NATIONAL LAW

UNIVERSITY
2015-16

FINAL DRAFT
SUBMITTED UNDER

SUBMITTED BY-

THE GUIDANCE OFR.K Yadav

Assistant Professor
Dr. RMLNLU

LOKESH CHANDRA RANJAN

Section-A (2nd sem)
Roll No.75
BA. LLB(Hons.)

TABLE OF CONTENT
INTRODUCTION
Essentials of defamation
Types of defamation
English Law
Indian Law
Freedom of press
Defences in defamation

Acknowledgement
I have taken efforts in this project. However, it would not have been possible
without the kind of support and help of many individuals. We would like to extend
my sincere Thanks to all of them.
I would like to express my special gratitude to Assistant Professor R K
YADAVA who gave me golden opportunity to do this wonderful Project on
Defamation, which also help me in doing a lot of research and we came to know
about so many new things I am really Thankful to him .Secondary we would also
like to thank my friends who helped me a lot in finalizing this project within the
limited time frame

Introduction
Defamation is injury to the reputation of a person. If a person injures the reputation
of another ,he does so at his own risk, as in the case of an interference with the
property .According to Blackstones, every man has right to have his
reputation preserved inviolate. According to Winfield, Defamation is a
publication of a statement which tends to lower a person in the estimation of right
thinking member of the society generally.
According to Salmond , Defamation is a publication of a false and defamatory
statement concerning another person without lawful justification. According to
Bhagwat Gita, for a man honor defamation is worse than death.

ESSENTIALS OF DEFAMATION
1)

The statement must be defamatory;

(2) The said statement must refer to the plaintiff;

(3) The statement must be published;
(4) Plaintiff incurred special damages.
(1) The statement must be defamatory
Defamatory statement is one which tends to injure the reputation of the plaintiff.
Defamation is the publication of a statement which tends to lower a person in the
essential of right thinking members of a society generally,
1 or which tends to make them shun or avoid that person.

2 An imputation which exposes one to disgrace and humiliation, ridicule or

contempt, is defamatory. The defamatory statement could be made in different
ways. For instance, it may be oral, in writing, printed or by the exhibition of a
picture, statue or effigy or by some conduct. Thus, if a Municipal Council out of
ill will and malice and without justification served a notice of restraint warrant and
seized furniture and books of a practicing advocate, the conduct of the Municipal
Council amounted to defamation.
3 In Salmond on the Law of Torts, the following proposition on the nature of
defamatory statement has been made : - A defamatory statement is one which has a
tendency to injure the reputation of the person to whom it refers to; which tends,
that is to say, to lower him in the estimation of right thinking members of society
generally and in particularly to cause him to be regarded with feelings of hatred,
contempt, ridicule, fear, dislike or disesteem.
1 Sim v. Stretch, (1936) 52 T.L.R. 669, 671.
2 Winfield, Tort, 12th ed., 293.
3 G. Sreedharamurthy v. Bellary Municipal Council, A.L.R.

1982 Kant. 287.

4 Quoted in Deepak Kumar Biswas v. National Insurance Co. Ltd., AIR 2006 Gau.
110.

Ram Jethmalani v. Subramaniam swamy,5 while a Commission of inquiry was

examining the facts and circumstances relating to the assassination of Late Shri Rajiv Gandhi , the
defendant, at a press conference, alleged that the then Chief Minister of Tamil Nadu had prior
information that LTTE cadre would make an assassination bid on the life of late Shri Rajiv Gandhi.
The plaintiff was engaged as a senior counsel to represent the then Chief Minister ofTamil Nadu. In
discharge of his professional duties, the plaintiff cross-examined the defendant. During the
proceeding, the defendant in the written conclusive submission alleged that the plaintiff had been
receiving money from LTTE, a banned organization. The statement made by the defendant was
held to be ex facie defamatory. It was held to be a case of exceeding the privilege and that by itself
was held to be evidence of malice. The statement made by the defendant against the plaintiff was
held to be quite unconnected with and irrelevant to the situation, actual malice on the part of the
In

