NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL, MADHYA PRADESH

A PROJECT ON
POLITICAL DEFAMATION IN INDIA

SUBMITTED BY: SUBMITTED TO:

PROF. (DR.) RAJIV KHARE
ACKNOWLEDGEMENT
Apart from the efforts of myself , the success of any project depends largely on the
encouragement and guidelines of many others. I take this opportunity to express my
gratitude to the people who have been instrumental in the successful completion of this
project. I would like to show my greatest appreciation to PROF. DR.RAJIV KHARE.

I can’t say thank you enough for his tremendous support and help. I feel motivated and
encouraged every time in his presence. Without his encouragement and guidance this
project on “POLITICAL DEFAMATION IN INDIA” would not have materialized. The
guidance and support received from all the members who contributed and who are
contributing to this project, was vital for the success of the project. I am grateful for their
constant support and help.

CERTIFICATE

This is to certify that project work titled as “POLITICAL DEFAMATION IN INDIA”, has
been prepared and submitted by………..., who is currently pursuing her BALLB (Hons.) at
National Law Institute University, Bhopal in fulfilment of Tort Law – I course. It is also
certified that this is her original research project and this project has not been submitted to
any other university, nor published in any journal.
Date – ........................................................

SIGNATURE OF STUDENT: ………………………………...

SIGNATURE OF SUPERVISOR: …………………………………..

TABLE OF CONTENTS

ACKNOWLEDGEMENT......................................................................................2

CERTIFICATE.......................................................................................................3

HYPOTHESIS........................................................................................................5
INTRODUCTION...................................................................................................6-7

OBJECTIVE...........................................................................................................8

METHODOLOGY..................................................................................................8

REVIEW OF LITERATURE..................................................................................9

TORT OF DEFAMATION.....................................................................................10-11

LEGAL UNDERSTANDING OF DEFAMATION IN INDIA..............................12-13

FREEDOM OF SPEECH AND DEFAMATION................................................... 14-15

DEFENCES AGAINST DEFAMATION...............................................................16-18

CASE STUDIES.....................................................................................................20-22

CONCLUSION AND SUGGESTIONS.................................................................22

BIBLIOGRAPHY...................................................................................................23

HYPOTHESIS

In this project paper, the researcher has found the difficulties in understanding
the balance required between protecting freedom of speech and offence of
defamation of a person for indirect or political purposes on the other hand.
Defamation as a tort depends upon duty of care owed by the defendant to the
plaintiff. The facts of the case are considered through the perspective of the
reasonable man and the law framed by the judiciary. Thereafter it is determined
that to what extent the tort of defamation and its liability lies for that specific
case.
INTRODUCTION

A tort is a civil wrong, for which a remedy may be obtained, in the form of damages; it is a
breach of duty that the law imposes on persons who stand in a particular relation to one
another.1The word tort has been derived from the Latin term ‘Tortum’, which means ‘to
twist’. The equivalent word in roman is ‘Delict’ while in Sanskrit it is ‘Jimha’. Various ‘torts’
or wrongful acts which leads to the violation of legal right of an individual are covered under
The Law of Torts. The main objective of Law is to safeguard the interest of individual and
imposes a duty to respect the legal rights of every individual in the society, as it is based upon
the idea that everyone in the society has certain rights.

As a matter of fact The Law of Tort has been defined by legal scholars as:

1. “Tortious Liability arises from the breach of a duty primarily fixed by the law,this
duty is towards the persons generally and its breach is redressiable by an action for
unliquidated damages.”-WINFIELD
2. “Tort means a civil wrong which is not exclusively a break of contract or breach of
trust”-S. 2(m), Limitation Act, 1963.
3. “It is an infringement of a right in rem of a private individual giving a right of
compensation at the suit of the injured party.”-FRASER

These definition sums up a basic distinction between civil wrong and tort which is, tort is a
civil wrong but every civil wrong is not tort. Therefore we may state that till date there is no
scientific definition of tort which could explain the various elements completely, rather they
were just focused on explaining the nature of particular wrong or mere mentioning of certain
elements which distinguishes it from others.

