IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06..04..2006 CORAM THE HON’BLE MR. A.P.SHAH, CHIEF JUSTICE and THE HON’BLE MRS. JUSTICE PRABHA SRIDEVAN O.S.A.No.86 of 2006 1. R.Rajagopal @ R.R.Gopal @ Nakkheeran Gopal 2. A.Kamaraj ..Appellants/ Defendants Vs. 1. J.Jayalalitha 2. Mrs.N.Sassikala ..Respondents. / Plaintiffs PRAYER: Appeal against the ad interim injunction order passed by a learned single Judge of this Court dated 15.03.2006 in Original Application No.599 of 2003 in C.S.No.477 of 2003. For Appellants :: Mr.P.T.Perumal For Respondents :: Mr.N.Jothi J U D G M E N T (The Judgment of the Court was delivered by The Hon’ble The Chief Justice) The first appellant, R.Rajagopal @ R.R.Gopal, is the Editor, Printer and Publisher of “Nakkheeran”, a bi-weekly magazine published from Chennai. The second appellant, A.Kamaraj is the Associate Editor of “Nakkheeran”. During the period from 01.04.2003 to 20.06.2003, the appellants had published certain articles in their magazine in relation to the first and the second respondents. The first respondent Selvi. J.Jayalalitha is the Chief Minister of the State of Tamil Nadu. She is also the General Secretary of the political party, All India Anna Dravida Munnetra Kazhagam (A.I.A.D.M.K.). The second respondent Tmt.N.Sassikala is a close friend of the first respondent and is interested in the welfare of the first respondent. In all 24 publications made in 21 issues of “Nakkheeran” are the subject matter of the present proceedings. https://hcservices.ecourts.gov.in/hcservices/ 2. The respondents filed a suit for injunction and damages against the appellants in their capacity as Editor, Printer and Publisher and Associate Editor of “Nakkheeran” respectively. In the plaint, it is stated that the first appellant was arrested by the police under Prevention of Terrorism Act, 2002 on 12.04.2003 and has been detained in prison ever since. From the said date, the magazine “Nakkheeran”, which is being published as a bi-weekly on Tuesdays and Fridays of the week (now Thursdays and Sundays), has been carrying a vilification campaign against the respondents in their magazine by printing false and defamatory articles on the title page with banner headlines as well as on the cover page, apart from featuring the photographs of either the first or the second respondent or both. None of the articles published against the respondents has been found to be true or published in good faith after prior verification. In fact, the first appellant has always been indulging in character assassination of the respondents, and as a matter of fact, an earlier suit for damages filed by the respondents against the first appellant is pending in this Court. 3. It is stated that the respondents are protected by Article 21 of the Constitution of India to live peacefully without being defamed with false and vituperative articles without any proof therefor whatsoever. There are enough legal precedents available to prevent the appellants from printing and publishing such defamatory articles and if at all there was something relating to the respondents which required to be published, the appellants may be directed to verify with the respondents the veracity of the material received by them apropos of the activities of the respondents. It is stated that freedom of press does not mean that the appellants can pick and choose persons out of personal or political animosity, or monetary inducements with the sole idea of defaming them. It is further stated in paragraphs 20 and 21 of the plaint as follows: “20. The freedom of speech in Article 19(1) of the Constitution of India cannot be taken to mean absolute freedom to say or write whatever a person chooses recklessly without regard to another person’s honour and reputation. The right guaranteed by the Constitution, it must be borne in mind, applies equally to every citizen. Every right correspondents to a duty to the other and is also to be judged. The right guaranteed is always a qualified one. Indeed, every right has got its own natural limitation. Holding a public position does not mean that one should be at the receiving end of attacks day-in-and-day-out nor it can be said that it is an appendage to that office. 21. It is not a question of mere ignorance about making vulgar criticisms and hurting abuses against the plaintiffs, but when the same is being ceaselessly done, beyond a reasonable period as a matter of right, the plaintiffs have no reason to keep quite as if they are https://hcservices.ecourts.gov.in/hcservices/ helpless in the matter. Article 19 of the Constitution of India does not give a free hand, under the guise of free expression and freedom of press, the right to go on publishing defamatory matters and articles issue after issue without any basis whatsoever.” 4. It is stated that the balance of convenience is not only in favour of the respondents, but it is also absolutely necessary to prevent such false publications which tend to bring disrepute to the respondents. It is stated that the loss of reputation of the respondents and the mental agony caused to them cannot be compensated by payment of damages alone. The respondents prayed in the suit for a restraint order against the appellants from publishing in future publications, articles, caricatures, news items, cartoons, etc., defamatory or derogatory in nature, in the Tamil bi-weekly “Nakkheeran” or in any special editions thereof or any publications of the appellants without prior verification with the respondents. The claim for damages has been quantified at Rs.2 Crores and one thousand. Along with the plaint an application (O.A.No.599 of 2003) for interim relief under Order 39 Rule 1 and 2 was also filed praying for issuance of an order of temporary injunction in the same terms. The respondents were granted a limited ad interim order restraining the appellants from publishing about private life of respondent No.1 without prior verification. 