O.C.J. Appeal No. 20 of 1965

18th July, 1969.

Petitioner Counsel: A.S.R. Chari, L.M. Zaveri, L.R. Chari
Respondent Counsel: M.J. Mistree, P.P. Khambata, S.P. Bharucha

Cases Cited:
1. (1834) 149 E.R. 1044=1 C.M. & R. 181, at p. 193.
(1963) 2 All E.R. 151.
(1915) 31 T.L.R. 299.
4. (1863) 4 F. and F. 13, 18.
(1877) 2 C.P.D. 215.
(1909) 25 T.L.R. 534=(1909) 2 K.B. 958.
7. (1891) 7 T.L.R. 502=(1891) 2 Q.B. 341, at p. 350.
(1917) AC 309.
(1916) 2 AC 15.
(1960) 22 DLR (2d) 277.
11. AIR 1914 PC 116=(1914) 30 TLR 462, at p. 468=41 IA 149 at p. 169.
12. (1893) 69 Fed. R 530, at p.540.
(1863) 122 ER 288.
(1961) 28 DLR (2d) 343.
(1889) 23 QBD 400.
(1960) 3 WLR 352.
(1930) 1 KB 130.
18. (1892) 1 QBD 431, at p. 444.
(1964) 1 All ER 367.
(1964) 3 All ER 947.
21. (1865) 2 All ER 523, at p. 537.
22. (1967) 3 All ER 523, P.C.
(1934) 50 TLR 581.

JUDGMENT

JUDGMENT:- PALEKAR, J.-This appeal by defendants Nos. 1 and 2 arises out of a libel suit filed by the plaintiff-respondent No. 1, on the Original Side of this Court in respect of an article published in the English weekly "Blitz" in its issue of September 24, 1960. The plaintiff sought to recover Rs. 3,00,000 as general damages and prayed for an injunction. A decree has been passed for the full claim with costs and future interest against defendants Nos. 1, 2 and defendant No. 4 who is respondent No. 2(a) in the appeal.

2. The plaintiff is a prominent businessman and industrialist of Bombay. At the time of the suit he was a partner in a firm which had been carrying on the business of Managing Agents of four textile mills. He was a Director of the Bank of India and of several other well-known companies. He was also the Chairman of the Textile Control Board which had been set up by the Government during the last World-War. He was also the Chairman of the Indian Cotton Mills Federation.

3. Defendant No. 1 is the Editor of "Blitz" and has accepted responsibility for the article referred to above. Defendant No. 2 is a Private Limited Company which owns the newspaper. Original defendant No. 3, with whom we are no longer concerned, was the printer of the issue of "Blitz" but since at an early stage of the suit he tendered an apology, the plaintiff withdrew his suit against him. Defendant No. 4 was joined subsequently in the suit as a joint tortfeasor since it was, principally, upon material furnished by him and with his agreement that the article was published in "Blitz".

4. The plaintiff claimed that the article aforesaid, which is separately exhibited as exh. 6, was grossly defamatory of him. The whole of the article was reproduced in the plaint. He alleged that the allegations and imputations made in that article along with the several innuendoes set out in detail in the plaint were false and malicious, and as a result of the same, the plaintiff was injured in his character, credit and reputation and in the way of his business and had been brought into public hatred, contempt and ridicule. Therefore, he alleged, he had suffered damages which he assessed at Rs. 3,00,000. As the article itself showed that the defendants contemplated publishing a series of similar articles, the plaintiff further asked for a permanent injunction.

5. The suit was, principally, contested by defendants Nos. 1 and 2. That the article was defamatory was not seriously disputed. The principal defences offered were, (i) justification; (ii) fair comment on a matter of public interest; and (iii) qualified priviledge. It was also contended that the damages claimed were excessive and disproportionate.

6. After a trial, which, we are told, went on for 101 days, in which most of the evidence was produced by the defendants and very little on behalf of the plaintiff, the learned Judge negatived the three defences referred to above, and holding that the plaintiff had been grossly defamed by that article and punitive damages were awardable in this case, decreed the full claim of damages of Rs. 3,00,000 with costs. He also gave the injunction asked for.

7. It is from this decree that the present appeal has been filed by defendants Nos. 1 and 2. Learned counsel for the appellants did not press their appeal against the findings of the learned Judge on the pleas of justification and fair comment, but confined their arguments to the plea of "qualified privilege". They also pressed the plea that the damages awarded to the plaintiff were excessive, disproportionate and unreasonable.