1 Bryan A. Garner (ed), Black’s Law Dictionary (8thedn, 2004) 4644.

For constitution of a tort the essential condition which needs to be fulfilled are:
● On the part of defendant there must be an act or an omission
● Plaintiff must suffer a legal damage ,i.e. violation of legal right

The term defamation is derived from the Latin buzzword "Diffamare." Etymology of the
Latin term "Diffamare" delivers that it means spreading evil news about someone. Thus,
defamation is nothing but damage to another's reputation. The issue of defamation is
therefore mainly related to one's reputation. Defamation is when someone spreads fabricated
rumors about you and hurts your reputation as a consequence. Basically, if they tell other
people something false that is likely to make normal individuals believe less of you, you can
sue someone for defamation.

Some common example of defamation are

● A newspaper knowingly prints an article suggesting that a public figure in the past has
cheated business associates.
● Relating to someone that a spouse cheats his partner.

This project mainly tries to discuss about the scope of defamation in context to the political
and legal framework present in India. The Indian legal system offers the defamed a remedy
both in civil law for damages and in criminal law for punishment. The focus is on tortuous
publication of a false and unprivileged statement of fact that is harmful to someone's
reputation, and published "with fault," meaning as a result of negligence or malice . It shall
also cover its essentials, types and deal with the circumstances where one can be sued for the
same which would be supported by the case laws.
OBJECTIVES:

The project aims at:

1. To know the Tort of Defamation in consonance with India politics and law.

2. To understand about the Essentials and Types of the Tort of Defamation.

4. To know about the Defences available against Tort of Defamation.

5. To understand the concept of Right of Freedom of Speech.

METHODOLOGY:

The research method is of a doctrinal sort. The investigator followed multiple types of studies
during this project. The investigator pursued analytical studies to use already accessible facts
or data. The quantitative research method will be used to conduct the research survey, which
is based on main and secondary data collected from multiple sources, books, publications,
newspapers and preliminary proceedings.

REVIEW OF LITERATURE:
A big amount of materials are accessible on the above-mentioned subject. Sources covering
most of every aspect of the particular issue are easily and efficiently available on the web.
One of the most significant types of resource content that I have used is the module provided
by PROF. DR. RAJIV KHARE, our Torts Teacher, which provides me a clear and consistent
concept of how this study project can be valiantly and conveniently expressed. I also read and
analyzed some wonderful books on Torts discovered in the library supplied for my study job,
which I will mention in the reference and bibliography below.

The books I chose were a good effort to outline the significance of the subject in teaching
individuals: they are listed below

• LAW OF TORTS by Dr. R. K. Bangia: This book describes the fundamental ideas of Torts
in a very simple language, with a short introduction to vicarious responsibility, followed by
numerous examples of cases on the subject. To which author also involves his own theme
analysis.

• Tort law by Ratanlal & Dhirajlal New Delhi27th edition 2016 Lexis Nexis- In this book
Chapter 1 deals with the concept of Tort and its emergence.

• Tony Weir's CASE BOOK ON TORT: This book provided excellent assistance as it
illustrates and explains the values rather than explains them. It describes the judges '
complicated judgments in a very simple and easy way.

A study project may also be an extension of previous field work. Research can reproduce
aspects of previous projects, or the project as a whole, to check the validity of tools,
processes, or tests. A excellent study job needs a clear particular methodology, as only by
applying the right technique, which involves study issues, sampling methods, suitable
instruments and information collection.

TORT OF DEFAMATION:
A defamatory statement is one that injures the name of another by exposing him to emotion,
contempt, or ridicule, or that tends to lower him within the esteem of right-thinking members
of society. Additionally if someone injuries the name of another he will thus at his own risk.
A man's reputation is his property and it is feasible if it is more important than other
property.2

History and Etymology for defame Middle English, from Anglo-French & Medieval Latin ;
Anglo-French deffamer, diffamer, from Medieval Latin defamare, alteration of Latin
diffamare, from dis- + fama reputation, fame

Defamation is a tort which arises when a person’s reputation is injured and his character
perceived by the public is negatively affected in some way. Slander is a purely verbal
statement spoken by a person that injures someone’s reputation, while libel is printed or
published material that has injured someone’s reputation in public. Someone makes a
declaration, as defamation starts when someone makes a declaration in which that declaration
must be written or spoken or otherwise in any other way that can be expressed when spoken
word of defamation is deemed less dangerous because it fades quicker than written.

