Serious questions about the compatibility of law of defamation in India with the right to freedom of expression have been raised by a remarkable case in which damages of £12.5 million (Rs 100 crore that is, Rs 1 billion) were awarded to a retired Supreme Court judge over a television broadcast.
A photograph of the plaintiff, Retired Supreme Court Justice P B Sawant, (pictured) was broadcast on 10 September 2008 by mistake to illustrate a report of a provident fund scam allegedly involving Justice P.K Samanta, a Calcutta High Court judge. It was alleged that several judges were involved in the Ghaziabad Provident Fund scam. The photograph was aired for about 15 seconds in its 6:30 pm news bulletin.
However, the plaintiff had nothing to do with the scandal. Although his s clerk called the defendant shortly afterwards it did not take any action until 23 September 2008 when it broadcast a clarification and apology. The “Times Now” channel made it clear that the broadcast of the photograph was an inadvertent error and tendered its apologies.
Nevertheless, the plaintiff brought an action for defamation in the District Court in Pune and was awarded damages of Rs 100 crore (£12.5 million). It appears that a substantial proportion of the award consisted of exemplary damages – although we have not seen the first instance judgment (if any Indian reader has a copy we would be happy to post it).
The defendant broadcaster appealed to to the High Court in Bombay and sought a stay of execution pending the hearing of the appeal. In a Judgment given on 28 September 2011 the High Court ordered that the defendant should deposit Rs 20 crore (£2.5 m) with the High Court Registry along with a bank guarantee for Rs 80 (£1o m) as a condition of a stay of execution.
On Monday 14 November 2011, the Supreme Court of India dismissed the defendant’s appeal against this order. A bench of Justices G S Singhvi and S J Mukhopadhaya declined to grant relief to petitioner saying there was no error in the high court’s interim order. The court said “We find no reason to interfere with high court’s order directing the petitioner to deposit Rs 20 crore and furnish bank guarantee for the rest“. There is a report about the case on the Indian “Bar and Bench” website.
Not surprisingly, these decisions have been condemned by media organisations in India. The Times of India reports that the orders have become a “rallying point” for the media. The three media bodies – the apex news channel association, News Broadcasters Association, a major TV association, Indian Broadcasting Foundation, and Indian Newspaper Society – issued separate statements on Friday 18 November 2011 to point out that economic burden of such amounts would “completely jeopardize” media businesses and impact media freedom, which are “essential for a vibrant democratic set-up in any country”. These media organizations joined Editors’ Guild of India and Foundation of Media Professionals to stress that such orders pose a threat to the very existence of media and freedom of the press.
The Press Council of India chairman Markandey Katju (himself a retired Supreme Court judge) urged the Supreme Court and the Bombay High Court to “reconsider” their orders “With great respect to these orders I am of the view that they are incorrect and require to be reconsidered.”
This award, so far, appears to have attracted very little international attention. There is a story on the “International Press Institute” website, quoting IPI Executive Director Alison Bethel McKenzie as saying
“This is an appalling ruling, in particular considering the global trend, in democratic countries, towards placing a cap on damages awarded for defamation”
This award is very substantially greater than the libel damages available in most common law countries: in England there is an effective cap of £250,000 on libel damages, in Australia there is a statutory cap of Aus $250,000. Even in the United States figures produced by freedom of expression NGO Article 19 the average libel damages award is US$471,221.
The award appears to contain a large element of exemplary damages. Although damages in India are traditionally compensatory in nature, the concept of punitive or exemplary damages has always existed in the country’s common law. It was only in 1996, in the celebrated case Common Cause v. Union of India ((1996) 6 SCC 530), that the Supreme Court of India came around to actually making such an award. The Indian courts only permit exemplary damages in the categories set out in Rookes v Barnard ( AC 1129) – so, in a defamation case against a television station it must be shown that the defendant’s conduct was been “calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff”. It is very difficult to see how this could have been established by Mr Sawant in this case.
Even if an award of exemplary damages was appropriate, there is an overwhelming argument that the damages award to Mr Sawant in this case is incompatible with the right to freedom of expression (protected by Article 19 of the Constitution of India). The European Court of Human Rights held in the well known case of Tolstoy v United Kingdom ((1995) 20 EHRR 442). The case was brought following the notorious libel proceedings in which the jury had awarded Lord Aldington a record £1,500,000 damages because he was alleged to have been involved in war crimes. Article 10 had been infringed as the size of the award could not be justified as being ‘necessary in a democratic society’. In a case in which the defamatory publication was for 15 seconds and where it was corrected within a few days, with apologies being broadcast for 5 days. In a case of this sort an English court might well take the view that no substantial tort can be committed at all. If an English court permitted the action to continue the award of damages would be of the order of one tenth of one percent of sum awarded by the Pune District Court.
The Indian courts should be aware that international public opinion and legal precedent is wholly against the course that is being taken. It is to be hoped that defendant is able to provide the “security” sought with a view to bringing the appeal on as soon as possible.