8. The defence of "qualified privilege" is set out in the written statement at para. 11A and is as follows:

"11A. Without prejudice to the aforesaid contentions of the defendants and in the alternative, these defendants say that the said Article appearing in the issue of Blitz dated 24th September 1960 is protected as being on an occasion of qualified privilege in that the defendants honestly and without any indirect or improper motive and for general welfare of society published the said Article as it was the duty as Journalists to do and believing the allegations contained in the said article to be true."

Mr. Chari in his address assured us that he would stick to this defence as set out in the written statement. The law with regard to "qualified privilege", which holds good to this day, has been stated by Parke, B. in Toogood v. Spyring1as follows (p. 1049):

".....In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publications as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits."

9. Before we proceed to determine whether the article containing defamatopy allegations was published on a privileged occasion, we have to see what precisely the article would convey to its reader. (See the speech of Lord Reid at page 153 in Lewis v. Daily Telegraph, Ltd.2).

[His Lordship after considering the article, proceeded].

10. Thus, on a reading of the article, Mr. Chari submits, the several allegations and imputations in the article complained of as defamatory were made in the context of dealing with two principal objects of the article, one being to show how an influential business organisation amassed wealth by unlawful and questionable means, and secondly, how, when a probe into their unlawful activities was undertaken, the investigation somehow got bogged down for years on end with no tangible results.

11. If, as Mr. Chari submits, these were the objects with which the article was written-and we shall assume for the purpose of his argument that it was so-there is no escape from the conclusion that the subject-matter of the article was a great public interest. The public are vitally interested in being assured that great concentration of wealth which is discouraged by clauses (b) and (c) of Article 39 of the Constitution does not take place, and if it does, either because of Government's inaction or because of deliberate violation of the law on the part of any business organisation, the public have a legitimate interest to know about it. If again, owing to corruption, inefficiency or neglect on the part of the State investigating machinery, offenders are not speedily brought to book, that would also be a matter of vital public interest.

12. Mr. Chari, therefore, contends that this particular situation gave the newspaper "Blitz" a privileged occasion, that is to say, an occasion giving rise to a duty on the part of the newspaper to address a communication to its readers, the citizens of India, who were interested in receiving the communication. Therefore, any defamatory matter incidental to the subject-matter of the communication was protected by law unless express malice was proved by the plaintiff.

13. On the other hand, it was contended by Mr. Murzban Mistry, on behalf of the plaintiff, respondent No. 1, that a privileged occasion cannot be created by a person for himself to enable him to publish a defamatory statement which he cannot sustain or justify. According to him, a man publishing, without undertaking an obligation to justify, that on his own investigation he had found a public officer to be corrupt cannot claim immunity from liability for defamation by saying that he published it on an occasion of qualified privilege. If the contrary were true, he urged, public or private life would become impossible, because a journalist claiming to investigate for himself fact about an individual in his private or public affairs would be entitled to publish grossly defamatory statements about him on the ground of public interest and claim protection under the principle of qualified privilege. Mr. Mistry does not agree that the article was published with any such high purpose, but in order to meet the argument of Mr. Chari, he is prepared to assume that the article was published in the public interest. But in his submission, the law does not permit publication of a defamatory matter even in the public interest when the journalist is not in a position to show that he has any duty to communicate the defamatory matter to the general public.

14 The proposition for which Mr. Chari contends, when reduced to general terms, would be that, given a subject-matter of wide public interest affecting the citizens of India, a newspaper publishing to the public at large statements of facts relevant to the subject-matter, though defamatory in content should be held to be doing so on an occasion of qualified privilege.

15. In our opinion, such a broad proposition is not recognised by the law. The question arose before the Court of Appeal in England in Adams v. Ward3. In that case, Major Adam, as member of Parliament, made certain defamatory observations about Major-General Scobell relating to the latter's discharge of his official duties. Scobell was the Brigadier and Major Adam's superior when Major Adam formerly held a commission in the 5th Lancers being a regiment commanded by Scobell. While Major Adam enjoyed absolute immunity for his speech made in Parliament, Major-General Scobell could, under the statutory regulations, appeal only to the Army Council to make an inquiry into his own conduct. The Army Council made the necessary inquiry and absolved Major-General Scobell from all blame. The Secretary of the Army Council, Ward, made the communication to Major-General Scobell and the same was published by Ward in all the newspapers through the usual media. The communication contained some references to Major Adam. They were admitted to be defamatory. The libel action commenced by Major Adam against Ward on the basis of this publication was resisted by Ward on the ground of qualified privilege. In the judgment delivered by Lord Justice Buckley, in which the other two Lord Justices concurred, it was distinctly accepted that the matter was of general public interest. The question was whether, assuming that the matter was of general public interest, Ward had any duty to communicate to the general public. Dealing with this question, Lord Justice Buckley observed (p. 303):

