Selvi J. Jayalalithaa and Another vs R. Rajagopal @ R.R. Gopal @ Nakkheerangopal and Another

M. Chockalingam, J.—This order shall govern the above two applications. The former was taken by the plaintiffs seeking temporary

injunction restraining the respondents/defendants from publishing in future publications, articles, caricatures, news items, cartoons, etc., defamatory

or derogatory in nature in the Tamil bi-weekly Nakkheeran or in any special editions thereof or any publications of the respondents/defendants

without prior verification with the plaintiffs, pending the suit, while the latter was taken by the defendants for vacating the order of ad-interim

injunction ex parte granted by this Court.

Affidavits in support of the applications and counter affidavits are perused. The averments in the plaint are also looked into. The Court heard the

learned Counsel on either side.

Advancing the arguments for the applicants/plaintiffs, the learned Counsel would submit that this is a suit for recovery of damages and also for

permanent injunction restraining the defendants from publishing in future publications, articles, caricatures, news items, cartoons, etc. defamatory or

derogatory in nature in the Tamil biweekly Nakkheeran or in any special editions thereof or any publications of the defendants without prior

verification with the plaintiffs; that the plaintiffs at the time of the filing of the suit have filed 24 issues of the said bi-weekly magazine; that a reading

of the same would clearly indicate that the defendants have made the defamatory publications continuously; that they would clearly and easily

illustrate that they are per se defamatory and highly vituperative in all standards; that they are printing and publishing the same on the title page with

broad headings or headlines as well as on the cover page, apart from featuring the photographs of the first and second plaintiffs or both; that none

of the publications against the plaintiffs were found to be true or made on good faith after prior verification; that the defendants have been acting at

the instigation of and have been closely moving with a political adversaries of the first plaintiff, who has been the Chief Minister of the State; that

apart from that, deterrent action was taken by the first plaintiff as the Chief Minister of the State against the sandalwood bandit namely Veerappan;

that the first defendant had occasions to meet the said Veerappan, for which he has not made any explanation how it took place when series of

cases were brought forth against the said person; that there are also cases of heinous and grave crimes pending against the first defendant; that

under the circumstances, the first defendant has developed all sorts of animus against the plaintiffs; that the plaintiffs had got their protection under

Article 21 of the Constitution of India that they must live peacefully without being unnecessarily defamed by false and vituperative articles or by

statements; that the defendants have been writing such articles and carrying them in their magazine and also continuing to do so; that it has gone to

intolerable extent, and hence, the circumstances compelled the plaintiffs to come before the Court seeking the reliefs. Added further, the learned

Counsel that in the instant case, it is true that the defendants have got the right of criticism; but, the writings in the magazines which are brought to

the notice of the Court, would clearly touch the personal life of the plaintiffs; that it can even be termed as character assassination; that ulterior

motives have been brought forth, and apart from that, they attempted to cause defamation and shame to the plaintiffs. The learned Counsel in order

to substantiate his contentions, relied on the following decisions:

(1) K.V. Ramaniah Vs. Special Public Prosecutor, ;

(2) National Sugar Mills Ltd. Vs. Ashutosh Mukherjee, ;

(3) Hari Shankar Vs. Kailash Narayan and Others, ;

(4) Sonakka Gopalagowda Shanthaveri and Others Vs. U.R. Anantha Murthy and Others, ;

(5) 1995 2 CTNC 89 H.M. Kari Gowder v. H.M. Halan;

(6) 1996 AIHC 4509 All India Anna Dravida Munnetra Kazhagam v. K. Govindan Kutty;

(7) Southern Petrochemical Industries Corporation Ltd. Vs. A.S. Mani and Another, ; and

(8) Shilpa S. Shetty Vs. Magna Publications Co. Ltd. and Others, .

Taking the Court to different parts of the decisions, the learned Counsel for the plaintiffs would submit that the averments made in those articles,

are not true and would not reflect truth; that apart from that, even in the course of the counter, the respondents have not denied any one of them;

but, they would state that they are Justified, and they could do so because they have got unfettered right enshrined under the Constitution and other

enactments also, and under the circumstances, it has become necessary to restrain them by passing an order of temporary injunction as one asked

for in the application.

