Himachal Pradesh High Court
_______________________________________________________________ vs Dev Ashish Bhattacharya ... on 3 January, 2020
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA OMP No. 574 of 2019 in COMS No. 20 of 2019 Reserved on: 02.01.2020 Decided on: 03.01.2020 .
_______________________________________________________________ Dr. Rachna Gupta .....Applicant/plaintiff Versus Dev Ashish Bhattacharya ......Non-applicant/respondent _______________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
_______________________________________________________________ For the applicant: Mr. Ajay Vaidya, Advocate, with Mr. Surinder Saklani, Advocate.
For the non-applicant:
Chander Bhusan Barowalia, Judge.
to Mr. Sanjeev Bhushan, Sr.
Advocate, with
Kumar, Advocate.
(oral)
Mr. Rajesh
The present application has been maintained by the applicant/plaintiff (hereinafter referred to as "the applicant") under Order 39, Rules 1 and 2 read with Section 151 CPC seeking interim direction.
2. As per the applicant, she has maintained a suit before this High Court seeking damages from the non-
applicant/defendant (hereinafter referred to as "the non-
applicant") for defamation and slander and for the recovery of Rs.1,00,00,000/- (rupees one crore) alongwith interest @ 18% per annum. The applicant contends that after filing of the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 2instant suit, the non-applicant started leveling false and baseless allegations on the applicant and her family members, which are defamatory in nature. The non-applicant, through his acts, damaged the reputation, prestige and dignity of the .
applicant and her family, including her husband. The applicant further contends that the non-applicant, through his false and baseless allegations depicted a negative image of the applicant and her husband. The applicant prayed that the non-applicant be restrained from posting or publishing any statement of any nature on facebook or on any other social media, including print or electronic media, till the disposal of the instant suit. As per the applicant, there exists prima facie case in her favour and the balance of convenience also exists in her favour. In the above backdrop, the applicant prays that an ad interim injunction be granted in favour of the applicant by allowing the present application.
3. The non-applicant, by filing reply to the application, refuted the allegations made in the application. The non-
applicant averred that the present application is not maintainable and it is a complete mis-use of the process of law.
As per the non-applicant, the applicant has already obtained ad interim injunction, which cannot be granted under the law and the present application deserves dismissal. It is further averred ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 3 that the non-applicant has fundamental right under the right of freedom of speech and this right cannot be throttled. In addition to that, the non-applicant has taken objection that the applicant has not come to the Court with clean hands. On .
merits, it is contended that no prima facie case exists in favour of the applicant and the pleadings made by the applicant do not show that the post made by the non-applicant is scandalous/libelous and defamatory in nature. The non-
applicant emphatically denied that he has posted any material on facebook and other social media platforms against the applicant or her family members, which is false, baseless or scandalous. As per the non-applicant, he has not posted any material on social media, which can be termed as baseless or differently coloured. Rest of the contentions of the application have been denied, being false and incorrect. Lastly, the non-
applicant has prayed for dismissal of the application.
4. The applicant filed rejoinder wherein contentions of the non-applicant have been denied and the contents of the application have been reiterated. The applicant contends that fundamental right of freedom of speech does not confer on citizens right to speak or publish irresponsibly. No allegation can be leveled harming the reputation of others, thus constituting defamation. It is further averred that fundamental ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 4 right of freedom of speech comes with reasonable restrictions.
In an organized society, the rights have to be recognized with its duties and responsibilities towards the society. Public order, decency, morality and such other things must be safeguarded.
.
The applicant averred that the non-applicant is continuously posting the posts which are irresponsible, unsubstantiated and libelous in nature, which constitute defamation. Lastly, the applicant prays that the application be allowed.
5. I have heard the learned counsel for the parties and gone through the records.
6. Learned counsel for the applicant has argued that the application be allowed, as the applicant has a prima facie case in her favour, balance of convenience also lies in her favour and the non-applicant has no authority to malign the reputation of the applicant by way of posting and publishing baseless allegations against the applicant on facebook and other social media. He has further argued that there are reasonable restrictions to the fundamental right of freedom of speech and expression and it cannot be used defaming the other persons, as the non-applicant is continuously doing so after the filing of the suit, so the application may be allowed and the non-
applicant may be restrained from posting or publishing any statement of any nature, against the applicant, her husband ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 5 and her family members on facebook or on any other social media, including the print and electronic media, till the final disposal of the instant suit. Conversely, the learned Senior Counsel for the non-applicant has argued that the application is .
not maintainable, as the suit filed by the applicant (plaintiff) is not for injunction, so ad interim injunction cannot be granted.
