In a learned, laudable, landmark and latest judgment titled Mathrubhoomi Illustrated Weekly & Ors. V. P Gopalankutty & Anr in 2022 LiveLaw (Ker) 67: CRL. MC NO. 6574 of 2014 against the order/judgment in CC 931/2013 of Additional Chief Judicial Magistrate (E.O), Ernakulam and which was delivered on January 7, 2022, the Kerala High Court has minced just no words to hold clearly, cogently and convincingly that a complaint filed by the State Secretary of the Rashtriya Swayamsevak Sangh (RSS) against a defamatory article published in a newspaper about the RSS is maintainable under Section 499 of the Indian Penal Code (IPC). Justice Sophy Thomas noted that since the RSS is a definite and identifiable body, any individual member of RSS has the locus standi to maintain a complaint against an article defaming the organisation. Very rightly so!
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench comprising of Hon’ble Mrs Justice Sophy Thomas of Kerala High Court first and foremost puts forth in para 1 that, “This Crl.M.C has been filed by the accused in C.C No.931 of 2013 on the file of Additional Chief Judicial Magistrate (Economic Offences) Court, Ernakulam, to quash the entire proceedings in that case, which was initiated on a private complaint filed by the 1 st respondent, who is the State Secretary of the Rashtriya Swayamsevak Sangh (RSS), alleging offences punishable under Sections 120B, 153A, 500 read with Section 34 of IPC.”
While elaborating on the facts, the Bench then states in para 2 that, “The 1st respondent filed Annexure-I complaint alleging that the article written by A8, translated by A9 and published by 1 st accused Mathrubhoomi weekly contained imputations, which were defamatory and misleading, lowering the reputation of RSS in the public. Moreover, the article published was capable of promoting enmity between different groups on the grounds of religion, prejudicial to communal harmony. The complaint was filed against nine persons including Mathrubhoomi Illustrated Weekly, its printer, publisher, editor etc.”
To put things in perspective, the Bench then specifies in para 3 that, “Learned ACJM (EO), Ernakulam conducted an enquiry and took cognizance of the offences punishable under Sections 500 and 501 against R2 to R9, and took cognizance of the offence punishable under Section 502 IPC also, against R2. Since the 1st accused-Mathrubhoomi Illustrated Weekly was not a legal entity, it was not arrayed as an accused. During enquiry no offence was made out against the accused under Section 120B and 153A of IPC and so, no cognizance was taken for those offences. So, only against R2 to R9, summons was ordered arraying them as A1 to A8, taking cognizance of the offences punishable under Sections 500, 501 and 502 of IPC.”
As we see, the Bench then specifies in para 4 that, “In the Crl.M.C, the 1st petitioner is Mathrubhoomi Illustrated Weekly against which no cognizance was taken by the learned ACJM, and no summons was issued. No cognizance was taken against A2 to A9 for offences punishable under Sections 120B and 153A of IPC. So, those aspects need not be reopened or reconsidered in this petition.”
As it turned out, the Bench then discloses in para 5 that, “According to the petitioners, the 1st respondent-State Secretary of RSS has no locus standi to represent the organisation of RSS. They contended that it cannot be said that RSS is a definite and determinable body. Only if there is a definite association or collection of persons capable of being identified, it could be said that the defamatory matter applies to all the members of that organisation. The petitioners never intended to defame or injure the feelings of the 1st respondent or anybody else, by making such a publication in the century old reputed weekly. The article published in Mathrubhoomi Illustrated Weekly was originally based on a research study based on facts, findings and materials collected by the celebrated author, academician and political evaluator Sri.Badri Raina and it was translated and published by the petitioners. It was based on actual facts and figures, details and data, inferences and information, personal opinions, evaluations and on a strong conviction for the public good. The article reflects the in-depth analytical research made by Sri. Badri Raina. The role and duty of the media is to inform the readers about the state of affairs in and around the country. The press is free to engage or depend on scholars and eminent personalities to disseminate information on matters of public importance. No socio-political organisation including RSS is beyond public scrutiny. So, the article published in Mathrubhoomi Illustrated Weekly did not contain any defamatory materials to cause damage to the organisation, RSS. Moreover, the averments in Annexure-I complaint are not sufficient to prove the essential ingredients of Section 499 of IPC, and there is nothing to show that the publication of imputation has been made with the intention, knowledge or belief, that it will harm the reputation of the person concerned. So, according to the petitioners, learned ACJM (EO), Ernakulam went wrong in taking cognizance, and issuing summons against the petitioners for offences punishable under Sections 500, 501 and 502 of IPC.”
