Thursday, 28 January 2021

Whether filing of civil suit for defamation amounts to violation of freedom of speech and expression?

In my view there is merit in the plea of the plaintiff's counsel. Article 19(2) is a negative covenant i.e., a bar on the restrictions imposable upon the otherwise unfettered right of freedom of speech and expression, guaranteed by Article 19(1)(a) of the Constitution. There is no requirement or restriction in Article 19(2) that unless and until permitted by Article 19(2), no suits for defamation can be filed, as contended and in my view erroneously by the learned senior counsel for the defendant,Shri Tripathi. To accept Mr. Tripathi's plea would tantamount to rewording the Constitution. A plain reading of the Constitution makes it clear that at present there is no fetter/bar on filing of suits based on defamation and therefore the plea of theefendant under Order VII Rule 11 that the suit is barred by any law i.e., Article 19 as the Parliament has not enacted any law permitting suits for defamation is not tenable and is accordingly rejected. There is also substance in the plea of the plaitiff's counsel that Section 9 of the CPC permits the trial of all civil suits unless expressly or impliedly barred. Admittedly there is no express bar against suits for defamation. The plea of the implied bar under Section 9 by virtue of the non-enactent of a statute under Article 19(2) permitting defamation suits has already been rejected. Consequently the suit is also maintainable under Section 9 CPC.

 Delhi High Court

Ashoke Ghosh vs Urmi A. Goswami on 7 January, 2005

Bench: M Mudgal


1. This application filed on behalf of the defendants under Order VII Rule 11 of the Code of Civil Procedure, 1908 (in short the `CPC') seeks rejection of the plaint and is primarily based under Order VII Rule 11(d) and it is contended that the suit isbarred by law in view of a reading of Article 19(1)(a) of the Constitution. The plaintiff is the Chairman and Managing Director of Prentic Hall India Pvt. Ltd. and Vice President, International Publishers Association. He is also a member of Executive Committe and Chairman of International Relations Committee of Federation of Indian Publishers. The defendant No. 1 is a reporter with ''The Economic Times'' newspaper and author of the Articles titled Why not Potter in local languages?'', '' Foreign Publisher's Distust in Indian Counterpart's Hits Translation Biz''. Defendant No. 2 is the publisher and printer of the `Economic Times' newspaper. It is not in dispute that the present suit is a suit for defamation filed in respect of what according to the plaintif is a defamatory report against him by the reporter of the defendant No. 1 and published by the principal publisher, defendant No. 2. It is also not in dispute that the publication in question has already taken place and the suit is largely confined to to plea of damages for such defamatory publication.

2. While considerable stress has been laid in the written submissions on behalf of the defendants on the position of existing laws when the Constitution was framed and the anamolous situation relating to violation of Article 14 by the averred differencesin the post Constitution enacted statues and the existing laws, during the course of arguments Mr. Tripathi has urged only the crux of the issue, namely the maintainability of a defamation suit in the absence of a statute permitting filing of such suitsin the context of the effect of Article 19(1)(a) and (2).

3. Mr. Tripathi, the learned senior counsel, who appears on the behalf of the defendants/applicants in this application has contended that the rights guaranteed under Article 19(1)(a) of the Constitution of India in respect of freedom of speech and expression are absolute unless curtailed by Article 19(2). Article 19(1)(a) and and Article 19(2) reads as follows:-

"19. Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right

(a) to freedom of speech and expression;

x x x x x x x x x x x x x x x (2) Nothing in sub-clause (a) of clause (1) shall affectthe 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."

4. He submits that one of the subjects on which the Parliament can enact a law abridging the rights guaranteed under Article 19(1)(a) is defamation. His plea, therefore, in essence is, that unless and until the Parliament has enacted a law permitting filing of suits on the ground of defamation, such a suit is barred under Article 19(1)(a) and the exercise of such a right by the plaintiff by filing the present suit, seeking an injunction and/or damages for a defamatory statement would make the protecton granted under Article 19(1)(a) meaningless and indeed nugatory.

5. Mr. Chitale, the learned counsel, appearing for the plaintiff has inter alia relied upon the residuary powers of the Section 9 of the CPC, which reads as under:-''Court to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.''

6. He has further submitted that Article 19(2) only permits the enactment by the Parliament of a law which imposes reasonable restrictions on the exercise of the right of freedom of speech and expression guaranteed by Article 19(1)(a), and such law curtailing the right under Article 19(1)(a) can also be enacted by the Parliament in respect of defamation. He has also submitted that the Parliament has not enacted a legislation which imposes restrictions, reasonable or otherwise, on the right to exercise thrights arising from the tort of defamation. There being no such law enacted by the Parliament specifically dealing with defamation suits, is a factor which goes against the defendant in so far as there is no imposition of any fetter on suits averring dfamation by any enactment under Article 19(2).

7. In my view there is merit in the plea of the plaintiff's counsel. Article 19(2) is a negative covenant i.e., a bar on the restrictions imposable upon the otherwise unfettered right of freedom of speech and expression, guaranteed by Article 19(1)(a) of the Constitution. There is no requirement or restriction in Article 19(2) that unless and until permitted by Article 19(2), no suits for defamation can be filed, as contended and in my view erroneously by the learned senior counsel for the defendant,Shri Tripathi. To accept Mr. Tripathi's plea would tantamount to rewording the Constitution. A plain reading of the Constitution makes it clear that at present there is no fetter/bar on filing of suits based on defamation and therefore the plea of theefendant under Order VII Rule 11 that the suit is barred by any law i.e., Article 19 as the Parliament has not enacted any law permitting suits for defamation is not tenable and is accordingly rejected. There is also substance in the plea of the plaitiff's counsel that Section 9 of the CPC permits the trial of all civil suits unless expressly or impliedly barred. Admittedly there is no express bar against suits for defamation. The plea of the implied bar under Section 9 by virtue of the non-enactent of a statute under Article 19(2) permitting defamation suits has already been rejected. Consequently the suit is also maintainable under Section 9 CPC.

8. The application for rejection of plaint stands dismissed and disposed of accordingly. CS(OS) No. 65/04 and IA 537/04 List the matter on 7th February, 2005. Interim orders to continue.

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