how that occasion was used. It is not enough to have an interest or a duty in making a statement the necessity of the existence of an interest of duty in making the statement complained of, must also be shown.
(ii) In absolute privilege, the defendant gets absolute exemption from liability; in a qualified privilege, the defendant gets a conditional exemption from liability.
(iii) In absolute privilege, the defendant is exempted from liability even when there is malice on his part; in qualified privilege, the defendant is exempted from liability only when there is no malice on his part.
(iv) In absolute privilege, statements are protected in all circumstances, irrespective of the presence of good or bad motives; in qualified privilege, even after a case of qualified privilege has been established by the defendant, it may be met by the plaintiff proving in reply improper or evil motive on the part of the defendant, in which case defense of qualified privilege vanishes and the plaintiff succeeds; and
(v) In absolute privilege as well as in qualified privilege, the defendant has to prove his plea of privilege, but with this difference that in absolute privilege the defense is absolute and irrefutable by plaintiff, whereas in qualified privilege the defense is not absolute but reputable by the plaintiff.
59. Gatley on Libel and Slandar (10th Edition) vide para 27.18 has opined that where a defendant alleges that the words 'complained of' were published on a privileged occasion, he must specify the circumstances he relies on in support of that contention. In para 13.4, learned author has opined that where a defense of absolute privilege is set up, it is for the defendant to allege and prove all such facts as are necessary to bring the words complained of within the privilege, unless such facts are disclosed in the statement of case, or otherwise admitted before or at the trial of the occasion.
60. The origin of the rule of absolute privilege could easily be traced to judicial proceedings in a court of law. Needless to state, of the many fundamental rights enshrined to the citizens in various democratic countries of the world, primacy has been accorded to right to justice. On grounds of public policy, absolute immunity from liability was conceived of for judges, counsel and witnesses for the reason it was felt that during judicial proceedings in court, every participative player must be free from the fear of being harassed by an action or allegation, whether true or false that he acted with malice.
61. In India and in most of the democratic countries, a second specie of absolute privilege finds mentioned under the Constitution or Parliamentary traditions. Under our Constitution, vide Article 105(2) and 194(2) provisions have been made giving complete immunity to the statements made by members of Parliament and State Legislatures respectively, in course of proceedings of the House.
62. This status was, however, denied to tribunals not being at par with courts. Proceedings before tribunals which had all the trappings of a court were alone held eligible to be entitled for absolute privilege. [See 1960 (2) All ER 629, Addis v. Crocker and Ors.].
63. In the report published as (1961) 3 All ER 740, Lincoln v. Daniels, absolute privilege against liability for defamation that attaches to proceedings before a court of justice was extended to disciplinary proceedings before Benchers of an Inn of Court for the reason, disciplinary powers of the Benchers were held derived from the Judges. Additionally, it was held that while exercising power, the Benchers act judicially. Distinction was drawn in respect of direct complaints to the Bar Council which may lead to disciplinary proceedings before the Benchers on the ground that the Bar Council is a distinct body deriving authority from the general meeting of the members and not from the Benchers.
64. Decisions reported as , Ram Krishna Dalmia and Ors. v. Justice S.R.Tendolkar , P.V. Jagannath Rao and Ors. v. State of Orissa and Ors. , Dr.Baliram Waman Hiray v. Justice B.Lentin and Ors. have held that proceedings before a Commission of Inquiry under the Commission of Inquiry Act,1952, notwithstanding having powers of a Civil Court by virtue of Section 4 of the Act, cannot be equated with judicial proceedings in a court of law.
65. A Commission under the Commissions of Inquiry Act,1952 is appointed by the appropriate Government for the information of the mind of the Government in order for it to decide the course of action to be followed. It is a fact finding body and is not required to adjudicate upon the rights of the parties and has no adjudicatory power. The Government is not bound to accept its recommendations or act upon its findings. Mere fact that the procedure adopted by it is akin to a procedure at a civil trial and it has the power to administer oath would not impart the commission with the status of a court.
66. Way back in the year 1935, in the decision reported as AIR 1935 PC 3, William Francis O'Connor v. Gordon Waldron, Lord Atkin held that notwithstanding the fact that a Commissioner appointed under the Combines Investigation Act had attributes similar to those of a court of justice, proceedings before it cannot be equated as judicial proceedings in a court of law.
67. Even the issue of absolute privilege has remained a subject matter of considerable debate. Is absolute privilege absolute in the sense of being infinite As late as 1998, in the decision reported as 1998 (1) All ER 625, Waple v. Surrey County Council, it was held : The absolute privilege which applies to statements made in the course of judicial or quasi-judicial proceedings and in the documents made in such proceedings, would only be entitled where it was strictly necessary to do so in order to protect those who were to participate in the proceedings from being sued themselves.