defendant was well established. Counting the professional standing of the plaintiff and his statue in
social life, the Delhi High Court awarded damages of Rs. 5 Lacks.
THE INNUENDO
A statement may be prima facie defamatory and that is so when its natural and obvious meaning
leads to that conclusion. Sometimes, the statement may prima facie be innocent but because of
some latent or secondary meaning, it may be considered to be defamatory. When the natural and
ordinary meaning is not defamatory but the plaintiff wants to bring an action for defamation, he
must prove the latent or the secondary meaning, i.e., the innuendo, which means the statement
defamatory. Even a statement of defamatory in the context in which it is said.
Even Y is a saint might be slander if the statement was understood to refer to a
criminal gang known as The saints. Similarly, to say that X is an honest man and he never
stole my watch may be a defamatory statement if the persons to whom the statement is made
understand from this that X is dishonest man having stolen the watch. The statement that a lady
has given birth to a child is defamatory when the lady is unmarried. Similarly, the statement that A is
like his father may be Defamatory if it is likely to convey the impression that he is a
cheat like his father.
5 A.I.R. 2006 Del.

300.

6 James : General Principles of the Law of Torts, 2nd ed., p. 260.

In Capital and Counties Bank v. Henty & Sons,7 there was a dispute between the defendants,
Henty & Sons and one of the branch managers of plaintiff bank. The defendant who used to receive
cheques drawn on various numbers of their customers as follows: Henty & sons here
bygive notice that they will not receive payment in che ques drawn on any the branches of th
ecapital and counties bank. The circular became known to various other persons also and there was
a run on the bank. The bank sued Henty & sons for liable alleging that the circular implied and
insolvency of the bank. Held , that the wards of circular taken in their natural sense did not convey
the supposed imputation and the reasonable people would not understand it in the sense of
innuendo

suggested , there was ,therefore, no liable.

INTENTION TO DEFAME IS NOT NECESSARY
When the words are considered to be defamatory by the persons to whom the statement is
published, there is defamation, even though the person making the statement believed it to be
innocent. It is immaterial that the defendants did not know of the facts because of which a statement
otherwise innocent is considered to be defamatory. In Morrison v. Ritihie & co.,8 the
defendants in good faith published a mistaken statement that the plaintiff had given birth to twins.
The plaintiff had been married only two months back. Even though the defendants were ignorant of
this fact, they were held liable.
(2) The statement must refer to the plaintiff
In an action for defamation plaintiff has to prove that the statement of which he complains referred
to him. It is immaterial that the defendant did not intend to defame the plaintiff. If the person to
whom the statement was published could
reasonably infer that the statement referred to the plaintiff, the defendant is nevertheless liable.
In Newstead v. London Express Newspapers Ltd., 9 the defendants published an article
stating that Harold New stead, a Camber well man had been convicted of bigamy.
The story was true of Harold New stead , a Camber well barber. As the words were considered to
be understood as referring to the plaintiff, the defendants were held liable.
7(1882) 7 A.C. 741.
8(1902) 4 F. 654 (a Scottish Court of Session decision)
9(1939) 4 AII E.R 391: (1940) 1 K.B. 377.

DEFAMATION OF A CLASS OF PERSONS

When the words refer to a group of individuals or a class of persons, no member of that group or
class can sue unless he can prove that the words could reasonably be considered to be referring
to him. Thus, If a man wrote that all lawyers were thieves, no particular lawyer
could sue him unless there was something to point to the particular individual.

10 In Dhirendra Nath Sen v. Rajat Kanti Bhadra, it has been held that when an editorial
in a newspaper is defamatory of a spiritual head of a community, an individual of that community
does not have a right of action.
DEFAMATION OF THE DECEASED
Defaming a deceased person is no tort. Under Criminal Law, it may amount to defamation to
impute anything to a deceased person, if the imputation would harm the reputation of that person, if
living, and is intended to be hurtful to the feelings of his family or other near relatives.

(3) The statement must be published

Publication means making the defamatory matter known to some person other than theperson
defamed, and unless that is done, no civil action for defamation lies. Communication tothe plaintiff
himself is not enough because defamation is injury to the reputation and reputation consists in
the estimation in which others hold him and not a mans own opinion of himself
.Dictating a letter to ones typist is enough publication.
13 Sending the defamatory letter to the plaintiff in a language supposed to be known to the plaintiff
is no defamation.14 If a third person wrongfully reads a letter meant for the plaintiff, the defendant
is not liable.15When the father opened his sons letter,16or a butler opened and read a sealed
letter meant for his employer,17 there was no publication by the defendant and he was not liable.

