Madras HC | “Ethical imperative of Higher Judiciary to exercise inherent power when freedom of press is at stake”: Defamation case against Economic Times quashed

Madras High Court: G.R. Swaminathan, J. has quashed the defamation case filed by V.V. Minerals (P) Ltd. against Economic Times and its reporter.

Facts

The respondent V.V. Minerals had instituted a defamation case against the petitioners ? Grievances Redressal Officer, the Editor, a reporter of the Economic Times and the husband of the reporter. As per the complaint, the offending publication appeared in the February 1-7 2015 issue of Economic Times Magazine titled “Scam on the Shores”. The article which was written by the 3^rd petitioner ? Sandhya Ravishankar, a journalist working with the Economic Times, was based on a Public Interest Litigation (“PIL”) filed by one Victor Rajamanickam. According to the report, the T.N. Government had authorised the respondent to mine and export monazite which is a prescribed substance. To mine monazite, approval of Department of Atomic Energy is necessary. The report further claimed that on account of the enormous illegal mining, the local villagers have been exposed to serious health hazards.

The respondent controverted the allegations and issued notice pointing out that the husband of the said journalist (the 4^th petitioner) had earlier applied for employment in a news channel in which the respondent is having substantial stakes and that his request was rejected. The respondent directly alleged that the journalist wrote the article out of hatred and malice and to settle scores with the complainant for having declined to employ her husband. The respondent lodged a complaint with the Judicial Magistrate, Thirunelveli, who found that prima facie, a case under Section 500 (punishment for defamation) read with Section 109 (punishment for abetment) of the Penal Code. was made out. Accordingly, he issued summons to the petitioner. Aggrieved, the petitioners approached the High Court under Section 482 CrPC (inherent powers of High Court).

Submissions

Anand Chandrasekar, counsel for the petitioners, relied on a host of precedents to contend that the proceedings against the petitioners deserve to be quashed. Per contra, V. Lakshminarayanan, counsel for the respondent, submitted that the offending publication is per se defamatory and that it has brought down respondent’s reputation and caused irreparable harm.

Two apparent errors

1. Improper description of Accused 1 & 2 (Petitioners 1 & 2 herein)

In the complaint filed by the respondent, Accused 1 & 2 were described only as the Grievance Redressal Officer, Economic Times & the Editor, Economic Times, respectively. They were described by posts and not by names. Referring to Section 476 read with Section 61 read with Form 1 of the Second Schedule, CrPC, the High Court restated that in a criminal case, where the accused is an individual, he/she will have to be named in person and if he is merely referred to by designation, the court ought to return the complaint as defective. Here, the trial Magistrate appeared to have acted mechanically while taking cognizance of the complaint without noticing the said defect. This apart, merely because the Grievance Redressal Officer could redress the respondent’s grievance, he cannot be accused of having committed an offence of defamation. 

2. Overstepping of territorial jurisdiction

Referring to Section 202 CrPC, the Court stated that a mere look at the cause title would have revealed that the accused are not residing within the jurisdictional limits of the Judicial Magistrate, Thirunelveli.

Wife ? an independent personality

The 4^th petitioner (husband of the journalist, Petitioner 3) was roped on the sole ground that he abetted the offence. As per the complaint, the 3^rd petitioner wrote the offending article at the instigation of her husband because he applied for a job in a news channel run be the respondent and his application was rejected. As per the Court:

“The 3^rd petitioner is an independent freelance journalist. If I accept the contention of the complainant’s counsel, that would undermine the agency of the woman concerned. This concept of agency has considerable philosophical import and was evolved by the feminists during the last century. The complainant wants me to assume that the 3^rd petitioner lacks personal autonomy. The 3^rd petitioner definitely has the capacity to act independently and make her own free choice. I cannot assume that the 3^rd petitioner was a pawn or tool at the hands of her husband. Her innate dignity can be upheld only by deleting the 4^th petitioner from the array of accused.”

