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"State cannot use criminal defamation cases to throttle democracy", Madras HC junks scores of defamation cases by TN govt against media

"Criminal defamation law is meant for a laudable object in real cases of necessity and cannot be misused by using the State as a tool to settle scores of a public servant/constitutional functionary over an adversary."

Meera Emmanuel

The Madras High Court on Thursday was prompted to emphasise that criminal defamation proceedings cannot be misused by the State to throttle democracy or settle political scores with adversaries.

Pertinent observations on the subject of State-sanctioned criminal defamation under Section 199 (2) of the Code of Criminal Procedure (CrPC) were made by Justice Abdul Quddhose while allowing a batch of over 25 petitions by various media houses to quash defamation proceedings launched by the ruling regime over press reports dating between 2011-2013.

The media-houses who had petitioned the Court included The Hindu, Nakheeran, Times of India, Dinamalar, Tamil Muras, Murasoli and Dinakaran.

The press reports over which the State had launched prosecution for criminal defamation included reports of attack on the Nakheeran office by AIADMK activists (which the Court noted was merely a "factual narration"), statements made by opposition leaders, an interview with a woman alleging to be former Chief Minister and AIADMK supremo J Jayalalitha's daughter, protests by the opposition DMK over a cholera outbreak in the city, among various other reports.

In his common order, Justice Quddhose said, "The Criminal defamation law is meant for a laudable object in real cases of necessity and cannot be misused by using the State as a tool to settle scores of a public servant/constitutional functionary over his/her adversary." He added,

"A public servant/constitutional functionary must be able to face criticism. As public servants/constitutional functionaries, they owe a solemn duty to the people. The state cannot use criminal defamation cases to throttle democracy.
Madras High Court

The judge noted that there appeared to be a pattern of such misuse in Tamil Nadu, pointing out in his order that "from the year 2012 to 2020 and finds a slew of cases filed totally numbering 226 cases are pending on the file of various Sessions courts till date. Even as seen from these batch of writ petitions, within a short period, the State has filed a slew of Criminal defamation cases."

Referring to statistics gathered on the filing of such defamation cases by the State authorities, the Court commented, "As seen from the data, irrespective of political party who is in power, cases under section 199(2) Cr.P.C. have been filed. In many cases, the High Court has stayed the prosecution. Due to the mechanical filing of complaints under section 199(2) Cr.P.C., the Sessions Courts are sometimes clogged with those matters due to reckless filing without application of mind and sometimes vindictively."

"This menace will have to be curbed and nipped in the bud."
the Court added.

While dealing with a complaint made against one of the petitioners, the Court also had occasion to echo similar observations made recently in an other Madras High Court ruling when it observed that actual malice has to be present in the press report to attract defamation proceedings.

In the instant case, Justice Quddhose noted, "The role of any newspaper is only to disseminate the news that is happening around. You cannot treat it as defamation even if there are some inaccuracies in the report. Criminal defamation is much more than that i.e the imputation must be made recklessly with malice.

State should not be impulsive in defamation matters

In the course of its judgment, the Court also opined that the State should be slow in launching defamation proceedings against its citizens. The judge explained this stance with an analogy of how parents are generally expected to behave with their children.

"It is normal for some parents to face vituperative insults from their children. Despite those insults, parents don’t disown their children quite easily", the Court pointed out. It added, "The attitude of the State with regard to defamation must also be the same as their tolerance level towards its citizens in so far as defamation is concerned."

The Court further highlighted, "An individual or a public servant/constitutional functionary can be impulsive but not the State which will have to show utmost restraint and maturity in filing criminal defamation cases. If the State becomes an impulsive prosecutor in criminal defamation matters, that too in an era of social media where there are scores of abusive contents made against public figures, the Sessions Court will get clogged with innumerable matters which are sometimes vindictive in nature only to settle scores with opposition political parties. The intention of the legislature would never have been for this unlawful object."

State cannot be impulsive in launching defamation proceedings

After extensively referring to a number of caselaws and treatises concerning the freedom of speech and expression and defamation, including Justice (retd.) Deepak Gupta's recent comments on sedition law, the High Court also culled out certain cardinal principles to be followed when it comes to defamation complaints by the State.