Eastwood v. homes, (1858) 1 F. & F. 347

11 A.I.R 11970 Cal. 216.
12Section 499, Explanation, I.P.C.
13 Pullman v. Hill, (1891) 1 Q.B. 524.
14Mahindra Ram v. Harnandan Prasad, A.I.R. 1958 Pat. 445.
15Arumuga Mudaliar v. Annamalai Mudaliar, (1966) 2 M.L.J. 225.
16Powell v. Gelston, (1916) 2 K.B. 615.
17 Huth v. Huth, (1915) 3 K.B. 532.

In Mahindra Ram v. Haenandan Prasad,18 the defendant sent a defamatory letter

written in Urdu to the plaintiff. The plaintiff did not know Urdu and therefore the same was read
over to him by a third person. It was held that the defendant was not liable unless it was proved that
at the time of writing the letter in Urdu script, the defendant knew that the Urdu script was not
known to the plaintiff and it would necessitate of the letter by a third person.
(4) Plaintiff incurred special damages
The person about whom the defamatory statement is made must be damaged by the
statement. In some states, it is sufficient to establish that the plaintiff suffered
mental anguish as opposed to damage.
Special damages compensate the claimant for the quantifiable monetary losses by the plaintiff. For
example, extra costs, repair or replacement of damaged property, lost earrings (both historically and
in the future), loss of irreplaceable items, additional domestic costs, and so on .T hey are seen in both
personal and commercial actions. Special damages can include direct losses (such as amounts the
claimant had to spend to try to mitigate19 and consequential or economic losses resulting from lost
profits in a business. Special damages basically include the compensatory and punitive damages for
the tort committed in lieu of the injury or harm to the plaintiff.
18 A.I.R 1958 Pat. 445.
19There is a duty to mignate losses Trans-Lex.Org.

TYPES OF DEFAMATION

Two types of defamation

1. Libel
2. Slander
1.LIBEL

Libel, which comes from the Latin libellus, or little book, came into fashion with
the advent of the printing press. In the 16th century, defamatory pamphlets were
known as libelli famosi, and by the 17th century, libel became a legal term for a
written insult. Libel is representation made in some permanent form, e.g., Writing,
printing, picture, effigy20 or statue .Libel refers to statements that damage another
person's reputation. The difference is that libel takes the form of printed or
otherwise "fixed" material rather than verbal assaults. Typically, libel in the United
States can involve untrue words or images that are published in print publications
as well as material published on a web site. Continuing with the example of the
disgruntled employee, he may choose to leave the company and write an expos of
the owners and the company operations. The expos includes not only the untrue
information that was previously deployed verbally, but also may include
photographs that were taken and then used out of context to reinforce the purported
validity of the lies. This type of activity would likely constitute libel .In a cinema
film, not only the photographic part of it is considered to be libel but also the
speech
20 Monson v. Tussands Ltd., (1894) 1 Q.B. 671.

Which synchronizes with it is also libel. Libel is actionable per se, which means
the plaintiff will not have to prove any special damage which is calculable as a
specific sum of money. This is law presumes that when a person's reputation is
assailed, some damage must be resulted. For example, when a bank wrongfully
Prints the words Account Closed on a
cheques that they bound to honor, they are liable under tort of defamation.
For example, when a bank wrongfully prints the words Account Closed on a
Cheques that they bound to honor, they are liable under tort of defamation .In
Youssoupoff v. M.G.M. Pictures Ltd., 21 in the course of a film produce by
English Company called Metro Goldwyn Mayer Pictures Ltd., a lady, Princess
Natasha, was shown as having relations of seduction or rape with the man
Rasputin, a man of the worst possible character.
2. SLANDER

Slander derives from the Latin scandalum -thats right, scandal.

The connection is no coincidence. Historically, English and American judges
subscribed to the theory that stick sand stones are more dangerous than words. In
order to persuade a court to award compensation for a mere insult, it had to be
something scandalous indeed. Slander is the publication of a defamatory statement
in a transient form. Examples of it may be spoken by words or gestures.