5. The appellants filed a counter affidavit to the O.A. and also prayed for vacation of the ad interim order. In the counter affidavit, it is stated that in a libel action it is obligatory on the plaintiff to state in the plaint the actual defamatory words (together with innuendo or defamatory meaning thereof where necessary) in specific terms. The respondents, however, have not set out in the body of the plaint the alleged defamatory remarks contained in the impugned publications and thereby, the appellants are denied the opportunity of knowing what was the nature of the imputations which are objected to and what was the meaning understood by the respondents of such imputations. It is stated that what is stated in the articles relating to the respondents is correct and the truth of the statement will be justified at the trial. It is averred that in the discharge of their journalistic duties, sometimes, some of the fair and accurate news item published in their magazine happen to be unpalatable to persons in public positions and such public persons react in anger and disappointment and the present suit is an outcome of such intolerance. It is stated that there was nothing defamatory in those articles and the same were published in good faith and for public good. It is averred that the claim of the respondents is not supported by any material to prove any of the publications in “Nakkheeran” as false or defamatory. Both the respondents are public persons and all their activities are matters of public interest, because the first respondent is the Chief Minister of Tamil Nadu and leader of one of the largest political parties in the State. She has subjected herself to many public controversies and she has been always in the media highlight. So, all her words https://hcservices.ecourts.gov.in/hcservices/ and movements are matters of public interest, as the people of Tamil Nadu have a right to know about her activities. It is further stated that during the period 1991 to 1996, the appellants exposed many of the misdeeds of the respondents, A.I.A.D.M.K. Ministers and several officials and as a consequence, many criminal proceedings were initiated, which also ended in conviction. It is stated that verification of facts with the person concerned cannot be the criteria in deciding a matter as libel or defamatory. Law does not recognize verification of matter with the persons concerned. It is customary among journalists to verify the facts with the person concerned and publish the matter along with that person’s version, but however, failure to do so is not unlawful. The plea of the respondents that the appellants publish articles against them without verification and, therefore, they must be prevented from publishing anything against the respondents is unsustainable in law. It is further stated that the appellants have always tried to verify the facts with respondents, but the respondents are beyond the reach of the reporters of the appellants. In fact, when one of the reporters of “Nakkheeran” visited the house of the then A.I.A.D.M.K. Supremo in Tuticorin District, he was invited inside the house and there, he was brutally attacked by A.I.A.D.M.K. men. In this background, it is stated that though the appellants very much want to verify the facts with the respondents, the reporters of “Nakkheeran Publications” will not get audience with the respondents. In any event, it is submitted that there is no provision in law to compel the appellants to verify the matter with any one as long as the matter is based on truth, touching upon public interest and is honestly believed to be true by the appellants. 6. The learned single Judge after hearing the learned counsel for the parties allowed the application of the respondents and granted a blanket injunction restraining the appellants from publishing in future publications articles, caricatures, news items, cartoons, etc., defamatory or derogatory in nature in the Tamil bi-weekly “Nakkheeran” or any special editions thereof or in any publications of the appellants till the disposal of the suit. 7. The learned single Judge was of the view that though the appellants are investigative journalists and the first respondent is in public life and therefore, in respect of the decisions taken by the first respondent, the appellants are entitled to make a criticism, the law would require that such criticism should be fair and should not exceed the bounds and limits. The learned single Judge referred to the issue of “Nakkheeran” dated 20.05.2003 containing the following article: “Even the people in Garden are also asking this question. There is a secret reason why ‘J’ is showing such consideration to her friend. Though in politics no big political party is presently having a tie-up with ‘J’, several diseases are having a tie-up in J’s body. That is why, she is taking 4500 Mg. of tablets everyday. When the doctors have restricted her from taking certain https://hcservices.ecourts.gov.in/hcservices/ things while she is taking the tablets, she is consuming those things without any restriction. It is only Sasikala who gives the tablets and other things to ‘J’.” According to the learned single Judge, a very reading of the above article would not only reflect the character assassination of the respondents, but also indicates that the appellants have exceeded their limits. 8. The appellants, aggrieved by the aforesaid order of the learned single Judge, have preferred the present appeal. 