68. The decision brings out that absolute privilege is not absolute in the context of being infinite. Even when the occasion is privileged one gets no license to utter irrelevant and scandalous things unrelated to the proceedings. If what is stated is necessary or relevant to the proceedings, immunity would be absolute.
69. I would be failing in not noting a few decisions which have highlighted the self-limiting span and sweep of the defense of qualified privilege.
70. Qualified privilege may be defeated and its protection destroyed by proof of express malice. But how is express malice to be established
71. In the decision reported as (1872) LR 4 PC 495, Laughton v. Bishop of Sodor, in a charge to his clergy in convocation, the Bishop opined, in a rather harsh language, upon a speech made by a Barrister who had been instructed to oppose a bill before the House of Keys, promoted by Government, and which vested additional Ecclesiastical patronage in the Bishop and in which the conduct of the Bishop was attacked and unworthy motives were attributed to the Bishop. What was spoken by the Bishop was sent to a newspaper for publication.
72. Sir Robert Collier delivering judgment in the Judicial Committee dealing with the question whether in spite of occasion being privileged, there was express malice, that is to say, defense was actuated by motive of personal spite or ill will, independent of the occasion opined :-
Some expressions here used undoubtedly go beyond what was necessary for self defense, but it does not, therefore, follow that they afford evidence of malice for a jury. To submit the language of privilege communication to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would be to effect greatly limit, if not altogether defeat, that protection which the law throws over privileged communications.
73. In the decision reported as 1917 AC 309, Adam v. Ward, plaintiff, an officer in the cavalry regiment was subsequently elected a member of Parliament. In a speech in the House of Commons he charged the General Commanding the brigade of which his late regiment formed part, of sending confidential reports to headquarters on officers under his command containing willful and deliberate misstatements. The General referred the matter to the Army Council. Secretary to Council wrote a letter to the General vindicating against the charge made by the plaintiff. Letter contained defamatory statements about the plaintiff. The letter was sent to the press for publication. Plaintiff brought the action.
74. At page 321 of the report, Lord Loreburn observed as under :-
Language has been used in some cases which seems somewhat to confuse the two separate points, namely, whether the defendant has gone beyond the privilege which the occasion creates, and whether the defendant has forfeited the privilege by malice. Excess of privilege in part of a defamatory publication may of course be evidence of malice as to the whole of it, but the two things are different. The one is a matter for the Judge, the other is matter for the jury. And observations made by the Judges in directing juries as to what is evidence of malice are not necessarily applicable when they have to rule as to excess of privilege. But I agree that in ruling upon that subject a Judge may well think that a man is justified in inculpating his accuser in order more effectively to exculpate himself, and also may well think that the defendant has not exceeded the privilege when he has expressed himself with some warmth under real provocation, though no one can be justified in using such an occasion beyond the reasonable limits of self-defense.
75. At page 327 of the report, Lord Dunedin observed as under :-
If the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex-hypothesis privileged then I think it is more accurate to say that the privilege does not extend thereto than to say though the result may be the same, that the defamatory statement is evidence of malice. But when the defamatory statement is, so to speak, part and parcel of the privileged statement and relevant to the discussion, then I think the first way is the true way to put it, and under it will also range all the cases where the express malice is arguable from the too great severity or redundancy of the expressions used in the privileged document itself. In short, I adopt the law as laid down by Lord Esher M.R. in (1895) 2 Q.B. 156 at page 170. The learned Judge there says... in this case there was no evidence of such malice.
That being so, the defendants have proved that the occasion was privileged and there was no evidence of malice in the mind of anybody to rebut that privilege, and the defense stands good. But then the jury was asked to find, and have found, that the privilege was acceded. There may be an excess of the privilege in the sense that something has been published which is not within the privileged occasion at all, because it can have no reference to it.
76. Lord Atkin, reviewing the charges including the decisions in Laughton's case observed as under :-
These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.
77. The Division Bench of Bombay High Court in the report published as AIR 1947 Bombay 209, Janardan Karandinkar v. Ramchandra Tilak, taking note of the decision in Laughton's case and Adam's case, dealing with a privileged occasion applied the test adopted by Lord Dunedin by going into the language used in the context of it being too great severity or redundancy in the expression used .