".......Involved in this question of duty is the question of the subject-matter being such as there exists a duty to communicate. If the communication be to the public, this question may be whether the matter is matter of public interest. ..In Cox v. Feeney4 a dictum of Chief Justice Tenterden is quoted in the following terms:

'A man has a right to publish, for the purpose of giving the public information, that which it is proper for the public to know.'

With great respect, I doubt whether there is contained in those words an accurate statement of the circumstances in which a privileged occasion arises for the publication of matter interesting to the public. I am not prepared to hold that the publication even by a public body of its proceedings or conclusions in a matter of public interest is on that account and without more privileged. Purcell v. Sowler5 is, I think, an authority to the contrary. I doubt whether in Mangena v. Wright6 Mr. Justice Phillimore was right in saying, at p. 978, that where the communication is made by a public servant as to a matter within his province, it may be the subject of privilege in him' if those words are intended to convey that those facts without more will create a privileged occasion."

It is clear, therefore, that Lord Justice Buckley was clearly of the opinion that the mere fact that the subject-matter was of general public interest did not afford any protection to the publisher, because he proceeded (p. 304):

".....More, I think, is wanted. But the following proposition, I think, is true that if the matter is matter of public interest and the party who publishes it owes a duty to communicate it to the public, the publication is privileged, and in this sense duty means not a duty as matter of law, but, to quote Lord Justice Lindley's words in Stuart v. Bell7 'a duty recognised by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal'. It is upon these principles, I think, that I have to determine whether in the present case the publication was upon a privileged occasion."

16. It is clear from the above observations of Lord Justice Buckley that the Court was clearly of the opinion that it was not sufficient to attract the protection of qualified privilege that the subject-matter is one of general public interest. The person or the newspaper who wants to communicate to the general public must also have a duty to communicate, and if no such duty, apart from the fact that the matter is one of public interest, can be spelt out in the particular circumstances of the case, the publication could not be said to be upon a privileged occasion. This case went in appeal to the House of Lords and is reported in Adam v. Ward8. It is noteworthy that the proposition put forward in the judgment of Buckley L.J. was not only not disapproved by the House of Lords, but, in fact, the whole argument turned upon the question whether Ward had a recognizable duty to perform to the public. On the facts, the House of Lords agreed with the view taken in the Court of Appeal and held that Ward had a duty to communicate the same to the public, because it was only in vindication of the character of the motive of Major-General Scobell, which had been unjustly and unfairly attacked in Parliament. In fact, Lord Dunedin in his speech observed (p. 324):

"He (Major-General Scobell) is bound to refer the matter to the Army Council and await their verdict. The verdict is in his favour. What would that avail him unless there was a right in the Army Council to publish the result at which they had arrived ? If it were not so, then the absolute privilege of the House of Commons, intended to safeguard the liberty of discussion, would be really turned into an abominable instrument of oppression."

On more or less similar grounds the other Law Lords accepted that Ward, as the Secretary of the Army Council, had a duty to communicate the subject-matter to the public. If it were the law that given a subject-matter of great public interest everyone has an interest or duty to communicate and to receive the communication, then it would not have been necessary for both the Courts, viz. the Court of Appeal and the House of Lords, to deal with the question at great length as to whether Ward, the Secretary of the Army Council, had a duty to communicate. We may here further note that while examining the law on the question of qualified privilege Lord Atkinson in his speech has clearly defined when a privileged occasion arises. He observed (p. 334):

"...A privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."

Nothing turns upon the question as to whether a matter is of general public interest. The real question is whether the person making the communication has a duty or interest and whether the person receiving the communication has a corresponding interest or duty.

17. The duty aforesaid giving rise to a privileged occasion may arise in a variety of ways, and it would be idle, as pointed out by Lord Buckmaster L.C. in London Association For Protection of Trade v. Greenlands, Limited9, to put any limits on the same. However, it is always necessary to remember in that connection the observations of Parke B. in Toogood v. Spyring, already referred to, which not only define what a privileged occasion is but also the principle on which it is based. The principle is that such communications are protected for the common convenience and welfare of society. Where the common convenience and welfare of the society are not involved, no occasion could be regarded as a privileged occasion. It is for this reason that qualified privilege is denied to a defamatory statement in a newspaper. For example, in Globe & Mail Ltd. v. Boland10, the Full Court of the Supreme Court of Canada held- "While newspapers may rely on the defence of fair comment in publishing allegedly defamatory statements about a candidate's fitness for office during an election campaign, they cannot invoke the defence of qualified privilege in so publishing defamatory statements."

