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DR.

RAM MANOHAR LOHIA NATIONAL LAW


UNIVERSITY, LUCKNOW
ACADEMIC SESSION
2015 - 2016
FINAL DRAFT OF :
“Torts”
ON TOPIC
“Newspaper Libel and the Indian Judiciary”

SUBMITTED TO: SUBMITTED BY:

MR. R.K YADAV TANMAY KADIAN

ASSISTANT PROFESSOR (LAW)

DR. RMLNLU, LUCKNOW SEMESTER II

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Table of Contents

Table of Cases………………………………………………………. 3

Introduction………………………………………………………….. 4

Defamation and Libel……………………………………….………. 5

Defamation as a Crime v/s Defamation as a Tort…………………… 8

Justice Markandey Katju Controversy……………………………… 9

Conclusions and Suggestions……………….….…………………… 12

References…………………………………………………………… 13

Bibliography………………………………………………………… 14

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Table of Cases

1. WRIT PETITION SR No.34572 of 2015


and
M.P. SR No.34574 of 2015

Thamizharuvi Maniyan

vs

1.Secretary to the President


The President's Secretariat
Rashtrapati Bhavan
New Delhi 110 004
2.Union of India
Rep. By the Secretary
Department of Information Technology
Ministry of Communications and
Information Technology
Government of India
Electronic Niketan No.6,
Central Government Offices Complex
New Delhi 110 003
3.The Group Co-ordinator (Joint Secretary)
Cyber Law Division
Department of Information Technology
Ministry of Communications and Information Technology
Government of India
Electronic Niketan No.6,
Central Government Offices Complex
New Delhi 110 003
4.Union of India Rep. By its Secretary
Union Ministry of Law and Justice
4th Floor, A-Wing, Shastri Bhawan
New Delhi 110 001
5.Markandey Katju…………………………………………………………………………..

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Introduction

Defamation is a tort which arises when a person’s reputation is injured and his character
perceived by the public is negatively affected in some way. Two forms of defamation are
Libel and Slander. Slander is a purely verbal statement spoken by a person that injures
someone’s reputation, while libel is printed material or published material that injures
someone’s reputation in the public. This project deals with newspaper libel with respect
to the Indian judiciary and some controversies created due to this. One such controversy
is the one in which Justice Markandey Katju, the former chairman of the Press Council of
India was involved. A Defamation case for libel was filed against Justice Markandey
Katju in a city court in Chennai by Thamizharuvi Maniyan, for Justice Katju’s
controversial blog post that talked about how ‘Mahatma Gandhi was a British Agent’.

“This post is bound to draw a lot of flak at me, but that does not matter as I am not a
popularity seeker I have often said things knowing that initially that will make me very
unpopular, and I will be vilified and denounced by many. Nevertheless I say such things
as I believe they must be said in my country's interest.

I submit that Gandhi was objectively a British agent who did great harm to India.”1

This is how the blog post that got the defamation case filed against Justice Markandey
Katju starts out. The case was later dismissed in the court.

The project will deal with this case specifically as it is one recent controversy related to
the topic in question. The project will also look at the technicalities of libel laws in India
and at other similar cases.

1 http://justicekatju.blogspot.in/2015/03/gandhi-british-agent-post-is-bound-to.html

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Defamation and Libel

Defamation is a tort which arises when a person’s reputation is injured and his character
perceived by the public is negatively affected in some way. Slander is a purely verbal
statement spoken by a person that injures someone’s reputation, while libel is printed or
published material that has injured someone’s reputation in public.

In India, defamation is both a tort and a crime i.e. an offence under the Indian Penal
Code section 499.

“In civil defamation, the plaintiff has to prove that the statements injured his/her
reputation and were published. Then the burden shifts to the defendant to prove that
statements were either true, or amounted to fair comment, or were uttered or stated in
circumstances offering absolute or qualified privilege like Parliamentary or judicial
proceedings.”2

In criminal law, the burden lies on the prosecution to prove that the offence was
committed with a mala fide intention. Then it is for the defense to prove that they are
protected by one of the 10 exceptions listen under section 499 of the Indian Penal Code.

The Indian Penal Code reads: “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. Explanation 1.—It may amount to
defamation to impute anything to a deceased person, if the imputation would harm the
reputation of that person if living, and is intended to be hurtful to the feelings of his
family or other near relatives. Explanation 2.—It may amount to defamation to make an
imputation concerning a company or an association or collection of persons as such.