9. We have heard Mr.P.T.Perumal, learned counsel appearing for the appellants and Mr.N.Jothi, learned counsel appearing for the respondents at length and have perused the records in the case. 10. Mr.P.T.Perumal, learned counsel for the appellants, has contended before us that the impugned injunction order is against the settled principles of law. No blanket injunction can be granted restraining the press from publishing anything of defamatory nature in the future. Such an order is clearly violative of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. Mr.Perumal has contended that the interim relief sought for was not to publish articles without prior verification with the respondents, whereas the learned single Judge has granted an order of injunction in a blanket manner, much more than what was prayed for by the respondents. Mr.Perumal has contended that the appellants have categorically affirmed and stood by what they had published by making such an averment in the counter affidavit. In such a situation, Mr.Perumal contends, that there could have been no action at all for any injunction, and the relief, if any, is by way of damages. Learned counsel has drawn our attention to the relief claimed in the plaint where damages have in fact been claimed. He has further contended that there is no defamation if the impugned articles are analysed and in any case once the appellants stand by them, truth would be available as a defense to defamation. Learned counsel has also submitted that the respondents are public figures and such public figures are subject to public gaze including in respect of their private life at times. He has contended that in law the position of public figures is different and in case of violation of right of their privacy the remedy is action for damages and not of preventive injunction which would amount to pre-censorship. He has also contended that the justification or claim of truth is an absolute defense and there is no right of privacy available to an individual in such a case. He has contended that the first respondent is the Chief Minister of a State and General Secretary of an important political party in the State and everything which happened within or outside of her household was of interest to public and thus the appellants have a right to comment and write about the same. He has submitted that insofar as public figures and politicians are concerned their lives are day-in-and-day-out brought under microscope and commented upon. There cannot be segregation of private life of such public figures from their public life, as both are intertwined. It is, therefore, https://hcservices.ecourts.gov.in/hcservices/ contended that by the very nature of being a public figure such person’s life is entitled to be scrutinized, whether in respect of their public function or their private life. As regards the article dated 20.05.2003 referred to in the order of the learned single Judge learned counsel has contended that the imputation contained in that article has not been set out in the plaint together with the alleged innuendo or defamatory meaning thereof, and therefore, no relief can be based on the said article. In any event, according to Mr.Perumal the Court can at best direct the publishers not to repeat publishing the said article, but a blanket injunction restraining the publishers from publishing any article in future runs counter to the fundamental right to freedom of speech and expression enshrined in Article 19(1)(a) of the Constitution of India. Mr.Perumal relied upon a number of decisions of the Supreme Court as well as High Courts and also decisions by American and English Courts to which we shall shortly refer to. 11. Mr.N.Jothi, learned counsel for the respondents, on the other hand, made submissions for sustaining the impugned interim order of the learned single judge and contended that the reputation of an individual and his/her right to privacy are both protected and it is apparent from the impugned articles that such rights of the respondents were sought to be violated by the appellants with impunity. In such a situation, Mr.Jothi contended that the remedy was available both by way of damages and by way of injunction. He contended that what is implicit in the article dated 20.05.2003 is that the second respondent is giving liquor to first respondent although she had been forbidden by the doctors from taking any such thing. According to him the article is malicious and beyond all limits of decency and consequently, no fault can be found with the order of injunction. Mr.Jothi submitted that there were two competing interests which had to be balanced i.e., right of the press to write and publish, and right of an individual against invasion of his/her privacy and threat of defamation. Eventhough, the appellants were standing by what they had written, the truth and veracity of the same is yet to be established. On the other hand, the right of the individual for privacy is sacrosanct. Mr.Jothi contends that no one has a right to publish anything concerning personal private matters without consent – whether truthful or otherwise, whether laudatory or critical. He contends that since admittedly no consent of the respondents had been taken by the appellants to write about their private life, this was a clear case of invasion of privacy of the respondents, and in such a situation, it is not necessary that one must wait for the publication and then claim damages, but a preventive action can be taken so that the respondents’ right to privacy is not violated. He submitted that the courts have always protested against the notion that they ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict. The right to freedom of speech and expression, he contends, cannot be taken to mean absolute freedom to say or write whatever a person chooses recklessly and without regard to the other person’s honour or reputation. He contends that the plea of justification would be https://hcservices.ecourts.gov.in/hcservices/ available where truth was pleaded and it was in public interest. In case of a public figure, he contends, that it may apply to performance of public duties by the public figures and it does not give a licence to go into the private life of such public figures. In the alternative, it is the submission of the learned counsel that having regard to the fact that the appellants were indulging in character assassination the least they must be asked to do is to seek prior verification from the respondents before publishing any articles and also publish the denial, if any, of the respondents. Mr.Jyoti also referred to a number of decisions of the Supreme Court and High Courts. 