Two Recent Madras HC Judgments On Criminal Defamation: An Analysis

Article 19 (1) (a) of the Constitution of India guarantees to every citizen of India the right to freedom of speech and expression. The Supreme Court has recognised that the liberty of press is an essential part of this freedom. Article 19 (2) of the Indian Constitution, which lists out those subjects on which reasonable restrictions can be made on the right to free speech, includes defamation. And, in India, the law recognises both civil and criminal defamation as valid restrictions. The two judgments, under discussion here, deal with the latter form.

The first judgment

In the first of the judgments, the Madurai Bench of the Madras High Court quashed a complaint filed against a journalist, Sandhya Ravishankar. The Respondent in the proceedings, a corporate entity, had originally filed a private complaint before the Judicial Magistrate, Thirunelveli against the journalist. It had taken issue with an article written in the Economic Times on illegal beach and sand mining of minerals in Tamil Nadu. The Magistrate took the complaint on file, and, later issued summons to not only Ms. Ravishankar, but also her husband, V. Prem Ravishankar, and the publisher, the Economic Times. On receiving the summons, Ms. Ravishankar and the others filed a petition under Section 482 of the Criminal Procedure Code, 1973 ("Cr.P.C"), before the High Court, and sought a quashing of the complaint.

The law on defamation

Sections 499 and 500 of the Indian Penal Code, 1860 ("IPC") collectively criminalize defamation. Section 499 is the charging section and the punishment is prescribed under Section 500. Section 499 stipulates that 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 provided, to defame that person. It provides three exceptions to the offence: one, imputation of truth which public good requires to be made or published; two, public conduct of public servants; and, three, conduct of any person touching any public question.

Section 500 says that whoever defames another shall be punished with simple imprisonment for a term, which may extend to two years, or with fine, or with both. Both of these provisions were challenged as unconstitutional before the Supreme Court. However, their validity was upheld in Subramanian Swamy v. Union of India & Ors (2016). This judgment has been widely criticized, because, among other things, it ignores the chilling effect that criminalizing defamation has on free speech and the free press. The judgment also ignores the fact that in almost no other constitutional democracy is defamation a criminal offence.

But as a result of this judgment in Subramanian Swamy, and, as a result of the development of the law of criminal defamation, over the years, an onerous burden has come to be placed on persons who are charged with the offence and courts have been reluctant to quash proceedings at the first instance. At the same time, though, the scope of civil defamation in India has been narrowed with a view to advancing the value of free expression. This has been done by reading into the law on civil defamation a principle of "actual malice", which was originally invoked by the Supreme Court of the United States in New York Times v. Sullivan (1964).

There, the U.S. Supreme Court was concerned with the question of the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct. L.B. Sullivan, a Commissioner of the City of Montgomery, Alabama, the Respondent, had filed a suit for civil libel against the New York Times and four other individual petitioners, for a full-page advertisement, which was published in the newspaper on March 29, 1960. The advertisement titled "Heed Their Rising Voices" related to the hardships faced by civil rights activists in Montgomery, Alabama. The Respondent was aggrieved by those paragraphs that spoke about the actions taken by the police during the protests by students at the Alabama State College Campus and action taken against Martin Luther King Jr's peaceful protests. The Circuit Court of Montgomery County awarded the Respondent, damages of $500,000 and the Supreme Court of Alabama affirmed the same. This decision was taken on appeal by the New York Times before the Supreme Court. The Supreme Court reversed the decision, and held that under the First and Fourteenth Amendments of the United States Constitution, a State cannot award damages to a Public Official in relation to his official conduct, for defamatory falsehood, unless "actual malice" is proven – that is it is proven by the claimant that the defamatory statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.

This decision has been cited with approval by the Supreme Court of India in R. Rajagopal v. State of Tamil Nadu (1994). In this case, a popular Tamil magazine, Nakkheeran, field a writ petition under Article 32 of the Constitution, seeking to restrain the state government and the prison authorities from taking action that might halt the publication of an autobiography of Auto Shankar, who, while on death row, had written a letter to the magazine. Here, the Court was specifically concerned with the question of how to balance the freedom of press vis-à-vis the right to privacy of the Indian citizens. In this context, questions also arose over the scope of the right of the press to criticize and comment on the acts and conduct of public officials. The Supreme Court referred to various decisions of American courts, including New York Times v. Sullivan, on the freedom of press, and, finally, amongst other things, held that the State or its officials cannot impose a prior restraint on the press/media, and that, Government or its other organs cannot maintain a suit for damages. Through this judgment, the Court also effectively adopted the test in Sullivan for proceedings of civil defamation. This was recognised by a division bench of the Madras High Court in R. Rajagopal v. J. Jayalalitha (2006), where the Court stated the principle in the following terms:

"Thus law is well settled that so far as Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them. In the case of public officials, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties and this is so even where the publication is based upon the facts and statements, which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true……"

However, now, the Madurai Bench of the Madras High Court, for the first time has expanded the Sullivan principle to apply it to cases of criminal defamation. The court has done this through a reading of the second and third exceptions to Section 499 of the IPC. The second exception states that "It is not defamation to express in 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." The third exception holds that "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."