It was further pointed out in that case:

"There is no such duty on a newspaper during an election campaign as to permit it to defame a candidate, subject to liability only if express malice is shown."

In that case, the editor of the daily newspaper "Globe & Mail" wrote an editorial on May 27, 1957, containing allegations defamatory of the plaintiff Boland who was a candidate for election to the Federal Assembly from Parkdale constituency in the city of Toronto. The editorial commented on his fitness for office with certain innuendoes. In the suit filed by Boland, the newspaper put forward the plea of qualified privilege. It pleaded that it was the duty of the defendant-newspaper to publish and in the interests of public to receive the communications and comments with respect to the candidature of Boland, the plaintiff, and by reason of this, the words complained of were published under such circumstances and upon such occasion as to render them privileged. The learned trial Judge upheld the plea of qualified privilege in the following words:

"I have come to the conclusion that a Federal election in Canada is an occasion upon which a newspaper has a public duty to comment on the candidates, their campaigns and their platforms or policies, and Canadian citizens have an honest and very real interest in receiving their comments, and that therefore this is an occasion of qualified privilege."

The Supreme Court of Canada held that this was an erroneous statement of the law. It was pointed out by Justice Cartwright, who delivered the judgment of the Court, that the learned trial Judge had confused the right which the publisher of a newspaper has, in common with all Her Majesty's subjects, to report truthfully and comment fairly upon matters of public interest with a duty of the sort which gives rise to an occasion of qualified privilege. In that connection, he quoted the well-known passage of Lord Shaw in Arnold v. The King Emperor11 as follows:

"..The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute-law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments is as wide as, and no wider than, that of any other subject. No privilege attaches to his position."

Proceeding further, Justice Cartwright observed (p. 281)- "To hold that during a Federal election campaign in Canada any defamatory statement published in the press relating to a candidate's fitness for office is to be taken as published on an occasion of qualified privilege would be, in my opinion, not only contrary to the great weight of authority in England and in this country but harmful to that 'common convenience and welfare of society' which Baron Parke described as the underlying principle on which the rules as to qualified privilege are founded. (See Toogood v. Spyring). It would mean that every man who offers himself as a candidate must be prepared to risk the loss of his reputation without redress unless he be able to prove affirmatively that those who defamed him were actuated by express malice. I would like to adopt the following sentence from the judgment of the Court in Post Pub. Co. v. Hallam12 'We think that not only is such a sacrifice not required of every one who consents to become a candidate for office, but that to sanction such a doctrine would do the public more harm than good'. "

In the same connection, Justice Cartwright referred to the opinion of Gatley at page 242 of his book on "Libel and Slander", Sixth Ed. under footnote No. 53:

"It is, however, submitted that so wide an extension of the privilege would do the public more harm than good. It would tend to deter sensitive and honourable men from seeking public positions of trust and responsibility, and leave them open to others who have no respect for their reputation."

The view thus taken was further supported by Justice Cartwright by referring to the words of Cockburn C.J. in Campbell v. Spottiswoode13(p. 291):

"It is said that it is for the interests of society that the public conduct of men should be criticised without any other limit than that the writer should have an honest belief that what he writes is true. But it seems to me that the public have an equal interest in the maintenance of the public character of public men; and public affairs could not be conducted by men of honour with a view to the welfare of the country, if we were to sanction attacks upon them, destructive of their honour and character, and made without any foundation."

After quoting the above passage, Justice Cartwright has tersely remarked (p. 282):

"..The interest of the public and that of the publishers of newspapers will be sufficiently safeguarded by the availability of the defence of fair comment in appropriate circumstances."