Slander involves verbally maligning the reputation or activities of another

individual or entity, using information that is known to be false or misleading.
Typically, this will involve not only the use of specific words to damage a
reputation, but also actions such as hand gestures or facial expressions in order to
reinforce the misinformation that is being distributed .Any defamation that is
"transitory" in other words, not fixed in a permanent medium isusually considered
slander .One of the easiest ways to understand slander is to consider the example of
actions of an
21 (1934) 50 T.L.R. 581.

Employee who is unhappy with his company's policies and procedures. At an

event including employees with their spouses and partners, the disgruntled
employee begins to spread untrue information about the business and its owners.
As part of his remarks, the employee may state that the company owners engage in
business activities that are illegal as well as unethical. Unless the employee has
reliable evidence to back up these claims against the specific people identified in
the statements, he could be held liable for slander. Slander is defamation in a
temporary or transient form. Publication is made through spoken words or
gestures. This type of defamation is not actionable per se it means that the plaintiff
must prove actual or special damage in order to succeed in his action
.

Slander is actionable only on proof of actual damage, except in the following

circumstances:
1The imputation of criminal offence where the offence must be punishable with
imprisonment but a specific offence need not be mention. For instance, the phrase
of I know enough to put you into goal is held as slander.
2. The imputation of a disease where the allegation must be that the claimant is
currently suffering from a contagious or infectious disease. For instances, the
venereal disease, leprosy are within this rule.
3. The imputation of unchastely or adultery to any woman or girl, for example the
Slander of Woman Act 1891 section 1 states that words spoken and published .
Which imputedun chastely or adultery to any women or girl shall not require
special damage to render them actionable.
4. The imputation of unfitness or incompetence. This exception relates to
allegations of unfitness, incompetence or dishonesty in any profession, trade,
calling or business held or carried on by the claimant .Early slander cases were
based on scurrilous accusations--like saying that a man had committee da felony,
or that a woman was unchaste. Disease was also a popular put-down in the old
days.The 17th century fashion of accusing ones rivals of the pox gave rise to
lots of slander cases.Pox, you see, was a code word for syphilis.

ENGLISH LAW
Mainly because of historical reasons, English law divides actions for defamation into- Libel and
Slander. Section 1, Defamation Act, 1952 provides that broadcasting of words by means of wireless
telegraphy shall be treated as publication in permanent form. Another test which has been suggested
for distinguishing libel and slander is that libel is addressed to the eye, slander to the ear. The matter
recorded on a gramophone disc is addressed to the ear and not to the eye, but is at same time in a
permanent form. According to Winfield, it is a slander but according to some others, it is a libel.
Under English law, the distinction between libel and slander is material for two reasons:(1) Under
Criminal law, only libel has been recognized as an offence. Slander is no offence.(2) Under the law

of torts, slander is actionable, save in exceptional cases, only on proof of special damage. Libel is
always action actionable
per se, i.e., without the proof of any damage.
In the following four exceptional cases, slander is also actionable per se:
(I)
(II)
(III)
(IV)

Imputation of criminal offence to the plaintiff;

Imputation of a contagious or an infectious disease to the plaintiff, which has the effect of
preventing other from associating with the plaintiff
Imputation that a person is incompetent, dishonest or unfit in regard to the offence
,profession, calling, trade, or business carried on by him;
Imputation of unchastely or adultery to any woman or girl is also actionable per se .This
exception was created by the Slander of Women Act 1891.

INDIAN LAW
Under English Criminal law, is a distinction is made between libel and slander. According to Indian
Law, libel is a crime but slander is not. In England, Slander is only a civil wrong. In India crime
does not make any such distinction between libel and Slander .Both libel and Slander are criminal
offences under Section 499, I.P.C.PUNISHMENT UNDER SECTION 499 & 500
Section 499 in the Indian Penal Code 499 Punishment of Defamation Defamation.
Whoever, 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, except in the
cases hereinafter expected, to defame that person
.Explanation
1.It may amount to defamation to impute anything to a deceased person, if the imputation would
harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family
or other near relatives.
Explanation 2.

It may amount to defamation to make an imputation concerning a company or an association or

collection of persons as such.
Explanation 3. An imputation in the form of an alternative or expressed ironically, may amount to
defamation.
Explanation 4. No imputation is said to harm a persons reputation, unless that imputation
directly or in directly, in the estimation of others, lowers the moral or intellectual character of that
person, or lowers the character of that person in respect of his caste or of his calling, or lowers the
credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or
in a state generally considered as disgraceful.

