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1.The Principal of a convent school, Agartala, Sister Mary Fernandez, filed a case against two persons named, Ali Kehtan and John Augustine alleging that they had made defamatory remarks in the complaint which they had submitted to the Deputy Commissioner, Agartala.
The accused stated in the complaint ‘‘that the building of the aforesaid school is quite unsafe and it may bring about any disaster upon the students of this school at any time; that it as a money minting institution; that the indiscipline among the students is to an unlimited extent and this has created a great problem for the nearby residents.
That it appears that this school has become a meeting place for the both sexes and the principal, Sister Mary Fernandez is turning a deaf ear towards the character of the students; that if these are not checked in time, they may become a great problem for the city’’.
In an enquiry before the Sub Divisional Magistrate (SDM), the allegations of the accused were found to be false and their complaint was dismissed.
Consequently, Sister Mary Fernandez approaches police station to file criminal defamation case against the accused persons. Police registers a case of defamation, a bailable offence against Ali Kehtan and John Augustine, who later files an application in Court asking for anticipatory bail.
Sister Mary Fernandez also files civil suits seeking compensation for defamation. In the reference of above facts answer the following questions:
(a) What is criminal defamation in Indian law?
(b)Is the application for ‘anticipatory bail’ by accused Ali Kehtan and John Augustine maintainable? Explain.
(c)Whether the complaint filed by the Ali Kehtan and John Augustine against Sister Mary Fernandez leads to Libel defamation or Slander defamation? Explain.
(d)What is the jurisdiction of the Court to try civil suit ‘where wrong done to the person’?
(e) What is ‘publication of defamatory words’?
(f) What is the time period of limitation for compensation in defamation? [Dec. 2023 (4 + 4 + 3 + 3 + 3 + 3 = 20 Marks)]
Ans.: The facts of the given case are similar to Dogar Singh and Anr. v. Shobha Gupta and Anr. Considering facts of the above case and other provision relating to criminal law, answer to given case is as follows:
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a) Defamation means the offence of injuring a person’s character, fame, or reputation by false and malicious statements. In other words, defamation is nothing but causing damage to the reputation of another. Defamation is tort as well as a crime in India.
Civil defamation case aims to compensate the victim for the damage caused to their reputation. The victim initiates the action seeking monetary damages to repair the harm suffered.
Criminal defamation case aims to punish the defamer through criminal prosecution by filing case under section 499 of the IPC and punishing the defender as per section 500. In order to attract the provisions of Section 499, there must be making or publication of an imputation concerning any person with the intention to harm the imputation of such person or with knowledge or proof that such imputation would harm the reputation of such person. In other words, in order to bring the defamatory statement within the ambit of section 499, there must be an imputation.
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b) Section 438 of the Code of Criminal Procedure, 1973 contains a provision enabling Courts to direct the release of a person on bail prior to his arrest, which is commonly known as anticipatory bail.
As per section 438, when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or to the Court of Session for anticipatory bail. In given case, complaint is registered as bailable offence and hence application for anticipatory bail is not maintainable.
(c) Defamation may be classified into following two heads:
Libel: It is a representation made in some permanent form, e.g. written words, pictures, caricatures, cinema films, effigy, statue and recorded words.
Slander: It is the publication of a defamatory statement in a transient form, statement of temporary nature such as spoken words, or gestures. Since false written complaint is filed by the Ali Kehtan and John Augustine against Sister Mary Fernandez, it comes under the category of “Libel”.
(d) As per section 19 of the Civil Procedure Code, 1908, where a suit is for compensation for wrong done to the person or to movable property, the suit may be instituted at the option of the plaintiff in either of the following Courts.
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- In jurisdiction of Court where the wrong was done.
- In jurisdiction of Court where the defendant resides, or carries on business, or personally works for gain.
Thus, where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
e) For the purposes of defamation law, anything conveyed to a third party can amount to a “publication”. Defamatory material must be published and communicated either in writing, orally or in pictures. A publication in a defamation matter must be communicated to at least one other person. The publication can occur via social media, group text messages, e-mails, electronic newsletters, pamphlets, posters, books or newspapers, or broadcast on radio, podcasts or television, or even spoken to an individual or group of people.