This principle was applied by the same Court in Banks v. Globe & Mail Ltd.14, where it was held that the proposition of law that given proof of the existence of subject-matter of wide public interest throughout Canada, without proof of any other special circumstances, any newspaper in Canada (and semble therefore any individual) which sees fit to publish to the public at large statements of fact relevant to that subject-matter is to be held to be doing so on an occasion of qualified privilege, is untenable. In that case the same newspaper Globe & Mail Ltd. published an editorial defamatory of one Mr. Harold C. Banks, Canadian director of the Seafarers' International Union. On a suit filed by Banks, qualified privilege was claimed on the ground that it was the duty of the newspaper to publish and in the interests of the public to receive communications and comments with respect to strike and the resultant transfer of eight vessels from Canadian Registry, and by reason of this, the said words were published under such circumstances and upon such occasion as to render them privileged. The learned trial Judge held that the matter was of great public interest. He observed- "The members of the public have a real, a vital-I might go so far as to say-a paramount interest in receiving those comments."

He also pointed out that it was a matter of vital interest to all the citizens of Canada and, therefore, the defence of qualified privilege was available. The Supreme Court held that there was no qualified privilege and again pointed out that the learned Judge had confused the right which the publisher of a newspaper has, in common with all Her Majesty's subjects, to report truthfully and comment fairly upon matters of public interest with a duty of the sort which gives rise to an occasion of qualified privilege. After referring to its earlier decision in Globe & Mail Ltd v. Boland referred to above, it held that in the absence of proof of special circumstances, there is no defence of qualified privilege with respect to defamatory statements of facts made as comments upon a matter of public interest, and the same holds good for newspapers as for anyone else. "The special circumstances" obviously refer to circumstances giving rise to a legal, social, or moral duty, and recall to mind the words of Buckley L.J. In Adam v. Ward referred to above where he said ''More, I think, is wanted".

18. That the existence of a duty for qualified privilege is more fundamental than the existence of a matter of public interest as asserted by Lord Justice Buckley is emphasised by Lord Dunedin in appeal in that case. (See Adam v. Ward). After stating at the beginning of his speech at page 322 that the judgment of Buckley L.J. in the Appeal Court was entirely satisfactory to his mind, he observed as follows (p. 331):

"...The second matter is more serious. In order to dispose of the question of privilege he (i.e. trial Judge) put to the jury certain questions, of which three were as follows: Was the publication-that is, the document published-of a public nature? Was the subject-matter of that publication by defendant matter about which it was proper for the public to know? Was the matter contained in the letter proper for the public to know? To all of which the jury returned a negative answer, and upon that the learned judge said: 'Upon these findings I hold that the publication was not a privileged publication nor a publication on a privileged occasion.' It is clear that so far as the questions go they assume that the foundation of the duty or right which was invoked to support the privilege was that the matter discussed was one of public importance; whereas the true foundation in this case was the duty of the Army Council to make publicly known their vindication of General Scobell's honour."

This is exemplified by an older case reported in Allbutt v. General Council of Medical Education And Registration15. The facts were that the General Medical Council published a book containing the minutes of the proceedings of the Council including a statement that the name of the plaintiff had been removed from the register of medical practitioners on the ground that he had been guilty of grave professional misconduct, and a report of the proceedings before the Council in relation to the charge. It was held, having regard to the character of the report, the interests of the public in the proceedings, and the duty of the Council towards the public, the publication of the report was privileged. Gatley in his book "Libel and Slander", Sixth Edn. at para. 532 (p. 245) has put the matter as follows:

"Duty to the public necessary. But where no duty to the public can be proved, no privilege will attach to the publication of libellous matter in a newspaper.."

19. One more case referred to by Mr. Chari remains to be noted, and, that is, Webb v. Times Publishing Co. Ltd.16. In that case, a wife felt defamed by a fair and accurate report in the "London Times" of a judicial proceeding in a Swiss Court in which her husband made a confession containing matter defamatory of the wife. The learned Judge held that the defendant, the Proprietor of the Times, was protected by qualified privilege not on the ground that the "Times" had a duty to the English public to report on a matter of public interest but on the ground that the report was based on a judicial proceeding in a foreign Court which gave it sufficient status, and that a plea of "fair information on a matter of public interest" on the analogy of "fair comment on a matter of public interest" was open to the defendant under the law. It is easy to see how the facts in that case are distinguishable. As a matter of fact, Gatley in his book at page 245 in footnote 67 has stated that in spite of Webb v. Times Publishing Co. Ltd., the correct statement of English Law is what is laid down in Banks v. Globe & Mail referred to above.

