The Jammu and Kashmir and Ladakh High Court ("J&K&L Court") in its recent order in Pritam Chand v Dr. Kamal Saini (CRMC No. 758/2017), stated that the press must refrain from publishing content in the newspaper that is manifestly defamatory in nature against an individual. The J&K&L Court, while citing the following from the Supreme Court's judgement in Subramanian Swamy v. Union of India, Ministry of Law and Ors. (2016 SCC Online SC 550), has also re-emphasized the need for the press to respect the reputation of private citizens:
"In a democracy an individual has a right to criticize and dissent, but this right under Article 19(1)(a) is not absolute and he cannot defame another person as that would offend victim's fundamental right to reputation which is a facet of Art.21 of the Constitution. There needs to be a proper balancing of the two fundamental rights."
In the petition before the J&K&L Court, Pritam Chand, the editor of a local newspaper named Nawa-i-Waqat, sought to quash the FIR filed against him under Sections 499, 500, 501, and 502 of the Indian Penal Code, 1860 ("IPC"). The Petitioner contended, amongst several other grounds, that there was no case made out against him as, firstly, all the essential elements of criminal defamation were absent in the complaint, and secondly because all the imputations made by him in his newspaper were based on information received under the Jammu and Kashmir Right to Information Act, 2009 and therefore were factually true. The Court considered and rejected both the contentions raised by the Petitioner and dismissed the Petitioner's application to quash the FIR filed against him.
Under Indian law, defamation is both a criminal (punishable with imprisonment) and a civil offence (punishable through the award of damages). Defamation as a civil offence is punishable under the law of tort, whereas the criminal law on defamation is codified under the IPC. Section 499 of the IPC provides for 10 exceptions to defamation, the first exception being 'the defence of truth'. There are however two conditions for the truth to become an effective defence in a complaint of defamation, one is that it should be factually correct, and the other is that it should be in public interest. While the truth is an absolute defence to defamation, this defence needs to meet the aforesaid two conditions to apply in criminal proceedings for defamation.
On a perusal of the facts presented in Pritam Chand v Dr. Kamal Saini and the language used by the Petitioner in his newspaper articles on Dr. Kamal Saini, the Respondent, the J&K&L Court observed that the headlines used by the Petitioner were "overriding and in contravention" of the contents of the material received by the Petitioner. A collective reading of all the articles clearly indicates an intention to defame the Respondent and portray him as a dishonest and corrupt person. Based on these observations, the J&K&L Court rejected the Petitioner's contention that no ingredients of criminal defamation were present in the complaint and that no case was made out.
Another contention of the Petitioner was that he, in good faith, believed the statements and information received by him to be true and thereby published it in his newspaper. The Petitioner was of the opinion that he had committed no offence and that he was entitled to his right to free speech enshrined under Article 19 (1) (a) of the Constitution of India. The J&K&L Court after hearing the contentions of the Petitioner noted, "the mode and manner in which the headlines were drafted of the newspaper articles clearly reflects the intention of the petitioner which was to defame the respondent. The material collected by the petitioner was not published with purely the information received but on the contrary the petitioner`s own interpretation and opinion was also mixed and published in the newspaper. This in conclusion cannot be protected as free speech protected under Article 19 of the Constitution."
Notably, the J&K&L Court also disregarded the Petitioner's defense of truth, observing that, "truth is no defense for publishing defamatory material against a private citizen where no public interest is involved." It was observed by the J&K&L Court that the truth is not an absolute defense in proceedings for criminal defamation. The defense of truth is available only and only when revealing the truth is in public interest. This principle has also been voiced by the Supreme Court in numerous other judgements over the years. In Chaman Lal v The State of Punjab, the Supreme Court held that to successfully avail the first exception to Section 499 of the IPC, two elements have to be established. Firstly, the veracity of the defamatory statement or publication. And secondly, that the publication of the imputation is for the good of the public.
More recently, in Subramanian Swamy v UOI, the Supreme Court expressed that the notion that imputations when true even if not made to further public good are not defamation is, "absolutely irrational and does not stand to reason." In light of the aforementioned observations of the Supreme Court, the J&K&L Court while dismissing the Petitioner's application to squash the FIR issued against Pritam Chand for publishing defamatory content regarding Dr. Kamal Saini also cautioned the press from publishing content that is manifestly defamatory against an individual. The J&K&L Court observed that content published by the press should be duly verified and there should be sufficient reason to believe that it is true and serves the public good.
Note: Pratyush Singh, intern, assisted in writing this article
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