78. In the context of the constitutional protection of freedom of speech and freedom of the press, an important decision pertaining to libel was rendered by the US Supreme Court reported as New York Times Company v. Sullivan 376 US 254. The question before the Court was of the rule of liability in an action brought by a public official against critics of his official conduct which action tended to abridge the freedom of speech of the press that was guaranteed by the 1st and the 14th amendments. The Constitutional Bench opined that such an action was maintainable provided the official established that statements were made with actual malice.
79. What is actual malice A statement made with a knowledge that it was false or with reckless disregard of whether it was false or not constitutes actual malice as explained in Sullivan's case (Supra). The decision in Sullivan's case (Supra) additionally highlighted the issue that an injunction would not lie against intended publications, remedy was, to establish actual malice if aggrieved and obtained redressal by way of pecuniary damages.
80. Actual malice would be evidenced by ill will, evil or corrupt motive, intention to injure, hatred, enemity, hostility, or spite. In Garrison v. Louisiana 379 US 64, the US Supreme Court defined reckless disregard in making statements with a high degree of awareness of their probable falsity as proof of actual malice. In the decision reported as St. Amant v. Phompson 390 US 727, the test applied was whether the defendant entertained serious doubts as to the truth of the statements. In the report published as Cortis Publishing Company v. Butts, 388 US 130, the US Supreme Court suggested that a defendant's good faith in publishing defamatory falsities will be unlikely to prove persuasive where the story (1) is fabricated by the defendant, (2) is the product of his imagination, (3) is based wholly on unverified information. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put forth the same in circulation or where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.
81. In Amant v. Thompson 392 US 727, a note of caution was inserted : mere negligence of the defendant in failing to discover the falsity of his statement is not sufficient to show actual malice.
82. Decision in Sullivan's case (Supra) was noted by the Hon'ble Supreme Court in the decision reported as , R. Rajagopal v. State of T.N.
83. Petitioner who was the editor, printer and publisher of a weekly magazine intended to publish the autobiography of a condemned prisoner. Autobiography was explosive as it set out the close nexus between the condemned prisoner and several IAS, IPS and other officers. Before commencing the serial publication of the autobiography in the magazine, petitioner announced that the magazine will be coming out with the sensational life history of the condemned prisoner.
84. The State brought an action for injunction. On the issue whether the State could maintain an action for injunction and whether public officers who apprehended that they may be defamed can also seek an injunction and what were the rights of the parties, the Hon'ble Supreme Court summarised the legal position in India 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, 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 defense 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 judicially, 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 194 respectively of the Constitution of India, represents 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) Rule 3 and 4 do not, however, mean that Officials 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. 85. Following observations in the decision in Sullivan's case (Supra) was noted and relied upon by their Lordships of the Supreme Court:-
Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth-whether administered by Judges, Juries or Administrative Officials-an especially one that puts the burden of proving the truth on the speaker.
A Rule compelling the critic of official conduct to guarantee the truth of all his factual assertions and to do so on pain of libel judgments virtually unlimited in amount-leads to ... self-censorship . Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even Courts accepting this defense as an adequate safeguard recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars.
... Under such a rule, would be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though in fact true, because of doubt whether it can be proved in Court or fear of the expense of having to do so. They tend to make only statements which 'steer far wider of the unlawful zone' ... The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.
The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
86. A word on the issue of fair comment. The expression is a misnomer in the context it is used. Law does not necessarily require that the comment be reasonable or fair in the ordinary sense. Law requires the opinion to be honestly held. If a fact alleged is true, it is bound to be a fair comment. If on a given fact a person forms an opinion which every ordinary man may possibly form, howsoever strong, exaggerated or prejudiced are the views expressed, it would be a case of fair comment.
87. In the decision reported as Telnikoff v. Maturevitch, (1991) 4 All ER 817, it was held that if the defendant can show as an objective matter that the opinion was one which could be honestly held, he does not have to prove that he in fact held it. Rather it is then for the claimant to prove as part of his allegation of malice that the defendant did not in fact honestly hold the view.
88. In Broadway Approvals Ltd. and Anr. v. Odhams Press Ltd. and Anr. (1965) 2 All ER 523, it was held that an honest and fair expression of opinion on a matter of public interest is not actionable even though it may be untrue and not established at a trial.
89. In the opinion of Lord Nicholls sitting as a Judge of the Court of Final Appeal of Hongkong in the decision reported as Tsc Wai Paul v. Chang, (2001) EMLR 777 it was held :
To summarise in my view a comment which falls within objective limits of the evidence of fair comment can loose its immunity only by proof that the defendant did not genuinely hold the view that he expressed, Honesty of the belief is the touchstone.