20. It was, however, contended for the defendants that in a case like the present where a journalist honestly believes that the public exchequer is deprived of a large sum of money and the Government is seized with paralysis in bringing the culprit to book speedily, this Court, having regard to the conditions obtaining in this country, should recognize in the journalist a duty to bring the facts to the notice of the public with a view to put pressure on the Government to act. In this connection, reference was made to certain passages in the Report of the Press Commission, Part I, 1954, particularly, paras. 910 and 911 in Chapter 19 at page 339. The Chapter is "Standards and Performance". We have gone through the paragraphs referred to, but we find there nothing to justify the contention that such a need was felt by the Press Commission. On the other hand, after stating in para. 914 that the newspapers ought to be accurate and fair, it sternly condemned yellow journalism (para. 929), 'Sensationalism' (para. 931) and 'Malicious and irresponsible attacks' (para. 936) even when such attacks had been made on the plea that the newspapers wanted to expose evil in high places. We do not, therefore, feel the need of recognizing any such new duty, because the journalist like any other citizen has the right to comment fairly and, if necessary, severely on a matter of public interest, provided the allegations of facts he has made are accurate and truthful, however defamatory they may be otherwise. Since his right to comment on matters of public interest is recognized by law, the journalist obviously owes an obligation to the public to have his facts right. Where the journalist himself makes an investigation, he must make sure that all his facts are accurate and true, so that if challenged, he would be able to prove the same. We think, public interests are better served that way. In our opinion, therefore, the plea of qualified privilege put forward on behalf of the defendants fails.

21. Mr. Mistry, on behalf of the plaintiff, further argued that even if qualified privilege was assumed in favour of the defendants, he was able to show that the attack on his client was malicious. The law is clear in the matter. Malice in law, which is presumed in every false and defamatory statement, stands rebutted by a privileged occasion. In such a case, in order to make a libel actionable, the burden of proving actual or express malice is always on the plaintiff. Malice in that sense means making use of a privileged occasion for an indirect or improper motive. Such malice can be proved in a variety of ways, inter alia, (i) by showing that the writer did not honesty believe in the truth of these allegations, or that he believed the same to be false; (ii) or that the writer is moved by hatred or dislike, or a desire to injure the subject of the libel and is merely using the privileged occasion to defame (see, Watt v. Longsdon17, and the observations of Greer L.J. at page 154); and (iii) by showing that out of anger, prejudice or wrong motive, the writer casts aspersions on other people, reckless whether they are true or false. See observations of Lord Esher M.R. in Royal Aquarium And Summer And Winter Garden Society v. Parkinson18. Mr. Mistry contends that almost all the material defamatory allegations in the article come under one or more of the above categories.

[His Lordship after considering the aspects of malice in the article alleged by the plaintiff, proceeded.-]

22. Having, therefore, given our careful consideration to the article and the aspects of malice put before us by learned counsel for the plaintiffs, we are satisfied that the whole article was conceived in express malice and, therefore, no qualified privilege can at all be claimed.

23. That brings us to the question of damages. The plaintiff claimed general damages of rupees three lacs, and the whole claim has been decreed. The learned Judge took the view that exemplary damages were necessary to be awarded and he has made it clear in the last but one para, of his judgment that the deterrent aspect was not absent from his mind. It is contended on behalf of the defendants that the damages are excessive and unreasonable, and, in any case, exemplary damages could not have been awarded.

24. It is now settled after the decision of the House of Lords in Rookes v. Barnard19, and the decision of the Court of Appeal in McCarey v. Assoc. Newspapers, Ltd.20 that, at common law, damages for defamation are purely compensatory. There is no room hereafter for importing the concept of exemplary or punitive damages except in two well defined categories of cases. The first category is of those cases where the plaintiff is injured by the oppressive, arbitrary or unconstitutional action by the executive or the servants of the Government. The second category is comprised of those cases in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff. Except in these two types of cases, there is no departure from the ordinary compensatory principle for all torts, including libel. Where a newspaper is the defendant, it cannot be said without more that the publication has been made with a view to make profits. As pointed out in Broadway Approvals v. Odhams Press21, newspapers in the ordinary course of their business publish news for profits. Only when a more pecuniary benefit is shown to have been made by a newspaper would it become liable for punitive damages.