Countering the above contentions, the learned Counsel appearing for the respondents/defendants while admitting all the publications made by

the defendants in the bi-weekly magazine, which are 24 in number and which are before the Court, would submit that those statements are all

justified; that the defendants are protected by the freedom of press as enshrined in Article 19(1) of the Constitution of India; that the first plaintiff as

the Chief Minister of the State must be Judged by the public; that when a man puts himself prominently forward in any way and acquires for a time

a quasi-public position, he becomes amenable to public criticism, and whoever seeks notoriety or invites any public attention, thereby subjects

himself to public criticism; and that in the instant case, the plaintiffs have posed themselves to the public criticism. The learned Counsel would

further submit that in cases of temporary injunction to be granted at the time of the filing of the suit, three prime conditions have to be taken into

account namely (1) prima facie case; (2) the comparative mischief or balance of convenience; and (3) irreparable Injury; that in the instant case,

neither a prima facie case is shown nor a comparative mischief is brought forth; that apart from that, balance of convenience for granting temporary

injunction is not in favour of the plaintiffs; that irreparable injury is also not shown; and that even assuming for a moment, the publications have been

done and they are defamatory in nature, there is always common law remedy available to the plaintiffs asking for damages and not asking for an

injunction as one done in this case. The learned Counsel would further add that there are number of decisions pointing to the fact that whenever a

person comes with the suit for defamation in respect of the articles made in booklets, he must bring to the notice of the Court that part of the

defamatory statement by way of reproduction in the plaint; but, in the instant case, nothing has been done either in the plaint or in the affidavit in

support of the application for temporary injunction. Added further the learned Counsel that it is true that all those publications are effected; but,

when they are looked into, it would show that they are made in good faith, for public good and without any malice or ill-will or ulterior motives;

that on the other hand, the publications are true in substance, fair, accurate and constructive comments; that apart from that, the defendants had

never any intention to defame the plaintiffs at all since the publications are fair and accurate; that the defendants are investigative journalists devoted

to purveying news and views to the public in general, for the welfare and the general interest of the society; that it is not their intention to cause any

damage or injury to the reputation of any one of the plaintiffs; that they have no personal vendetta as put forth by the plaintiffs'' side; but, they have

been in the discharge of their journalistic duties; that sometimes some of the fair and accurate news Items happen to be unpalatable to people in

public positions; and that it may cause anger and disappointment, for which they cannot be found fault with. It is the further submission of the

learned Counsel that in the instant case, no part of the publications made in any one of the 24 issues, could be called or found to be defamatory;

that the allegations what have been brought forth would speak of the official activities of the first plaintiff and also the care shown by the second

plaintiff on the first plaintiff; that as the citizens of the State, they are also interested in the welfare and health of the first plaintiff who happened to be

the Chief Minister of the State; that the first plaintiff is not only the Chief Minister, but also the grandiose leader of a political party; that every

movement and action on her part is a matter of public interest and public criticism, and hence, no part of the publication can be made as one

objectionable. The learned Counsel would further add that even in the instant case, it is a fair comment; that the press has got all its right to make a

fair comment; that when a perusal of the said 24 issues is made, nowhere the bounds of the press is exceeded; that apart from that, personal life of

the plaintiffs is not at all spoken to anywhere, and under the circumstances, now, a case itself has been brought forth against the defendants for

damages and also for permanent injunction; and that if the plaintiffs are unable to show any prima facie case, temporary Injunction cannot be

granted. The learned Counsel would also submit that whenever any article is brought forth, it will be verified with the witnesses before making

publication; that they have also been mentioned in their respective articles; that the plaintiffs before making a suit before the Court, should have

verified from those persons in order to make out a proper case; but, they have thoroughly failed to do so; that since no prima facie case is made

out, they are not entitled for the relief as one asked for, and hence, the application for temporary injunction has got to be dismissed, and the ex

parte injunction granted by this Court has to be vacated. In support of his contentions, the learned Counsel relied on the following decisions:

(1) Dalpat Kumar and Another Vs. Prahlad Singh and Others, ;

(2) 1995 2 L.W. 458 Shanmugavel Case;

(3) R.M. Subbiah and Another Vs. N. Sankaran Nair and Another, ;

