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2011 Supreme(Bom) 1306
2012(1) ALL MR 359
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SMT. ROSHAN DALVI, J.
Kokan Unnati Mitra Mandai & Ors.
Vs.
Bennet Colemna & Co. Ltd. & Ors.
Suit No. 651 of 1983 WITH Suit No. 652 of 1983
Decided On : 9th November, 2011.
Mr. RAJENDRA PAI a/w. Mr. RAJENDRA DESAI a/w. Mr. VIKRAM TRIVEDI a/w.
Mr. F AISAL SAYYED a/w. Mr. ALOUKIK PAI a/w. Mr. MAY1.JR BHOJWANI a/w.
Ms. VISHNUPRIY A KUMAR i/b. M.K. AMBALAL & CO., Advs. for the Plaintiffs Dr. V.V. TULZAPURKAR, Sr. Advocate alw. Ms. ALPANA GHONE i/b. KANGA & CO., for Defendants
Headnote:Constitution of India - Article 19(1)(a) - Freedom of expression and publication. Since freedom of expression and consequent publication is a cornerstone for a true and meaningful democracy hence it must be upheld and cherished.
It could, therefore, be seen that the salutary right and freedom of expression and the consequent publication is a cornerstone for a true and meaningful democracy, Courts would be rather reluctant to put fetters upon even an apprehended and expected libel if it could be justified and was not untrue.
Constitution of India - Article 19(1)(a) - Freedom of expression to Press. Where publication of article imputing corrupt practices to Chief Minister by defendants, was in public interest therefore no malice can be attributed to defendants.
The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting upon matters of public interest. This accords with the constitutional guarantee of freedom of expression. And it is in the public interest that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above. These safeguards ensure that defamatory comments can be seen for what they are namely, comments as distinct from statements of fact. They also ensure that those reading the comments have been material in enabling them to make up their own minds on whether they agree or disagree.
The defence of honest comment is available even if the comment was made with intent to injure, as where a politician seeks to damage his political opponent. The comment must be on a matter of public interest, recognisable as comment, be based on true or privileged facts, indicate the facts on which the comment is based, and must be one which could have been made by an offences person, however prejudiced he might be, and however exaggerated or obstinate his views.
This upheld the fundamental rights of expression and information of the publisher and the public which are two sides of the same coin. The justification of making the publication and the explanation upon the facts that arose from the litigation which were facts stated on oath and sought to be verified before publishing, would show the truth of the statements and consequently propriety of the justification as also the fairness of the comment in the roll-up defence.
Constitution of India - Article 19(1)(a) - Freedom of Press. The comment must be on a matter of public interest, recognisable as comment, be based on true or privileged facts, indicate facts on which comment is based. The defendants have shown and proved the truthfulness of the statements and the fair comment made by them in public interest. The defamation of the plaintiffs alleged by them is, therefore, amply justified. The plaintiffs’ own conduct in dealing with the property by themselves, though not claimed by them, itself takes the statements of the defendants outside the realm of defamation. The defamation or the malice and mala fides alleged by the plaintiffs is, therefore, not proved. Issue Nos. 1 and 2 are, therefore, answered in the negative and Issue Nos. 3 and 4 are answered in the affirmative.
2. The Defendants published an article and two photographs in its newspaper publication dated 3rd April 1982 which the Plaintiffs claim as defamatory per se. The Plaintiffs also claim that the article carries an innuendo with regard to certain activities alleged to have been carried out by the Plaintiff No.2 in the capacity as the then Chief Minister.
3. During the tenure of Plaintiff No.2 as such Chief Minister there were certain allegations made and petitions filed by certain parties alleging certain corrupt practices of Plaintiff No.2 in respect of the allotment of cement which was at the relevant time, a rationed commodity under the Essential Commodities Act. On 11th January 1982 a judgment of this Court indicted Plaintiff No.2. Plaintiff No.2 resigned as Chief Minister the next day. The article along with the two photographs with regard to an incident relating to the transportation and allotment of cement came to be published by the Defendants and is claimed to have been seen by its Reporter and photographed by its Photographer, The article and the photographs were reported in the English as well as Marathi publications dated 3rd April 1982.
4. The Plaintiff No. 1 a addressed letter on behalf of Plaintiff No.2 on 3rd April 1982 informing the Defendants that the publication was defamatory containing deliberate mis-statements and stated certain facts which the Plaintiff No.1 directed the Defendants to publish in their publication to clarify the facts. The Defendants published in both their publications another article inter alia stating the facts directed by the Plaintiffs to be reported.
5. The Plaintiffs claim that the further publication showing further facts does not indicate any apology for having published the initial articles and the photographs and is, in fact, more insinuating than clarificatory.
6. The Plaintiffs have sued for damages for defamation in a sum of Rs.5 crores with interest @ 6% p.a from the filing of the suit rill payment upon their case that the publications as well as by innuendo are defamatory per se. The Plaintiffs are required to prove the publication and the nature of defamation. The publications are not denied. It would be for the Plaintiffs to prove whether the publication initially made as well as the further publications claimed to be clarificatory by the Defendants made upon the directions of the Plaintiffs are indeed defamatory. It may be mentioned that if the articles are show to be defamatory their falsity would be presumed and the malice, if any, in publishing them need not be shown.
7. The Defendants claim that the articles are not defamatory because they show the truth of what transpired and the Defendants were justified in publishing the same for the knowledge of the public and in public interest. The Defendants accordingly claim that they have made a fair comment upon the facts that transpired on 2nd April 1982 to prove before the public the incident and further upon the Plaintiffs' directions the claim made by the Plaintiffs in respect thereto. They claim that the public would need to know what transpired initially and how the Defendants clarified their position upon the Plaintiffs' contention with regard to the initial publications. The Defendants have, accordingly made out the defence of fair comment in public interest. The Defendants deny malafides or malice. If the Defendants show the truth of the statements in the articles as also that their comments thereupon were fa
