Case BriefsHigh Courts

Madras High Court: While answering important questions related to freedom of press; meaning of criminal defamation against the State and requisites of Section 199(2) of Criminal Procedure Code, the Single Judge Bench of Abdul Quddhose, J., observed that, application of mind by the State to the materials placed on record before granting sanction to the public prosecutor for launching prosecution under Section 199(4) CrPC is a necessary and that the State cannot act on an impulse or a whim. Moreover public prosecutor must independently assess the materials available on record and must independently take a view as to the availability of sufficient materials to launch prosecution on behalf of the State under Section 199 (2) CrPC.

As per the facts of the case, writ petitions were filed by several reputed editors challenging the Order launching the prosecution for criminal defamation against them by the State Government under Section 499 of Penal Code, 1860 and Section 199(2) of CrPC. The State Government of Tamil Nadu initiated the proceedings after the newspapers published articles against the then Chief Minister, J. Jayalalitha, which were considered defamatory in nature.

The counsel for the petitioners P.S. Raman and M.S. Murali, contended that freedom of press is considered a foundation for proper functioning of democracy and criticism should not be viewed as defamation, because in a free democratic society, those who are responsible for public administration should be open to criticism and citizens have a legitimate right to know the conduct of public officials as they have an influential role in society. It was further contended that the articles in question, did not pertain to the conduct of the public functionary in the discharge of his/her public functions; the sanction for prosecution was given in total disregard of Section 199(2); and the impugned sanction had been accorded by total non-application of mind. The State Government represented by S.R. Rajagopalan, A.A.G, denied the petitioner’s argument of non- application of mind while according the sanction to prosecute the editors and the newspapers.

Perusing the arguments, the Court at length discussed various aspects of criminal defamation enumerated under Chapter XXI, Sections 499-502 of IPC and various Supreme Court decisions on the point. The Court observed that as per IPC, “the person charged for defamation must have the intention to harm the reputation of the person against whom words have been spoken or any article has been published by him.” The Court further noted that criminal defamation is a non-cognizable offence under the Criminal Procedure Code; and the only non-cognizable offence in the Indian Penal Code having a large number of exceptions to any offence which indicates the legislative intent to restrict the usage of the criminal defamation law. The Court went on to say that “State should not be impulsive like an ordinary citizen in defamation matters and invoke Section 199(2) CrPC to throttle democracy”. However, the Court also pointed out that media houses too have a responsibility to remove the decay that is slowly creeping into the way news is being reported or published. The Court finally concluded the judgment by allowing the writ petitions as none of the prosecutions fell under the category of Section 199(2) CrPC. [.Thiru N. Ram v. Union of India, 2020 SCC OnLine Mad 1023 , decided on 21-05-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Anoop Chitkara, J., dismissed an appeal filed challenging the acquittal of the accused of the commission of offences of criminal defamation, insult, threat and causing simple injuries.

A criminal complaint had been filed by one brother-in-law against the other stating that both their houses were adjacent to each other and in between, there was government land which was being used as a compound and a common path by both the parties. The complainant alleged that the accused kept on trying to encroach upon this government land and the complainant prevented him of doing the same but finally, the accused was successful in encroaching upon the land upon which complainant filed an application before the Tehsildar and they scheduled a demarcation. Before the demarcation could take place the accused started building pillars on the government land adjacent to the wall of the house of the complainant to which he objected but instead of stopping the work the accused got furious and hurled abuses on him followed by catching hold of his neck and pushing him and he fell off the stairs suffering injuries. The complainant further alleged that the accused proclaimed that the complainant’s mother had brought her daughter-in-law (his wife), in dowry to which the complainant warned him of using defamatory words. The Court had framed charges against the accused under Sections 323, 500, 504 and 506(1) of the Penal Code. The Court after examining all the witnesses from both the parties dismissed the complaint thus the instant appeal.

The Court while dismissing the appeal based it partly on the cross-examination of the witnesses where it was admitted that the accused had demolished the pillars when the scuffle came up which showed that the quarrel had come to an end and it could not be ruled out that the accused had also filed numerous complaints against the complainant and he had brought this matter after a month when the matter was settled earlier itself. The complaint and the evidence brought on record proved that the case suffered from major contradictions and the accused could be given the benefit of doubt and the court found that the judgment of the trial Court was well reasoned and was based on complete, correct and proper appreciation of evidence. [Kanshi Ram Panchhi v. Amar Chand, 2020 SCC OnLine HP 33, decided on 03-01-2020]

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and KM Joseph, JJ has asked Google India to face trial in a 2008 criminal defamation matter and has held that Section 79 of the Information Technology Act, 2000, prior to its substitution, did not protect an intermediary in regard to the offence under Section 499/500 of the IPC. Section 79 of the IT Act, prior to its substitution, exempted Network Service Provider from liability only on proving that the offence or contravention was committed without its knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention

The Court was hearing a matter relating to Criminal Defamation wherein an article was published by the Coordinator of Ban Asbestos India, a group hosted by Google, defaming the complainant, a public limited company engaged in the business of manufacturing and selling asbestos cement sheets with seven manufacturing plants and more than twenty-five marketing offices all over India. The article dated 31.07.2008 captioned “Visaka Asbestos Industries making gains”. It was, hence, argued that the asbestos cement sheets have been manufactured for more than 70 years in India, however, the complainant was singled out though there are other groups manufacturing asbestos cement products. Google India had argued that it was not the intermediary and that the intermediary is the Parent Company.

