Economic and Political Weekly May 31, 2003 2109

Defamation and Public

Advocacy
A recent judgment of the City Civil Court, Mumbai, raises hopes of
a meaningful contribution by the district judiciary to protection of
the right to criticism of illegal acts of the state and hegemonic civil
society bodies.
S P SATHE
J
udicial activism of which public in-
terest litigation is an important by-
product grew in India from the late
1970s mainly to facilitate access to courts
for the less fortunate people whose rights
were trampled upon and who had no
resources to come to court in defence of
them. Since then the Supreme Court of
India and the high courts have come to
occupy larger space in the political
economy of the country (see S P Sathe,
Judicial Activism in India: Transcending
Borders and Enforcing Limits, OUP, New
Delhi, 2002). Despite the cynicism over
judicial process which the activists often
display, more and more of them went to
court and obtained many a time desirable
results. But judicial activism, if confined
to the higher courts, is bound to restrict
access in relative terms. It is necessary to
activise the district judiciary (I purposely
do not use the usual expression subor-
dinate judiciary which smacks of hierar-
chical disdain) particularly to provide
protection against illegal acts of the state
and hegemonic civil societies. In a country
where the government as well as civil
society lack adequate regard for individual
freedom and the rule of law, such activist
role of the courts at least for some time
is welcome and desirable. Judge Roshan
Dalvis judgment from the City Civil Court,
Mumbai in Shree Maheshwar Hydel Power
Corporation Ltd vs Chitroopa Palit and
Suresh Verma (two activists of the
Narmada Bachao Andolan (NBA) ) raises
hopes of a meaningful contribution by
the district judiciary to the freedom of
jurisprudence.
SMHPCL. The interim injunction is a
temporary injunction until the suit is
finally heard. It is after the final hearing
that the injunction could be converted into
a permanent injunction. The temporary
injunction was not only against the two
activists named as defendants, but against
NBA as a whole. The result was that the
entire scrutiny of the project through public
advocacy had stopped.
SMHPCL had executed an MoU with
the government of Madhya Pradesh and
had obtained various clearances from
various ministries of the central govern-
ment. NBA pointed out various flaws in
the working of the above project. NBAs
main objections were the following:
(1) SMHPCL did not provide for alter-
native agricultural lands to the displaced
persons as had been agreed upon. The land
given was not fit for agriculture. The
rehabilitation policy of the MP govern-
ment for oustees of Narmada projects as
well as the conditions for the environ-
mental clearance of the ministry of environ-
ment required that the affected people be
settled with agricultural land in lieu of the
agricultural land that they had lost. Only
in very exceptional cases a displaced person
could be given compensation in cash. NBA
contended that not a single affected family
had been given agricultural land and that
S Kumars had forced several people to
accept cash compensation. This had been
well documented in the Report of the Task
Force set up by the state government in
1998, the Tour Report of the ministry of
environment and forests (MOEF)of 1999,
and the Report of the German Develop-
ment Ministry in June 2000. In the report
of the Monitoring Committee of the
ministry of environment and forest of 2002,
it was said that not a single condition of
the environmental clearance including
land-based rehabilitation had been com-
plied with.
(2) The project was not likely to produce
as much power as claimed by SMHPCL.
