Narinder Batra & Anr vs Kirti Azad
2017 Latest Caselaw 1300 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                             Date of decision: 9th March, 2017
+                         CS(OS) No.72/2016
       NARINDER BATRA & ANR                            ..... Plaintiffs
                    Through: Mr. Rajiv Nayar, Sr. Adv. with Ms.
                               Shyel Trehan, Ms. Manjira Dasgupta
                               & Mr. Nikhil Ratti Kapoor, Advs.
                            Versus
       KIRTI AZAD                                    ..... Defendant
                    Through: Mr. Manish Tiwari, Mr. Amit A. Pai,
                               Mr. Rahat Bansal & Mr. Anshuman
                               Ashok, Advs.
       CORAM:-
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.8473/2016 (of the defendant under Order VII Rule 11 CPC).
1.

The sole defendant in the suit seeks rejection of the plaint in this suit

by the two plaintiffs i.e. Shri Narinder Dhruv Batra and Hockey India

against the defendant for (i) recovery of damages in the sum of

Rs.10,00,00,000/- for defamation; and, (ii) for permanent injunction

restraining the defendant from in future defaming the plaintiffs.

2. The suit was entertained and the defendant, besides filing the written

statement (to which replication has been filed), has filed this application

under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC). The

counsels were heard on the application on 23rd August, 2016 and 7th

September, 2016 and order reserved.

3. The defendant seeks rejection of the plaint on the ground that (i)

allegedly defamatory statements attributed to him are privileged and are

made by the defendant as a public representative to the authorities in the

Government seeking investigation by the authorities of various irregularities

and cannot constitute defamation; (ii) that the allegations in the plaint are

vague; (iii) that the plaintiffs have not made any averments or specific

pleading in respect of publication of the allegedly defamatory statements;

the averments in the plaint are wholly based on documents which have been

obtained by the plaintiffs under the Right to Information (RTI) Act, 2005;

and, (iv) that the plaintiffs in the plaint have loosely used the word "libel" or

"defamation", without substantiating the same.

4. I will now proceed to examine the plaint in the light of the grounds

aforesaid urged for rejection thereof.

5. The plaintiffs have instituted the suit pleading (i) that the plaintiff no.1

is the President of the plaintiff no.2; (ii) that the plaintiff no.2 is a registered

Society engaged in the promotion, organization and development of hockey

in India and is the sole body responsible for the governance of hockey in

India; (iii) that the plaintiff no.1 is also the Vice President on the Executive

Board of the Asian Hockey Federation and a member of the Executive

Board of the International Hockey Federation; (iv) that the plaintiff no.1 has

served in and managed national and regional sports organizations and has

earned a distinct regard and reputation for his work and integrity; (v) that the

plaintiff no.2 Hockey India has been granted recognition by the Government

of India, Ministry of Youth Affairs and Sports as the National Sports

Federation for the sport of hockey in India; (vi) that the plaintiff no.2

Hockey India was granted affiliation with the International Hockey

Federation; (vii) that the plaintiff no.2 Hockey India is also recognised by

the Indian Olympic Association as the Central Authority responsible for all

matters relating to hockey in India; (viii) that the defendant is a renowned

cricketer on the international stage and a Member of Parliament (Lok Sabha)

and a member of various Parliamentary Committees; (ix) that the defendant

has made completely false statements against the plaintiffs, with the

knowledge and intention of causing injury to the reputation and public image

of the plaintiffs and has succeeded therein; (x) that the highly malicious,

defamatory, reckless, baseless, false and libelous statements against the

plaintiffs are aimed at maligning the public image of the plaintiffs and

generating adverse public opinion against the plaintiffs; and, (xi) the

defendant has repeatedly written various communications to the Finance

Minister, Minister of Sports and Youth Affairs and various senior officials

of the Sports Ministry, with false allegations against the plaintiffs, with the

sole intention of maligning the images of the plaintiffs.