The Sullivan principle

The High Court referred to New York Times v. Sullivan, 376 US 254, wherein the Supreme Court of the United States noted the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. In order to survive, free speech needed breathing space – that is, the space to make mistakes. Erroneous statement was inevitable in free debate and therefore, the very existence of free debate required the protection of such statements. In that case, Justice Brennan propounded the test of “actual malice” wherein liability for defamation could be imposed only if the maker of the statement either knew it was false or published it with reckless disregard for its truth or falsity. On this, the High Court referred to the book “”Offend, Shock or Disturb” by Gautam Bhatia.

Criminal law of defamation involving the press ? clarified

The criminal law on defamation stands codified in Sections 499 and 500 IPC. Referring to the Second Exception (pubic conduct of public servants) and the Third Exception (conduct of any person touching any public question) to Section 499, the High Court clarified:

“The Sullivan principle as amplified in Rajagopal v. J.Jayalalitha, AIR 2006 Mad 312, and Petronet Lng Ltd.v. Indian Petro Group, (2009) 158 DLT 759 (Del), have to be necessarily read into the Exceptions to Section 499 whenever the freedom of the press is involved. There can always be a margin of error. The permissible width of the margin will depend on the facts and circumstances of each case. The media can avail this defence whether the complainant is a public official or a private entity. Mere inaccuracies in reporting cannot justify initiation of prosecution.”

The Court further explained:

“What must be seen is whether the subject matter is a public question or not. Exception 3 to Section 499 IPC refers to public question. Of course, the said expression has not been defined anywhere including the Law lexicons. But, one can safely understand it to mean an issue in which the public or the community at large has a stake or interest. Media ought to be relieved from any criminal prosecution once it is noted that its case falls within the Exception as delineated above.”

Duty of High Court in safeguarding the freedom of press

Referring to the decision in State of Madras v. V.G. Rao, AIR 1952 SC 196, where the Supreme Court described itself as sentinel on the qui vive, the High Court observed that the Court can never desert its duty when it comes to protecting the fundamental rights. The High Court stated that the observations of the Supreme Court will apply to the entire higher judiciary.

The Court then referred to the provision of Section 482 CrPC and observed:

“Most of the legal provisions conferring power are couched in a permissive language. But there is something called ethical imperative. It envisions that inherent powers go with implicit duties. Courts often nudge and remind the executive that possession of power is coupled with a duty to exercise the same. Judicial power can be no different. When freedom of press which is a fundamental right is at stake, higher judiciary is obliged to exercise not only its inherent power but also exert itself a bit. An unused power is a useless tinsel. There is no point in merely saying that press is the foundation of democracy.”

The Third Exception

The offending article was based on the allegations in a PIL filed in the Madras High Court against the respondent. Notably, the article contained the response of the respondent. Although there were a few mistakes in the reporting, but a clarification was later carried by Economic Times expressing regret. Also, it is true that the original petitioner turned out to have lacked bona fides and he was relieved from the proceedings, but the PIL was not terminated. It was converted into a suo motu PIL and the case is pending till date. It was noted that a Division Bench of the High Court is actively seized of the matter and this sufficiently indicates the importance of the issue raised in the offending article.

On such facts, it was held that this on the very face of it would fall within Exception 3 to Section 499. The Court observed that:

“When a defence can be established in a summary manner and does not warrant a regular trial, relief ought to be granted in a petition under Section 482 CrPC. As already pointed out, Petitioners 2 and 3 have shown their bona fides by reaching out Thiru.Vaikundarajan and publishing his response in the very same article.” 

Decision

In such view of the matter, the High Court held that the petitioners could not be said to have defamed the respondent by the article in question. The very institution of the impugned complaint was held to be an abuse of the process of court. Quashing the same alone would secure the ends of justice. Accordingly, the impugned proceedings against the petitioners were quashed. [Economic Times, v. V.V. Minerals (P) Ltd., 2020 SCC OnLine Mad 978 , decided on 5-5-2020]