He has further argued that the fundamental right of freedom of speech is valuable right guaranteed under the Constitution of India and it cannot be abridged or abrogated. He has argued that the posts made by the non-applicant were not scandalous/libelous and defamatory in nature. The applicant has no prima facie case in her favour and balance of convenience is also not in her favour. The allegations of the applicant are baseless, so the application is required to be dismissed. In order to support his contentions, the learned Sr. Counsel for the non-applicant has placed reliance on a decision of Hon'ble Calcutta High Court rendered in A. Raja and M.A. Parameswari vs. P. Srinivasan Publisher and Printer of Junior Vikatan Vasan Publications Private Limited, K. Ashokan editor, Vasan Publications Private Limited, Saroj Ganpath, chief Reporter and Prakash Jawadekar, (2010) AIR (Madras) 77.
7. In rebuttal, the learned Counsel for the applicant ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 6 argued that the non-applicant is continuously repeating his acts by posting and publishing scandalous/libelous and defamatory statements on facebook and social media and the applicant cannot maintain suit for every scandalous libelous and .
defamatory statement, so ad interim injunction is required to be granted in favour of the applicant. He has relied upon the judgment of co-ordinate Bench of this Court rendered in The Editor, Divya Himachal and others vs. Dr. Sukhdev Sharma and another (RSA No. 311 of 2018, decided on 25.07.2019). In addition to the judgment (supra) the learned Counsel for the applicant has also placed reliance on the following judicial pronouncements:
1. Swatanter Kumar vs. The Indian Express Ltd. & others, (2016) 1AD(Delhi) 288; &
2. Subramanian Swamy vs. Union of India, Ministry of Law and Others, (2016) 7 SCC 221.
8. At the very outset, it would be profitable to highlight relevant excerpts of a decision of Hon'ble Supreme Court rendered in Subramanian Swamy vs. Union of India, Ministry of Law and others, (2016) 7 SCC 221, which are as under:
"120. Be that as it may, the aforesaid authorities clearly lay down that freedom of speech and expression is a highly treasured value under the Constitution and voice of dissent or disagreement has to be respected and regarded and not to be scuttled as ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 7 unpalatable criticism. Emphasis has been laid on the fact that dissonant and discordant expressions are to be treated as view-points with objectivity and such expression of views and ideas being necessary for growth of democracy are to be zealously protected. Notwithstanding, the expansive and sweeping and ambit of .
freedom of speech, as all rights, right to freedom of speech and expression is not absolute. It is subject to imposition of reasonable restrictions.
Reasonable Restrictions
121. To appreciate the compass and content of reasonable restriction, we have to analyse the nature of reasonable restrictions. Article 19(2) envisages "reasonable restriction". The said issue many a time has been deliberated by this Court. The concept of reasonable restriction has been weighed in numerous scales keeping in view the strength of the right and the effort to scuttle such a right. In Chintaman Rao v. State of M. P., 1951 AIR(SC) 118 this Court, r opined as under:- (AIR P 119, Para 7) "7. The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19 (1) (g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.""
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136. To appreciate what we have posed hereinabove, it is necessary to dwell upon balancing the fundamental rights. It has been argued by the learned counsel for the petitioners that the right conferred under Article 19(1)(a) has to be kept at a different pedestal than the individual reputation which has been recognized as an aspect of .
Article 21 of the Constitution. In fact the submission is that right to freedom of speech and expression which includes freedom of press should be given higher status and the individual's right to have his/her reputation should yield to the said right. In this regard a passage from Sakal Papers (P) Ltd. has been commended us. It says:- (AIR PP 313-14, Para 36) "36. Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It r cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting it is challenged, it is no answer that the restrictions enacted by it are justifiable under clauses (3) to (6). For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom."