Section 500 in the Indian Penal Code

500 punishment for defamation
Whoever defames another shall be punished with simple imprisonment for term
which may extend for 2 years ,or with fine, or with both.

DEFAMATION AND FREEDOM OF PRESS

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 Salenadandasi V. Gajjala Malla Reddy 22 The Andhra
Pradesh high court, awarding compensation by way of damages to a tune of
Rs.10,000 to the plaintiff, said that the journalists were expected to be careful and
cautious while proceeding to make publications. Recording a statement of facts as
reflected by record, the code said, was something different from making the

publication exaggerated versions with several deviations and improvements. Such

reporting, the Court said would virtually reduce true episode to its lowest bottom,
for the reason that, at the stage, public might not be able to draw any distinction
between that portion which might be true and that portion which might be untrue.
Reporting of distorted and deviated versions with comments, without proper
verification of fax ,might not fall within the umbrella of protective journalism, the
Court ruled. Such defamatory statements made in publication, the Court said, could
not be warded off under the guise of freedom of press.
22 A.I.R. 2008 (NOC) 299 (A.P.).

DEFENCES IN DEFAMATION
A strong system of legal defenses which can be used against a defamation claim is
essential if defamation laws are not to unreasonably restrict the free flow of
information and ideas. There are five particularly important defenses against
claims of defamation which are drawn from international and comparative law. The
defences to an action for defamation are:
(1) Justification or Truth,
(2) Fair comment,
(3) Privilege, which may be either absolute or qualified.
1. Justification or Truth
In a civil action for defamation, truth of the defamatory matter is complete defense.
Under Criminal Law, merely proving that the statement was true is no defense.
First exception to sec. 499, I.P.C. requires that besides being true, the imputation
must be shown to have been made for public good 23 Under the Civil Law, merely
proving that the statement was true is a good defense. The reasons for the defense

I that the law will not permit a man to recover damages in respect of an injury to
a character which he either does not or ought not possess.24 The defense is
available even though the publication is made maliciously. If the statement is
substantially true but incorrect in respect of certain minor particulars, the defense
will still be available. If the defendant is not able to prove the truth of the facts, the
defense cannot be availed. In Radheshyam Tiwari v. Eknath25 the defendant, who
was editor, printer and publisher of a newspaper published a series of articles
against the plaintiff, a Block Development Officer, alleging that the plaintiff had
issue false certificates, accepted bribe and adopted corrupt and illegal means in
various matters. In an action for defamation, the defendant could not prove that
23 Ashok Kumar v. Radha Kanto Pandey, A.I.R. 1967 Cal. 178.
24 M.C., Pherson v. Daniels, (1929) 10 B. and C. 263, 272, Per Littiedate, J.
25 A.I.R. 1985 Bom. 285

the facts published by him were true and therefore, he was liable. Such defamatory
statement made in publication cannot be warded off under the guise of freedom of
the press secured under Article 19(1) (a) of the Constitution of India. In Alexander
v. North Eastern Ry., 26 There the plaintiff had been sentenced to a fine of 1 or
14 days imprisonment in the alternative, for travelling on a train without
appropriate ticket. The defendants published a notice stating that the plaintiff had
been sentenced to a fine of 1 or three weeks imprisonment in the alternative.
Held, the defendants were not liable, the statement being substantially accurate.
Even to apply the test of justification by truth, though fact that an alleged incident
was reported to the police, may not be in serious dispute, reporting of distorted and
deviated versions with comments, without proper verification of facts, and has
been held to be defamation. Such defamatory statements made in publication
cannot be warded off under the guise of freedom of the press secured under Article
19(1) (a) of the Constitution of India, it is ruled.27 The
Defamation Act , 1952(England) provides that if there are several charges and the
defendants is successful in proving the truth regarding some of the charges only,
thedefenseof justification may still be available if the charges not proved do not ma
terially injure thereputation. Dec. 5 of the Act provide :In an action for libel and
slander in respect of words containing two or more distinct charges against the