Although it has an installed capacity of
400 MW, it would have a firm power
production of only 92 MW initially and
49 MW finally. In 1994 the project cost
was only Rs 465 crore, the estimated project
outlay had increased to around Rs 2,233
The Indian state has power to make
contracts and conduct commercial activi-
ties (Articles 298 and 299, Constitution
of India). Although the Supreme Court
has laid down various parameters for the
proper exercise of such power, we come
across instances such as Enron where
clearly such power was not exercised to
protect public interest. While during the
days of socialism, the state was accused
of using public money improperly with
respect to enterprises in the public sector
(Mundhra affair and Justice Chaglas
enquiry), since liberalisation, there have
been instances in which the state has used
private enterprise as an instrument of
development and the people have had to
raise questions regarding the legality as
well as propriety of such transactions. The
Mundhra affair was exposed by members
of parliament, but in recent years such
watchdogging has rarely been done by
parliament, and the burden of doing so has
fallen on voluntary groups. The case on
which we intend to comment was one in
which NBA a non-violent organisation
crusading for the cause of persons dis-
placed by big dams campaigned against
S Kumars, the proprietors of the Shree
Maheshwar Hydel Project Corporation
(SMHPCL), a company which had under-
taken to develop fully and own a 400 MW
project of power generation. NBA had
pointed out several flaws in the operation
of the above project. It did so out of its
concern for public interest. It was against
such public advocacy that S Kumars ap-
proached the City Civil Court of Mumbai
in a suit for defamation. They also secured
an interim injunction against NBA forbid-
ding it to conduct any campaign against
Commentary
Economic and Political Weekly May 31, 2003 2110
crore. Such a huge increase in outlay
combined with the deemed generation
clause, which meant compulsory payments
at deemed generation levels, irrespective
of actual production, the guaranteed rates
of return on equity ranging from 16 to 32
per cent and a power purchase agreement
that was to be valid for 35 years had
increased the cost of power to make it
prohibitively expensive. Based on the tariff
formula in the power purchase agreement,
it could be conservatively estimated that
the average cost of power would be around
Rs 4-5 per kWh. Comparing this with the
cost of power produced by the State Elec-
tricity Board which was Rs 1.25 per kWh
for thermal and Rs 0.25 per kWh for hydel
and the cost of the NTPC-produced power
which was Rs 1.67 per kWh, the cost of
Maheshwar power would be prohibitive.
(3) The project which was to be a private
sector project was sought to be financed
by public money. Except a very small
amount to be put in by S Kumars, the entire
cost was to be financed by public finance
institutions. The Power Finance Corpora-
tion (PFC) was the largest lender to the
project. It had agreed to advance a loan
on condition that SMHPCL paid the earlier
defaults. SMHPCL was the PFCs third
largest defaulter. NBA in its campaign said
that in view of it being the largest defaulter
it would be completely illegal for the PFC
to give to S Kumars a credit enhancement
guarantee, any sort of default guarantee or
any more public monies.
The SMHPCL contended that NBA was
indulging in an aberrant, acerbic, mali-
cious campaign to mislead certain sections
of the media and the society. The defen-
dants (NBA) argued that all such matters
were of public interest and the people were
entitled to know how agreements were
made on their behalf and what liabilities
were being incurred for them.
Judge Dalvis Decision
Judge Dalvi dismissed the suit and also
vacated the injunction. She, however,
allowed the temporary injunction to con-
tinue till June 9 in order to give time to
the plaintiffs to appeal against her decision
to the higher court.
Defamation has become a tool for sup-
pressing criticism against public acts and
also for harassing people who bring out
the truth. It is a kind of censorship. It is
used as a weapon against freedom of speech,
which is a vital entitlement of a citizen in
a democracy. While mobilising public
opinion against the dam, NBA was bound
to come out with the facts which showed
that the plaintiffs were not doing what they
were supposed to do. Should the law of
defamation apply to such situations with-
out any modifications necessitated by their
public interest character?
The crucial question was whether a
voluntary group could educate the people
about public affairs. Where the govern-
ment entrusts such a big project to a private
enterprise, is it not obligatory on its part
to inform the people the terms of the
agreement and if a voluntary agency raised
doubts about the wisdom or honesty of
those deals, should it be hauled up for
defamation? The defendants could prima
facie establish that their allegations were
based on authentic reports of various state
bodies including the comptroller and
auditor general of India. When such deals
are made in secrecy, we come across Enron
or Bhopal Gas Disaster types of situations.
Judge Dalvi observed that the plaintiffs
action was for an injunction restraining the
defendants from committing the tort of
defamation by their writings, statements,
publications, etc. Such action was gov-
erned by the common law. (In India, there
is no statutory law regarding civil liability
and therefore we follow the English com-
mon law.) Under the common law once
the defendant pleads that he would justify
his words by producing evidence for it, an
injunction could not be issued unless the
court was satisfied that the defendant would
not be able to justify his statements, they
being utterly malicious and completely
bereft of the truth. The whole case, accord-
ing to the judge, depended upon the
plaintiffs seminal contentions that the
project is of national importance. She
further said: It [the project] is, therefore,
subject to public scrutiny and open to
public discussion which can materialise
only from publishing writings, statements,
etc, and making them known to the public
who have as much right to receive such
information as the defendants had of dis-
seminating it. The learned judge rightly
observed that all that can be seen is that
certain facts are sought to be brought to
the notice of the pubic which the plaintiffs
seek to reverse. The judge therefore
concluded that the plaintiffs actions (of
censoring such advocacy by filing a defa-
mation suit and obtaining temporary
injunction) were against the public at large.