(4) Odyssey Communications Pvt. Ltd. Vs. Lokvidayan Sanghatana and Others, ;

(5) Nawab Mir Barkat Ali Khan Vs. Nawab Zulfiquar Jah Bahadur and Others, ;

(6) Reliance Petrochemicals Ltd. Vs. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. and Others, ;

(7) National Sugar Mills Ltd. Vs. Ashutosh Mukherjee, ;

(8) (1969) 1 All ER8 Faraser Case;

(9) Abdul Wahab Galadari Vs. Indian Express Newspaper (Bombay) Ltd. and others, ;

(10) (1982) 2 All ER 701 Hara Kas Case;

(11) A. Venkatasubbiah Naidu Vs. S. Challappan and Others, ;

(12) AIR 1940 125 (Nagpur) ;

(13) 1956 Nag 264 : AIR 43 C 84 Nov. Krishnarao Jagoba Parkhi Case;

(14) W. Hay and Others Vs. Aswini Kumar Samanta, ;

(15) Purshottam Lal Sayal Vs. Prem Shanker, ;

(16) (1972) 3 All ER 417 DDSA Pharmaceuticals Ltd. Case;

(17) Kalyanam Vs. Ramesh, ;

(18) R. Rajagopal alias R.R. Gopal and Another Vs. State of Tamil Nadu and Others, ;

(19) Secretary, Ministry of Information and Broadcasting, Govt. of India and others Vs. Cricket Association of Bengal and others, ;

(20) S. Rangarajan Vs. P. Jagjevan Ram and Others, ;

(21) Odyssey Communications Pvt. Ltd. Vs. Lokvidayan Sanghatana and Others, ;

(22) Kartar Singh and Others Vs. The State of Punjab, ;

(23) Union of India (UOI) Vs. Association for Democratic Reforms and Another, ;

(24) (1977) 2 All ER 751 Woodward Case;

(25) (1920) 1 KB 135 Lyle Samuel Case;

(26) (1908) 2 KB 309 Hunt Case:

(27) Purushottam Vijay Vs. The State, ;

(28) Raghunath Singh Parmar Vs. Mukandi Lal, ;

(29) Southern Petrochemical Industries Corporation Ltd. Vs. A.S. Mani and Another, ;

(30) Shilpa S. Shetty Vs. Magna Publications Co. Ltd. and Others, ;

(31) Hari Shankar Vs. Kailash Narayan and Others, ;

And

(32) Municipal Corporation of Delhi Vs. Gurnam Kaur, .

From the averments made in the affidavits, counter affidavits and the averments in the plaint and submissions made by the learned Counsel on

either side, it could be seen that it is a suit filed by the plaintiffs seeking recovery of damages of Rs. 2 Crores alleging that the first defendant as

Editor, Printer and Publisher of Nakkheeran Biweekly and the second defendant as the Associate editor of the same have made li-belous

statements in 24 bi-weekly issues, which are filed along with the plaint, and for permanent injunction restraining them from publishing in future

publications, articles, caricatures, news items, cartoons, etc., defamatory or derogatory in nature in the Tamil bi weekly Nakkheeran or in any

special editions thereof or any publications of the defendants without prior verification with the plaintiffs. Admittedly, both the defendants have

categorically admitted in the course of their counter that the first defendant/respondent is the Editor, Printer and Publisher and the second

defendant is the Associate Editor of Nakkheeran bi-weekly magazine. It is also true that all those 24 publications were made by them; but, in their

counter, they would plead that all those statements were made in good faith, for public good and without any malice or ill-will or ulterior motives,

and they are also protected by the right given to the press under ""freedom of press"" enshrined under Article 19(1) of the Constitution of India.

Before adverting to the question whether the plaintiffs have brought forth or made out a prima facie case entitling for grant of temporary

injunction pending the suit, the Court is of the opinion that it would be fit and proper to look into the legal aspects of the matter.

Admittedly, the defendants are the Editor and Associate Editor of the said biweekly magazine respectively. No doubt, they have got, the

freedom of press, which is given under Article 19(1)(a) of the Constitution. There has been a catena of decisions and the position of law is well

settled that the right given and guaranteed for the freedom of speech conferred under Article 19(1)(a) of the Constitution is subject to sub-clause

(2). Sub-clause (2) reads as follows:

Nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such

law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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 incitement to an offence.

