The Madras High Court, while delivering a judgement on criminal defamation cases against some media houses, observed that it cannot be used by the state to settle political scores or to throttle democracy.
“The State should not be impulsive like an ordinary citizen in defamation matters and invoke section 199(2) Cr.P.C. to throttle democracy. Only in cases where there is foolproof material and when launching of prosecution under section 199(2) Cr.P.C. is inevitable, the said procedure can be invoked,” said Justice Abdul Quddhose.
As per Bar and Bench, 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.
The questions that were dealt with by the court include dealing with what is included in criminal defamation, criteria required for prosecution under section 199(2) of CrPC as well as the mandatory prerequisites to be satisfied by the State before sanctioning prosecution for Criminal defamation through a Public Prosecutor under Section 199(4) of CrPC.
The petitioners included media houses like The Hindu, Nakheeran, Times of India, Dinamalar, Tamil Muras, Murasoli and Dinakaran.
For exploring the ambit of criminal defamation and freedom of expression, the court also relied on several judgments of the Supreme Court, one of which was J. Khushboo vs Kanniammal and anr (2010 5 SCC 600),
“…It is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the “freedom of speech and expression” is indeed a very high one and there should be a presumption in favour of the accused in such cases. It is only when the complainants produce materials that support a prima facie case for a statutory offence that the Magistrates can proceed to take cognizance of the same.”
Since section 199 of CrPC deals with defamation of the state and of public servants, the court expressed its views on defamation law. It held, “State is like a parent for all citizens in so far as Defamation law is concerned. It is normal for some parents to face vituperative insults from their children…. 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 court further held that the state ought to exercise caution while registering a case against anyone for defamation, “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.”
The court further held that a public servant or functionary must be able to face criticism as they owe a solemn duty to the people. The state cannot use criminal defamation cases to throttle democracy.
The court also spoke about the duties of a prosecutor since it is the prosecutor who files the complaint of defamation before the Magistrate. The court stated that the prosecutor must not act like a post office but should independently apply his mind before prosecuting the criminal complaint and he should also be fair to the court. The court held, that a few ideal requirements for a pub prosecutor are as follows:
a) A Public prosecutor must consider himself/herself as an agent of justice.
b) There should not be on the part of the public prosecutor a blind eagerness for, or grasping at a conviction.
c) 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.
d) 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.
e) A public prosecutor should place before the Court whatever evidence is in his/her possession.
f) A public prosecutor should discharge his/her duties fairly and fearlessly and with full sense of responsibility that attaches to his/her position.
g) Prosecution does not mean persecution.
While considering each of the individual cases, the court held that the core ingredient required for prosecution through a public prosecutor under section 199(2) Cr.P.C. namely “Defamation of the State” was missing in all matters. The court further held that “in all the cases which are the subject matter of consideration by this court, the State has sanctioned prosecution in a mechanical fashion by total non-application of mind.” Thus, the sanction orders in each case were quashed by the court.
As a parting note, the court emphasized on the role of news media in a democracy and wrote some words of wisdom,
“I would like to remind the Media the great role they play in nation building. The media is considered as the fourth pillar of Democracy and they are infact the watchdog of any democracy. By their truthful and honest reporting, they stand as pillars for building one of the respected and successful democracies of the World. Our nation has always respected the role of the media and has highest regard for their independent and truthful reporting. But of late for quite number of years, there seems to be some decay happening in every sphere of democracy including the Media. If the rottenness is not removed sooner than later, it will spread like fire causing great peril to our robust Democracy.”
The complete judgement may be read here.
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