It was for the plaintiffs to show that the
state of affairs were otherwise than as
alleged by the defendants. Shutting the
mouths of the defendants was therefore
not an answer to an issue of such impli-
cation and ramification concerning public
money, the judge observed.
This suit was filed against NBA who
wanted people to know certain facts about
the Maheshwari dam project because a
large amount of public money was in-
vested in it. It was not a mere private
commercial enterprise but a private com-
mercial enterprise with the active support
of the state and with the use of public
money. People have the right to know even
when a purely commercial enterprise is in
question because such an enterprise is
subject to governmental regulation. Even
a private commercial concern is required
to obtain permission from the government
and various clearances such as environ-
mental clearance. If such permissions or
clearances are given without proper scru-
tiny, should the people not ask questions?
Democracy cannot function efficiently
unless there is vigilant civil societys
control. Such societal vigilance is exer-
cised by voluntary agencies on behalf of
the people. Of late, the Supreme Court has
held that the state is liable in tort even when
it fails to exercise its regulatory power
efficiently, thereby causing loss to the
people. Recently the Delhi High Court
entertained a writ petition and asked the
municipal corporation to pay compensa-
tion to the victims of the Uphar theatre
tragedy in which many people died and
even more were injured due to the breaking
out of a fire in the theatre. The theatre-
owner was held responsible for his failure
to instal safety devices and the corporation
was held responsible for the failure of its
officials to insist that all safety precautions
had been taken before giving a licence to
the theatre. If the state does not exercise
enough caution while exercising its regu-
latory function, it is liable to pay compen-
sation. But compensation comes after the
disaster has occurred. How was such a
disaster to be averted? It can be averted
only if there is vigilant watch by civil
society and NBA did what civil society
was supposed to do. The law of defama-
tion is a private law meant to make irre-
sponsible or malicious statements hurting
another persons reputation expensive by
imposing liability. Even in a defamation
Economic and Political Weekly May 31, 2003 2111
suit, the truth is a defence because it is in
public interest that the truth be said. If in
a private dispute the speaking of the truth
can be a defence, there is far greater jus-
tification for its revelation where public
affairs are concerned. Democracy is
posited on the belief that the government
or the public bodies must be accountable
to the people. Such accountability is
reinforced when voluntary groups or
political parties question government
policy and expose its lapses. The standard
of the truth as a defence ought to be
much more lenient where public actions
of the state or its agencies are involved
than it would be in a dispute between two
private parties.
Criticism of Public Functionaries
In fact the law of defamation ought to
provide space for a critique of the acts of
public functionaries. Article 19 (1)(a) of
the Constitution gives to every citizen the
fundamental right of freedom of speech
and expression. This right is subject to a
law which imposes reasonable restrictions
in the interests of the sovereignty and
integrity of India, the security of the state,
friendly relations with foreign states, public
order, decency or morality or in relation
to contempt of court, defamation or incite-
ment to an offence. The words in relation
to contempt of court, defamation or incite-
ment to an offence must be read in con-
junction with the earlier words of that sub-
article meaning thereby that restrictions
in relation to contempt of court, defama-
tion or incitement to an offence also must
be reasonable restrictions. The laws of
contempt of court and defamation need to
be interpreted in such a manner that they
fall within the parameters of reasonable
restrictions on freedom of speech and
expression.
The Supreme Court of India has shown
awareness of this in R Rajgopal vs State
of Tamil Nadu [(1994) 6 Supreme Court
Cases, p 632]. This case is popularly known
as Autoshankars case. The petitioner was
the editor, printer and publisher of a Tamil
weekly. He had agreed to publish an
autobiography of one Shankar who had
been convicted of murder and sentenced
to death. Shankar drove an auto and there-
fore he was called Autoshankar. The
autobiography was to reveal the close
association of some police officers in the
crimes committed by him. The police
authorities issued a warning to the peti-
tioner against publishing that book be-
cause they alleged that it was an attempt
to blackmail them. The petitioner there-
fore urged upon the court to restrain the
police from interfering with the publica-
tion of the book. It was his fundamental
right to publish and also of the author to
write, being part of his fundamental right
to freedom of speech. The police officers
also invoked their right to privacy against
the petitioners right to publish. The
Supreme Court has held that the right to
privacy was included within the right to
life and personal liberty protected by
Article 21 of the Constitution. Since the
freedom of speech and right to privacy are
parts of the same list of fundamental rights,
the courts interpret them not in isolation
but as parts of an integrated code of rights.