Even India's constitution has given a fundamental right to liberty of speech and expression.
But this right is not absolute and is subject to certain constraints. A individual may talk or
express his or her thoughts, but it should not defame another individual.

2 Dixon vs Holden, LR 7 Eq 488 (1869)

The evolution of concept of defamation in legal system can be briefly explained with the
definition proposed by Salmond and then Winfield which clearly helps us to understand the
most basic concept of Tort of Defamation . Some the definition are :

● According to Bhagwat Gita, for a man honor, defamation is worse than death’’

● Black's Law Dictionary (1990), defamation is an deliberate fake communication,

either written or openly spoken, that damages the reputation or good name 3

● Salmond (1961) defines the wrong of defamation as the publication of a false and
defamatory statement about another person without lawful justification. 4

● Winfield (1963) argued that defamation is the publication of a statement which tends
to lower a person in the estimation of the right thinking members of society generally
or which tends to made them shun or avoid that person.5

UNDERSTANDIN THE CONCEPT OF DEFAMATION

3 Black's Law Dictionary, 7th edition, 1990
4 Salmond on Torts, edition of 13, 1961. P361 th Torts law,
5 Winfield, Tort, 1963, 7th edition, P.574
LEGAL UNDERSTANDING OF DEFAMATION IN INDIA

Not all tort results in bodily harm. Instead, some cause damage to the reputation of a person.
Defamation is the overall tort that includes statements that harm one's reputation. There are
various types of defamation, including libel and slander. The distinction between libel and
slander is merely whether the statements are either written (libel) or spoken (slander).

The English law divides actions for defamation into –Libel and Slander as two broader types
because of historical reasons.

Libel is a representation made in some permanent form which leads to the injury of the
reputation of other , e.g. picture, writing or printing.

Slander is the publication of a defamatory statement by the means of words or gesture. Under
the English law libel and slander both are considered as civil wrong but Libel is actionable
per se while Slander, except for certain conditions, always requires a proof of a special
damage .

The English Law has basically laid down the distinction between libel and slander on the
basis of material reasons like:
1. Only libel has been recognised as an offence, under criminal law, Slander is no
offence.
2. While under law of torts, slander is actionable and libel is always actionable without
requirement of proof.

In Hirabai Jehangir v. Dinshaw Edulji and A.C. Narayana Sahv. Kannamma Bai6, the
Bombay and Madras High Court respectively held that when there is imputation of

6 I.L.R. (1932) 55 Mad. 727.

immorality to a woman by spoken words the committed wrong is actionable in the eyes of the
law without proof of the special damage.

Above explanation makes a clear distinction between libel and slander under English criminal
law, which states libel is crime but slander is not , as slander is a civil wrong .But contrary to
that Indian criminal law does not make any such distinction between libel and slander. The
Indian criminal law has termed both libel as well as slander as criminal offences under
Section 499, INDIAN PENAL CODE.

As per Section 499 of IPC, whoever, by words either spoken or planned to be perused, or by
signs or by unmistakable portrayals, makes or distributes any ascription concerning any
individual proposing to mischief, or knowing or having motivation to accept that such
attribution will hurt, the notoriety of such individual, is stated, with the exception of in the
cases hereinafter expected, to malign that individual.

Section 499 likewise refers to special cases. These incorporate "imputation of truth" which is
required for the "public good" and hence must be distributed, on the open direct of
government authority In India, defamation is each civil and criminal offence. The remedy for
civil defamation is roofed underneath the Law of Torts, in an exceedingly civil defamation
case, someone defamed will move either supreme court or subordinate courts and obtain
damages within the sort of financial compensation from the suspect. Also, underneath
sections 499 and 500 of the IPC, someone guilty of criminal defamation may be sent to jail
for 2 years ties, the lead of any individual contacting any open inquiry and benefits of the
open execution.