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f) Section 468 of the Code of Criminal Procedure, 1973 provides a time limit of 3 years to file a case of criminal defamation and in case of civil defamation the time limit is 1 year from the date of cause of action. An action in case of civil defamation must commence within 1 year from the publication of the defamatory matter. An attempt to bring a defamation proceeding after this time is generally not permitted. However, a court may choose to extend this time on sufficient cause.
2. Indian Constitution is considered as federal Constitution. There is distribution of powers between Union and States regarding enactment of Laws. Both authorities are independent of each other. Indian Constitution covers the legislative relationship between the Union and State. The Union legislature, i.e., Parliament has the power to make laws for the whole of the territory of India or any part thereof, and the State legislature have the power to make laws for the whole or any part of the territory of the respective state. In distributing the subject on which legislation can be made, the Indian Constitution draws three long lists of all the conceivable legislative subjects. These lists are contained in the 7th Schedule to the Constitution. List-I is named as the Union List. List-II as the State List and List-III as the Concurrent List. Each list contains a number of entries in which the subjects of legislation have been separately and distinctly mentioned. Legislative function is done by the Parliament or State legislature for their respective subjects through passing the bills. Legislature is empowered to make laws but it shall not make any law which takes away or abridges the fundamental rights. It shall be void to the extent to which it curtails any such right. Laws which were in force
before the commencement of the Constitution are void to the extent to which they are inconsistent with the fundamental right. In reference to the above statements answer the following questions:
(i) Rajasthan Government passed an Act restricting the use of sound amplifiers. The Act is challenged on the ground that it dealt with a matter which fell in entry of List-I (Union list) which reads “post and telegraphs, telephones, wireless broadcasting and other like forms of communication” therefore state cannot make law. Decide with applicable rule.
(ii) Explain the term “judicial review”.
(iii) What do you understand by bill?
(iv) Procedure wise, what are the types of bills.
(v) What does the word ‘law’ include according to Article 13 of the Indian Constitution? [June 2024 (2 + 2 + 2 + 2 + 2 = 10 Marks)]
Ans.:
(i) Doctrine of Pith & Substance: Rule of pith & substance means that where a law in reality and substance falls within an item on which the legislature which enacted that law is competent to legislate, then such law shall not become invalid merely because it incidentally touches a matter outside the competence of legislature.
In G. Chawla v. State of Rajasthan, the Supreme Court held that the law passed by Rajasthan Legislature was to prohibit unnecessary noise affecting the health of public and not to make a law on broadcasting, etc. Therefore, the pith and substance of the law was ‘public health’ and not ‘broadcasting’ and hence law passed by Rajasthan Legislature is valid.
(ii) Judicial Review:
Judicial review is the authority of Courts to declare void the acts of legislature and executive, if they are found in violation of provisions of the Constitution.
Judicial Review is power of the highest Court of a jurisdiction to invalidate on Constitutional grounds, the acts of other Government agency within that jurisdiction.
Power of judicial review controls not only the legislative but also the executive or administrative act. The Court scrutinizes the executive act for determining the issue as to whether it is within the scope of authority or power conferred on the authority exercising the power. Where the act of executive or administration is found ultra vires the Constitution or the relevant Act, it is declared void.
(iii) Bill: A is a draft statute which becomes law after it is passed by both the Houses of Parliament and assented to by the President. All legislative proposals are brought before Parliament in the forms of Bills.
Bills may be broadly classified into ‘Government Bills’ and ‘Private Members Bills’ depending upon their initiation in the House by a Minister or a Private Member.
(iv) Procedure-wise classification of bills: Procedurally, the Bills are classified as follows:
Ordinary Bills
Money Bills and Financial Bills
Ordinance Replacing Bills
Constitution Amendment Bills.
(v) Law: As per Article 13, ‘Law’ includes any Ordinance, Order, Bye-law, Rule, Regulation, Notification, Custom or Usage having in the territory of India the force of law.
3. The liability of the Government can either be contractual or tortious. The Constitution of India allows the Central and the State Government to enter into contracts under Article 299 of the Constitution of India. Article 299(2) of the Constitution makes it clear that neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purposes of the Constitution or for the purposes of any enactment relating to the Government of India. Subject to the provision of Article 299(1), the other provisions of the general law of contract apply even to the Government contract. According to section 70 of the Indian Contract Act, 1872, where a person lawfully does anything for another person or delivers anything to him such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or to restore, the thing so done or delivered. It may happen that a public servant may be negligent in exercise of his government duty. It may be difficult to recover compensation from him. From the point of the aggrieved person, compensation is more important than punishment.
