This case is in itself famous because of two reasons, one that is it is one
the good pronounced judgment, second that it is between two great legal birds of
India, one of them that is Subramaniam Swamy also connected with politics.
Whenever tort in India discussed, defamation is something always referred to, in
flow of same this case comment is designed to have in depth understanding of
this case which is pronounced by Delhi HC.
Facts of The Case:
While M.C.Jain commission of inquiry was examining the facts and circumstances
under commission of inquiry act 1952 relating to assassination of Rajiv Gandhi,
in which then CM of Tamil Nadu, Jayalalitha's summon to the court was being
contemplated in court. Defendant (Subramaniam Swamy) alleged that the then CM
of Tamil Nadu had prior info of the attack and she had connection with
Liberation Tigers of Tamil Ellam (LTTE), however he denied to disclose the
source of information. Plaintiff (Ram Jethmalani ) engaged as senior counsel
to represent CM .Plaintiff cross examined the statements of defendant , in the
same defendant made a remark against Mr Jethmalani to the effect that he has two
wives which was not at all relevant however he apologized for the same for
hurting but still stucked with his statement. On 14.10.1995 when defendant
submitted the "Written Concluding Argument " in which he denied to give source
of information of that allegation and also said that " According to my
information , Mr Jethmalani has been receiving money from the LTTE being
deposited in his son's account in CITIBANK in New York"  as this statement
was not for client but for the counsel . For such an allegation a suit was filed
by plaintiff, Mr. Jethmalani alleging that defendant was guilty of vicious and
gross libel for which the plaintiff claimed to entitled exemplary damages.
Plaintiff claimed that he acquires a good reputation in India and outside the
country, and these type of statements unnecessarily damages the personal,
political and professional reputation of the plaintiff and for the same he
filed a suit in High court of Delhi to get compensation for the lost of
There is no procedural history as such , because it directly came to high court.
However the same matter regarding to be accepted as a plaint or not , came in
high court which is decided to be heard and special leave petition was filed in
supreme court by the defendant to dismiss the plaint but still the court decided
to be heard and then the main case come in high court again where proceeding
were allowed by considering all available facts and laws. So in short the case
for which the plaint is filled has its original decision at high court which
went to supreme court or high court for other related reasons only in which
plaintiff won. It means there is no such procedural history for the same.
Rule of Law And Precedents Referred:
This case decision is easily matched with rule of law with its interpretations
and precedents cited available. Some of the precedents and rules which played a
relevant role in judgment are as follows
i. Section - 6 of commission of inquiry act , 1952 restrict
the information given to the extent it is asked , if not then the protection is
ii. Absolute privilege is not absolute in the context of
being infinite , if necessary or relevant then only immunity is available.
iii. In case Waple v. Surrey County Council, absolute
privilege and its scope is discussed which helped to decide the present case as
how defendant statement did not come in absolute privilege.
iv. Similarly as above , in Adam v. Ward , on page no 327 of
report , Lord Dunedin observed that "If the defamatory statement is quite
unconnected with and irrelevant to the main statement which is ex – hypothesis
privilege then I think it is more accurate to say that privilege does not
v. Reckless disregard in making statement with a high degree
of awareness of their probable falsity as proof of actual malice, same as
referred by precedent Garrison v. Louisiana 379 US 64
vi. Conceptual difference between qualified and absolute
privilege to decide in the case is taken by precedent Panday Surinder Nath Sinha
v. Bageshwari Prasad
Legal issues are the soul of the proceedings. They are the matter which is
legally questioned and on which arguments are done. On the pleadings of the
parties, vide order dated 12.10.1998, following issues was framed:-
(i) Whether the suit is barred under Section 6 of the Commissions of Inquiry
(ii) Whether the offending statements/ submissions were not published by the
(iii) Whether the offending statements/ submissions were made in good faith and
(iv) To what amount of damage is the plaintiff entitled to recover from the
(v) Relief and costs?
Arguments And Reasoning:
The main argument argued by defendant is that his statement is not made with
malice and it come under the absolute privilege given by information commission
while he was discharging his duty to provide information , for this , precedent
cited are AIR 1958 SC 538, AIR 1969 SC 215, 1988 (4) SCC 419. For weakening
this argument plaintiff said that absolute privilege is not infinite and by
citing case 1998 (1) All ER 625, Waple V. Surrey Country Council they proved
that privilege is not available to defendant as defendant statement is nowhere
relevant or asked in the required query.
The defendant also argued that the statement is not published as it was expunged
later , but the counsel of the plaintiff proved that it is not relevant as when
suit is filled i.e on 16.11.1995, that offending writing was available so it is
considered to be publication , and court support the same. However defendant use
the precedent AIR 1959 SC 395 M.S.N Sharma v. Shri Krishna Sinha and ors. But
still it didn't be fit with this condition and results into loose of this
Defendant claimed that said statement is true but he failed to prove the same.