ESSENTIALS OF DEFAMATION

1. A defamatory statement was made

 2. The reference of the statement must be towards the plaintiff

3. The defamatory statement must be published

● The statement must be defamatory

A statement which intends to lower the reputation of an individual is known as a defamatory

statement. When a statement is published and the same injure the reputation of the plaintiff in
the estimation of right thinking members of the society generally. It is not necessary that such
injury to reputation should be in the eyes of everyone; but it is sufficient if such injury is in
the eyes of certain group of respectable persons which includes a man of fair average
intelligence.

Intention to defame is not necessary-

In the Scottish case of Morrison v. Ritchie & Co.7[vi ] where damages were recovered
against the owners of a newspaper who, in all innocence, had announced in the article that a
lady, who had in fact been married for only a month, had given birth to twins. Thus if such a
statement has caused injury to an individual it is no defence to say that it was intended to be
defamatory.

● The reference of the statement must be towards the plaintiff

7 (1902) 4 F. 654 (a Scottish Court of session decision)

If the individual to whom the statement was released could reasonably infer that the statement
referred to the plaintiff, the defendant remains accountable. For an action of defamation, the
plaintiff has to prove that the statement referred to him. Even a defamatory remark made
without any intention and that too in good faith, is no defence. Hence the notion of intention
is immaterial in determining the defamatory meaning of a statement. If the words are deemed
to refer to the plaintiff, the defendants were responsible and the alleged matter in discussion
is defamatory in nature.

Delhi HC in Harsh Mendiratta v. Maharaj Singh8 said that the defamation action could
only be maintained by a individual who was defamed and not by his colleagues or families.

● The defamatory statement must be published

Publication implies making the defamatory matter known to a individual other than the
defamed individual and, unless that is done, there is no civil defamation action. Since
defamation is injury to the reputation, which depends on others not a man’s own opinion
about himself. If a defamatory remark made to the plaintiff is likely to be read by others or
somebody other than the plaintiff himself then there is publication of the statement.

In the case of Mahender Ram v. Harnandan Prasad9, it was said that when a defamatory
letter is written in urdu to the plaintiff and he does not know urdu, he asks a third person to
read it, it is not defamation unless it was proved that Urdu was not known to the plaintiff at
the time of writing the defendant's letter.

Freedom of Speech and Defamation

8 95 (2002) DLT 78
9 AIR 1958 Pat 445
The constitutional right of free speech is guaranteed under Article 19(1)(a) of the
Constitution of India is counter balanced with the defamation law acts . Article 19 has been
judicially interpreted many a times mainly with the context of “freedom of press”. But the
concept of ‘ reasonable restriction' has been also mentioned in the Article 19(2) which allows
the state to impose certain restrictions on such freedoms. These restrictions basically serve a
purpose in national interest in order to maintain public order.

While making reporting, the journalists are expected to be careful and cautions. In case of
grievance ventilated by individuals on ground that certain defamatory statements are made by
publication in the newspapers, reputation of the concerned aggrieved parties on one hand and
freedom of press on the other, have to be equally balanced.

In a landmark judgement of the case Maneka Gandhi v. Union of India10 the Supreme
Court ruled that freedom of speech and expression has no geographical restriction and carries
with it the right of a citizen to collect data and exchange ideas with others, not only in India
but also overseas. Under Indian law, freedom of expression and of the press does not confer
an absolute right to express one's ideas freely. Clause (2) of Article 19 of the Indian
Constitution allows the legislature to impose certain constraints on freedom of expression.
The Supreme Court held that the criminal defamation regulations are constitutionally valid
and do not conflict with the right to freedom of expression. The tribunal indicated that,
despite the expansive and sweeping scope of freedom of speech, like all rights, the right to
freedom of expression  is "totally sacrosanct" but "not absolute."

