On 20th May 2020, Justice Abdul Quddhose’s Bench of the Madras High Court in the case of Thiru N Ram vs Union of India and connected cases, while highlighting the importance of press freedom, quashed 28 criminal complaints filed against a group of editors and journalists in 2012, over few reports against J Jayalalitha, the then Chief Minister of Tamil Nadu.
Facts-The court had allowed over 25 petitions to quash defamation proceedings against various media houses, including The Hindu, Nakheeran, Times of India, Dinamalar, Tamil Muras, Murasoli and Dinakaran. These state sanctioned criminal defamation proceedings were filed over press reports published by these media houses including reports of attack on the Nakheeran office by AIADMK activists, statements made by opposition leaders, an interview with a woman alleging to be former Chief Minister and AIADMK supremo J Jayalalitha’s daughter, protests by the opposition DMK over a cholera outbreak in the city, among others.
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Alleging that the reports amounted to defamation of a state functionary, the public prosecutor had filed criminal complaints before the Sessions Court under Section 199(2) of the Code of Criminal Procedure. In response to these proceedings, the media houses had moved to the High Court, challenging the constitutional validity of the government orders granting sanction to the Public Prosecutor to file complaints under Section 199(2) CrPC in respect of the reports.
Issues- In examining the case, the court made pertinent observations on the subject of State-sanctioned criminal defamation under Section 199(2) CrPC which are discussed below:
- [I] State should not be impulsive in defamation matters
The judge while referring to the statistics gathered on the filing of such defamation cases by the State authorities noted that that there appeared to be a pattern of misuse of the defamation law in Tamil Nadu. From the year 2012- 2020, the court found that irrespective of the political party in power, cases under Section 199(2) CrPC had been filed. These totalled to 226 recklessly filed cases, which clogged up the sessions court. In the court’s opinion, “This menace will have to be curbed and nipped in the bud.”
The court instructed the state to restrict the usage of criminal defamation law, in line with the intention of the legislature, considering the fact that it is a non-cognizable offence and that there are large number of exceptions provided for it. The court held that “A public servant/constitutional functionary must be able to face criticism. As public servants/constitutional functionaries, they owe a solemn duty to the people. The state cannot use criminal defamation cases to throttle democracy.”
The Court noted that in all the cases, the core ingredient required for prosecution through a public prosecutor under section 199(2) CrPC namely “Defamation of the State” is missing. For Section 199(2) to be attracted, the state has to be defamed along with a public servant in the course of discharging his public functions. However, if the state has not been defamed, Section 199(2) is not attracted, and the only recourse available to the public servant is to file a complaint before the Magistrate under section 199(6) CrPC.
The Court further highlighted the duty of the state to not act impulsively when invoking Section 199(2), like an ordinary citizen. The section should only be invoked when there is foolproof material and launching of prosecution under the Section is inevitable. Explaining this view, Justice Abdul Quddhose held, “An individual or a public servant/constitutional functionary can be impulsive but not the State which will have to show utmost restraint and maturity in filing criminal defamation cases. If the State becomes an impulsive prosecutor in criminal defamation matters, that too in an era of social media where there are scores of abusive contents made against public figures, the Sessions Court will get clogged with innumerable matters which are sometimes vindictive in nature only to settle scores with opposition political parties. The intention of the legislature would never have been for this unlawful object.”
Finally, in elucidating the state’s expected behaviour, the judge drew an analogy of parent’s behaviour with their children. Parents are normally faced with vituperative insults from their children, despite which, the do not disown their children easily. The state should have similar attitude and tolerance level in regards to launching defamation proceedings against its citizens.