These guidelines include the following:

  1. Being a non cognizable offence and considering the fact that there are large number of exceptions provided for, the intention of the legislature is to restrict the usage of the criminal defamation law.

  2. Only in cases where the State has been defamed and a public servant/ constitutional functionary has also been defamed while discharging his public functions, section 199(2) gets attracted and only then, a public prosecutor can launch a prosecution

  3. In cases where the public servant/Constitutional functionary has been defamed while discharging his public functions but the State has not been defamed, section 199(2) is not attracted. The only recourse available to him is to file a complaint before the Magistrate under section 199(6) Cr.P.C.

  4. The State must apply its mind to the materials placed on record before granting sanction to the public prosecutor for launching prosecution under section 199(4) CrPC.

  5. The public prosecutor must independently assess the materials available on record and must independently take a view as to whether the materials available are sufficient to launch prosecution on behalf of the State under section 199(2) CrPC.

  6. The complaint filed before the Sessions Court under section 199(2) CrPC. shall set forth in the facts which constitutes the offence alleged more importantly as to how the State has been defamed, the nature of such offence and such other particulars as our reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.

  7. The level of scrutiny by a Sessions Court under section 199(2) CrPC. is much higher than the scrutiny by a Magistrate under section 199(6) CrPC.

  8. The Sessions court cannot mechanically take cognizance of the complaint and issue process to the accused. The court will have to independently apply its judicial mind and assess the materials and only if it is satisfied take cognizance of the complaint.

  9. The materials assessed shall be indicated by the Sessions Court in its order taking cognizance of the complaint filed under section 199(2) CrPC.

  10. The State should not be impulsive like an ordinary citizen in defamation matters and invoke section 199(2) CrPC. to throttle democracy. Only in cases where there is foolproof material and when launching of prosecution under section 199(2) CrPC. is inevitable, the said procedure can be invoked.

  11. Quashing of criminal complaints involving criminal defamation can be done by the High Court exercising its power either under Article 226 of the Constitution of India or under Section 482 CrPC.

  12. The High Court has got the constitutional power to quash Government Orders sanctioning prosecution under section 199(2) CrPC, if the competent authority, without any material as to how the State is defamed, has sanctioned prosecution.

Prosecution does not mean persecution

Further, Justice Quddhose also commented on the role expected to be played by a public prosecutor in State-sanctioned criminal defamation proceedings. In this regard, he issued the following guidelines.

  • As noted in the Supreme Court ruling in Bairam Muralidhar v. State of AP, a public prosecutor cannot act like a mere post office but should independently apply his mind before prosecuting the criminal complaint and he should also be fair to the court.

  • A Public prosecutor must consider himself/herself as an agent of justice.

  • There should not be on the part of the public prosecutor a blind eagerness for, or grasping at a conviction.

  • The prosecution of the accused persons has to be conducted with utmost fairness. In undertaking the prosecution, the State is not actuated by any motives of revenge but seeks only to protect the community. There should not therefore be seemly eagerness for, or grasping at a conviction.

  • A public prosecutor should not by statement aggravate the case against the accused, or keep back a witness because his/her evidence may weaken the case of the prosecution.

  • A public prosecutor should place before the Court whatever evidence is in his/her possession.

  • A public prosecutor should discharge his/her duties fairly and fearlessly and with full sense of responsibility that attaches to his/her position.

  • Prosecution does not mean persecution.

Ultimately, the High Court proceeded to allow all the petitions before it and quash the criminal defamation proceedings launched under Section 199 (2), CrPC, noting,

"For the foregoing reasons, all the writ petitions deserve to be allowed as none of the prosecutions fall under the category of Section 199(2) Cr.P.C though some as indicated in this common order may fall under Section 199(6) Cr.P.C. Accordingly, these writ petitions are allowed as prayed for."

Madras High Court

Read the common order:

N.Ram, Editor-in-Chief, The Hindu and ors. v. UOI and ors - Madras HC order.pdf
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