DEFENCES

10 AIR 1978 SC 597.

The burden of proof lies on the plaintiff, to prove that their lies a legal right which have been
violated by the wrongful act or omission of the defendants. Thus, the defendants cannot
discharge themselves from their liabilities under the ambit of The Torts Law.
But under the shed of ‘General Defences’, the defendants can easily wash away from the
liability, hence their are certain situations under which the defendants are not held liable as
their is just cause or reason which supports and shows that liability cannot be fixed on the
defendant.
In tort of defamation there are a number of interesting defences in a defamation civil lawsuit
that could either reduce or eliminate the claim of the plaintiff or considerably weaken it.
Some of them are listed as:

1. Justification by Truth

2. Fair and Bona fide Comment

3. Privilege:
a. Absolute Privilege
b. Qualified Privilege

● Justification by Truth

The defendant cannot be held responsible if the comment so publicized is true. Therefore,
if the comment is released against someone, which is true, then it can be a good defense
for the defendant to get discharged from liability. It's because the law doesn't allow
anyone to recover damages for reputational injury that he either doesn't or ought to have
possessed. But under criminal law , merely proving that the statement was ture is no
defence. First Exception to Sec. 499 mentioned in I.P.C. requires that beside being true ,
the statement must have been made for public good.11

In the landmark judgement of Radheshyam Tiwari v. Eknath12, the defendant who was
editor, printer and publisher of a newspaper published a series of articles against the

11 Asoke Kumar v. Radha Kanto Pandey, A.I.R 1967

12 A.I.R. 1985
 plaintiff, a Block Development Officer, alleging that the plaintiff had issued false
certificates, accepted bribes and illegeal means in various matters. In the action for
defamation , the defendant was not able to prove the facts published by him were true and
therefore he was held liable.

● Fair and Bona fide Comment

Making fair comments on the matters of the public interest amounts to a valid defence to
an action for defamation .Matters of public interest are not to be understood in a narrow
sense which requires following essentials:
(i) An expression of opinion, i.e. Comment
(ii) The comment must be fair
(iii) The matter involved must be of the public interest

Comments relying on false facts can never be said as the true comment. As because the
statement produced from those comments which are not legitimate then the comment so
produced will also fail as its basis from which such comment is untrue. Like where the
newspaper publishes accusations about the plaintiff, for which the defendant fails to
demonstrate that the comment made on such untrue fact.

● Privilege

There are certain times when it is deemed that the right to freedom of expression should
overweight the right to reputation. That is, even if some wrongful or defamatory
pronouncement is being spoken, then individual will not be held responsible for it under
certain conditions as well.

Such occasions include any statement produced by a member of either House of Parliament,
publishing by or under either House of Parliament power, any comments made about
magistrates, counsel or anyone else appropriate to the continuing proceedings, etc., may be
exempted from the defamation proceeding.
Articles 105 and 194 of the Indian Constitution grant certain privileges and legal protection to
Members of Parliament Houses. Parliament members have been entrusted with liberty of
expression. This freedom is distinct from the freedom of speech and expression guaranteed
under Article 19(1)(a), As the freedom provided for in Articles 105 and 194 applies
specifically to Members of Parliament and is subject to laws and orders governing the
parliamentary proceedings.
Thus to claim qualified privilege under the scope of parliamentary proceedings, the
publication should be without malice and for the public good.

Case Studies of Landmark Judgement

CASE-I

Ram Jethmalani

v/s
 Subramaniam Swamy 13 
FACTS:

M.C.Jain commission was appointed to examine the facts and case related to the
assassination of Rajiv Gandhi. The stand of then CM of Tamil Nadu Jayalalitha was also sort
in the court. It was alleged was Defendant (Subramaniam Swamy) that the CM had
connections with Liberation Tigers of Tamil Ellam (LLTE), but he denied to disclose the
sources of the information. When the Plaintiff (Ram Jethmalani) started to cross examine
the statements of the defendant, in the same the defendant made a remark to the effect
that he has to wives which was irrelevant. Also the defendant submitted the written
argument on Jethmalani of receiving money from LLTE. For such allegations a suit was filed
by the plaintiff alleging the defendant was guilty of gross libel and claimed exemplary
damages.