137. Having bestowed our anxious consideration ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 9 on the said passage, we are disposed to think that the above passage is of no assistance to the petitioners, for the issue herein is sustenance and balancing of the separate rights, one under Article 19(1)(a) and the other, under Article 21. Hence, the concept of equipose and counterweighing fundamental rights of one with other .
person. It is not a case of mere better enjoyment of another freedom. In Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. The State of Gujarat, 1975 1 SCC 11 it has been observed that a particular fundamental right cannot exist in isolation in a watertight compartment. One fundamental right of a person may have to co-exist in harmony with the exercise of another fundamental right by others and also with reasonable and valid exercise of power by the State in the light of the Directive Principles in the interests of social welfare as a whole. The Court's duty is to strike a balance between competing claims of different interests. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress and r others, 1991 Supp1 SCC 600 the Court has ruled that Articles relating to fundamental rights are all parts of an integrated scheme in the Constitution and their waters must mix to constitute that grand flow of unimpeded and impartial justice; social, economic and political, and of equality of status and opportunity which imply absence of unreasonable or unfair discrimination between individuals or groups or classes. In St. Stephen s College v. University of Delhi, 1992 1 SCC 558 this Court while emphasizing the need for balancing the fundamental rights observed that: (SCC P 612, Para 96) "96. ...It is necessary to mediate between Article 29(2) and Article 30(1), between letter and spirit of these articles, between traditions of the past and the convenience of the present, between society's need for stability and its need for change."
Thus, the freedom of speech and expression is not unconditional, but it is subject to number of restrictions and ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 10 these restrictions find mention in the Constitution itself. Article 19(1)(a) of the Constitution of India provides freedom of speech and expression and Article 19(2) imposes reasonable restrictions on the exercise of such right. As held in the judgment (supra) .
"reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates.
9. True it is that right of freedom of speech and expression, as encapsulated under Article 19(1)(a) of the Constitution of India, cannot be strangulated, however, this right is not unrestricted. The Constitutional Scheme, by incorporating Article 19(2), tries to balance between the freedoms granted under this right and to impose reasonable restrictions on this right so as to check its unreasonable use.
Article 19(2), for ready reference is extracted hereunder:
"[19(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of [the sovereignty and integrity of India,] the security of the State, friendly relations with Foreign states, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.]"
A bare reading of the Article 19(2) reveals that the State cannot ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 11 make any legislation which invades the right and the right itself is available subject to restrictions, viz., security of the State, friendly relations with Foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or .
incitement to an offence.
10. The judgment (supra) is fully applicable to the facts of the present case. Avowedly, the applicant filed the instant suit on 14.06.2019 for damages for defamation and slander seeking recovery of Rs.1,00,00,000/- (Rupees one crore) alongwith interest @18% per annum and the present application has been filed on 06.12.2019 for interim directions. Records also show that even after the filing of the instant suit the non-
applicant is posting comments/statements on facebook qua the applicant and her husband. At this stage, when the main suit is pending adjudication, this Court does not feel it apt to analyze the comments/posts made by the non-applicant. At this stage this Court has only to see whether there exists prima facie case in favour of the applicant and whether balance of convenience exists in her favour or not.
11. As noted above, the non-applicant, even after filing of the instant suit by the applicant, is continuously making facebook comments/statements qua the applicant and her husband. Thus, firstly this fact only is sufficient that there ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 12 exists a prima facie case in favour of the applicant and secondly the applicant has maintained the suit seeking damages for defamation and slander from the non-applicant, so the non-
applicant cannot be allowed in perpetuity, during the pendency .
of the suit, to post or publish comments/statements qua the applicant or her family members. In case the non-applicant is not restrained, through ad interim injunction, especially during the pendency of the suit, from posting or publishing any statement of any nature against the applicant, it may give rise to multiplicity of litigation, the applicant may suffer loss which cannot be compensated in terms of money, the applicant's reputation may be lowered in the estimation of others, through such posts or publications and on the other hand the non-
applicant will not suffer any loss in case he is restrained from posting or publishing any statement/comment of any nature qua the applicant and her family members on facebook or on any other social media platform, including print or electronic media.
12. At this stage, while considering the application for ad interim injunction, this Court also finds that at present the reputation of the applicant is at stake and in case the non-
applicant is not restrained from posting or publishing any comments/statements, she will suffer irreparable loss, which ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 13 cannot be compensated in terms of money, whereas the non-
applicant will not suffer any loss, so balance of convenience also exists in favour of the applicant.