6. The plaintiffs have thereafter in para 7 of the plaint re-produced the

communications of the defendant to the Finance Minister and the Secretary,

Ministry of Sports and Youth Affairs, in which the defendant has inter alia

stated that the plaintiff no.2 is the "usurper King", that the plaintiff no.2

"had been running riot over the last few years", that under the plaintiffs

"the state of hockey has gone from bad to worse", that the Sports Ministry

had taken a decision "to dump" the plaintiffs, that the plaintiffs had taken

control of hockey affairs in India with "political patronage", that the

plaintiffs had "subverted the due process by manipulating and leveraging

power", that the plaintiff no.1‟s "brazen and illegal working in hockey" has

"all but destroyed the game of hockey in India", that the plaintiffs are

"squatters" who had "literally taken over the reins of hockey in India", that

the status of National Sports Federation had "been brazenly and wrongfully

accorded" to the plaintiff no.2, that the plaintiff no.2 Hockey India is a

"Frankenstein Monster" which "will one day eat up the same people and

institutions who have promoted and supported it".

7. The plaintiffs have also pleaded that all the aforesaid letters have wide

circulation to various officials of Ministry of Youth Affairs and Sports and

are read by officials of both Ministry of Finance and Ministry of Sports. It is

further the plea of the plaintiffs (i) that the statements of the defendant are

false, malicious and defamatory and have been made with reckless disregard

of the truth; (ii) that the defendant has clearly misused his position of power

and responsibility to malign the image and reputation of the plaintiffs and to

discredit the plaintiffs; (iii) that the defendant is attempting to promote

Indian Hockey Federation which was disaffiliated from the International

Hockey Federation in the year 2000 and which from the year 2000 to 2008

had perpetrated a complete sham on the International Federation; (iv) that

the defendant has misused his role as Member of Parliament to further his

ambitions as a sports administrator in various organizations of which he is a

member or otherwise associated; (v) that the impact of the publication of

such communications is not confined to the officials of the Ministries of

Finance and Sports Affairs but also with the officials of Central Bureau of

Investigation (CBI), Central Vigilance Commission (CVC), with several

people expressing great shock at the contents of the said article; (vi) that the

plaintiff no.1 has been subjected to humiliation at social gatherings where

the contents of these communications have been discussed and questions

have been raised by members of the sports fraternity to whom the defendant

circulated the communication; (vii) that the statements have tarnished the

image of the plaintiffs and self respect of the plaintiff no.1; and, (viii) the

statements have tarnished the image of the plaintiff no.2, in the eyes of

hockey players, sponsors and Government officials and other sports

organizations at national and international levels.

8. The counsel for the defendant argued (i) that the communication dated

25th April, 2015 is a communication by the defendant as a Member of

Parliament to the Finance Minister to recuse from investigation into the

affairs of the sport of hockey and the reference to the plaintiffs therein is a

corollary; (ii) that the other letters are to the Secretary of Sports to enquire

into the affairs of the sport of hockey and the plaintiff no.2 Hockey India;

(iii) that the defendant as a Member of Parliament enjoys a qualified

privilege; (iv) that Rule 4 (1) and (2) of the Government of India (Allocation

of Business) Rules, 1961 provides that the business of the Government of

India allocated to Cabinet Secretariat is and shall always be deemed to have

been allotted to the Prime Minister and that the President may on the advise

of the Prime Minister allocate the business of the Government of India

among Ministers by assigning one or more departments to the charge of a

Minister; (v) that in exercise of the aforesaid powers the Department of

Sports and inter alia matters relating to Indian Olympic Association and

National Sports Federations have been allocated to the Ministry of Youth

Affairs and Sports; (vi) that the letters of the defendant containing the

allegedly defamatory statements are addressed either to the Ministry of

Youth Affairs and Sports or to the Secretary, Ministry of Youth Affairs and

Sports or to the respective administrative heads; (vii) that Article 105 titled

"Powers, privileges, etc., of the Houses of Parliament and of the members

and committees thereof" of the Constitution of India, sub Article (1) thereof

inter alia provides that there shall be freedom of speech in Parliament and

sub Article (2) provides that no member of Parliament shall be liable to any

proceedings in any court in respect of anything said or any vote given by

him in Parliament or any committee thereof and no person shall be so liable

in respect of the publication by or under the authority of either House of

Parliament of any report, paper, votes or proceedings and sub Article (3)

thereof provides that the powers, privileges and immunities of members

shall be such as may from time to time be defined by Parliament by law and

till so defined shall be those as immediately before the coming into force of

Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978; (viii)