ESTABLISHED PRINCIPLE REGARDING-

If statement is quite unconnected with and irrelevant to the main statement that is
privileged ex-hypothesis then it is more accurate to say that the privilege does not extend to
it than to say that the result may be the same, and that statement is evidence of malice, so
it is defamatory.

DECISION:

Justice Pradeep Nandrajog held that the defendant's statement was prima facie defamatory.
It was a case of breaking the privilege and was held to be proof of malice on its own. The
declaration was related and irrelevant to the scenario; the actual malice on the part of the
defendant was well defined. All this resulted in harm of the reputation at personel and
political level both because LTTE is prohibited, organizing and linking the name with it leads
to a loss of reputation. However, such loss is not recoverable, said by the judiciary, but still
compensation for Rs 5 lakes granted in lieu of the complainant and against the defendant,
given his professional status and social status.

Some other brief explanation of important judgements give on the issue of defamation in
recent time are mentioned followingly:

● Arvind kejriwal v. Nitin Gadkari14

The Delhi High Court imposed a fine of Rs 10,000 on Union Minister Nitin Gadkari for
failing to comply with his order in a criminal defamation case brought by him against former
Delhi Chief Minister Arvind Kejriwal. Metropolitan Magistrate (MM) Gomati Manocha

13 AIR 2006 Delhi 300, 126 (2006) DLT 535

14 Times of India, 20th December
noted that Gadkari had not complied with the court's order to file an affidavit  before the third
day as per  planned hearing. The tribunal said the affidavit was to be delivered to Kejriwal's
counsel three days in advance, but the same was done on 20 December only.

● Melania Trump v Daily Mail (England)15

Melania Trump lodged a defamation action against the Daily Mail at the New York State
Commercial Court and the UK High Court on charges that she had earlier worked as an
escort. Ms. Trump claimed $150 m in damages.

The Mail later retracted the statement, published an apology and settled the case for $3m. The
case was subject to much media attention, being covered by the BBC the Guardian and ABC
News.

● Jiwan Mal v. Lachhman Das16

In a case of compromise the in a trial court, Lachhman Das, a witness in the petty case made
a statement, ‘A compromise cannot be effected as Jiwan Mal stands the way. He had looted
the whole of the Dinanagar and gets false cases set up’. About whom the remarks were made
was the Municipal Commissioner of Dinanagar and hence brought the suit of slander against

Lachhman Das, who pleaded the defence of absolute privilege as the statement was made
before the court of the law.
The High Court considered the remark of defendant completely out of the box in the case and
rejected the claim of defence and hence made defendant liable.

CONCLUSION AND SUGGESTION

Defamation implies publishing such a statement, which tends to harm another person's
reputation. In contemporary culture, every individual is entitled to his good name and has the
right to claim that no individual will injure his reputation by making defamatory statements
about him to a third person without any legitimate justification. The primary purpose of the
15 https://www.theguardian.com/us-news/2016/sep/01/melania-trump-daily-mail-lawsuit
16 A.I.R. 1929 Lah. 486
law of defamation is to prevent other people from engaging in unnecessary or false criticism
possibly resulting from malice and thus setting standards of speech and writing; and at the
same time to encourage and maintain honest, legitimate and true criticism for the benefit of
society. In other words, the law of defamation protects reputation and defences against the
wrong such as justification, fair comment and privilege protect freedom of expression.

To conclude, the best choice is to quote known author William Shakespeare. The famous
quote sums up defamation and also the perception it requires. In his iconic 'Othello' 16 he
wrote,
" He that filches from me my good name, robs me of that, which not enriches him, and
makes me poor indeed.”

BIBLIOGRAPHY
BOOKS

• Law of TORTS by Dr. R.K. Bangia

• NLIU course material complied by Prof. (Dr.) RAJIV KHARE
• A casebook on TORTS by Tony Weir
• Law of TORT by P. S. A. Pillai

WEBSITES

• http://www.findlaw.com.au

• http://www.legalservicesindia.com

• https://www.jstor.org

• https://legaldictionary.net

NEWSPAPER REFERRED AND JOURNALS

• TIMES OF INDIA