13. Manifestly, the applicant has filed the suit for .
damages for defamation and slander and for recovery of rupees one crore, so in a way ad interim injunction is also covered under the main suit. Therefore, the present is a situation where this Court has also to see interest reipublicae ut sit finis litium, therefore as the basic idea of our legal system is that in the interest of society, as a whole, litigation must come to an end and every Court, while dealing with the matters should adhere to this well accepted principle.
14. Another well-known maxim nemo debet bis vexari pro una et eadem causa (no person should be twice vexed for the same offence) has application in this case as well. It is well established Common Law rule that no one should be put to peril twice for the same offence. Here in the present case, a suit is pending judicial adjudication, for which the non-applicant may be saddled with pecuniary compensation for damaging the reputation of the applicant and in case the non-applicant is not restrained in the interregnum to post or publish comments/statements on social medial, through ad interim injunction, he might be held responsible for that too. However, in no case a person can be twice vexed for the same offence, so interim injunction is ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 14 required.
15. Now it would be apt to highlight the judicial pronouncements, as highlighted by the learned counsel for the applicant. In Swatanter Kumar vs. The Indian Express Ltd.
.
& others, (2016) 1 AD (Delhi) 288, the Hon'ble Delhi High Court has held as under:
"57. In the present case, assuming the complaint filed by the defendant No. 5 is found to be false after inquiry, then who would ultimately compensate and return the repute and sufferings of the plaintiff and mental torture caused to him and his family members.
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59. It has been observed by the Supreme court in Sahara India (supra) that the order by r the Court may include the direction not to disclose the identity of the victim, witness of complaint or of alike nature. The Court observed thus:
In the light of the law enunciated hereinabove, anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/her rights under article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ Court and seek an order of postponement of the offending publication/broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant), and that the Court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19(1)(a) rights, bearing in mind the abovementioned principles of necessity and proportionality and keeping in mind that such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 15 of trial. Such neutralizing device (balancing test) would not be an unreasonable restriction and on the contrary would fall within the proper constitutional framework."
.
In The Editor Divya Himachal and others vs. Dr. Sukhdev Sharma and another, RSA No. 311 of 2018, decided on 25.07.2019 (High Court of H.P.) a co-ordinate Bench of this Court has held as under:
"21. Winfield has defined defamation as follows:-
"Defamation is the publication of statement which tends to lower a person in the estimation of right thinking members of society generally or which tends to make them shun or avoid that person. It is libel if the statement be in permanent from and slander if it consists in significant words or gestures."
22. In view of the above definition of defamation, following are the essential ingredients of the tort of defamation:-
1. Malice. The words must have been published maliciously.
2. They must be defamatory.
3. The words must have reference to the plaintiff.
4. They must be published.
23. Meaning of the term "defamation" has been elaborately considered by the Hon'ble Supreme Court in its decision titled Subramanian Swamy vs Union of India, Ministry of Law and others, (2016) 7 SCC 221 wherein it was observed as under:
"23. Meaning of the term "defamation"
23.1. Salmond & Heuston on the Law of Torts, 20th Edn., Bata India Ltd. v. A.M. Turaz & Ors., 2013 53 PTC 536; Pandey Surindra Nath Sinha v. Bageshwari Pd.., 1961 AIR (Pat) 164, define a "defamatory statement" as under:
"A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 16 ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right thinking member of society"
23.2. Halsburys Laws of England, 4th Edn. Vol. 28, defines "defamatory statement" as under:
"10. Defamatory Statement-
.
A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business."
23.3. The definition of the term has been given by Cave, J. in Scott v. Sampson, (1882) LR 8 QBD 491(DC) as a "false statement about a man to his discredit."
23.4. "Defamation", according to Chambers Twentieth Century Dictionary, means to take away or destroy the good fame or reputation; to speak evil of; to charge falsely or to asperse. According to Salmond:
"The wrong of defamation, consists in the publication of a false and defamatory statement concerning another person without lawful justification. The wrong has always been regarded as one in which the Court should have the advantage of the personal presence of the parties if justice is to be done. Hence, not only does an action of defamation not survive for or against the estate of a deceased person, but a statement about a deceased person is not actionable at the suit of his relative. "Gatley's Libel and Slander (6th Edn., 1960) also Odger's Libel and Slander (6th Edn., 1929)".
23.5. Winfield & Jolowics on Torts (Sweet and Maxwell, 17th Edn., 2006) defines "defamation" thus:
"Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally; or which tends to make them shun or avoid that person."