12. We have duly considered the elaborate submissions and a large number of decisions cited at the bar by the learned counsel for the parties. The matter was heard in depth, as the decision in this case would have direct bearing on the claims of right of privacy by public figures as against the right of the press to publish and write about such public figures. 13. We may mention at this stage that we have been taken through all 24 impugned articles published in the appellants’ magazine Nakkheeran. At the outset we may mention that none of the articles other than the article dated 20.05.2003, referred to in the order of the learned single Judge, and the article published on 06.06.2003 can be said to be relating to the personal life of the first respondent. The article dated 06.06.2003 is about the first respondent taking advice from an astrologer in respect of certain criminal case pending against her. The rest of the articles are about her actions pertaining to official and public function. In some of the articles it is alleged that the first respondent is behaving in a dictatorial manner and using police to suppress dissent and had been likened with Hitler. In some there are allegations of misdeeds and misdemeanor in official duties. Out of 24 articles the name of the second respondent appears only in 5 articles. None of the articles/imputations are reproduced in the plaint. In paragraph – 9 of the plaint it is merely stated that the respondents are restricting the description of such defamatory articles since they are fully indicated in Document No.1 filed along with the plaint. Document No.1 is compilation of the 24 publications which are said to be defamatory. It is nowhere stated in the plaint that in what way the articles and the materials in the articles are defamatory and if they are not per se defamatory the innuendo implied in the articles is also not set out. It is well settled that in a libel action defamatory words must be set out in the plaint where the words are per se or prima facie defamatory, and where the defamatory sense is not apparent on the face of the words, the defamatory meaning as it is technically known in law, the innuendo must also to be set out in a clear and specific terms. In the absence of these necessary averments the plaint would be liable to be rejected on the ground that it does not disclose any cause of action. (See Brijlal Prasad Vs. Mahant Lal Das, AIR 1940 Nagpur 125, Krishna Rao Vs. Radhakisan, AIR 1956 https://hcservices.ecourts.gov.in/hcservices/ Nagpur 264, W.Hay Vs. Ashwini Kumar, AIR 1958 Calcutta 269, Purushottam Lal Vs. Prem Shankar, AIR 1966 Allahabad 377) 14. With these preliminary observations, we may now proceed to deal with the appellants’ submissions based on the right of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. Though the Indian Constitution does not use the expression “freedom of press” in Article 19, but it is included as one of the guarantees in Article 19(1)(a). The law on this aspect has been adverted to in the decision of the Supreme Court in Indian Express Newspapers (Pvt.) Ltd. Vs. Union of India (1985 (1) SCC 641) where Venkataramaiah, J. referred to the importance of freedom of press in a democratic society and the role of courts. The freedom of press, as noted by Venkataramaiah, J., is one of the items around which the greatest and bitterest constitutional struggles have been waged in all countries where liberal constitutions prevail. Article 19 of the Universal Declaration of Human Rights, 1948 declares the freedom of press and so does Article 19 of the International Covenant on Civil and Political Rights, 1966. Article 10 of the European Convention on Human Rights, provides as follows: - “Article 10. (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The First Amendment to the Constitution of the U.S.A provides as follows: - https://hcservices.ecourts.gov.in/hcservices/ “ Amendment 1. Congress shall make no law respecting all establishment or religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” 15. Our Constitution is not absolute with respect to the freedom of speech and expression, as enshrined by the First Amendment to the American Constitution. But this right is subject to reasonable restrictions on grounds set out in Article 19(2) of the Constitution. Reasonable limitation can be put in the interest of sovereignty and integrity of India, the secrecy of the State, friendly relationship with foreign state, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence. The effect of Article 19 on the freedom of press, was analysed in the decision of the Supreme Court in Indian Express Newspapers (Pvt.) Ltd. Vs. Union of India (1959 SCR 12) where Bhagwati, J. after referring to the Supreme Court’s earlier decision in Romesh Thapar Vs. State of Madras (AIR 1950 SC 124) and Brij Bhushan Vs. State of Delhi (AIR 1950 SC 129) expressed his view that these were the only two decisions which evolved the interpretation of Article 19(1)(a) of the Constitution, and they only laid down that