The Madras High Court judge g r Saminathan made pertinent observations regarding the role of the higher judiciary in safeguarding the freedom of press, . by Sekar Reporter · May 7, 2020 HomeNewsDealstreetInterviewsColumnsApprentice LawyerViewpointLegal JobsJustice GR Swaminathan (L), Madurai Bench of Madras High Court (R)LITIGATION NEWSNo point in merely singing paeans to Freedom of Press if one cannot go to its rescue when threatened: Madras High Court [Read Judgment]The Court made the observation while quashing criminal defamation proceedings initiated against journalist Sandhya Ravishankar for 2015 articles published by the Economic Times on illegal beach sand mining in Tamil NaduMeera EmmanuelMay 7, 2020, 10:13 AM ISTThe Madras High Court on Wednesday made pertinent observations regarding the role of the higher judiciary in safeguarding the freedom of press, while quashing defamation proceedings initiated against journalist Sandhya Ravishankar for articles published by the Economic Times on illegal beach sand mining in Tamil Nadu back in 2015.The Court was dealing with a plea to set aside criminal defamation proceedings after a Tirunelveli Court issued summons against Ravishankar, her husband, “The Editor” and “Grievances Redressal Officer” of the Economic Times.Allowing the plea on merits, Justice GR Swaminathan emphasised,“I am clearly of the view that there is no point in merely singing paeans to freedom of press, if one cannot go to its rescue when the said right is faced with a serious threat.”Madras High CourtReferring to the Supreme Court’s observation that Courts play the role of the sentinel on the qui vive to guard Constitutional rights, Justice Swaminathan further observed,“The sentinel must ever be alert to danger and charge forth when required. The Court can never desert its duty when it comes to protection of fundamental rights. Those observations will apply to the entire higher judiciary.”He remarked that there is an ethical imperativein these matters, which require the Court to exert itself when fundamental freedoms are at stake. The Courts are expected to be proactive when it comes to the protection of fundamental rights, he said.“When freedom of press which is a fundamental right is at stake, higher judiciary is obliged to exercise not only its inherent power but also exert itself a bit. An unused power is a useless tinsel. There is no point in merely saying that press is the foundation of democracy.”Madras High CourtThe Court went on to reject the complainant’s argument that the case involved factual aspects that necessarily had to go to trial, observing that, “If a summary examination of the materials produced by the accused can bring their case within one of the Exceptions, I can give relief to the petitioners here itself instead of making them undergo the ordeal of trial.““Such an activist role will have to be played by the higher judiciary because it is a matter of record that criminal defamation proceedings have become a tool of intimidation and before corporate bodies and powerful politicians whose pockets are tunnel deep and whose hands are long even media houses having good resources have capitulated.”Madras High CourtOn why minor inaccuracies would not constitute defamation“There can always be a margin of error. The permissible width of the margin will depend on the facts and circumstances of each case. The media can avail this defence whether the complainant is a public official or a private entity. Mere inaccuracies in reporting cannot justify initiation of prosecution”, the High Court observed.The articles in question were published after the Madras High Court issued notice on PIL filed over illegal beach sand mining. The original petitioner was later released from the proceedings after his bonafides came into question.“But then, the PIL did not get terminated or closed”, Justice Swaminathan pointed out.Rather the Court converted the issue into a suo motu PIL, by which the High Court continues to monitor the issue till date with Advocate V Suresh as an amicus. As such, Justice Swaminathan noted,“The fact that the Hon’ble Division Bench is actively seized of the matter is more than sufficient to indicate the importance of the issue raised by the third petitioner.”This being the case, the High Court concluded that the articles in question were covered by the third exception under Section 499 (defamation) of the Indian Penal Code.As per the third exception to Section 499, IPC, criminal defamation proceedings would not be attracted if a conduct (publication) is carried out in good faith and on a public question. Invoking this provision, the High Court held,“The article has been published only in the wake of the notice issued by the Hon’ble First Bench of the Madras High Court. When the Hon’ble First Bench thought it fit to issue notice based on the allegations made by a litigant and when it raised a public question, the media is certainly entitled to carry a story on it.This is something that would on the very face of it fall within Exception No.3 to Section 499 IPC. When a defence can be established in a summary manner and does not warrant a regular trial, relief ought to be granted in a petition under Section 482 of Cr.PC.”Notably, the Court also observed that minor mistakes in the articles would not be ground to attract defamation proceedings. On facts, it noted that, “No doubt the report in question contained a few mistakes. But then, a clarification was later carried by the Magazine expressing its regret.”On a broader note, the judge observed that the US case of New York Times vs. Sullivan, which has been since cited with approval by the Indian Supreme Court, would be relevant. Quoting an extract on the Sullivan case in Gautam Bhatia’s book “Offend, Shock or Disturb, Justice Swaminathan recorded,“What Justice Brennan understood was that in order to survive, free speech needed ‘breathing space’ – that is, the space to make mistakes. ‘Erroneous statement’, he pointed out, ‘was inevitable in free debate’- and therefore, the very existence of free debate required the protection of such statements.”The Sullivan case lead to the framing of the actual malice test for defamation, which, it was noted, meant that “liability could be imposed only if the maker of the statement either knew it was false, or published it with reckless disregard for its truth or falsity.”In view of these observations, the Court found that there was no case of defamation made out against Sandhya Ravishanker and the Editor of the Economic Times. Justice Swaminathan added,“The very institution of the impugned complaint is an abuse of the process of court. Quashing the same alone would secure the ends of justice.”Madras High CourtCannot assume Ravishanker was her husband’s “pawn”In the course of judgment, the Court also rejected an argument made by the complainant that the articles in question were actuated by malice after Ravishanker’s husband was not given a job at a company in which the complainant entity had stakes in.“If I accept the contention of the complainant’s counsel, that would undermine the agency of the woman concerned”, the Court said. Justice Swaminathan went on to remark,“The complainant wants me to assume that the third petitioner lacks personal autonomy. The third petitioner definitely has the capacity to act independently and make her own free choice. I cannot assume that the third petitioner was a pawn or tool at the hands of her husband. Her innate dignity can be upheld only by deleting the fourth petitioner from the array of accused.”Therefore, he deleted Ravishanker’s husband from the array of parties, citing that this was necessary to uphold her innate dignity.The Court further found that the Tirunelveli lower court had failed to note the defective arraignment of two other parties i.e. “The Editor” and “Grievances Redressal Officer” in the matter.“… an accused in a criminal case can be either an individual or a corporate entity. The accused if an individual, will have to be named in person with appropriate description. If the accused is not named in person and is merely referred to by designation, the court ought to return the complaint as defective”, the Court pointed out.The High Court added that these two parties were based outside the territorial jurisdictional limits of the Tirunelveli Court, lending further credence to the conclusion that the lower court took cognisance of the matter without applying its mind.