Madras High Court: State Should Not Misuse Criminal Defamation

The Madras High Court highlighted that the State cannot misuse criminal defamation proceedings; to throttle democracy or settle political battles. Various media houses filed over 25 petitions to quash defamation cases. Explicitly, the ruling party filed these cases over press reports between the years 2011-2013. Notably, The Hindu, Nakheeran, Times of India, Dinamalar, Tamil Muras, Murasoli and Dinakaran stand among the media-houses who petitioned to the Court.

The press reports over which the State had launched prosecution for criminal defamation included reports of AIADMK activists attacking the Nakheeran office (the Court observed this as simply a “factual narration“); the statements of opposition leaders; an interview with a woman claiming to be former Chief Minister and AIADMK leader J Jayalalitha’s daughter; also, protests of opposition DMK over a cholera outbreak in the city, and other such reports.

Defamation- Not a tool for the State, be ready to take criticism

Justice Quddhose said, “The Criminal defamation law is meant for real cases of necessity and the State cannot misuse it; 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.”

Justice Quddhose observed, “The role of any newspaper is only to spread 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 hatred.”

The Pattern

The judge observed a pattern of such misuse in Tamil Nadu, pointing out in his order; that “from the year 2012 to 2020 finds many 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 many Criminal defamation cases.”

On the statistics gathered on the filing of such defamation cases by the State, the Court observed, “As seen from the data, irrespective of political party who is in power, cases under section 199(2) Cr.P.C. got 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 congested with those matters; due to reckless filing without application of mind and sometimes maliciously. The court needs to curb this menace and nip it in the bud”.

The impulsiveness of State in Defamation Cases

In the judgment, the Court held that the State should be slow in launching defamation proceedings against its citizens. To elaborate, the Court added, “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 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 opined that the cannot be impulsive, and should show utmost restraint and maturity in filing criminal defamation cases. The Court elaborated, “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.”

Guidelines to the State for proceeding in Defamation proceedings

1. As it is a non-cognizable offence and considering the fact that it has a large number of exceptions provided for; the intention of the legislature is to restrict its usage.
2. Only in cases where the State is defamed and a public servant/ constitutional functionary is also defamed while performing his public functions; section 199(2) gets attracted and only then, a public prosecutor can start a prosecution.
3. In cases where the public servant/Constitutional functionary is defamed while performing his public functions but the State is not defamed, section 199(2) is not available. The only recourse available to him is to file a complaint before the Magistrate under section 199(6) Criminal Procedure Code.
4. The State must apply its mind to the facts provided before granting punishment to the public prosecutor for starting a case under section 199(4) CrPC.
5. The public prosecutor must independently evaluate the facts available; must decide as to whether the materials available are sufficient to start a prosecution; for the State under section 199(2) CrPC.
6. The complaint filed before the Sessions Court under section 199(2) CrPC. is to prove as to the State has been defamed, the nature of such offence and such other particulars as are 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 function mechanically, and issue process to the accused. The court will independently decide and assess the materials; and only if satisfied, take the complaint.
9. The Sessions Court to indicate the materials assessed 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 State can invoke it.
11. High Court can quash the criminal complaints involving criminal defamation. The High Court can do this through exercising its power either under Article 226 of the Constitution of India or under Section 482 CrPC.
12. The High Court has the constitutional power to reject government orders sanctioning prosecution under section 199(2) CrPC; if the competent authority, without showing any material as to how the State is defamed and sanctioned the prosecution.

“Prosecution does not mean persecution”

The court issued the following guidelines; about the expected role of a public prosecutor in State’s criminal defamation proceedings: –

• As given in the Supreme Court judgement in Bairam Muralidhar v. State of AP, a public prosecutor cannot act as a post office but should independently use 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.
• The public prosecutor should not have a blind eagerness for a conviction.
• Conduct the prosecution of the accused persons with the greatest fairness. The state should not have any motives of revenge but try to protect the community.
• A public prosecutor should not through statement aggravate the case against the accused, or hold back a witness because his/her evidence may weaken the case of the prosecution.
• Whatever evidence found, to be provided before the Court.
• A public prosecutor should discharge his/her duties in a fair and fearless way with responsibility towards his/her position.
• The prosecution does not mean persecution.

“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,” the Madras High Court held.