that all communications of the defendant alleged to be defamatory are to set

in motion the administrative machinery concerned with the affairs of the

sport of hockey; (ix) the said communications are not to be equated with

letters to an editor of a mass publication; (x) that since the law of defamation

has not been codified in India, Members of Parliament enjoy the same

privilege as the Members of Parliament in U.K.; (xi) that a letter of a

Member of Parliament to a Union Minister falls within the meaning of

Article 105 and is privileged; (xii) that there is a difference between a citizen

and a Member of Parliament and a letter of the Member of Parliament is

treated differently; (xiii) that none of the said letters are in public domain

and even the plaintiffs as per their own admissions have obtained copies

thereof under the RTI Act; and, (xiv) the authorities under RTI Act should

not have given copies of the said letters to the plaintiffs without the consent

of the defendant; (xv) that one of the communications alleged to be

defamatory is a request for obtaining information under RTI Act; (xvi) that

the plaintiff no.2 has no locus to sue. The counsel for the defendant relied on

(a) Bira Gareri Vs. Dulhin Somaria AIR 1962 Patna 229; (b) Judgment

dated 27th November, 2009 of this Court in CS(OS) No.531/2005 titled M/s.

Crop Care Federation of India Vs. Rajasthan Patrika (Pvt.) Ltd.; (c)

passages from "Parliament - Functions, Practice and Procedures" by

J.A.G. Griffith and Michael Ryle; (d) Office Memorandum dated 1st

December, 2011 issued by the Ministry of Personnel, Public Grievances and

Pensions with the subject "Official dealings between the Administration

and Members of Parliament and State Legislatures - Observance of

proper procedure" instructing that communications received from a

Member of Parliament should be attended to promptly and communications

addressed by the Member of Parliament to a Minister or Secretary to the

Government should as far as practicable be replied to by the Minister or the

Secretary himself; and, (e) The Government of India (Transaction of

Business) Rules, 1961 prescribing that in each department the Secretary

shall be the administrative head and shall be responsible for proper

transaction of business and the careful observance of rules of that

department.

9. Per contra the senior counsel for the plaintiffs argued (i) that the

Parliamentary privileges apply only in Parliament and are confined to the

House and to the proceedings in the House; (ii) that none of the allegedly

defamatory statements were made in Parliament; (iii) that two of the

impugned communications are to the Minister of Finance and to the Minister

of Sports respectively and three are to the Secretary of the Ministry of Youth

Affairs and Sports; (iv) that the Secretary is not concerned with Parliament;

(v) that the complain communications by the defendant containing the

defamatory statements are not akin to complain to the Police; (vi) that the

plaintiffs, in the plaint, have attributed mala fides to the defendant in making

such statements; (vii) all the said aspects cannot be subject matter of

adjudication under Order VII Rule 11 of the CPC; (viii) that truth and fair

comment are not defences in Civil Suit for defamation; and, (ix) that if

according to the defendant the plaintiffs have wrongfully obtained the copies

of the communications, the remedy therefor is in the RTI Act itself and the

same cannot constitute a defence to the suit. The senior counsel for the

plaintiffs relied on (i) Dhyanapeta Charitable Trust Vs. Nakkheeran

Publications MANU/TN/4462/2010; (ii) passage from "Commentary on

the Constitution of India" 8th Edition, 2008 by D.D. Basu authoring that the

immunity under Article 105 covers only proceedings in Parliament and

would not extend to letters written by a Member of Parliament to a minister

containing allegations against third parties and that qua such letters only

qualified privilege under the ordinary law may be available and that the

Member will have to answer in Court for libellous contents in such letter if

they are malicious, but may claim qualified privilege on showing that he

forwarded his constituent‟s allegations in good faith and in public interest;

(iii) Jatish Chandra Ghosh Vs. Harisadhan Mukherjee AIR 1956 Cal 433;

and, (iv) Ram Jethmalani Vs. Subramaniam Swamy 2006 (87) DRJ 603.

10. I have considered the rival contentions.

11. As would be obvious from the above, though in the application under

Order VII Rule 11 of the CPC the grounds also of the allegations of

defamation being vague and of the plaintiffs having not been defamed by the

allegedly defamatory statements were pleaded but were not really

pressed/urged during the hearing which was confined to the aspect of the

privilege enjoyed by the defendant as a Member of Parliament. I may

otherwise also state that on perusal of the plaint and a summary whereof has

been set-out hereinabove, it cannot be said that on a reading of the plaint no

cause of action for the relief for defamation can be deciphered.