These two rights have to be interpreted
harmoniously so as to give effect to each.
Privacy of ones life is indeed important
for an individual but can privacy be claimed
in respect of acts which are essentially
public? These are not private acts and
therefore would not attract the right to
privacy. Certainly there cannot be prior
restraint on the ground of privacy so far
as written or oral speech is concerned.
Breach of privacy could be a ground for
civil action for torts and an injunction
might be issued if such speech is likely to
harm ones reputation irreparably. While
issuing an injunction, the courts have to
look to the balance of convenience. Where
freedom of speech is at stake, the court
would be much more reluctant to issue an
injunction. The Supreme Court has made
it clear that the right to privacy could not
be pleaded to stop criticism of the conduct
of public functionaries. Justice B P Jeevan
Reddy, speaking for the Court said: [(1994)
6 SCC, p 632, 650]
In the case of public officials, it is obvious,
right to privacy, or for that matter, the
remedy for action for damages is simply
not available with respect to their acts and
conduct relevant to the discharge of their
official duties. This is so even where the
publication is based upon facts and state-
ments which are not true, unless the official
establishes that the publication was made
(by the defendant) with reckless disregard
for truth. In such a case, it would be enough
for defendant (member of the press or
media) to prove that he acted after a rea-
sonable verification of the facts: it is not
necessary for him to prove that what he
has written was true.
Although the court spoke about the law
of privacy, we hope that the court will
apply the same rule to the law of defama-
tion in so far as public officials and public
functions are concerned. Freedom of speech
and expression is the most important at-
tribute of democracy. In democracy, the
decisions of the government must be
subjected to criticism. Even if all the points
against a governmental decision or policy
might not be valid, people ought to have
the freedom to air their views and objec-
tions. The government and the officials
must rebut such allegations and justify
their policies. It may be that all that is said
against a public functionary may not be
true. But it would be better to allow even
such criticism, unless it is malicious and
perverse. The onus to prove that they are
right must lie on the public officials or
those who perform public functions.
Between freedom of speech and censor-
ship of speech, the former must prevail
unless speech causes incalculable harm.
Speech which amounts to sedition could
be punished but a distinction must be made
between sedition and criticism.
Another case which allows freedom of
speech to prevail even if what is said is
not true is Gadakh Yashwantrao Kanakrao
vs Balasaheb Vikhe Patil. The election of
Gadakh had been invalidated by the high
court on the ground that he had committed
a corrupt practice as defined in Sec-
tion 123(4) of the Representation of the
People Act, 1951. Section 123 (4) declares
any publication by a candidate or his agent
or by any other person with the consent
of the candidate or his agent, of any state-
ment of fact which is false or which he
does not believe to be true, in relation to
the personal character or conduct of any
candidate or in relation to the candidature,
or withdrawal of any candidate, being a
statement reasonably calculated to preju-
dice the prospects of that candidates
election is a corrupt practice. Both Gadakh
and his supporter Sharad Pawar had said
that Vikhe Patil gave bribe to the voters.
Ashok Desai who appeared on behalf of
Gadakh said that in view of the fall in
standards of ethical behaviour of the
political class in general, such accusations
were not likely to have any effect on the
candidates election. Appearing for Vikhe
Patil, Ram Jethmalani said that it was
better that such allegations were made
because through them the people knew
what malpractices were prevalent among
Economic and Political Weekly May 31, 2003 2112
politicians. Justice J S Verma (as he then
was) deplored the tenor of the speeches
but did not agree that they amounted to
corrupt practice. In order to be a corrupt
practice, all the following elements must
exist: (1) statement of fact which is false
and which the speaker knows to be not
true; (2) it should relate to the personal
character of the candidate; and (3) it should
be reasonably calculated to prejudice the
prospects of the candidate in the election.
Justice Verma said:
It is clear that every statement of fact in
relation to the personal character of any
candidate does not amount to a corrupt
practice under Section 123 (4) unless all
the requirements of the provision are
satisfied notwithstanding the fact that
such a statement may be defamatory in
character. The additional requirements to
constitute a corrupt practice are obviously
to maintain the delicate balance between
the freedom of speech of an individual
and the public interest in giving full
information to the electorate of the
candidate.
