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Defence of fair comment

The law gives protection to the reputation of an individual. The law of Defamation aims to protect one’s reputation, honor, and dignity in the society. A person needs protection to his honor, integrity, character as much as the right to the enjoyment of property, health, personal safety, and liberty.

Submitted by: Hanoon Vahab, Geeta Institute of Law, BBA. LLB 3rd year

Introduction

In Defamation, truth and fair comment is a defense, but in criminal activity, the accused must prove the truth or fair comment and its publication was for the public good.

Reputation to be protected

Reputation is like our most precious asset because it represents the way others look at us and judge, reputation is also a tool for practical navigation through daily life like who has a good reputation his journey will be smooth and a bad one cause’s door to slam in our face and tests our confidence.

Reputation is a cherished constituent of like and is not restricted in time. The importance of reputation can be traced back to Holy bible[i], Quran[ii], Geeta and other books.

“Regard your name as the richest jewel you can be possessed of for credit is like fire; when once you have kindled it you may easily preserve it, but if you once extinguish it you will find it an arduous task to rekindle it again. The way to gain a good reputation is to endeavor to be what you desire to appear”- Aristotle

As reputation plays a vital role in every individual’s life, it needs to be protected, so to protect the damages for reputation the ‘Defamation’ came into force.

Defamation: Protection from Malicious Lies to the Reputation

The right to reputation[iii] which is recognized as a dimension of the right to privacy, a fundamental right under Article 21 of the Constitution of India, violation of which is protected by the law of defamation.

“A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of the society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of the society.”[iv]

In India, defamation is recognized both as a civil wrong and a criminal wrong, while the civil law is not codified and the criminal law on defamation is codified under Section 499 and the same is punishable under Sections 500 to 502 of the Indian penal code, 1860.

The essentials of defamation are:-

  1. The statement must be published 
  2. The statement must refer to the plaintiff 
  3. Defamation must be published

The defence of defamation are:-

  1. Justification of truth
  2. Fair comment
  3. Privilege

Defamation / contempt of court 

 The principal and purpose of the contempt law is to maintain and uphold the dignity and respect of the courts, in the eyes of the public and deter men from offering any indignities to a court of justice, Therefore, if any person makes any statement (written or spoken) which tends to obstruct the administration of justice or scandalizes or lower the authority of any Court, it will amount to criminal Contempt of Court, similarly, the principal and purpose of the defamation are to protect the reputation of the individual from malicious lies.

According to Section 13 of Contempt of Court Act, 1971[v], that allows the accused to raise the defence by :

  1. Justification of truth of such contempt
  2. For public interest and bonafide

Accused can raise the defence under Section 5 of the Contempt of Court Act, 1971[vi] by:

  1. A fair criticism of judicial act, not contempt.

Fair comment as an Armour:

The word ‘fair’ embraces the meaning of honesty and also of relevancy. The view expressed must be honest and must be such as that can fairly be called criticism. The legal definition of Fair Comment is a common-law privilege to criticize and comment on matters of public interest without being liable for defamation;

provided that the comment is an honest expression of opinion and free of malice. A fair and a bonafide comment on a matter of public is no libel, the right had been recognized in cases of criticism of works of literature and art more than a century ago. The word fair refers to the language and not the mind of the writer. Hence, it is possible that a fair comment should yet be published maliciously. The burden of proving that comment is fair is on the defendant. He must establish that the facts upon which the comment thereupon is warranted in the sense that it is such as might be made by a reasonable man. Once the defendant has established that in this sense the comment is fair, Sections is shifted to the plaintiff if he wishes to prove that the prima facie protection is displaced by the presence of malice in the defendant.

Fair Comment not an Armour for Mr. Prashant Bhushan 

On July 22nd, 2020 for two of his tweets- one in which he claimed that the Supreme Court played a major role in the destruction of democracy; and in another tweet, he commented on a picture of the Chief Justice of India astride a Harley- Davidson bike without a helmet and face mask “while the supreme court is in lockdown mode”.

These tweets in the opinion of the Supreme Court are a contempt of court where it hampered the dignity of the court and chief justice of India. 

Prashant Bhushan took defence of his tweets against the suo motu by stating that his tweets constitute freedom of speech and every form of criticism, so this cannot be stated as contempt of court.

Unfortunately, the fair comment could not be an armour to Prashant Bhushan, India on the 74th Independence Day of the World, the Supreme court of India held Prashant Bhushan guilty for criminal contempt citing that his tweets reach millions of people and “undermine the dignity and authority of the institution of the Supreme Court of India and the Chief Justice of India.

Here in the case of Prashant Bhushan, the top Judges have failed to be broad-minded in initiating contempt proceedings and have made use of their wide discretion to take action against comments that had hurt their personal sentiments which may not necessarily affect the public opinion of the court altogether.

Conclusion

According to the Indian law, every individual is free to form an opinion and make fair criticism but if such an opinion is scandalous and malicious, it will be under defamation or contempt of court, it cannot be forgotten that rights under Article 19(1) are subject to reasonable restrictions under Article 19(2) and rights of others cannot be infringed in the process the same has to be balanced, but the facts in front of us reveals that when it comes to the ego or things hurts their sentiments then even head of the institution of justice forget the rights of the individual.

References

[i] Christ taught us to be other-centered. It is not enough for us to live the gospel inwardly; we need to be shining examples to all with whom we come in contact. In this sense, it’s not only what we are that’s important: what others think of us is also important

[ii] Quranic verse: “and grant me a reputation of honor among later generations.”

[iii] The Human Rights Act, 1998, Article 12; The European Convention on Human Rights, Article 8; International Covenant on Civil and Political Rights, Article 19.

[iv] Bata India Ltd. v. A.M. Turaz& Ors. 2013 (53) PTC 586. 

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