Thus, it would be quite clear that the free dom of speech given and guaranteed under Article 19(1)(a) is not unfettered and unqualified.

In the instant case, both the defendants are Editor and Associate Editor of the said magazine respectively. At this juncture, it would be apt and

appropriate to reproduce the relevant passage in V. Mitter''s Law of Defamation and Malicious Prosecution, which runs as follows:

Newspapers and comments :- It may be well to state here that newspapers, since they have generally to defend themselves on the plea of fair

comment, are subject to the same rules as other critics, and have no special right or privilege. The privilege of the press is not an absolute one but

is qualified being circumscribed within the limits of the provisions enjoined in the statutes. The range of their criticism or comments is as wide as and

no wider than, that of any other subject, and therefore in spite of the latitude allowed to them, it does not mean that they have any special right to

make unfair comments, or to make imputations upon the character of a person or imputations upon or in respect of a person''s profession or

calling. As a matter of fact they have greater responsibilities and should be more cautious in making scandalous imputations. Their high position and

status and the method of publication at their disposal are apt to do more harm than if the imputation was made or published by an ordinary

individual because some sanctity is generally attached to what is published in a newspaper.

There cannot be any dispute as to the contention put forth by the defendants'' side that as journalists they have got a right to hold any view they

please on a matter of public concern or to express the same. It is also clear that whether the opinion or comment is correct or not; or whether it is

just or unjust; or whether it is couched in a language which may not err on the side of moderation; or what is material and important is that the

comment must not be beyond the limits which the law calls ""fair"" is immaterial. In short, it can be stated that comments and criticisms made, which

the defendants as critics are entitled to do, cannot exceed the limits of fair comment.

Further, the next contention put forth by the learned Counsel for the defendants is that all the statements made and found in the course of those

issues, were true and believed to be true, and they were bona fide. Now, at this juncture, it has to be pointed out that a fair and bona fide comment

on a matter of public interest is an excuse of what would otherwise be a defamatory publication. But, the very statement, however, of this rule

assumes the matters of fact commented upon to be somehow or other ascertained. It does not mean that a man may invent facts and comment on

the facts so invented in what would be a fair and bona fide manner on the supposition that the facts were true. If the facts, as a comment upon

which the publication is sought to be excused, do not exist, the foundation of the plea fails, and thus, what is expected is that the comment, in order

to be fair, must be based on facts and if a defendant cannot show that his comments contain no mis-statements of fact, he cannot sustain a defence

of fair comment. If the defendant makes a misstatement of any of the facts upon which he comments it at once negatives the possibility of his

comment being fair. However, the. defence of fair comment in matters of public interest does not extend to cover cases where the facts

commented upon are know to be false to the person commenting or even to a case where he takes the facts for granted with reckless indifference

as to the truth or falsehood and they are proved to be false.

The question as to the nature of the freedom of speech in Article 19(1) of the Constitution is an absolute one came up for consideration before

the High Court of Andhra Pradesh in the case of K.V. Ramaniah Vs. Special Public Prosecutor, , wherein the Division Bench has held thus:

...Freedom of speech in Article 19(1) cannot be taken to mean absolute freedom to say or write whatever a person chooses recklessly and

without regard to any person honour and reputation. The right guaranteed by the Constitution, it must be borne in mind, is to all the citizens alike.

The right in one certainly has a corresponding duty to the other and judged in that manner also, the right guaranteed cannot but be a qualified one.

Indeed the right has its own natural limitation. Reasonably limited alone, it is an inestimable privilege. Without such limitations it is bound to be a

scourge to the Republic.

From the above, it would be quite clear that it is not an absolute or unfettered right, but subject to the limitations found under Article 19(2) of the

Constitution.

From the catena of decisions, the following principles seem to be settled.

(i) The freedom of speech under Article 19(1)(a) of the Constitution of India means the right to express one''s opinion inter alia by words of mouth;

writing or printing.

(ii) The freedom of speech is a right with a corresponding duty to the other and has a natural limitation - the right guaranteed by the Constitution to

all the citizens alike,

(iii) The right of freedom of speech cannot be exercised recklessly and in utter disregard to other persons'' honour and reputation.