25. Mr. Mistry invited our attention to a recent decision of the Privy Council in Australian Consolidated Press v. Uren22, in which case the Privy Council did not apply the principle about exemplary damages as laid down by Lord Devlin in Rookes v. Barnard referred to above. The case, however, shows that the Privy Council did not purport to dissent from the view taken by the House of Lords. The question before them was, whether it was necessary to overrule the unanimous view of the Full Court of the High Court of Australia which had refused to follow Rookes v. Barnard on the ground that the High Court had for years accepted as part of the Australian law that punitive damage was an element to be considered in the award of damages in a libel action. The Privy Council held that it was not necessary. So far as this country is concerned, that is not the position. The research of learned counsel has not been able to show us that in India punitive damages had been always considered as a part of the Indian law of libel. On the other hand, having inherited the jurisdiction of the late Supreme Court, the Original Side of this Court has always followed the common law of England in matters of torts including libel, and since Rookes v. Barnard explains what the common law is in this respect, we feel, we should be guided by it, though by no means the decision is binding on us.

26. The present position in law with regard to damages in a libel action is stated by Lord Justice Pearson in McCarey v. Associated Newspapers as follows (p. 957):

"If I may summarise shortly in my own words what I think is to be derived from that case, it is this, that from henceforth a clear distinction should be drawn between compensatory damages and punitive damages. Compensatory damages in a case in which they are at large may include several different kinds of compensation to the injured plaintiff. They may include not only actual pecuniary loss and anticipated pecuniary loss or any social disadvantages which result, or may be thought likely to result, from the wrong which has been done. They may also include natural injury to his feelings; the natural grief and distress which he may feel in being spoken of in defamatory terms; and, if there has been any kind of high-handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering which is caused by the defamation and which may constitute injury to the plaintiff's pride and self-confidence, those are proper elements to be taken into account in a case where the damages are at large. There is, however, a sharp distinction between damages of that kind and truly punitive or exemplary damages. To put it in another way, when you have computed and taken into account all the elements of compensatory damages which may be awarded to the plaintiff and arrived at a total of £X, then it is quite wrong to add a sum of £Y by way of punishment of the defendant for his wrong-doing. The object of the award of damages in tort nowadays is not to punish the wrong-doer, but to compensate the person to whom the wrong has been done. Moreover, it would not be right to allow punitive or exemplary damages to creep back into the assessment in some other guise. For instance, it might be said: 'You must consider not only what the plaintiff ought to receive, but what the defendant ought to pay'. There are many other phrases which could be used, such as those used in the extracts which I have cited from some of the decided cases. In my view, that distinction between compensatory and punitive damages has now been laid down quite clearly by the House of Lords in Rookes v. Barnard, and ought to be permitted to have its full effect in the sphere of libel actions as well as in other branches of tort."

27. Therefore, aggravated damages may be awarded within the compensatory principle in circumstances specifically referred to above, viz., if there has been any kind of high-handed, oppressive, insulting or contumelious behaviour by the defendant which increases the mental pain and suffering which is caused by the defamation and which may constitute injury to the plaintiff's pride and self-confidence. But these elements cannot be taken into consideration to award what are in law punitive or exemplary damages.

28. What are then the injuries for which the plaintiff should be compensated? That is explained by Lord Justice Diplock in that same case as follows (p. 959):

"In an action for defamation, the wronful act is damage to the plaintiff's reputation. The injuries that he sustains may be classified under two heads: (i) the consequences of the attitude adopted to him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and (ii) the grief or annoyance caused by the defamatory statement to the plaintiff himself. It is damages under this second head which may be aggravated by the manner in which, or the motives with which, the statement was made or persisted in. There may also be cases where LORD DEVLIN'S second principle is applicable, as, for example, if a newspaper or a film company (as in Youssoupoff v. Metro-Goldwyn-Mayer Pictures23) has, in the view of the damage-awarding tribunal, deliberately published a defamatory statement in the expectation of increasing its circulation and profits by an amount which would exceed any damages awarded by way of compensation alone."

The plaintiff claimed in the present suit general damages of Rs. 3,00,000 on the ground that the plaintiff has been injured in his character, credit, and reputation and in the way of his business and has been brought into the public hatred, contempt and ridicule. The plaintiff, however, has not entered the witnessbox or adduced evidence of his friends or associates in business to show to what extent he is avoided by friends or shunned by his associates in trade or business, nor has he shown the extent of diminution in the esteem in which he was held. There is no special damage alleged or proved in the way of business or trade. As to grief or annoyance caused to him, the plaintiff has not helped the Court in making any accurate estimate by his evidence. As pointed out by both Diplock and Wilmer L. JJ. in Mc Carey v. Associated Newspapers Ltd., referred to above, the presence of the plaintiff in the witness-box gives the jury or the Judge an opportunity which the Appellate Court does not have to form their view of his personality-whether he is a particularly sensitive man, and "to assess the grief and annoyance which it would cause him as a sort of person they thought him to be". Thus, unfortunately in this case both the incommensurables, viz. diminution in esteem and the extent of mental distress which to some extent must have been, undoubtedly, caused by the publication, present a problem of evaluation or equation.

