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24. It is submitted that absolute privilege cannot work against the fundamental right of a person. Right to reputation being recognised as a fundamental right under Article 21 of the Constitution, cannot be violated in the garb of immunity. It is contended that absolute privilege is not a fundamental right and there is no statutory right granting absolute privilege to a lawyer. In the garb of free speech, the reputation of a person cannot be sullied.

"95. Traditional defences 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 defence. 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 defence of truth, defence based on fair comment can be defeated if the plaintiff proves that the defamer acted with malice. Similar is the situation where the defence 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 defence. Rationale of absolute privilege being restricted to Court proceedings or proceedings before Tribunals which have all the trappings of a Civil Court and Parliamentary (2006) 87 DRJ 603 Neutral Citation Number: 2023/DHC/000958 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."

"28. Absolute Privilege is a special defence available in an action for defamation under the common law which has been recognized by the Indian courts in a catena of cases.

29. A statement is said to be Absolutely Privileged when it is of such a nature that no action will lie for it, however false and defamatory it may be, and even though it is made maliciously, that is to say, from some improper motive. These cases are extremely opposite to the ordinary cases of unprivileged defamation. When a statement is not privileged, it is actionable, however honest its publication may have been; but if it is Absolutely Privileged it is not actionable, however dishonest its publication may have been. XXXX

In my opinion he is so protected, both on the authority of our own Full Bench case of Chunni Lal v. Narsingh Das [(1918) I.L.R. 40 Alld. 341.] , which we are bound to follow, and, if I may say so with respect, because I think the principles which that case enunciates reflect both the public interest and the law of India.

So long as the interests of litigants in this country are entrusted to recognized and qualified professional men and so long as the courts repose their confidence in the Bars which practise before them, I respectfully agree with Sir Henry Richards in thinking that it would be a disaster to the litigating public, both if the liberty of speech or action of their advocates were circumscribed by exposure to civil suits for words spoken or written in the course of the administration of causes entrusted to them, and if the Neutral Citation Number: 2023/DHC/000958 courts were by law compelled to withdraw their confidence from them. Such exposure would, I think, be calculated to limit their freedom and independence in their clients' interests to a greater extent than would be the case in England, if no absolute privilege existed there, since the risk of vexatious and often ruinous litigation in India is far greater. Nor do I perceive for what good reasons, so long as the same principles of the practice and administration of justice are maintained, or aimed at, in this country as in England, why the necessity for the maintenance of the absolute privilege of the Bar should be less. Indeed, there is the greater need for it in a country in which the advocate is exposed to larger risks of spiteful litigation. If it be said that, conversely, the risk of the abuse of an absolute priyilege is also greater, I should still maintain that it were better in the public interest that the immunity of the advocate should be sufficiently large to enable him to perform his duty fearlessly, than that some relatively few cases of abuse should be made the subject of a just civil liability. If abuse occurs, as sometimes from inexperience and sometimes from less excusable causes is bound to happen, the remedy lies, I think, not in an alteration of the law relating to the privilege, but in fostering high standards of practice; in the censure of the public and in the continuous vigilance of the courts themselves.