COUNSEL'S PREROGATIVE AND COURT'S INDETERMINATE STANCE

 

In February 2023, in a case of Delhi High Court, Justice Mini Pushkarna, while rejecting a suit moved by a businessman against a senior counsel alleging that a statement made by him during the course of arguments in open court was defamatory, said that justice system would be adversely affected “if lawyers were to be in fear of law themselves” for any submission or statement made by them during a hearing. The court held that the statements made by a lawyer during judicial proceedings are conferred with an “absolute privilege” and no action for defamation, slander or libel can lie against them for advancing the submissions.

This absolute privilege has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist and with the knowledge that courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will, to check any abuse of it by those who appear before them.

DEFAMATION

Defamation-a tort which includes libel (printed, written, or broadcast material) and slander (spoken material)-has a rich and varied history and an extremely complicated present. The Restatement (Second) of Torts [1977] provides a straightforward formulation of what defamation requires:-

1.    a false and defamatory statement concerning another;

2.    an unprivileged publication to a third party;

3.    fault, amounting to at least negligence; and

4.    special harm, or actionability despite the lack of special harm.

Section 499 of the Indian Penal Code [IPC] defines defamation as the occasion where the person who defames another must have done it ‘intending to harm or knowing or having reason to believe that such imputation will harm the reputation’. Intention to cause harm to reputation of a person is sine qua non of the offence of defamation. The essence of the offence of defamation is the harm caused to the reputation of a person. The commission of offence of defamation or publishing any imputations concerning any person must be ‘intending to harm or knowing or having reason to believe’ that such imputation will cause harm.

The 9^th Exception of S. 499 of IP.C. lays down that it is not defamation to make an imputation on the character of another provided that imputation be made in good faith for the protection of the interest of the person making out a threat to any other person or for public good. The privileges enjoyed by various professionals like counsels, doctors, accountants, as also judges and so on are covered by the 9^th exception to S.499 of IPC. The position of lawyers in terms of claiming privilege for statements made by them either in the course of examination of witnesses, arguments or other court proceedings, or in the form of drafting of affidavits, is the same as outlined for judges. The issue with regard to conduct of counsels is compounded by the fact that they have to balance the clients’ interest and are bound by the professional requirement of following the instructions in terms of legally putting forward their cases. There is conflicting opinion from the various high courts on the issue of privilege that counsels can claim. While generally there is a trend towards ruling that advocates do not have unqualified privilege, there is also the contrary view that prosecutions must be carefully monitored, as there is the possibility of lawyers being unable to practice their profession fearlessly.

In the 9^th exception, the person, making the imputation, has to substantiate that his inquiry was attended with due care and attention and he was thus satisfied that the imputation was true. It must be shown that the belief in the impugned statement had a rational basis, and was not just a blind simple belief. It is so where the element of due care and attention plays an important role. If, before making a statement, the accused does not show due care and attention that would defeat his plea of good faith. However, it must be remembered that good faith does not require logical infallibility. It is not possible to lay down any rigid rule or test for deciding whether an accused person acted in good faith.

ABSOLUTE PRIVILEGE

The Restatement (Second) of Torts [1977] provides that “An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” In other words, the privilege today protects even the litigator who speaks with knowledge of the falsity of his statements or with reckless disregard of their truth and even with the intent to harm the person defamed.

The "statements" protected by the absolute privilege include not only matters said in court, or contained in documents filed in court, but also letters written to others with some interest in the matters stated and conduct such as the filing of a notice of lis pendens, which is also upheld by the Bombay High Court in the case of Larsen & Toubro Limited v. Prime Displays Pvt. Ltd. & Others [2002 SCC OnLine Bom 267]

In the case of Sankardas Banerjee v. Nandakishore Agarwal [1978 SCC OnLine Cal 255], adjudicated a case where it was alleged that the petitioner [Advocate] in course of his argument, stated that the case under S. 292 [Sale of Obscene Books]/114 [Presence of abettor during the course of an offence] of the I.P.C. against Maneka Gandhi and Kushwant Singh was a blackmailing case and the complainant was a blackmailer, without due care and caution. The Calcutta High Court observed that it was neither alleged in the complaint nor in the evidence in support of it that in making such statements the petitioner was actuated by any personal malice against the complainant opposite party. Therefore, in view of the facts and circumstances of the case and also the nature of the complaint and the evidence in support of it, it cannot be said that any prima facie case under S. 500 [Punishment for Defamation]/114 of the I.P.C. was made out against the petitioner and that the learned Magistrate was justified in issuing the process under the aforesaid section against the petitioner.

PRIVILEGE- NOT SO ABSOLUTE

Interestingly, Gatley on Libel and Slander [1979], while dealing with absolute privilege, states that certain occasions on which public policy and convenience require that men should be free from responsibility for the publication of defamatory words. However, the courts are often unwilling to extend the number of those occasions on which no action would lie even though the defendant published the words with full knowledge of their falsity and with the express intention of injuring the plaintiff. On such occasions a man, stating what he believes to be the truth about another, is protected in so doing, provided he makes the statement honestly and without any indirect or improper motive. These occasions are called occasions of qualified privilege, for the protection which the law, on grounds of public policy, affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made.

In January 2023, Karnataka High Court refused to quash a defamation complaint against an advocate, who was accused of filing a written statement with "objectionable statements against the complainant" before the Upalokayukta on behalf of his clients. Justice K Natarajan rejected the contention of the accused stating that “The averments made by the accused or defamatory statement made by the accused will not fall under the exception of the section 499 of IPC as the statement made by the accused No.3 (Advocate) cannot be said to be in a good faith while conducting the trial or proceedings.” The counsel representing the lawyer argued that he only acted in a good faith for protecting his clients and cannot be held liable for defamation. He contended that "the entire documents should be looked into and it should not be pick and choose of mens rea or criminal intention to defame the complainant.”

Patna High Court in Nirsu Narayan Singh v. Emperor [1926] 27 Cr.L.J. 1090, laid down that the liability of an advocate charged with defamation in respect of words spoken or written in the performance of his professional duty depends on the provisions of S. 499, Penal Code, and the Court will presume good faith, unless there is cogent proof to the contrary. The privilege is not absolute, but qualified.

CONCLUSION

In the case of defamatory remarks made by counsels, the question has to be considered on the facts and circumstances of each case, such as, what is the nature of the implication made, under what circumstances did it come to be made, what is the status of the person who made the same, was there any malice in his mind when he did so, was any inquiry made by him before that, are there any reasons to accept his story that he acted with due care and attention, even in the absence of personal malice.

In the light of justice, equity and good conscience and the standard to be followed in case of defamation during judicial proceeding demands that between the public policy and between the freedom of the citizen, a balance has to be struck and such a balance. If a lawyer acts in his professional capacity on the instructions of his client then his statements are immune from being the basis of action of defamation, unless express malice is pleaded and when challenged established.