The provision under Section 123 (4) of
the RPA was given such strict interpreta-
tion in order to allow maximum scope for
freedom of speech. The balance had to be
struck between freedom of speech and
decency in elections. Peoples right to know
about the candidates is now fulfilled by
the requirement of giving information about
himself by the candidate in his nomination
paper (PUCL vs Union of India, Judgment
Today, 2003(2) SC 528). The provision in
Section 123(4) needs to be read strictly for
that purpose. To read a law strictly means
to confine it to the narrowest ambit. Strict
construction of penal or fiscal statutes is
a common law tradition meant to protect
individual liberty. In common law, what-
ever is not prohibited is liberty and there-
fore the courts construe the prohibitions
strictly so as to maximise liberty. A restric-
tion on freedom of speech is construed
narrowly unless the interest sought to be
subserved by the restriction on freedom of
speech is as important as freedom of speech.
For example, Section 153A of the IPC
punishes acts promoting enmity between
different groups on grounds of religion,
race, place of birth, residence, etc. Section
153-B of IPC forbids hate speeches against
a community. The interests protected by
these sections are communal harmony
and secularism which are held to be part
of the basic structure of the Constitution
(S R Bommai vs Union of India AIR 1994
SC 1918: (1994) 3 SCC 1). Therefore
those provisions were construed liberally
and were held as reasonable restrictions on
freedom of speech (see Sathe, Judicial
Activism in India, op cit, pp 182-85). From
this it follows that restriction on freedom
of speech is assessed in the context of
whether such restriction serves an equally
important, if not more important, social
interest than the freedom of speech. Ap-
plying this to the law of defamation, the
courts, it is hoped, would require less
stringent standard of proof by the defen-
dant in cases of criticism of the acts of
public functionaries. If the defendant
establishes prima facie that what he said
was necessary in public interest, a less
rigorous standard of proof of the truth
should be applied. Once the prima facie
proof of the truth behind the statement is
given by the defendant, the onus must shift
on the plaintiff to prove that the criticism
was malicious and served no public inter-
est. The defendant may not prove the truth
of his statements beyond any doubt. It
should be enough if he shows to the court
that the statements were made in public
interest and were based on reasonable
verification of the facts. While dealing
with a defamation suit, in which public
advocacy is challenged, the courts ought
to adopt the same approach which the
Supreme Court adopted in the Rajgopal
and Gadhakh cases. In fact in Rajgopal,
Justice B Jeevan Reddy had said that what
was said in respect of the law of privacy
could also apply to the law of defamation.
But that was an obiter dicta. It is hoped
that when such a matter is brought
before the Supreme Court, the court will
read the law of tort of defamation in the
light of the constitutional law of freedom
of speech.
Applications are invited for a 15-day residential course in Kolkata, India
(1-15 December 2003) in critical studies on forced displacement. The
short-term winter course, to be organised by the Mahanirban Calcutta
Research Group (MCRG), is intended for younger academics, refugee
activists and others working in the field of human rights and humanitarian
assistance for victims of forced displacement. The course will be preceded
by a two-month long programme of distance education. The curriculum
will deal with themes of nationalism, ethnicity, partition, and partition-
refugees, national and international regimes of protection, political issues
relating to regional trends in migration in South Asia, internal displacement,
the gendered nature of forced migration and protection framework, and
resource politics, environmental degradation and forced migration. The
course will emphasise on experiences of displacement, creative writings
on refugee life, critical legal and policy analysis, and analysis of notions
of vulnerability, care, risk, protection and settlement.
Applicants must have (a) 3 years experience in the work of protection
of the victims of forced displacement, or hold postgraduate degree in
Social Sciences or Liberal Arts, and (b) proficiency in English. Besides
giving all necessary particulars, an application must be accompanied by
an appropriate recommendation letter and a 500-1000 word write-up on
how the programme is relevant to the applicants work and may benefit
the applicant. Selected candidates will have to pay Rs. 2000/ each as
registration fee. MCRG will bear accommodation and other course
expenses for all participants, and will offer limited number of travel grants.
Applications, addressed to the course coordinator, can be sent by e-mail
or post, and must reach the following address by 30 June 2003 - Mahanirban
Calcutta Research Group, 5B Mahanirban Road, Kolkata - 700029, India,
Email: mcrg@cal.vsnl.net.in
EPW