plaintiff, a defense of justification shall not fail by reason only that the truth of
every charge is not proved if the words proved to be true do not materially injure
the plaintiffs reputation having regard to the truth of remaining charges. Although
there is no specific provision in India regarding the above, but the law is possibly
the same as prevailing in England. DEFENCE OF THE TRUTH - BURDEN OF
PROOF Proof of truth should be a complete defense to an allegation of
defamation. The law of defamation should serve to protect individuals against
unwarranted attacks on their reputation ,rather than to protect their honor
regardless of whether their good reputation is deserved. At the26
(1885) 6 B & S. 340.27
See Salenandandsi v. Gajjala Malla Reddy, A.I.R. 2009 (NOC) 299 (A.P).

same time, an individual confronted with truthful revelations about his or her
private life may have a separate claim for invasion of privacy.In ordinary cases, it
is reasonable to expect the defendant to demonstrate the truthfulness of the
statement. However, in cases involving matters of public interest, such as a claim
by a public official, the burden of proof should be reversed and the plaintiff
required demonstrating the falsehood of the statement. The importance of enabling
debate on matters of public interest justifies placing a heavier burden on the
plaintiff. As the US Supreme Court stated: Under such a rule, would-be critics of
official conduct may be deterred from voicing their criticism, even though it is
believed to be true and even though it is in fact true, because of doubt whether it
can be proved in court or fear of the expense of having to do so. Instead, it should
be sufficient to show that the statement was correct in its essential elements.
2.
Fair Comment
Making fair comment on matters of public interest is a defense to an
action for defamation. For this defense to be available, the following essentials are
required:
(I)

it must be a Comment , i.e., an expression of opinion rather than assertion

of fact;

(II)

The comment must be fair; fair ; and

(iii) The matter commented upon must be

public interest
.
(I) Comment
Comment means an expression of opinion on certain facts. It should be
distinguished from making a statement fact. A fair comment is a defense by itself
whereas if it is a statement of the fact that can be excused only if justification or
privilege is proved regarding that. Whether the statement is a fact or a comment on
certain facts depends on the language used or the context in which that is stated.
(ii) The comment must be fair:
The comment cannot be fair when it is based upon untrue facts. A comment based
upon invented and untrue facts is not fair. Thus, in the review of a play when
immorality is imputed by suggesting that it contained an incident of adultery, when
in fact there was no such incident in the play, the plea of fair comment cannot be
taken. Similarly, if in a newspaper, there is publication of a statement of facts
making serious allegations of dishonesty and corruption against the plaintiff, and
the defendant is unable to prove the truth of such facts, the plea of fair comment,
which is based upon those untrue facts, will also fail. In the facts are substantially
true and justify the comment of the facts which are truly stated, the defense of fair
comment can be taken even though some of the facts stated may not be proved.
Sec. 6, Defamation Act, 1952 provides:
In an action for libel and slander in respect of words consisting partly of
allegation of fact and partly of expression of opinion, a defense of fair comment
shall not fail by reason only that the truth of every allegation of fact is not proved if
the expression is fair comment having regard to such of the facts alleged or
referred to in the words complained of as are proved.
In Gregory v. Duke of Brunswick,28 the plaintiff, an actor, appeared on the stage
of a theatre but the defendant and other persons actuated by malice hissed and
hooted at the plaintiff and thereby caused him to lose his engagement. Hissing and

hooting after conspiracy was held to be actionable and that was not a fair comment
on the plaintiffs performance
.
(iii) The matter commented upon must be of public interest:
Administration of Govt. departments , public companies, courts, conduct ofpublic
men like ministers or officers of state, public institution and local authorities,
public meetings, picture, theaters, public entertainments, textbooks, novels, etc. are
considered to be matters of public interest.
3 . Privilege
There are certain occasions when the law recognizes that the right of free speech
outweighs the plaintiff right to reputation :law treats such occasions to be
privilege and a defamatory statement made on such occasions is not actionable.
Privilege is of two types:
Absolute privilege and qualified privilege.
Absolute Privilege
In the matter of absoluteprivilege, no action lies for defamatory statement even
though the28
(1843) 6 M. & G. 205.

statement is false or has been made maliciously. In such cases, the public interest
demand that an individuals right to reputation should be give way to the freedom
of speech.
Absolute privilege is recognized in the following cases
:i) Parliamentary Proceedings
ii) Judicial Proceeding
iii) State Communication)

v) Publication between spouse)

vi) Publication required by officials)