In reference to the above statements, answer the following questions:
(i) A contract with the Government of Union or State will be valid and binding only if certain conditions are followed. Explain.
(ii) State the effects of a valid contract with Government.
(iii) Will Government be liable to pay compensation, if the requirement of section 70 of the Indian Contract Act, 1872 are fulfilled? Explain.
(iv) Is the state vicariously liable for the wrongful acts of its servants ? Explain. [June 2024 (3 + 2 + 2 + 3 = 10 Marks)]
Ans.:
(i) Conditions for contract with Government: A contract to which the Central Government or a State Government is a party is called a ‘Government Contract’.
The Indian Contract Act, 1872 does not prescribe any form for entering into contracts. A contract may be oral or in writing. It may be expressed or be implied from the circumstances of the case and the conduct of the parties. But the position is different in respect of Government Contracts. A contract entered into by or with the Central or State Government has to fulfil certain formalities as prescribed by Article 299 of the Indian Constitution.
It is true that in respect of Government Contracts the provisions of Article 299(1) must be complied with, but that does not mean that the provisions of the Indian Contract Act, 1872 have been superseded.
As soon as a contract is executed with the Government in accordance with Article 299, the whole law of contract as contained in the Indian Contract Act, 1872 comes into operation. In India the remedy for the breach of a contract with Government is simply a suit for damages.
It is to be noted that the provisions of sections 73, 74 & 75 of the Indian Contract Act, 1872 dealing with the determination of the quantum of damages in the case of breach of contract also applies in the case of Government contract.
(ii) Effects of valid contract with Government: Subject to the formalities prescribed by Article 299 the contractual liability of the Central or State Government is the same as that of any individual under the ordinary law of contract.
Though there is hardly any distinction between a contract between private parties and Government contract so far as enforceability and interpretation are concerned yet some special privileges are accorded to the Government in the shape of special treatment under statutes of limitation.
(iii) Contractual liability of the Government: As per section 70 of the Indian Contract Act, 1872, Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.
If the requirements of section 70 are fulfilled, even the Government will be liable to pay compensation for the work actually done or services rendered by the State.
Section 70 is not based on any subsisting contract between the parties but is based on quasi-contract or restitution.
Section 70 enables a person who actually supplies goods or renders some services not intending to do gratuitously, to claim compensation from the person who enjoys the benefit of the supply made or services rendered. It is a liability, which arise on equitable grounds even though express agreement or contract may not be proved.
(iv) Liability of Government for tort committed by its servant in discharge of statutory duties
When a case of Government liability in tort comes before the Courts, the question is whether the particular Government activity, which gave rise to the tort, was the sovereign function or non-sovereign function.
If it is a sovereign function it could claim immunity from the tortuous liability, otherwise not. Generally, the activities of commercial nature or those which can be carried out by the private individual are termed as non-sovereign functions.
In Kasturi Lal v. State of UP, the Government was not held liable for the tort committed by its servant because the tort was said to have been committed by him in the course of the discharge of statutory duties.
The statutory functions imposed on the employee were referable to and ultimately based on the delegation of sovereign powers of the State. The Court held that the Government was not liable as the activity involved was a sovereign activity. The Court affirmed the distinction between sovereign and non-sovereign function. There are, on the other hand, a good number of cases where the Courts, although have maintained the distinction between sovereign and non-sovereign functions yet in practice have transformed their attitude holding most of the functions of the government as non-sovereign. These cases show that the traditional sovereign functions are the making of law, the administration of justice, the maintenance of order, the repression of crime, carrying on for war, the making of treaties of peace and other consequential functions.
In State of Rajasthan v. Vidyawati, the driver of a jeep, owned and maintained by the State of Rajasthan for the official use of the Collector of the district, drove it rashly and negligently while taking it back from the workshop to the residence of the Collector after repairs, knocked down a pedestrian and fatally injured him. The State was sued for damages. The Supreme Court held that the State was vicariously liable for damages caused by the negligence of the driver.
