Defamation Against The Statements Made Before The Courts: An Unsolved Issue

By Adv. Lalit Ajmani & Assisted by Mr. Mohit Soni

Introduction

Defamation, in simple terms, is causing harm to someone’s reputation through words, spoken or written, or by signals or signs capable of being understood by a prudent person. Despite being clear and simple, the law qua defamation has many broad considerations, and the liability and determination thereof differ from case to case.

In Indian law, defamation gives rise to two types of liabilities – one in the form of damages under the purview of civil law, and the other calls for punishment under criminal law.

Civil defamation is not codified[1] and is governed by judgments pronounced by Indian courts from time to time. Whereas, the criminal branch of defamation is succinctly codified under chapter XXI of the Indian Penal Code, 1860 (for brevity, “the Code”).

Section 499 of the Code defines defamation in the following words:

Whenever, 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 to defame that person.”

Moreover, the section provides 10 (ten) exceptions to the offence of defamation. The accused, if convicted, can be punished for upto 2 (two) years or fine or both[2].

Though the courts are empowered to impose fine upon the accused, generally, the accused, even after being convicted, is hardly penalised with a hefty amount. Further, if the complainant is looking for hefty amount upon the accused, then the better remedy lies in civil law i.e., via civil suit seeking damages qua defaming and injuring the reputation of the aggrieved party.

It is a trite law that the following three ingredients are sine qua non to constitute a case for defamation. Absence of any of the following will not amount to defamation as per law –

  1. The statement must be defamatory, and
  2. The statement must be made against the aggrieved party i.e. identify him; and
  3. The statement must be published[3].

The first two ingredients often remain undisputed or at least can easily be gathered from the evidence. But it is the ‘publication’ clause that brings discretion and interpretation of courts more often than not.

Moreover, the issue becomes more complex when the derogatory statement is being made in a court of law either by written submissions (plaint/ complaint, written statements, replications, interim applications, etc.), or during examination/ cross examination of witnesses or merely while furnishing arguments before a court of law.

The law is not clear enough on this aspect and the endeavour of this piece of writing is to throw some light on this unsolved issue i.e., can a person be sued for defamation qua statements made/ submitted before a court of law?

Publication

Publication, herein, simply means that the defamatory statement made against the aggrieved party is communicated to some third person.

The statements furnished in a court of law prima facie, appears to be publication because the said statement is being read not only by court officers but also by the related litigants and the people present in the court at the time of statement(s) being submitted. However, on the other hand it can’t be denied that if such strict interpretation is taken into consideration, then counsels and litigants may not be able to freely address the courts. Moreover, the statements before courts can also be said to be made in good faith, and therefore the 9th (ninth) exception of section 499 of the Code gets attracted in that case.

As stated earlier, the law is not very clear and the judgments on this issue show two different outcomes of such statements. The issue once again arose after the recent judgment pronounced by Hon’ble High Court of Karnataka in the case of Sushma Rani v. H.N. Nagaraj Rao[4].

In this case, the High Court convicted the wife for the offence of criminal defamation. Therein, the husband had filed a petition for the restitution of the conjugal rights and it is in the presentation of her defence by the wife, the wife was sued by her husband for defaming him. While dealing with the same, the court was posed with the question of whether contentions made before the court of law would amount to publication.

The court after considering various cases come to the conclusion that the derogatory remarks even if furnished before a court of law can attract the offence of defamation. It is apposite to mention that the case was of related to criminal defamation where the offence is transpired from mens rea/ malice intention, and the scope of publication is wider as compared to civil defamation.

The aforesaid conclusion of the court gains confidence from the series of judgments pronounced by the Hon’ble High Court of Delhi i.e., Sanjay Mishra vs. Govt. of NCT of Delhi & Ors.[5], Arundhati Sapru vs. Yash Mehra[6]. Furthermore, the Hon’ble High Court of Kerala in the case of Dr. Joy Anto vs. C.R. Jaison[7] has followed the similar principle.

As stated above, the issue has two divergent views. The other set of cases don’t imply strict meaning of publication and therefore doesn’t hold guilty of the defendant/ accused for defamation qua statements furnished in courts.

The Hon’ble Court of Calcutta in the case of Pradip Kumar Mitra vs. Lipi Basu & Ors.[8], held that the defendant is entitled to cherish ‘absolute privilege’ for the statements furnished by her/him in a court of law. Further, the similar dictum is delivered by various different High Courts in the cases of Brig. B.C. Ranan (Retd.) vs. Ms. Seema Katoch and Ors. (Delhi High Court)[9], Chunni Lal vs. Narsingh Das (Allahabad High Court)[10].

However, it seems that there is no clarity by the Hon’ble Supreme Court of India despite numerous conflicting judgements of various high courts as elucidated hereinabove. The proposition is further solidified by the fact that the aforesaid case laws, including the case of H. N Rao which was decided on 10.10.2020 didn’t refer to any ruling of Apex Court while discussing the subject matter.

Therefore, it can safely be stated that whether a person can be convicted or sued for defamation on the basis of statements furnished in courts has no straight answer. However, one thing that can’t be denied is that the scope of publication in the cases of criminal defamation is quite large as compared to its counterpart i.e., civil defamation cases.

Conclusion

At last, it is submitted that the unclear law has put litigants in a very difficult position. Often, the statements presented as defences to the allegations made or evidence presented. However, vexatious litigations and derogatory remarks during the court proceedings are not very uncommon to witness.

It is, indeed, a difficult task to put or omit such statements from the purview of defamation. However, the threshold in such cases should be higher as compared to others, because the same shall allow the litigants and the counsels to present their stand freely. But not even a single ill-intentioned remark should be condoned by the courts, merely because the same is furnished during the court proceedings.

Disclaimer – All views and opinions expressed in this article are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.


[1] Atul Kumar Pandey v. Kumar Avinash, 2020 SCC OnLine Cal 994.

[2] Section 500 of the Indian Penal Code, 1860.

[3] Pradeep Kumar Mitra vs. Lipi Basu & Ors.; MANU/WB/0153/ 2017.

[4] 2020 SCC OnLine Kar 1913.

[5] MANU/DE/1140/2012.

[6] MANU/DE/4096/2013.

[7] Crl. MC No. 534/ 2016 .

[8] MANU/WB/0153/2017

[9] MANU/DE/6314/2012

[10] AIR 1989 All 69

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