By:-Dushyant Mainali
Media have a role to play in informing the society and freedom of expression must be respected. The fundamental right of freedom of speech is involved in a criminal trial of defamation apart from the right of liberty of the press. In India Courts have time to time observed that in a democracy persons holding public offices must not be thin-skinned with reference to the comments made on them and even where they know that the observations are undeserved and unjust, they must bear with them and submit to be misunderstood for a time. At times public figures have to ignore vulgar criticisms and abuses hurled against them and they must restrain themselves from giving importance to the same by prosecuting the person responsible for the same. Although we generally see when media criticizes the poor functioning of public representatives they file criminal complaints against the news correspondents and editors. Let’s sketch out the legal scenario of the subject.
Public conduct of public servants and Defamation.
Indian Penal Code has put the expression made in good faith or any opinion whatever respecting the conduct of a public servant in the discharge of his public functions beyond the ambit of offence of defamation. It falls under the exception of Section 499 of Indian Penal Code.
S.499 : 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.
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First Exception. ‘ Imputation of truth which public good requires be making or publishing. ‘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.
It is amply clear from the perusal of second exception of Section 499 IPC that if the subject matter of the any publication is the public conduct of public servant then it falls in the exemplary category and no offence U/s 500 will be attracted.
Doctrine of Fair Comment and Exaggerated News
In common law the Doctrine of Fair Comment is widely acclaimed. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts
To be free from the clutches of law the publication should be substantially true and the comment made in the news report should be based on the facts and should be supported by good faith. Kerala High Court in Nazeem Bavakunju V/s. State of Kerala & Ors. reported at 1988 CRI.L.J. 487, held:
“7. In case of this nature if the contents of the news item published in the newspaper are slightly exaggerated it does not make the comment unfair so long as what is expressed therein is materially true and for public benefit. The publishers of the newspaper are entitled to make fair comments. The doctrine of fair comment is based on the hypotheses that the publication in question is one which, broadly speaking, is true in fact and is not made to satisfy a personal vendetta and that the facts stated therein would go to serve the public interest. Mere exaggeration or even gross exaggeration would not by itself prove malice. It has been held in Cheriyan v. Johnson, 1969 Ker LT 597 that the important ingredient of the 9th exception to S.499, I.P.C. is that the report made is substantially true and that the comment made basing on the facts, is supported by good faith.”
Existence of criminal intention is must for prosecution under Sec. 500 IPC.
Existence of criminal intention is sine qua non for prosecution under Sec. 500 IPC. If the accused establishes that there is no malice, against the complainant, while reporting the performance of a public representative if the news writeris acting in good faith or public good he will not fall under the act of defamation. In Ramoji Rao, Chairman Ramoji Group of Companies and Anr. Vs. State of Andhra Pradesh; 2006(8) SCC 321, the Supreme Court of India has held:
“3.Though many points were urged in support of the appeal, learned counsel for the appellants submitted that actually there was no intention in any manner to harm the reputation of the Chief Minister, of the ministers or the officials and, therefore, continuance of the proceedings would not be in public interest.”
There will be no preponderance of probability or occasion to draw a prima facie conclusion to summon the writer under Section 500 I.P.C. if the Magistrate forms a prima facie opinion that there was no intention in the minds of the applicants to harm the reputation of the complainant knowingly and willfully.
Hon’ble Supreme Court in S. Khushboo Vs. Kanniammal and another; (2010)5 SCC 600, wherein it considered the necessity of showing intention to harm the reputation and held as:
“34.It is our considered view that there is no prima facie case of defamation in the present case. This will become self-evident if we draw attention to the key ingredients of the offence contemplated by Section 499 IPC, which reads as follows: (the Court then quoted Section 499 of I.P.C. and observed 🙂 The definition makes it amply clear that the accused must either intend to harm the reputation of a particular person or reasonably know that his/her conduct could cause such harm……”
Thus in a complaint of defamation the complainant is required to show that the accused persons as editor and publishers of newspapers harbored the intention to harm the reputation of the complainant.
Liability of Editor under Press Registration and Books Act
There is a regular course of business of printing and publishing news in newspapers. News are collected by the reporters and sent to the office of the newspaper. The News Editor or his assistants deals with such news items and they take the decision to publish it in the newspaper. Inputs thus obtained are assembled, collected, scanned by the News Editor and his assistants. The News Editor generally takes the decision to allow its publication.
Law recognizes this distribution of work inside a press establishment or a media house. Editor of the newspaper has been made responsible under section 7 of the Press and Registration of Books Act 1867. A newspaper has to issue a declaration of this effect disclosing the name of the editor responsible for selection and editing of all the news items of the edition of the newspaper under PRB Act. S.7 of the Press and Registration of Books Act, 1867 is reproduced :-
S.7. Office copy of declaration to be prima facie evidence
Office copy of declaration to be prima facie evidence In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations, or, in the case of the Editor, a copy of the newspaper containing his name printed on it as that of the Editor shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, or printed on such newspaper, as the case may be that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every newspaper whereof the title shall correspond with the title of the newspaper mentioned in the declaration, or the editor of every portion of that issue of the newspaper of which a copy is produced.
It is very well settled law as held by Hon’ble Apex Court in K.M. Mathew Vs. State of Kerala reported in (1992)1 SCC 217:-
“the presumption under S.7 of the PRB Act is only against the person whose name is printed as editor as required under S.5(1). There is mandatory (though rebuttable) presumption that the person whose name is printed as Editor is the editor of every portion of that issue of the newspaper of which copies are produced. Section 1(1) of the Act defines Editor to mean the person who controls the selection of the matter that is published in the newspaper. Section 7 raises the presumption in respect of a person who is named as Editor and printed as such an every copy of the newspaper. The act does not recognize any other legal entity for raising such presumption. Even if the name of the Chief Editor printed in the newspaper there is no presumption against him under section 7 of the Act.”
It has further been held by the Hon’ble Court that “for a Magistrate to take cognizance of offence as against the Chief Editor there must be a positive averment in the complaint of knowledge of the objectionable character of the matter.”
Therefore as per the settled position of law in the light of judicial pronouncements of the Hon’ble Apex Court printer publisher or other persons cannot be summoned to face trial under section 499 or 500 IPC against whom a presumption under S.7 of PRB Act is not available.
Conclusion:-
In a Complaint of Defamation under Section 500 unless a positive averment has been made against someone in the complaint only the Editor of a Newspaper whose name has been declared for the selection and edition of news as per Section 7 of the Press and Registration of Books Act 1867 can be prosecuted and in his defense he has to establish that he has acted in good faith and in the interest of public, and there was no animus in his mind against the complainant and the allegations pertain to the public functioning of the Politician.
Thus Law in India derives is loud and clear that if upon such complaints by public representatives action can be maintained against a newspaper, it can be maintained against every private citizen who ventures to criticize the MLA or Minister who are temporarily conducting the affairs of the government. In a free democratic society those who hold public office through elections or in the government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.