RAM JETHMALANI vs SUBRAMANIAM SWAMY

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Del) 17

High Court Of Delhi
RAM JETHMALANI - Appellant
Versus
SUBRAMANIAM SWAMY - Respondent
Decided On : 01/03/2006

Headnote:Civil — Defamation — Action for libel or slander — Commission of Enquiry Act, 1952 — Suit for Defamation filed by plaintiff against the defendant for using slander and libellious language publicly — Appellant being counsel for Ms. J. Jayalalaitha made an statement on her behalf before the “Jain Enquiry Commission” — Respondent during cross examination passed some remarks against the Appellant and his son having connection with the LTTE — Respondent filed his written arguments before the commission — Onus is on the plaintiff to establish that the offending statements not only defamatory, false but that the defendant made them knowing to be false — Defamation is public communication which tends to injure the reputation of another — What statements are defamatory and the span of defenses varies from jurisdiction to jurisdiction but there is common agreement in all jurisdictions that statements that are unflattering, annoying, irksome, embarrassing or hurt ones feelings are not actionable — In present case, statement made by the Defendant was part of a public document as the same was not been expunged by the Commission — Before it could be expunged the appellant filed Defamatory suit against the Defendant for passing remarks against the Appellant that too when Appellant was performing his professional duties — Remarks being ex facie defamatory — Reputation of a person would be lowered in the esteem of the public — Entitled to some recompense — Defendant has refused to apologize and withdraw his offending statement — Considering the professional standing of the appellant and his stature in social life award of damages in sum of Rs.5 lacs in favor of the appellant and against the defendant
Civil — Defamation — defense — Plea of fair comment — To succeed in a plea of fair comment, the defendant must establish that the statement was a comment and not a fact — Thereafter, the defendant must establish that the comment had a sufficient factual basis — He must additionally establish that the comment was one which an honest person could hold — In the present case, since the offending words were communicated in writing before a Commission under the Commissions of Inquiry Act, 1952 and have been proved to have been additionally read out during course of final submissions — Also for the reason the expressions used were not when the defendant was standing before the Commission as a witness, defense of absolute privilege is not available to the defendant

Judgement Key Points

Key Points: - The defendant's statements before a Commission of Inquiry and their publication in open proceedings potentially defeat absolute privilege, leading to defamation liability and damages. (!) (!) - Whether absolute privilege applies to statements made in writing before the Jain Commission and subsequently read out, and if not, whether there was malice or excess of privilege sufficient to deny protection. (!) (!) - The judgment discusses the elements of defamation, defenses of absolute privilege, qualified privilege, and fair comment, including the burden of proving malice and whether publication occurred, resulting in damages of Rs. 5 lakhs. (!) (!) (!)

Question 1?

Question 2?

Question 3?

PRADEEP NANDRAJOG, J.

( 1 ) NEEDLESS to state, to appreciate an action for libel or slander, knowledge of the facts constituting the backdrop against which the battle of words was fought is essential. Briefly stated, origin of the present suit are the proceedings which commenced pursuant to a notification dated 23. 8. 1991 issued by the Central Government under Section 3 of the Commissions of Inquiry act, 1952.

( 2 ) JUSTICE M. C. Jain Commission of Inquiry was constituted under the commissions of Inquiry Act, 1952 with the mandate to make an inquiry with respect to the following matters :-" (a) The consequences of events leading, and all the facts and circumstances relating to, the assassination of Shri Rajiv Gandhi at Sriperumbudur (other than the matters covered by the terms of reference for the Commission of Inquiry headed by Shri Justice J. S. Verma); (b) Whether any person or persons or agencies were responsible for conceiving, preparing and planning the association and whether there was any conspiracy in this behalf and, if so all its ramifications. "

( 3 ) HAVING regard to the nature of inquiry, notification directed that all provisions of Sub-Sections 2, 3, 4 and 5 of Section 5 of the Commission of inquiries Act, 1952 would be made applicable to the Commission.

( 4 ) COMMISSION proceeded to hold an inquiry. When the proceedings of the commission were in progress, on 2. 6. 1993, the defendant called a press conference at Madras. In the daily newspapers published in India on 3. 6. 1993, news items were published in relation to the press conference held by the defendant.

( 5 ) BRIEFLY stated, press reports quoted the defendant as having stated that the then Chief Minister of Tamil Nadu, Ms. J. Jayalalitha had been tipped of by the Liberation Tigers of Tamil Ellam (LTTE) on the assassination of late Shri rajiv Gandhi, former Prime Minister of India. Defendant was stated to have informed the press that information of the assassination bid was passed on to ms. J. Jayalalitha around April 17, 1991 in Madras. Quoting the defendant, newspaper reports stated that source of information claimed by the defendant was a LTTE informer in London.

( 6 ) SINCE the information published by the press on 3. 6. 1993 related to the assassination of late Shri Rajiv Gandhi, Justice M. C. Jain Commission of Inquiry took cognizance thereof. On 18. 6. 1993, the Commission sent a questionnaire to the defendant, to be answered by him.

( 7 ) IN response to the question was the information verified or cross checked Vide letter dated July 7, 1993, defendant replied to the Commission as under :-"it is significant that Ms. J. Jayalalitha neither went to receive Mr. Rajiv Gandhi at the Madras Airport not did she make any attempt to contact him. It will be best for the Commission to examine Ms. J. Jayalalitha and ask her about her whereabouts on or around May, 201. In specific answer to this question, the informant enjoys credibility with me and what he said had cross checked the behaviour of Ms. J. Jayalalitha. "

( 8 ) BASED on the defendant s reply, on 20. 10. 1993, the Commission sought the comments of Ms. J. Jayalalitha on the afore-noted statement made by the defendant in his letter dated July 7, 1993.

( 9 ) THE Commission summoned the defendant as a witness under Section 4 of the Commissions of Inquiry Act, 1952. At the outset, it may be noted that no summons were issued to the defendant under Section 8 (b) of the Commissions of inquiry Act, 1952.

( 10 ) DEFENDANT appeared in response to the summons issued to him under section 4 of the Commissions of Inquiry Act, 1952. He was administered oath for the first time on 20. 3. 1995. In his statement recorded on oath by the commission on 20. 3. 1995, defendant stated as under :-"i have no intention of disclosing the source of information regarding what is going on in LTTE not in confidence even to the Commission. I have full faith in the Commission. If the Commissioner (Justice M. C. Jain) calls me person

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