90. To succeed in a plea of fair comment, the defendant must establish that the statement was a comment and not a fact. Thereafter, the defendant must establish that the comment had a sufficient factual basis (i.e. the comment must be based on facts which are themselves sufficiently true). He must additionally establish that the comment was one which an honest person could hold (this is an objective test, not to be confused with reasonableness). And finally, that the subject matter of the comment was in public interest.
91. Whether the statement is a fact or a comment can be a very difficult distinction as invariably the two are mixed up. A guiding principal could be culled from the decision reported as Clarke v. Norlon (1910) VLR 494 wherein it was observed : More accurately it has been said that the success of comment is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc.
92. Defamation is a public communication which tends to injure the reputation of another. What statements are defamatory and the span of defenses varies from jurisdiction to jurisdiction but there is common agreement in all jurisdictions that statements that are unflattering, annoying, irksome, embarrassing or hurt one's feelings are not actionable. Common element in all jurisdictions is the potential to injure the reputation.
93. Since law of defamation, by making actionable certain utterances, runs counter to another widely accepted legal tenent - the right to freedom of expression, the two have been harmonised by judicial process so that an individual's right of privacy and protection of honour and reputation is preserved and at the same time the public interest in free speech is also protected.
94. The pendulum between reputation and expression has swung back and forth through history, but a body of positive jurisprudence evidenced by the decision in Sullivan's case (Supra) has developed. However, I may note that case law developed around political speeches. The aim of the law was to see that there was no chilling effect. If a person is under a fear of being sued, he may not express himself freely on public issues and this would chill the public debate. Decision in Sullivan's case (Supra) as followed by the Supreme Court of India in R. Rajagopal's case (Supra) highlighted that Government nor Government Officials, if criticised in discharge of their duties, could bring no action for injunction and could not chill a public debate. Subject to establishing actual malice, action could be brought by Government official if his personal reputation was damaged. However, no action could be brought in relation to loss of reputation to the office.
95. Traditional defenses to an action for defamation have now become fairly crystallized and can be compartmentalized in 3 compartments : truth, fair comment and privilege. Truth, or justification, is a complete defense. The standard of proof of truth is not absolute but is limited to establishing that what was spoken was 'substantially correct'. Fair comment offers protection for the expression of opinions. Standard of proof is not that the Court has to agree with the opinion, but is limited to determine whether the views could honestly have been held by a fair-minded person on facts known at the time. Unlike defense of truth, defense based on fair comment can be defeated if the plaintiff proves that the defamer acted with malice. Similar is the situation where the defense is of qualified privilege. Privilege is designed to protect expression made for the public good. Protection of qualified privilege is lost if actual malice is established. In public interest, absolute privilege is a complete defense. Rationale of absolute privilege being restricted to Court proceedings or proceedings before Tribunals which have all the trappings of a Civil Court and Parliamentary proceedings is that if threat of defamation suits loom large over the heads of lawyers, litigants, witnesses, Judges and Parliamentarians it would prohibit them from speaking freely and public interest would suffer.
96. I accordingly hold that since the offending words were communicated in writing before a Commission under the Commissions of Inquiry Act, 1952 and have been proved to have been additionally read out during course of final submissions and additionally for the reason the expressions used were not when the defendant was standing before the Commission as a witness, defense of absolute privilege is not available to the defendant.
97. Whether the defendant made the offending statements in good faith and whether active malice has been proved I would prefer to answer the twin questions by following the rationale and reasoning of Lord Dunedin in the decision reported as 1917 AC 309, Adam v. Ward, as observed at page 327 of the report : If the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex-hypothesis privileged then I think it is more accurate to say that the privilege does not extend thereto than to say that the result may be the same, that the defamatory statement is evidence of malice. then I think the first way is the true way to put it, and under it will also range all the cases where the express malice is arguable from the too great severity or redundancy of the expression used in the privileged document itself. I may note that this test was adopted by the Division Bench of the Bombay High Court in Janardan Karandinkar's case (Supra).
