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Ram Jethmalani v/s Subramaniam Swamy A case analysis

This case is in itself famous because of two reasons, one that is it is one of 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" [2] 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 reputation.

Procedural History:
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[3]
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 unavailable.
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[4], 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[5] , 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 extend"
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[6]
Etc.

Legal Issues:
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[7]:-
(i) Whether the suit is barred under Section 6 of the Commissions of Inquiry Act, 1952?
(ii) Whether the offending statements/ submissions were not published by the defendant?
(iii) Whether the offending statements/ submissions were made in good faith and without malice?
(iv) To what amount of damage is the plaintiff entitled to recover from the defendant?
(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 argument.

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 good faith.

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.

Judgment:
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."

Case Comment:
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 or necessity.

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.

End-Notes
[1] (2006) 126 DLT 535.
[2] Id.
[3] 2006 (87) DRJ 603
[4] 1998(1)AII ER 625.
[5] 1917 AC 309
[6] AIR 1961 Patna 164.
[7] Para 33 , page no.612 , 2006(87) DRJ 603

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