23.6. In the book The Law of Defamation, (Richard O'Sullivan, QC and Roland Brown), the term "defamation" has been defined as below:-
"Defamation may be broadly defined as a false statement of which the tendency is to disparage the good name or reputation of ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 17 another person."
23.7. In Parmiter v. Coupland(1840) 6 M&W 105:
151 ER 340, "defamation" has been described as:-
".....A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him .
to hatred, contempt, or ridicule........."
23.8. The definition of "defamation" by Fraser was approved by McCardie, J in Myroft v. Sleight (1921)90 LJ KB 883: 37 TLR 646. It says:
"a defamatory statement is a statement concerning any person which exposes him to hatred, ridicule or contempt or which causes him to be shunned or avoided or which has a tendency to injure him in his office, profession or trade.
23.9. Carter Ruck on Libel and Slander ( Manisha Koirala v. Shashi Lal Nair, 2002 SCC Online Bom. 827 : (2003) 2 Bom.CR 136) has carved out some of the tests as under: (Manisha Koirala Case, SCC Online Bom. para 23) "(1) a statement concerning any person which r exposes him to hatred, ridicule, or contempt, or which causes him to be shunned or avoided, or which has a tendency to injure him in his office, professional or trade. (2) a false statement about a man to his discredit.
(3) would the words tend to lower the plaintiff in the estimation of right thinking members of society generally?"
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37. It cannot be denied that over the years, the newspapers have reached people of all categories irrespective of age, literacy and their capacity to understand. The impact of what is published therein on the society is phenomenal Unfortunately, this uncontrolled or unedited telecast or propagation of news is resorted to in the name of exercise of the right to freedom of speech and expression, or freedom of press and it is for this précise reason that the Press Council of India on 21.1.1993 had issued the following guidelines for guarding against the commission of the following journalistic improprieties and un-ethicalities:
"1. Distortion or exaggeration of facts or incidents in relation to communal matters or giving currency to unverified rumours, suspicions or inferences as if they were facts and base their comment, on them.::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 18
2. Employment of intemperate or unrestrained language in the presentation of news or views, even as a piece of literary flourish or for the purpose of rhetoric or emphasis.
3. Encouraging or condoning violence even in the face of provocation as a means of obtaining redress of grievance whether the same be genuine or not.
4. While it is the legitimate function of the .
Press to draw attention to the genuine and legitimate grievance of any community with a view to having the same redressed by all peaceful, legal and legitimate means, it is improper and a breach of journalistic ethics to invent grievances, or to exaggerate real grievances, as these tend to promote communal ill-feeling and accentuate discord.
5. Scurrilous and untrue attacks on communities, or individuals, particularly when this is accompanied by charges attributing misconduct to them as due to their being members of a particular community or caste.
6. Falsely giving a communal colour to incidents which might occur in which members of different communities happen to be involved.
7. Emphasizing matters that are apt to produce communal hatred or ill-will, or fostering r feelings of distrust between communities.
8. Publishing alarming news which are in substance untrue or make provocative comments on such news or even otherwise calculated to embitter relations between different communities or regional or linguistic groups.
9. Exaggerating actual happenings to achieve sensationalism and publication of news which adversely affect communal harmony with banner headlines or distinctive types.
10. Making disrespectful, derogatory or insulting remarks on or reference to the different religions or faiths or their founders."
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44. In Re Harijai Singh and another (supra), the Hon'ble Supreme Court observed as under:
"10. But it has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all items and in all circumstances as giving an unrestricted freedom of the speech and expression would amount to an uncontrolled license. If is were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be misunderstood as to be a press free to disregard its duty to be responsible. Infact, the element of ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 19 responsibility must be present in the conscience of the journalists. In an organized society, the rights of the press have to be recognised with its duties and responsibilities towards the society. Public order, decency, morality and such other things must be safeguarded. The protective cover of press freedom must not be thrown open for wrong doings. If a newspaper .
publishes what is improper, mischievously false or illegal and abuse its liberty it must be punished by Court of Law. The Editor of a Newspaper or a journal has a greater responsibility to guard against untruthful news and publications for the simple reason that his utterances have a far greater circulation and impact than the utterances of an individual and by reason of their appearing in print, they are likely to be believed by the ignorant. That being so, certain restrictions are essential even for preservation of the freedom of the press itself. To quote from the report of Mons Lopez to the Economic and Social Council of the United Nations "If it is true that human progress is impossible without freedom, then it is no less true that ordinary human progress is impossible without a measure of regulation and discipline". It is the duty of a r true and responsible journalist to strive to inform the people with accurate and impartial presentation of news and their views after dispassionate evaluation of the facts and information received by them and to be published as news item. The presentation of the news should be truthful, objective and comprehensive without any false and distorted expression.