98. Tested on the anvil aforesaid, I see no occasion for the defendant to have targeted the plaintiff during course of proceedings before the Jain Commission of Inquiry. The Commission was examining the matter referred to it pertaining to the events, facts and circumstances relating to the assassination of Late Shri Rajiv Gandhi. The defendant, at a press conference alleged that Ms. J. Jayalalitha, Chief Minister of Tamil Nadu had prior information that LTTE cadre would make an assassination bid on the life of Late Shri Rajiv Gandhi. The Commission rightly sent a questionnaire to the defendant which he dutifully answered. Defendant wanted that Ms.J.Jayalalitha be summoned as a witness by the Commission. Ms.J.Jayalalitha opposed the same. She was entitled to so do. The plaintiff was engaged as a Senior Counsel to represent Ms.J.Jayalalitha. As a Senior Counsel, plaintiff discharged his professional duties when he defended Ms.J.Jayalalitha. In discharge of his professional duties, plaintiff cross- examined the defendant. It was perfectly alright for the defendant not to disclose his source of information as the disclosure may have imperil the life of the informant at the hands of LTTE cadre. It was perfectly alright for the defendant to have deposed on circumstances which he felt inculpated Ms. J. Jayalalitha. But I fail to understand as to how the plaintiff was involved in the issue. It was not the stand of the defendant that the plaintiff had knowledge or had something to do with the unfortunate assassination of Late Shri Rajiv Gandhi. The diatribe against the plaintiff in the written conclusive submission is a clear case of exceeding the privilege and that by itself is evidence of malice. What was penned against the plaintiff was clearly redundant.
99. A man may be a thief. In relation to his employment if an investigating agency supplies information of the said fact to the prospective employer, it would be a privileged occasion and no action would lie. But say, the investigating agency reaches the wedding venue when the man is getting married. It would be of no concern nor an occasion for the investigating agency to proclaim to the gathering that the man is a thief. In such a situation, if an action is brought, it would be no defense for the investigating agency to establish that the man is a thief. A lady may be a prostitute but it would not give a license to all and sundry to call her a prostitute as and when they feel like. Of course, where the character of a person is a relevant issue, statements made honestly, bona fide and on some objective facts would qualify as made on privileged occasion.
100. The entire thrust of cross-examination of the plaintiff by the defendant is an entry in the account of the plaintiff's son maintained by Citibank, New York. The plaintiff had admitted the said entry but had disclosed that the source of remittance was not known. This is no circumstance for any reasonable person to form an honest belief that the remittance came from LTTE.
The other line of cross-examination, being that the plaintiff was acting as a lawyer for those who were LTTE sympathizers is again neither here nor there for the reason, if true, plaintiff was discharging his professional duties and secondly for the reason the line of cross-examination presumes that the said persons were LTTE sympathizers. I need not therefore discuss the cross examination of the plaintiff by the defendant. Plaintiff has not admitted anything to do with LTTE, much less having received money from LTTE. Defendant has failed to establish that the plaintiff has received money from LTTE.
101. I may emphasize here that the principal fact which has weighed with me in rejecting the defense and holding that the plaintiff has established actual malice is that the defendant exceeded the limits of qualified privilege as his statement was quite unconnected with and irrelevant to the situation and suffers from redundancy of the expression.
102. Before concluding I must note that the defendant has led no evidence and did not even examine himself as a witness.
103. That takes me to the issue of damages, relief and costs.
104. Unfortunately, in India, Law of Damages and in particular in relation to defamation has not developed at the same pace as it has developed in the European countries and the United States of America. Punitive damages in defamation are not awarded in India. Damages awarded are a recompense to the loss of honour and reputation. Inherently, quantification is a problem as honour and reputation are inherently incapable of being valued in terms of money. More often than not, loss of honour and reputation lowers the image of the person in the eyes of his friends and relatives and he suffers social isolation. If he is a professional, he may not suffer monetary loss as his clients would engage him for his professional skill and not his personal character. This appears to be the reason that the plaintiff, in relation to his earnings made no attempt to establish that after the offending words were written and spoken, his earnings suffered a dip.
105. A good name is worth more than good riches. (Shakespear's Othello, Act-II, Scene III, pp.167):- Good name in man and woman, dear my Lord Is the immediate jewel of their souls; Who steals my purse, steals trash; Its something nothing; T'was mine, t'is, and has been slave to thousands; But he that filches from me my good name, Robs me of that which not enriches him And makes me poor indeed. 106. The plaintiff has been compelled to salvage his reputation. LTTE is a banned organisation. It's cadre has been indicted at a criminal trial of conspiring and succeeding in assassinating Shri Rajiv Gandhi, the Ex-Prime Minister of India. It is a banned organisation in India. A statement against a person that he has been receiving money from LTTE is ex facie defamatory. Such a person would be lowered in the esteem of the public. Plaintiff would accordingly be entitled to some recompense. The defendant has refused to apologize and withdraw his offending statement.
107. Considering the professional standing of the plaintiff and his stature in social life I award damages in sum of Rs.5 lacs in favor of the plaintiff and against the defendant.
108. Costs shall follow.