These exceptions, the court has held, ought to necessarily take within them the Sullivan principle, every time the freedom of the press is under question. The Court further went on to hold that such a defence is available to the media, irrespective of whether the complainant is a public official or a private entity, and, whenever the issue in which the public or community at large have a stake or interest. In the court's belief, mere inaccuracies in reporting can never be a justification for prosecution in these kinds of cases.

The court did not however stop there. It also had to examine whether its power under Section 482 of the Cr.P.C could be exercised to quash a complaint even before the trial in the case was complete. To answer this, the court relied on a number of judgments where the Supreme Court has recognised the value of a free press. That value, the court said, would be rendered meaningless unless it interferes to quash complaints that are manifestly abusive in nature. The complainant cannot be allowed to use the fig-leaf of a dispute over facts to oust the court's jurisdiction. "Since the constitutional courts have been tasked with a duty to be proactive, when it comes to protection of fundamental rights," wrote Justice GR Swaminathan, "I am obliged to examine the defence of the petitioners." According to the court, "if a summary examination of the materials produced by the accused can bring their case within one of the Exceptions," the proceedings ought to be quashed under Section 482 of the Code of Criminal Procedure itself. And in this case, such an examination, it concluded, pointed to a complaint that was an abuse of the process and therefore merited a quashing.

The second judgment

While the judgment in Sandhya Ravishankar is on the substantive provisions of Section 499, and, what constitutes the offence of criminal defamation, the judgment in Thiru N. Ram v. Union of India & Ors., delivered on 21.05.2020, deals with the procedural aspects concerning the prosecution of criminal defamation, and the care and caution that a Public Prosecutor ought to take in such proceedings.

In this case, a number of proceedings were initiated against various media houses and journalists, for publication of news reports, against the Government of Tamil Nadu. The petitioners in the case contended that all the news reports under question were published in pursuit of truth and for public good, and, no malice was, in fact, involved. They also claimed that the Public Prosecutor had sanctioned their prosecution in utter disregard of Section 199 (2) of the Code of Criminal Procedure, 1973 and, in doing so, had abused the process. In response, the government submitted that the order granting sanction to the public prosecutor was within the statutory mandate, and, that, its validity cannot be tested by a writ petition. It also claimed that the contents of the articles or publications cannot be analysed by the sanctioning authority. The court, however, rejected these defences. On a detailed analysis of the law on criminal defamation, and given the value attached to freedom of speech and expression, it concluded that "The State should not be impulsive like an ordinary citizen in defamation matters and invoke section 199 (2) Cr. P.C to throttle democracy."

Section 199 of the Cr.P.C sets out the procedure for prosecution of defamation. But the court pointed out that there was an important difference in this procedure between Section 199 (2) and 199 (6) of the Cr.P.C. The former specifically concerns the duty of a public prosecutor when a prosecution is sought to be launched for defamation of a person discharging public functions, while the latter deals more generally with the duties of the Magistrate/Sessions Judge while taking cognizance of any private complaint. First, on an interpretation of Section 199 (2) and 199 (6), the Court held that there was an intelligible difference between the two sub-sections. Section 199 (2) relates to prosecution launched in cases of defamation of the State, and, on the other hand, Section 199 (6), enables any aggrieved person, including a public servant/constitutional functionary, to launch prosecution in case of any imputation made against a public servant/constitutional functionary during the discharge of public functions. "The Legislature would never have intended to launch prosecution through a Public Prosecutor to serve the personal interest of the public servant/constitutional authority alone, even if the said defamation of the public servant/constitutional authority was made in the discharge of his/her public functions," wrote Justice Abdul Quddhose. Unless, the element of the State also being defamed along with the public servant/constitutional authority is satisfied, the question of launching prosecution through the public prosecutor under Section 199(2) Cr.P.C will never arise as it involves a special procedure for criminal defamation against the State."

Second, on the issue relating to duty of the public prosecutor, the Court placed reliance on the recent decisions of the Supreme Court in K.K. Mishra v. State of Madhya Pradesh (2018) and Bairam Muralidhar v. State of Andhra Pradesh (2014), and, held that once sanction has been granted by the State Government to the Public Prosecutor under Section 199 (4), the Public Prosecutor ought to "independently assess the materials available on record and must independently take a view as to whether the materials available are sufficient to launch prosecution on behalf of the State under section 199 (2) Cr.P.C."

Finally, on the question of level of scrutiny to be undertaken by a Sessions Court, the Court went on to hold that such scrutiny under Section 199 (2) is higher than that by a Magistrate under Section 199 (4), and, therefore, the Sessions Court ought not to mechanically take cognizance of the complaint and issue summons to the accused. The Court further held that the Sessions Court ought to independently apply its mind and assess the materials before taking the complaint on record. By thus clarifying the rigour involved in the procedure, when a case of criminal defamation is sought to be prosecuted, the judgment has recognised the importance and value of free speech.

Both collectively, and in their own right, these two judgments represent an important development in the law and help advance the cause of the free press.

Views are personal only.

(Author is a practising Lawyer at the Madras High Court)