2 http://blogs.wsj.com/indiarealtime/2012/11/15/inside-law-how-defamation-works-in-india/ “Inside Law: How


Defamation Works in India” by Anish Dayal

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Explanation 3.—An imputation in the form of an alternative or expressed ironically, may
amount to defamation. Explanation 4.—No imputation is said to harm a person’s reputa-
tion, unless that imputation directly or indirectly, in the estimation of others, lowers the
moral or intellectual character of that person, or lowers the character of that person in
respect of his caste or of his calling, or lowers the credit of that person, or causes it to be
believed that the body of that person is in a loathsome state, or in a state generally
considered as disgraceful.”3

The 10 Exceptions listen under the Indian penal code: “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. Illustration It is not defamation in A to express in good faith any opinion
whatever respecting Z’s conduct in petitioning Government on a public question, in
signing a requisition for a meeting on a public question, in presiding or attending a such
meeting, in forming or joining any society which invites the public support, in voting or
canvassing for a particular candidate for any situation in the efficient discharges of the
duties of which the public is interested. 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
3 http://indiankanoon.org/doc/1041742/ ‘Section 499 in The Indian Penal Code’

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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 defa-
mation 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 autho-
rised 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.”4 Lopes J, in Monson V. Tussauds case points out that libel shouldn’t
necessarily be in writing. Any permanent or published sign, symbol, drawing, effigy can
be a libel.5

4 http://indiankanoon.org/doc/1041742/ ‘Section 499 in The Indian Penal Code’


5 http://www.slideshare.net/shantanu_leo/defamation-law-in-india Kunal Basu on law of torts, faculty: Mrs. Smriti
Ahuja

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Defamation as a Crime v/s Defamation as a Tort

In India, defamation is both a tort and a crime i.e. an offence under the Indian Penal Code
section 499.

“In civil defamation, the plaintiff has to prove that the statements injured his/her
reputation and were published. Then the burden shifts to the defendant to prove that
statements were either true, or amounted to fair comment, or were uttered or stated in
circumstances offering absolute or qualified privilege like Parliamentary or judicial
proceedings.”6

In criminal law, the burden lies on the prosecution to prove that the offence was
committed with a mala fide intention. Then it is for the defense to prove that they are
protected by one of the 10 exceptions listen under section 499 of the Indian Penal Code.7

Clearly, there is a distinction made in law regarding defamation when it comes to


establishing whether or not the defendant has done defamation or not. Under torts, the
plaint has to merely prove that the defamatory statements were published and the rest of
the case and the outcome shall depend on the defense’s ability or inability to prove that it
wasn’t defamation.

In criminal law however, a departure can be seen as the prosecution has to not only prove
that the material was published but they also have to prove mala fide intention. Later the
defense can prove protection through one of the exceptions. This changes the dynamics
of the case in criminal law and thus, it may be possible that a person has committed the
tort of defamation but not the criminal offense and vice-versa

6 http://blogs.wsj.com/indiarealtime/2012/11/15/inside-law-how-defamation-works-in-india/ “Inside Law: How


Defamation Works in India” by Anish Dayal

7 Ibid

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Justice Markandey Katju Controversy

Justice Markandey Katju, the former Chairman, Press council of India and former Judge
of the Supreme Court of India has and maintains a blog with titled ‘Satyam Bruhat’. On
Tuesday, 10 March 2015, he posted a blog post with the title ‘Gandhi---A British Agent’.
In the post, he started out by admitting that the post would draw a lot of flak at him and
that he is prepared for what will follow. He concluded, “I submit that Gandhi was
objectively a British agent who did great harm to India.”8

Below, he wrote the reasons for his belief in 3 points, talking about how Mahatma
Gandhi inserted religion into politics over the years, how he sidelined the revolutionary
fighters such as Ramprasad Bismil, and criticizing his economic ideas that as he said,
were “against industrialization”.

On Wednesday, 18 March 2015, Thamizharuvi Maniyan, a Gandhian who claimed to


have founded the movement ‘Gandhiya Makkal Iyakkam’, later renamed to ‘Gandhiya
Makkal Katchi’, filed a defamation case against the former PCI Chairman for his
aforementioned remarks on Mahatma Gandhi. Maniyan said he was a writer and an orator
and former chief minister K Kamaraj gave him the title of 'Tamilaruvi' because of his
oratory skills.

Maniyan said that the blog post was “shocking, despicable and condemnable as it
showed utter disregard for social and constitutional values.”9

He remarked that Justice Katju made “defamatory remarks with a malicious intent” and
his “mental state shows reckless disregard for law in general and legal rights of others.”10

8 http://justicekatju.blogspot.in/2015/03/gandhi-british-agent-post-is-bound-to.html
9 http://timesofindia.indiatimes.com/india/Defamation-case-against-Katju-for-Gandhi-
remarks/articleshow/46615711.cms
10 http://timesofindia.indiatimes.com/india/Defamation-case-against-Katju-for-Gandhi-
remarks/articleshow/46615711.cms

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He also said that “Though right of fair criticism was provided to every citizen, it could
become defamatory when the interest of the individual who made the comment
outweighed public interest”11

Maniyan pleaded the II Metropolitan Magistrate court, Egmore, to take cognizance of the
offences and initiate proceedings under Section 124-A (sedition), 500 (defamation), 501
(printing any matter despite knowing it be defamatory), 504 (insult intended to provoke
breach of peace) and 505 (2) (false statement an intent to create enmity, hatred and ill-
will between different classes) of IPC.