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- [II] Level of Scrutiny by Sessions Court under Section 199(2) higher
After examining the statistics, the court noted that the mechanical filing of complaints under Section 199(2) has clogged the session courts with such matters. In this backdrop, the Court reminded the Sessions Judges that they have to exercise higher level of scrutiny with respect to criminal defamation complaints by the State: “The level of scrutiny by a Sessions Court under section 199(2) CrPC is much higher than the scrutiny by a Magistrate under section 199(6) CrPC Before taking cognizance under section 199(2) CrPC, the Sessions court can even order for further investigation. The Sessions court cannot mechanically take cognizance of the complaint and issue process to the accused. The court will have to independently apply its judicial mind and assess the materials and only if it is satisfied take cognizance of the complaint. The materials assessed shall be indicated by the Sessions Court in its order taking cognizance of the complaint filed under section 199(2) CrPC”
- [III] Public Prosecutor not to act like a post office
Further, Justice Quddhose also issued certain guidelines on the role expected to be played by a public prosecutor in State-sanctioned criminal defamation proceedings. He held that a Public prosecutor must consider himself as an agent of justice. In exercise of this role, he must not act like a mere post office but should independently assess whether the materials available is sufficient to launch prosecution under section 199(2), he should be fair to the court, he should ensure that the State is not actuated by motives of revenge but seeks only to protect the community and he should neither display blind eagerness for nor should he grasp at a conviction. For doing so, the court instructed the Public Prosecutor to not aggravate the case against the accused by his statements or keep back any witness for fear that his/her evidence may weaken the case of the prosecution. He should discharge his duties fairly and fearlessly and with full sense of responsibility.
- [IV] Media should exercise self-regulation
Finally, the Court also made a few parting remarks on the importance of the media to exercise self- regulation. While holding that the role of media must always be respected, the court noted that there has been decay in Media, which must be removed soon or else, “it will spread like fire causing great peril to our robust Democracy.” Additionally, the court remarked, “The newspaper is a great power, but just as an unchained torrent of water submerges the whole countryside and devastates crops, even so an uncontrolled pen serves but to destroy. If the control is from without, it proves more poisonous than want of control. It can be profitable only when exercised from within.”
Section 199(2), The Code of Criminal Procedure, 1973
- Prosecution for defamation
- No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.
- Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code (45 of 1860) is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor
- Every complaint referred to in sub-section (2) shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.
- No complaint under sub-section (2) shall be made by the Public Prosecutor except with the previous sanction-
- of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government;
- of the State Government, in the case of any other public servant employed in connection with the affairs of the State;
- of the Central Government, in any other case.
- No Court of Session shall take cognizance of an offence under sub-section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.
- Nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of the offence upon such complaint.
Section 499, The Indian Penal Code, 1860
- Defamation. –
Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
First Exception.– Imputation of truth which public good requires to be made or published. – It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception.– Public conduct of public servants. – It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception.– Conduct of any person touching any public question. – It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
Fourth Exception.– Publication of reports of proceedings of Courts. – It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings. Explanation. – A Justice of the Peace or other officer holding an inquiry in open Court preliminary to a trial in a Court of Justice is a Court within the meaning of the above section.
Fifth Exception.– Merits of case decided in Court or conduct of witnesses and others concerned.- It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Sixth Exception.– Merits of public performance.- It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. Explanation. – A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
Seventh Exception.– Censure passed in good faith by person having lawful authority over another.- It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Eighth Exception.– Accusation preferred in good faith to authorised person. – It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Ninth Exception.– Imputation made in good faith by person for protection of his or other’s interests.- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
Tenth Exception.– Caution intended for good of person to whom conveyed or for public good.- It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
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Section 500, The Indian Penal Code, 1860
- Punishment for defamation. –
Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
In view of the aforementioned, the High Court ultimately proceeded to allow all the petitions before it and quashed the criminal defamation proceedings launched under Section 199(2), CrPC. At the same time, the court also noted that some of the prosecutions could fall under Section 199(6) CrPC, and accordingly allowed them to be prayed for.
The High Court’s decision comes at a time when every pillar of democracy is eroding. The media then, becomes the only pillar that is capable of holding the dream of a free democratic nation together and preventing this great nation from collapsing into autocracy. However, when media houses are threatened with exorbitant defamation suits by those in power, in an attempt to muffle free voice, it becomes pertinent to ask ourselves whether we are truly living in a democracy? Is the government actually of the people, for the people and by the people? Where is the voice of the common man in running the country?
Media still continues to one of the most powerful mediums of dissent. If this dissent is stifled in any way, the day is not far when India would be viewed upon by the world as a modern-day autocracy.
For Case specific advice, please contact top/best/expert/ High Court Defamation Lawyers in Chandigarh Panchkula Mohali (Punjab & Haryana).
This post is written by Soumya Nayyar.
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