Truth be told, the Bench then specifies in para 7 that, “Admittedly, an article was published in Mathrubhoomi Illustrated Weekly dated 27.02.2011 about the impact of terrorist activities of RSS in Indian population. According to the petitioners, the said article was based on a research study on facts, findings, and materials collected by a celebrated academician and political evaluator Sri. Badri Raina, translated and published by the petitioners. Since that article is based on actual facts and figures, it was published for the public good. The defamatory nature of the article published in Mathrubhoomi Illustrated Weekly, its authenticity and the intention and purpose for which it was published etc. are matters to be analysed and scrutinised after collecting evidence. Whether the petitioners, as responsible media persons, did any excess in publishing the articles, and whether the imputations published therein were really intended for public good or to harm the reputation of RSS etc. are also to be brought to light only on getting evidence during trial.”
Interestingly enough, the Bench then hastens to add in para 9 that, “Section 499 of IPC defines defamation, which reads thus:
“499. 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 2 to Section 499 makes it explicit that, “It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such”.”
Most significantly and also most remarkably, the Bench then held in para 10 that, “A class of persons as such cannot be defamed as a class, nor could an individual be defamed by a general reference to a class to which he belongs. Going by explanation 2 to Section 499 of IPC, if a well-defined class is defamed, each and every member of that class can file a complaint. Where the words reflect on each and every member of a certain number or class, each and all can sue. But, this principle depends upon the determination of the number of persons of the class. If the collection of persons is an indeterminate and indefinite collection of body, it could not be said that each and every member of that body could maintain an action under Section 500, unless the complainant was referred to as a person who had been defamed under the imputation. When there is uncertainty as to whether the imputation would reflect either this man or that man, it could not be said that one particular man was meant in the imputation alleged.”
Be it noted, the Bench while referring to relevant case law observes in para 16 that, “In G.Narasimhan, G Kasturi and K. Gopalan vs. T.V. Chokkappa reported in (1972) 2 SCC 680, the Apex Court held that, in a case where Explanation 2 of Section 499 is resorted to, the identity of the company or the association or the collection of persons must be established so as to be relatable to the defamatory words or imputations. Where a writing in weighs against mankind in general, or against a particular order of men, e.g. men of gown, it is no libel. It must descend to particulars and individuals to make it a libel. If a well-defined class is defamed, every particular of that class can file a complaint even if the defamatory imputation in question does not mention him by name.”
It is worth noting that the Bench then while referring to a relevant case law also pertaining to RSS envisages in para 17 that, “In Tek Chand Gupta vs. R.K. Karanjia and others reported in 1967 SCC Online All.282 (1969 Crl.L.J 536), the Allahabad High Court held that, Rashtriya Swayamsevak Sangh (RSS) is a definite and identifiable class or body. So, when an article is published in a newspaper containing imputations meant to harm the reputation of Rashtriya Swayamsevak Sangh (RSS), complaint by individual member of RSS is maintainable under Explanation 2 to Section 499 of IPC. It is not necessary that the imputations in the article individually affected the reputation of the complainant. The Apex Court in G.Narasimhan’s case (supra) made mention regarding TeK Chand Gupta’s case (supra)) asserting that Rashtriya Swayamsevak Sangh (RSS) was a determinate body just like the body of public prosecutors mentioned in Sahib Singh Mehra’s case (AIR 1965 SC 1451). When the association was a determinate and an identifiable body, the defamatory words used against that association could be treated as defamation of the individuals who composed it. So, any member of that association can maintain a complaint under Section 500 of IPC.”
For the sake of clarity, the Bench then specifies in para 18 that, “The de facto complainant/1st respondent claims to be the State Secretary of RSS and that fact is not seen disputed by the petitioners. Even if the petitioners have got any challenge regarding the membership of the complainant in RSS, they are at liberty to make that plea before the trial court.”
Finally and far most significantly, the Bench then minces no words to hold unambiguously in para 19 that, “Since Rashtriya Swayamsevak Sangh (RSS) is a definite and identifiable body as held by the High Court of Allahabad and asserted by the Apex Court vide decisions cited supra, the contention of the petitioners that the 1st respondent has no locus standi to maintain a complaint under Section 500 of IPC is not tenable. So this Crl.M.C is liable to be dismissed. The case is pending before the ACJM (EO) Court, Ernakulam since 2013. So, the trial court is directed to expedite the trial and to dispose the case, in accordance with law, without any further delay, at any cost, within a period of six months from the date of receipt of a copy of this order. With the above direction, this Crl.M.C is dismissed.”
All told, this extremely commendable, cogent, composed and creditworthy judgment leaves not even an iota of doubt to make it crystal clear that RSS is a definite and identifiable body. It also clearly maintained that members of RSS have locus standi to file defamation complaint under Section 499 of IPC against a defamatory article that was published in a newspaper about the RSS. Justice Sophy Thomas clearly maintained that, “…when an article is published in a newspaper containing imputations meant to harm the reputation of Rashtriya Swayamsevak Sangh (RSS), complaint by individual member of RSS is maintainable under Explanation 2 to Section 499 of IPC. It is not necessary that the imputation in the article individually affected the reputation of the complainant.” There can be just no denying it!
Sanjeev Sirohi