Additional Chief Judicial Magistrate Sitaram dismissed the complaint on the ground that
it is not maintainable as the complainant has not claimed that he is a family member of
the freedom fighters.

On 30th June 2015, Maniyan went to the high court seeking a writ of mandamus which
aimed to remove the alleged defamatory material published by Justice Katju from the
social networking sites that held it. The petitioner later withdrew the petition as they had
no cause of action.

“Writ petition filed under Article 226 of the Constitution of India praying for issuance of
a writ of mandamus directing the respondents 2 and 3 to permanently remove the
defamatory content from the fifth respondent's weblog and other social networking
websites in which the fifth respondent holds account and thereby initiate actions under
Section 69A of the Information Technology Act, 2000, against the fifth respondent.

11 http://timesofindia.indiatimes.com/india/Defamation-case-against-Katju-for-Gandhi-
remarks/articleshow/46615711.cms

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ORDER

1. The learned Counsel appearing for the petitioner, seeks permission of this Court to
withdraw the writ petition and also made an endorsement to that effect.

2. Permission is granted and the writ petition is dismissed as withdrawn at the SR stage
itself. However, the petitioner is at liberty to approach this Court as and when the
cause of action arises. Consequently, connected miscellaneous petition SR is also
dismissed.”12

12 http://judis.nic.in/Judis_Chennai/list_new2.asp?FileName=230773

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Conclusions and Suggestions

While it is important to respect such a figure as Mahatma Gandhi, the father of the nation,
theories and ideas related to him should not, and cannot be censored. Publishing some
material in good faith, with evidence/arguments to back it up, for the larger interest of the
public and for letting the nation in on such arguments is not defamation. Firstly, there
was no baseless bad intent to defame the Mahatma as Justice Katju had provided
sufficient arguments taken from the common pool of knowledge, that support his
argument.

Secondly, the complainant, Maniyan was not a family member or relative of Mahatma
Gandhi and therefore he had no locus-standi to file a defamation complaint against
Justice Katju. The case was therefore, not maintainable, as the Additional Chief Judicial
Magistrate Sitaram noted, and the case was thus, duly dismissed.

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References

1. http://justicekatju.blogspot.in/2015/03/gandhi-british-agent-post-is-bound-to.html

2. http://blogs.wsj.com/indiarealtime/2012/11/15/inside-law-how-defamation-works-in-

india/ “Inside Law: How Defamation Works in India” by Anish Dayal

3. http://indiankanoon.org/doc/1041742/ ‘Section 499 in The Indian Penal Code’

4. http://www.slideshare.net/shantanu_leo/defamation-law-in-india Kunal Basu on law

of torts, faculty: Mrs. Smriti Ahuja

5. http://timesofindia.indiatimes.com/india/Defamation-case-against-Katju-for-Gandhi-

remarks/articleshow/46615711.cms

6. http://judis.nic.in/Judis_Chennai/list_new2.asp?FileName=230773

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Bibliography

Books referred to:

1. The Law of Slander and Libel: Including the Practice, Pleading, and Evidence, Civil and

Criminal, with Forms and Precedents (1908). Author: Henry Coleman Folkard, Publisher:

Kessinger Publishing

2. Newspaper libel: a handbook for the press by Samuel Merrill, University of California

Libraries

3. Mass Media And Related Laws In India by B. Manna, Academic Publishers

Articles referred to:

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1. The role the media should be playing in India by Markandey Katju, Amicus Curiae Issue

88 Winter 2011

2. Defamatory Comment on the Judiciary: Lange Qualified Privilege in Popovic v Herald &

Weekly Times (Roy Baker, Macquarie Law School, (2002) 7.3 Media & Arts Law

Review 213 - 222)

3. The Law of Newspaper Libel, John Proffatt, The North American Review, Vol. 131, No.

285 (Aug., 1880), pp. 109-127, Published by: University of Northern Iowa

4. The Law of Newspaper Libel, John Proffatt, The North American Review, Vol. 131, No.

285 (Aug., 1880), pp. 109-127, Published by: University of Northern Iowa

Web Resources:

1. http://justicekatju.blogspot.in/2015/03/gandhi-british-agent-post-is-bound-to.html

2. http://justicekatju.blogspot.in/2015/08/gandhi-again-gandhi-has-been-presented.html

3. http://blogs.wsj.com/indiarealtime/2012/11/15/inside-law-how-defamation-works-in-

india/

4. http://www.mondaq.com/india/x/346258/Libel+Defamation/The+Single+Publication+Ru

le+Of+Defamation+On+Social+Networking+Websites

5. http://www.slideshare.net/shantanu_leo/defamation-law-in-india

6. http://indiankanoon.org/doc/1041742/

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7. http://judis.nic.in/Judis_Chennai/list_new2.asp?FileName=230773

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