Defendant claimed that said statement is made in good faith with no malice but
plaintiff by referring lord Dunedin report on 1917 AC 309 , Adam v. Ward , that
statement is quite unconnected with the relevant questions asked , as plaintiff
is the counsel and such comments does not make any connection between the
situation so it is sufficient to say that this is rather the malice not the
Reasoning used by the judge while giving this judgment consists of few points
like, defendant statement is totally irrelevant to situation as he made a
comment on council which is nowhere connected to the question asked by
Information of Commission, and the defendant was unable to prove the statement
.The main reason to reject the defense and saying that as actual malice is
beyond the limit given in privilege and the statement given by defendant is
totally unconnected. While giving compensation, reasoning used was that the
plaintiff consist of good reputation in all way and harm to his professional,
personal or political reputation as the statement is ex-facie defamatory if not
proven right must be compensated by monetary benefits.
It was held by Justice Pradeep Nandrajog that statement made by defendant was
prima facie defamatory. It was a case of exceeding the privilege and that by
itself was held to be evidence of malice. The statement was quite on connected
with and irrelevant to the situation, actual malice on part of defendant was
well established . This harmed the image of plaintiff at large and such
allegation destroy the personal and political reputation ,as LTTE is banned
organization and connecting the name with it leads to loss of reputation.
However such loss is not recoverable , said by justice , but still compensation
of Rs 5 lacs awarded in favour of plaintiff and against the defendant ,
considering his professional status and his social status.
Ratio of The Case:
Ratio from the case which is formed and can be use in future cases is "If
statement is quite unconnected with and irrelevant to the main statement which
is ex-hypothesis privileged then it is more accurate to say that the privilege
does not extend thereto than to say that the result may be the same, and such
statement is evidence of malice, so it is defamatory."
The case was filled by Ram Jethmalani against Subramaniam Swamy, asserting the
charges of defamation on him. Subramaniam Swamy issued a couple of disagreeable
remarks throughout procedures of a case under Justice M.C. Jain Commission of
Inquiry, which was constituted under Commission of Inquiry act 1952. These
procedures were going on for that inquiry in the assassination of Late Prime
Minister Rajiv Gandhi, in which Ms. Jayalalitha's summon to the court was being
mulled over in the court. Ram Jethmalani was going about as counsel for
Jayalalitha against whom there were charges of linkage with LTTE. Over the span
of continuing Subramaniam Swamy additionally purportedly put forth defamatory
expressions about RamJethmalani. Consequently Ram Jethmalani sued Subramaniam
Swamy for remuneration of 50 lacs. The judgment was given in support or
Ram Jethmalani with compensation of 5 lacs. This case sets a good precedent where
malice statements are given and privilege are claimed but claim is not
reasonable to be applied as it was beyond its power.
Ram Jethmalani argued the case affirming that the remarks issued by Subramaniam
were absolutely uncalled and unessential to the procedures of the instance of
Inquiry commission, and were put forth utilizing the defense procedures as stage
to malign the reputation of Ram Jethmalani deliberately. Then again Subramaniam
Swamy tried to defend himself referring to the arrangement in section 6 of
Commission of Inquiry Act 1952. He contended that the remarks were truth and
made as fair remark. His defense here so no relevance as his actions , like
here to speak about the jayalalitha's counsel without any need and requirement
As per the principles of defamation , the remarks by Subramaniam Swamy were
demonstrated defamatory as the charge made by him on Ram Jethmalani that LLTE
deposited funds in Ram Jethmalani's son a/c, was proved false. Also, it was
aphoristic that the remarks were made against Ram Jethmalani. And, thirdly, it
was set up that the remarks were published as Subramaniam Swamy read the
defamatory statements in the procedures even after they were expunged by the
authorities in Justice M.C. Jain Commission of Inquiry.
Additionally Justice Pradeep Nandrajog took inductions from numerous past cases
and turned out with extrapolation that the remarks made by Subramaniam Swamy
can't have any protection through section 6 as he didn't come under Absolute
privilege however just Qualified privilege under section 6of Commission of
Inquiry Act, 1952.
In the judgment Honorable Justice also did discuss many theories by means of
which Subramaniam Swami comments could escape the purview of defamation but each
time he reasoned out the very meticulously why those theories and cases are not
applicable in this peculiar case. Also, honorable justice commented on the
condition of Law of damages , he criticized that still they are not developed
especially in terms of defamation as like in Europe and USA.
 (2006) 126 DLT 535.
 2006 (87) DRJ 603
 1998(1)AII ER 625.
 1917 AC 309
 AIR 1961 Patna 164.
 Para 33 , page no.612 , 2006(87) DRJ 603