“There is something called ethical imperative. It envisions that inherent powers go with implicit duties. Courts often nudge and remind the executive that possession of power is coupled with a duty to exercise the same. Judicial power can be no different. When freedom of press which is a fundamental right is at stake, higher judiciary is obliged to exercise not only its inherent power but also exert itself a bit. An unused power is a useless tinsel. There is no point in merely saying that press is the foundation of democracy.”
On Wednesday, Justice GR Swaminathan’s Bench of the Madras High Court in Grievances Redressal Ofﬁcer, M/s.Economic Times Internet Ltd. & Ors. v. M/s.V.V.Minerals Pvt.Ltd. & Anr. quashed the criminal defamation proceedings instituted against the Journalist Sandhya Ravishankar, her husband, The Editor and The Grievances Redressal Ofﬁcer of the Economic Times and made signiﬁcant observations with regards the role of higher judiciary in “safeguarding the freedom of press”. The offending publication in this case was the article titled “Scam on the Shores”, written in connection to the illegal beach sand mining of atomic minerals along the southern coastline of Tamil Nadu, by the 3rd petitioner-Sandhya Ravishankar and published in the February 1-7 issue of the ET Magazine in 2015.
The respondent had first filed a complaint to the Judicial Magistrate, Thirunelveli, who finding a prima facie case under Section 500 (punishment for defamation) read with Section 109 (punishment for abetment) of the India Penal Code, issued summons to the petitioner. Aggrieved by this decision, the petitioners approached the High Court under Section 482 CrPC (inherent powers of High Court). While hearing the case, the High Court looked at [I] Procedural Errors, [II] Malice in writing article, [III] Agency of a woman, [IV] Inaccuracies in reporting, [V]Public Interest and [VI] Role of the judiciary.
The court first took note of two apparent procedural errors that were committed. Firstly, in the complaint by the respondent, Accused 1 & 2 were described by their posts and not by their names, as ‘The Grievance Redressal Officer, Economic Times’ and ‘The Editor, Economic Times’, respectively. This violation of Section 476 of CrPC, read with Section 61 and Form 1 of the Second Schedule, CrPC was overlooked by the trial Magistrate. Secondly, the judicial magistrate, overlooking the fact that the accused did not reside within his jurisdictional limits, also over steped his territorial jurisdiction prescribed under Section 202 CrPC.
[II] Malice in writing article
The respondents alleged that Sandhya Ravishankar wrote the article on the behest of her husband, out of hatred and malice, to settle scores with the complaiant, who owned substantial stakes in the news agency where her husband had been declined employment. The court rejected this argument and pointed out that the articles in question were published after the Madras High Court issued notice on the PIL ﬁled by Victor Rajamanicka mover illegal beach sand mining. Thus, the court observed, the article was written in public interest and not out of malice.
[III] Agency of a woman
The court observing that the allegation that Ravishankar had penned the article at the behest of her husband under mined the agency of a woman, ruled that the husband had to be deleted from the array of accused. Maneuvering its “activist role”, Justice GR Swaminathan went on to recognize the capacity of a wife and said, “If I accept the contention of the complainant’s counsel, that would undermine the agency of the woman concerned. This concept of agency has considerable philosophical import and was evolved by the feminists during the last century. The complainant wants me to assume that the third petitioner lacks personal autonomy. The third petitioner definitely has the capacity to act independently and make her own free choice. I cannot assume that the third petitioner was a pawn or tool at the hands of her husband. Her innate dignity can be upheld only by deleting the fourth petitioner from the array of accused.”
[IV] Inaccuracies in reporting
In examining the allegations of the article containing erroneous statements, the court referred to the American ruling in New York Times vs. Sullivan 376 US 254, where the bench held that “minor errors” in reporting were “inevitable in free debate” and do not call for initiation of criminal proceedings against the media.The court also cited the decision of the Supreme Court in R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632 and that of a division bench of the Madras High Court in Rajagopal v. J. Jayalalitha, AIR 2006 Mad 312 in upholding the above view and deciding not to penalise the media for minor error that could creep in news reporting.
[V] Public Interest
The court noting that the article was published only in the wake of the notice issued by the First Bench of the Madras High Court, observed that “If theHon’ble First Bench thought it ﬁt to issue notice based on the allegations made by a litigant and when it raised a public question, the media is certainly entitled to carry a story on it.”This, according to the bench, was a clear proof that the case fell within the third exception to Section 499 of IPC under which criminal defamation proceedings would not be attracted if a publication is carried out in good faith and on a public question.
Also Read- Criminal Defamation in India
[VI] Role of the judiciary.
Justice Swaminathan also highlighted the crucial role of the judiciary in upholding the independence of the media. He referred to the decision of the Supreme Court in State of Madras v. V.G. Rao, AIR 1952 SC 196, where the the bench held that courts play the role of “sentinel on the qui Vive” to protect the Constitutional rights of citizens and stated that “an activist role will have to be played by the higher judiciary because it is a matter of record that criminal defamation proceedings have become a tool of intimidation and before corporate bodies and powerful politicians whose pockets are tunnel deep and whose hands are long even media houses having good resources have capitulated.”
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.
Also Read- Defamation Laws in India
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.
Also Read- Document Based Allegation is not Defamation
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.
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.
Section 109, The Indian Penal Code, 1860
- Punishment of abatement if the act abetted is committed in consequence and where no express provision is made for its punishment.—Whoever abets any offence shall, if the act abetted is committed in consequence of the abutment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation.—An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
Section 202, The Code Of Criminal Procedure, 1973
- Postponement of issue of process.
- Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,-
- where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
- where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
- In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
- If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.
Section 476, The Code Of Criminal Procedure, 1973
- Forms. Subject to the power conferred by article 227 of the Constitution, the forms set forth in the Second Schedule, with such variations as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient.
Section 482, The Code Of Criminal Procedure, 1973
- Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
The judgement passed by Justice Swaminathan is truly commendable! In a world where the freedom of the Media is constantly stifled by politicians and businessmen alike, here comes a ray of hope for freedom of speech in India. He could have dismissed the case for its procedural errors, but instead he quashed the FIR by using the power given to him under Article 482 of the CrPC, taking note that dismissing would send the petitioners back to the trial court, hence making the attainment of Justice harder for them. Doing so, he played his role as the protector of Justice and further urged other judges to do so too.
“I am clearly of the view that there is no point in merely singing paeans to freedom of press, if one cannot go to its rescue when the said right is faced with a serious threat,”
For your specific case advice, you may contact top/best/expert Criminal Defamation Lawyers/Advocate in High Court Chandigarh Panchkula Mohali Zirakpur Derabassi Kharar .
This post is written by Soumya Nayyar
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