11.......The editor and publisher are liable for illegal and false matter which is published in their newspaper. Such an irresponsible conduct and attribute on the part of the editor, publisher and the reporter cannot be said to be done in good faith, but distinctly opposed to the high professional standards as even as slightest enquiry or a simple verification of the alleged statement about grant of Petrol outlets to the two sons of a senior Judge of the Supreme Court, out of discretionary quota, which is found to be patently false would have revealed the truth.
But it appears that even the ordinary care was not resorted to by the condemners in publishing such a false news items. This cannot be regarded as a public service, but a disservice to the public by misguiding them with a false news. Obviously, this cannot be regarded as something done in good faith."
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20
46. In Vishwanath Agrawal vs. Sarla
Vishwanath Agrawal, (2012) 7 SCC 288, while dealing with the aspect of reputation, the Hon'ble Supreme Court observed as under:
"55.....reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely .
delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity."
47. In Kiran Bedi vs. Committee of Inquiry, (1989) 1 SCC 494, the Hon'ble Supreme Court reproduced the following observations from the decision in D.F.Marion vs. Davis, 55 ALR 171 (1927) which read as under:
"25....... 'The right to the enjoyment of a private reputation,unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.'"
48. In Mehmood Nayyar Azam vs. State of r Chhattisgarh, (2012) 8 SCC 11, the Hon'ble Supreme Court ruled that:
"1.......The reverence of life is insegregably associated with the dignity of a human being who is basically divine, not servile. A human personality is endowed with potential infinity and it blossoms when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter, 'a brief candle', or 'a hollow bubble'. The spark of life gets more resplendent when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of 'creative intelligence'. When a dent is created in the reputation, humanism is paralysed."
49. Dealing with reputation as a cherished right, the Hon'ble Supreme Court in Umesh Kumar vs. State of A.P., (2013) 10 SCC 591, observed as under:
"18......Personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. Therefore, it has been held to be a necessary element in regard to right to ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 21 life of a citizen under Article 21 of the Constitution. The International Covenant on Civil and Political Rights, 1966 recognises the right to have opinions and the right to freedom of expression under Article 19 is subject to the right of reputation of others.""
Both the above judgments are fully applicable to the facts of the .
present case, as the same aptly deal with the Right encapsulated under Article 19(1)(a) of the Constitution of India.
16. In addition to the above judgment, the learned counsel for the non-applicant has also relied upon a decision of Hon'ble Madras High Court rendered in A. Raja & M.A. Parameswari vs. P. Srinivasan Publisher & Printer of Junior Vikatan Vasan Publications Private Limited, K. Ashokan Editor, Vasan Publications Private Limited, Saroj Ganpath, Chief Reporter & Prakash Jawadekar, (2010) AIR (Madras) 77, where it has been held as under:
"7. Advancing arguments on behalf of the appellants, the learned Senior Counsel Mr. V.T. Gopalan and Mr. P. Wilson would submit that the finding of the learned Single Judge that all the news items do not relate to their private life and are related to the conduct of the appellants in public domain is against the documentary evidence and pleadings; that the respondents have published the family photographs of the appellants and have also published damaging news item in relation to the second appellant's private employment; that there was no necessity for publishing minor child's photograph; that the undertaking of the respondents in this regard is not in a proper format by way of an affidavit; that it is pertinent to point out that the second appellant is not a public figure and she is neither in a public domain; that under the circumstances, there was no necessity for the respondents to publish about the second appellant which is against the public morality and public decency; that fudgi9ng photographs in a manner which tended to be without any public decency, ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 22 obscene, immodest, highly mischievous and giving raise to innuendo cannot be permitted on the grounds of press freedom; that such fudging of photographs is a deliberate distraction of the truth which was intentionally made for the purpose of creating a very bad opinion about the first appellant in the minds of the readers of the magazine; that while the first appellant is .