(iv) The right to dignity and fair treatment under Article 21 of the Constitution of India is available to a living man as also to his dead body.

Apart from the above, the life and personal liberty of every citizen are protected under Article 21 of the Constitution. Needless to say, the right to

life guaranteed under Article 21 of the Constitution would include right to life with human dignity.

After taking into consideration the above principles of law, now, the Court has to look Into the factual position of the case. In the Instant case,

24 issues are placed before the Court. The Court had a thorough scrutiny of those Issues. Admittedly, the first plaintiff is the Chief Minister of the

State, and the second plaintiff is stated to be her friend. The contentions put forth by the learned Counsel for the respondents are that they are in

public life and therefore, they are bound to face the criticisms levelled against them by the news items made in 24 issues and that too, they are

neither defamatory nor touching the reputation; but, they are made in good faith without any ill-will, and they are fair comments, and thus, they are

justified. Without going into the merits or otherwise of the submissions made on either side at this stage, the Court has to look into the question

whether a prima facie case is made out to grant temporary Injunction pending the suit. The learned Counsel for the defendants pointed out that

what were the part of the allegations which according to the plaintiffs were defamatory, were not reproduced either in the course of the affidavit or

in the plaint, and thus, the affidavit and the plaint lack in that regard. This contention cannot be countenanced for the simple reason that in the

course of the plaint, the plaintiffs have clearly mentioned that there are number of issues; but, these 24 issues are placed before the Court.

According to the plaintiffs, all the those issues are containing allegations or caricatures or news items, and totally, they are found to be per se

defamatory and touching their personal life. Under the circumstances, this Court Is of the considered opinion that the non-production of those parts

in the affidavit and in the plaint does not make out a point in favour of the defendants.

The next contention put forth by the defendants'' side is that they are made in good faith, and they are justified. True it is that the

respondents/defendants are investigative journalists. The citizens of this State are living in a democratic society. The first plaintiff is also in public

life, and therefore, in respect of the decisions taken by the first plaintiff, the defendants are entitled to make a criticism, but, the law would require

that it should be fair, and they should not exceed the bounds and limits, apart from that, whether they are justified in making so or not is a question

of evidence. The learned Counsel for the plaintiffs brought to the notice of the Court the different parts in those issues, which are defamatory

touching the personal life of the plaintiffs. The issue dated 20-5-2003. filed as document No. 15, contains the following material:

(Vernacular text omitted)

A very reading of the above not only reflect the character assassination, but also indicate that the defendants have exceeded their limits.

Says Professor K. G. Gardinar in his Rule on the Road that ""when you walk on the road, you are at liberty to revolve your walking stick so

long as it does not touch the nose of the other man"". This Court is of the opinion that this analogy can be applied to the present facts of the case.

True it is, the defendants as investigative journalists are entitled to make criticism, but without touching the reputation and without exceeding the

limits and bounds made by law, since law would not permit any one to use his freedom of speech or expression as to injure another''s reputation or

to indulge what may be called character assassination.

The contention put forth by the learned Counsel for the defendants that even though all the allegations made in the course of the issues if felt

defamatory, the plaintiffs thereafter can seek common law remedy of recovery of damages cannot be accepted. In a given case, when the

defendants are continuously making such publications, which are in the opinion of the Court as could be seen above, by exceeding the limit, it

becomes necessary that they should be restrained by way of granting temporary injunction pending the suit. It is a case for recovery of damages

and it is also a case for permanent injunction as one asked for. Apart from that, allowing the defendants to repeat the same would definitely impair

the reputation of the plaintiffs.

Under the stated circumstances, this Court is of the view that from the materials available, a prima facie case is made out for granting

temporary injunction restraining the respondents/defendants from publishing in future publications, articles, caricatures, news items, cartoons, etc.,

defamatory or derogatory in nature in the Tamil bi weekly Nakkheeran or in any special editions thereof or any publications of the

respondents/defendants till the disposal of the suit.

Accordingly, temporary injunction is granted till the disposal of the suit, and O. A. No. 599 of 2003 is allowed. Application No. 3095 of 2003

is dismissed.