29. The learned Judge, however, has awarded the full claim of rupees three lacs as damages describing the same as exemplary damages. In the first place, this was not a case for exemplary damages, because it is not the case that the defendants made any profit by the publication of the article in his journal. Undoubtedly, he has referred to some substantial aggravating circumstances and that would justify awarding aggravated damages, but it would be difficult to say what the learned Judge may have awarded as aggravated damages if the punitive element had been excluded. Since exemplary damages have been awarded when they were not due, this Court has the power and the duty to interfere with the decree for damages.

30. On the other hand, there is hardly any doubt that the article as admitted by defendant No. 1 is grossly defamatory. A worse libel is difficult to imagine. The plaintiff is a prominent businessman and industrialist and was sometime or the other the Chairman of the Millowners Association, Chairman of the Textile Control Board, and the Chairman of the Federation of Textile Mills. That would be sufficient to show his standing in trade and industry, and yet he is accused in the article of being involved in a "Scandal bigger than Mundhra" and of being a tax-evader, financial juggler, and import-export-racketeer and a swindler. He is also accused of having smuggled foreign-exchange in violation of the Customs and Foreign Exchange Regulations. He is further accused of having himself used his position as the Chairman of the Textile Control Board in order to assist his satellite concerns. He is also accused of having started bogus factories and firms with a view to obtain fabulous Import-licences for goods to be eventually sold in the black-market in order to evade the income-tax. These accusations are, undoubtedly, grossly defamatory. To add insult to injury, the defendants recklessly pleaded justification and improperly persisted in it when any reasonable person after being shown his error in the witness-box would have gracefully withdrawn the allegations and apologised. In the conduct of the litigation also they showed, as pointed out by the learned Judge, concentrated venom and hostility and augmented the injury caused by the defamatory article by making baseless new allegations that the plaintiff had corrupted officials engaged in investigation in the case against bis concerns and even bribed a senior Minister of the Central Government. These matters were rightly taken into consideration by the learned Judge in not only awarding substantial damages but aggravated damages.

31. Nevertheless, it appears to us that the learned Judge was in error in decreeing the full claim made by the plaintiff. It is the contention of the defendants that the damages are not only excessive but unreasonable and disproportionate in the circumstances of the case. We are aware that Appellate Courts are, and should be, most reluctant to interfere with the assessment of the learned trial Judge or a jury, but, that is so, because the latter have a unique opportunity of seeing the parties before them when equating the two incommensurables, viz., the diminution in esteem and the mental distress of the plaintiff. Where the plaintiff has not entered the witness-box or examined anybody for proving the same, it is quite open to the defendants to contend that the Appellate Court is in no worse position than the learned trial Judge in making the proper assessment. Even otherwise, what are proper damages is always a matter of impression, and, we should think that a claim of Rs. 3,00,000 is much too high. We have only to bear in mind that a sum of three lacs is no mean sum by Indian standards. There are few persons in India who would save, after payment of taxes, that much sum in a life-time of honest toil. Looked at that way, one may complain this is almost a bounty.

32. Mr. Mistry for the plaintiff submitted that although at first blush rupees three lacs may appear to be a large sum, the Court will also have to take into consideration the cost that his client had to undergo in order to vindicate his honour. It is true, he submitted, that he has been awarded costs in the trial Court, but those costs are between party and party and are very much less than the costs which he has to pay to his attorneys and counsel. There can be no doubt that the costs between an attorney and client are very much more than the costs between party and party, and costs actually incurred are much more-than the costs awarded by the decree. The trial went on for 101 days and costs must have risen from day to day, and, therefore, the costs awarded in the decree will not cover the costs the plaintiff had incurred. But this consideration is extraneous to the question as to what damages are to be awarded for the injury caused. A party complaining about a tort like libel can only ask compensation for the injury sustained. It cannot include any part of the costs. Costs have to be decreed only in accordance with the rules of the Court.

[His Lordship then dealing with a point not material to this report, proceeded].

33. On a consideration of the issues involved and discussed above, we think, the amount of damages awarded by the learned trial Judge will have to be reduced. We think that the proper damages to be awarded should be rupees one and half lacs The decree will have to be modified to that extent.

[The rest of the judgment is not material to this report].

Appeal partly allowed.