12. As far as the aspect of privilege is concerned, I am unable to read

Article 105 as allowing a Member of Parliament to, outside Parliament, in

the name/garb of being a representative of the people of his constituency or

in public interest, make statements which are defamatory, without being

liable therefor. As far back as in Tej Kiran Jain Vs. N. Sanjiva Reddy

(1970) 2 SCC 272 it was held that Article 105(2) though gives immunity in

respect of everything said in Parliament but subject to the limitation that it

should have been said during the sitting of Parliament and in the course of

business of Parliament.

13. In Bira Gareri supra relied upon by the counsel for the defendant, the

Division Bench of the High Court of Patna was not even concerned with the

privilege against defamation if any enjoyed by the Member of Parliament.

The question for adjudication therein was the extent of absolute privilege

relating to judicial proceedings and qua which reliance was placed on pages

765 to 768 of the 11th Edition of 'Clerk and Lindsell on Torts' authoring

that on occasions absolutely privileged, not merely are those protected who

act in the honest discharge of their legal right or duty, but also those who

abuse the opportunity with malicious motive and deliberate untruthfulness

and that with regard to Judicial proceedings, "neither party, witness,

counsel, Jury or Judge can be put to answer civilly or criminally for words

spoken in office" and that no action of slander or libel lies whether against

Judges, counsels, witnesses or parties for words written or spoken in the

ordinary course of any proceeding before any court or tribunal recognised by

law. On facts of that case it was held that the statements made in a

communication to the Police was a step in judicial proceedings and that

mere fact that a final report of closure was submitted in the case would not

make any difference as judicial proceedings might start or might not. It was

further held that else, nobody giving information to the police would be safe

for he will have to run the risk of being civilly liable for the information.

14. Similarly, reliance on M/s. Crop Care Federation of India supra in

turn relying on Webb Vs. Times Publishing Co. Ltd. 1960 (2) Q.B. 535

holding that a communication made bona fide upon any subject matter in

which the party communicating has an interest or in reference to which he

has a duty, is privileged, if made to a person having a corresponding interest

or duty, although it contains criminatory matter, which without this

privilege, would be slanderous and actionable, is misconceived. It is the

specific plea in the plaint that the communications of the plaintiffs

containing the alleged defamatory statements are not bona fide. Whether

they are bona fide or not, cannot be decided at the stage of Order VII Rule

11 of the CPC. The other passage relied on the said judgment, on the aspect

of the plaintiff, therein (M/s. Crop Care Federation of India) being not

entitled to sue for defamation of its members also is no relevance to the

present controversy. The plaint herein expressly pleads defamation of the

plaintiff no.1 as well as plaintiff no.2 Hockey India.

15. That brings me to the passage from the book "Parliament -

Functions, Practice and Procedures" relied upon by the counsel for the

defendant. I fail to see how the same helps the defendant; rather the authors,

after noticing different opinion, have concluded that there was considerable

uncertainty as to the precise meaning and limits of the terms "proceeding in

Parliament" and that Parliamentary privilege of freedom of speech applies

only to speech in the House and other proceedings of the House itself but not

to reports of proceedings or debates by newspapers or others outside

Parliament and that Parliamentary privilege does not protect a Member

publishing his own speech apart from the rest of a debate.

16. On the contrary, D.D. Basu‟s Commentary on the Constitution of

India, 8th Edition at page 5037 has opined that privilege under Article 105

covers only proceedings in Parliament and would not extend to letters

written by a Member of Parliament to a Minister containing allegations

against third parties. Jatish Chandra Ghosh supra also is to the effect that

the immunity from liability to prosecution extends to only what is said in the

walls of the Legislature and that whether in the circumstances of the case the

Member of Parliament in that case acted with an innocent intention and

without malice or whether the imputations were true and made for public

good, were questions of fact which required to be investigated.

17. Dhanayapeta Charitable Trust supra has been relied upon by the

senior counsel for the plaintiffs to show that a Trust or a Corporation can file

a suit for defamation. Ram Jethmalani supra was cited to show that to

succeed in a plea of fair comment, the defendant must establish that

statement was a comment and not a fact and the comment had sufficient

factual basis and was one which an honest person could hold and/or in

public interest. All these are also questions of fact which cannot constitute a

ground for rejection of the plaint.

18. No merit is thus found in the application.

Dismissed.

RAJIV SAHAI ENDLAW, J.

th MARCH 9 2017/„pp‟