Some Executive statement and publication, and

I) Parliamentary proceedings
Article 105 (2) of our Constitution provides that: (a) statement made by a member
of either House of Parliament in Parliament , and (b) the publication by or under
the authority of either House of Parliament of any report, paper, votes or
proceedings, cannot be questioned in a court of law. A similar privilege exits in
respect of a State Legislatures, according to Article 194(2).ii) Judicial proceeding
No action lies against judges, counsels, witnesses or, parties, for words written or
spoken in the course of any proceedings before any court recognized by law, even
though the words written or spoken maliciously, without any justification and from
personal ill will and anger against the person defamed. Protection to the judicial
officers in India has been granted by the Judicial Officers Protection Act, 1850.In
Jiwan Mal v. Lachhman Das, 29 on the suggestion of a compromise in a petty
suit by trial court, Lachman Das, a witness in the case, remarked, A compromise
cannot be effected as Jiwan Mal stands in the way. He had looted the whole of
Dinanagar and gets false cases set up.Jiwan Mal about who I the remark was
made, was a Municipal Commissioner of Dinanagar buthe had nothing to do with
the suit. In an action against Lachman Das for slander, the defense
29A.I.R. 1929 lah. 486.

Pleaded was that there was absolute privilege as the statement made before a court
of law. The High Court considered the remark of the defendant to be wholly

irrelevant to the matter under enquiry and uncalled for, it rejected the defense of
privilege and held the defendant liable.
ii) State Communication A statement made by one officer of the state to another in
the course of official duty is absolutely privileged for reason of public policy. Such
privilege also extends to report made in the course of military and naval duties.
Qualified Privilege

For the defense of qualified privilege, the statement must have made without
malice. There must be an occasion for making the statement. Generally, such a
privilege is available either when the statement is made in discharge of a duty or
protection of an interest, or the publication is in the form of report of parliamentary
proceedings. To defense to be available the defendant has to prove the following
two points:
1)The statement was made on a privileged occasion i.e., it was in discharge of duty
or protection of an interest; or it is a fair report of parliamentary, judicial or other
public proceeding
.2) The statement was made without any malice.
1) Statement should be made in discharge of a duty or protection of an
interest
The occasion when there is a qualified privilege to make defamatory statement
without malice are either when there is existence of a duty legal, social or moral to
make such a statement or, existence of some interest for the protection of which the
statement is made. For example: - A, a shopkeeper, say to B, who manages his
business, sell nothing to Z unless he pays you ready money, for I have no option
of his honesty. A is within the exception, if he has made his imputation on Z in
good faith for the protection of his own interests.
Publication of parliamentary proceedings

In India, the Parliamentary proceedings Act, 1977 grants qualified privilege to the
publication of the report of proceedings of Parliament. According to sec. 3(1) of
the Act, No person shall be liable to any proceedings, civil or criminal, in any court
in respect of the publication in a newspaper of a substantially true report of any
proceedings of either of House of Parliament unless the publication is proved to
have been made with malice.

2. Statement should be without malice

In the matter of qualified privilege, the exemption from liability for making
defamatory statement is granted if the statement is granted if the statement was
made without malice. The presence of malice destroys this defense. The malice in
relation to qualified privilege means evil motive. In
Horrocks v. Law,30 it was held that howsoever prejudice the defendant may have
been, or howsoever irrational in leaping to conclusions, unfavorable to the plaintiff,
but if he believe in the truth of what he had said on privilege.
Absolute Privilege Qualified Privilege
The Patna High Court in Pandey Surinder Sinha v. Bageshwari Prashad
, distinguished between the absolute and qualified privilege in the following words:
In absolute privilege, the defendant gets absolute exemption from liability, in a
qualified privilege the defendant get a conditional exemption from liability .In
absolute privilege, statement are protected in all circumstances irrespective of the
presence of good or bad motives, in qualified privilege,
even after a case of qualified privilege has been established by the defendant, it
may be met by the providing in reply improper or evil motive on the part of
defendant, in which case defense of qualified privilege vanishes and the plaintiff
succeeds.
30 (1964) 1 All E.R. 662.