On this the Court held that, even proceeding on the basis that the first accused is the originator, as defined in the Act, of the allegedly defamatory matter, and the first accused is not only the author but is also the publisher of allegedly defamatory matter, and again proceeding on the basis that it is the appellant, who is the intermediary and not its Parent Company, the refusal on the part of the appellant to remove the post, may amount to publication. It said,

“there may be publication within the meaning of Section 499 of the IPC even in the case of an internet operator, if having the power and the right and the ability to remove a matter, upon being called upon to do so, there is a refusal to do so.”

Considering the facts of the case, the Court noticed that proceeding on the basis of the assumption that the appellant is the intermediary and that it stood alerted by the complainant by letter dated 09.12.2008, the appellant has not removed the offensive posts though it could technically remove it, therefore, it amounted to publication and this publication attracts Section 499 of the IPC.

The Court was, however, considerate of the fact that even in Section 482 of the Cr.PC, the court must qualify the right and the power of the appellant even assuming to be the intermediary to act freely as it would opposed to the principles which have been evolved in regard to the internet service provider that it is not open to it to unilaterally decide as to what matter should be removed and it can act so as to remove on the basis of the request only if there is a court order.

“Any other view would make it a despot strangling the free flow of ideas which is what the internet is all about.”

The Court noted that in Shreya Singhal v. Union of India, (2015) 5 SCC 1, the provisions were read down to mean that Section 79(3)(b) of the Act and Rule 3(4) of the Rules, would require an internet service operator to takedown third-party information not on mere knowledge of objection to its continuance but after there has been an impartial adjudication as it were by a court. However, in the facts of this case, the acts constituting the alleged offence under Section 499 of the IPC, were done not when Section 79, after its substitution, was in place. The Rules were enacted in the year 2011.

“In such circumstances, what we are asked to do is to import in the principles into the factual matrix when Section 79 was differently worded and in proceedings under Section 482 of the Cr.PC.”

The Court left open to the appellant to urge before the Court the question relating to the inability of the Parent Company to remove the post without the court order. The Court, however, said that this is a question which can be, independent of the non-availability of the protection under Section 79 of the Act in its erstwhile avtar, pursued by the appellant. The Court, hence, held,

 [Google India Pvt. Ltd. v. Visaka Industries, 2019 SCC OnLine SC 1587, decided on 10.12.2019]

Case BriefsForeign Courts

Kenya High Court at Nairobi: The High Court has struck down the provisions of Criminal Defamation in its Penal Code. The Court observed that such a provision as a threat to Freedom of Speech and Expression saying that this right in a spirited democracy is a highly treasured value and it is a prized asset to the individuality and overall progress of a thinking society for it allows arguments and dissent.

The Judge noticed that the consequences of criminal defamation could be quite harmful and undesirable like possibilities of arrest, detention and two years imprisonment as provided by the Penal Code were quite unjustifiable in a democratic society. The judge said that the present law was a disproportionate instrument to combat the mischief of defamation and emphasised upon adopting an alternate and proportionate civil remedy.

There are certain reasonable restrictions to freedom of speech and expression under Article 24 of the Constitution of Kenya. While discussing the restrictions that can be put on freedom of speech, the Court relied on Ahmedabad Pvt. Primary Teachers’ Assn. v. Administrative Officer, (1988) 4 SCC 42 wherein it was observed that the maxim noscitur a sociis is a legitimate rule of construction to construe the words in an Act of  Parliament with reference and in the same context held that the limitations in Article 24 ought to be read together and the limitations should not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited.

Counsel for the respondent submitted that the section in question is constitutional in a democratic society to prevent individuals with ill motives from interfering with the rights of other persons and prayed for the petition to be dismissed. Counsel for the first respondent adopted the submissions of the second respondent.

The Court also relied on the African Court on Human and Peoples Rights decision in Konate v. Burkina Faso, 2015 SCC OnLine Ken 2823 where it was held that criminal defamation laws should only be used as a last resort when there is a serious threat to the enjoyment of other human rights in exceptional circumstances such as hate speech and incitement. It observed that criminal defamation was overly broad in its scope and its application has turned it into a powerful mechanism to stifle investigative journalism and silence criticism.

The Court studied the scope of restrictions in Article 24 on the right conferred by Article 33 (Freedom of Speech and Expression) and came to the conclusion that the restrictions in the former are to safeguard the interests of the State and not an individual and therefore, Article 24 couldn’t be termed as the source of validating the impugned section.

The Court further explained the difference between civil and criminal law and quoted reasons as to why defamation was a civil wrong or a tort and not a criminal act. It elucidated that Civil law exists to provide relief and restitution when one person harms or threatens to harm another’s private interest while Criminal law exists to ensure retribution and protection of public by detaining offenders and deterring others from offending. For something like damaging speech, the civil law would be effective as well as proportionate enough in bringing the person harmed to justice, the High Court at Kenya observed. [Jacqueline Okuta v. Attorney General, 2017 SCC OnLine Ken 1, decided on 6-2-2017]