holding the office of Cabinet Minister in the Union Government, it cannot be said that his wife, the second appellant, also holds any such public office; that under the circumstances, publishing the photograph of the second appellant also cannot be justified at all; that the right guaranteed under Article 19(1) is not absolute and subject to Article 19(2); that when it affects the morality and decency or intrudes into privacy and family life of the appellants and reveals the identity of a minor right yet holding that Article 19(1)(a) is supreme amounts to non-appreciation of law relating to the freedom of expression; that no person or citizen has right to make a defamatory statement; that the loss of reputation cannot be compensated only by way of payment of damages; that since the articles impugned were per see defamatory made recklessly, r the appellants are entitled for an order of absolute injunction; that the respondents took no steps to establish that all the said articles impugned are true and that it is the exact interview given by the fourth right; that in as much as the respondents disown any act of reasonable verification in relation to the publication made even in relation to the first appellant, the learned single Judge by applying the decision reported in (1994)6SCC 632 ought to have granted an order of absolute injunction; that the statements and the articles are deliberate distortions of the facts without the least verification; that in such circumstances, the continuing malicious attitude of the respondents should be injuncted; that no specific reason has been assigned in the impugned order as to why the award of exemplary costs of Rs. 10000/- has been made even without a prayer from the respondents; that the same is unwarranted and uncalled for, and hence the order of the learned Single Judge has got to be set aside and interim injunction be ordered."
However, the judgment (supra) is not applicable to the facts of the present case, as in the above case exemplary costs were granted for the publication, but in the present case the ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 23 applicant is only praying for interim directions.
17. On the other hand learned Senior Counsel for the non-applicant has also placed reliance on a decision of Hon'ble Calcutta High Court rendered in Sunil Kakrania vs. Saltee .
Infrastructure Ltd., 2009 AIR (Cal) 260. In the judgment (supra), the Hon'ble High Court of Calcutta has held as under:
"21. After hearing the learned Counsel for the parties and after going through the materials on record, we find that the suit is one for recovery of money and the in the plaint, the description of the building constructed by the plaintiff has been described in Schedule 'A' with the averment in the plaint that the same was yet to be handed over the defendants and was in possession of the plaintiff. The Schedule 'B"
reflects the calculation of the claim of the plaintiff. Thus, the Schedule 'A' cannot be said to be "property in dispute in suit"
r within the meaning of Order 39 Rule 1 of the Code as subject-matter of the suit is really the recovery of Rs. 1 crore and odd claimed in the plaint. In a simple suit for recovery of money, an immovable property cannot be "the property in dispute in suit" simply because the money claimed in the suit is allegedly payable for construction of such immovable property."
The judgment (supra) is not applicable to the facts of the present case, as the facts of the present case are totally different, as in the instant case the interim relief, as prayed for by the applicant, is an offshoot of the main relief.
18. After analyzing law on the subject and also discussing the different aspects of the case and also the material available on record,
(a) This Court finds that the applicant has a prima ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 24 facie case in her favour, as she by placing on record the material by way of documents and pleadings, has shown to the satisfaction of this Court that the material is there in the .
post/publication which can be ultimately found to be defamatory against her;
(b) Now, as far as balance of convenience is concerned, the same at this moment is in favour of the applicant and in case interim order is not passed in favour of the applicant, she will suffer irreparable loss. Whereas, the respondent will rnot suffer any irreparable loss in case interim order is passed in favour of the applicant;
(c) As far as equity is concerned, the same is also in favour of the applicant, as she is suffering due to the alleged post(s) against her; &
(d) As far as public policy is concerned, it is duty of the Courts to minimize the litigation and in case the interim order is granted, the same will reduce the litigation and if it is not granted, then the applicant may file a separate case for damages for each post that will multiply the litigation.
::: Downloaded on - 09/01/2020 20:24:22 :::HCHP 2519. In these circumstances, taking into consideration the above mentioned circumstances, the application is allowed and the non-applicant (defendant) is restrained from posting or publishing any statement of any nature, against the applicant, .
her husband and her family members on facebook or on any other social media, including print or electronic media, till the disposal of the main suit. Accordingly, the application is disposed of.
20. The observations made hereinabove are only in order to decide the aforesaid application and will not have any bearing on the main suit.
r COMS No. 20 of 2019List on 3rd March, 2020.
(Chander Bhusan Barowalia) Judge 3rd January, 2020 (virender) ::: Downloaded on - 09/01/2020 20:24:22 :::HCHP