New Delhi: Can a lawyer be sued for defamatory utterances made against an opposing party in judicial proceedings?
Affirming the Delhi High Court’s 21 February, 2024, decision to dismiss a defamation suit against senior advocate Vikas Pahwa, in a case where he allegedly made certain statements before the trial court against a businessman, a Supreme Court bench of Justices Dipankar Datta and Sandeep Mehta ruled, “We are not inclined to interfere with the impugned judgment and order of the High Court; hence, the special leave petition is dismissed.”
A businessman, Pankaj Oswal had filed the suit against Pahwa, alleging that he made certain “defamatory” statements about him in judicial proceedings on 14 July, 2022.
Citing the “doctrine of absolute privilege”, which protects statements made in judicial proceedings, the Delhi HC on 21 February this year dismissed Oswal’s plea seeking to restrain Pahwa from “fabricating and/disseminating false and prejudicial” accusations against Oswal, directly or indirectly.
Additionally, Oswal sought an unconditional apology, adding that harm and damage were caused to his reputation due to the statements made.
What was the case before HC
In its February 21 ruling, a bench of Justices Rajiv Shakdher and Amit Bansal dealt with a challenge to a 9 February, 2023, order, delivered by a single-judge bench of the Delhi HC.
Oswal’s defamation plea was rejected by the HC without issuing summons to Pahwa or anyone else, as the judge found the plea to be lacking a cause of action. The court relied on Order VII Rule 11 of the Civil Procedure Code, 1908, to dismiss the suit. This provision allows courts to reject a plea under certain conditions, like not disclosing the cause of action.
Challenging this 2023 order, Oswal approached the HC again with a defamation plea against Pahwa for certain utterances allegedly made by him in July 2022 during proceedings before the trial court, where he indicated that Pahwa used “unparliamentary language and abused his mother” during the mediation proceedings.
In his plea, Oswal argued that lawyers are not conferred with “absolute privilege” if, while exercising their right of audience before a court, they infringe upon another’s right to reputation, which is enshrined under Article 21 of the Constitution (Right to Life).
Adding that lawyers can be held guilty of contempt of court action for misconduct or criminal defamation under Section 499 of the IPC, Oswal also relied on the 2016 SC ruling in Subramaniam Swamy vs. Union of India, where the court said that the single judge failed to consider that the reputation of an individual was raised to the status of a fundamental right.
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Pahwa’s defence
Pahwa’s lawyers argued that the single judge had reached the correct conclusion while dismissing the petition, as the senior advocate was protected by way of “absolute privilege founded on public interest” while conducting court proceedings.
Adding that if this privilege is taken away, the administration of justice would suffer and lawyers would be ridden with anxiety and fear for things said in court, the defendants said that such privilege extends not just to lawyers but also to judges, witnesses, and parties that participate in judicial proceedings.
The defendants stated that absolute privilege is “attached to the occasion, not to an individual”, and that while some lawyers may misuse this privilege by making false and malicious statements, misuse itself cannot be a reason to deny protection granted to lawyers, in the public interest.
Underlining that senior advocates don’t directly deal with clients and appear on instructions, Pahwa’s lawyers contended that he had appeared for Oswal’s mother in July 2022 before the session court and had no personal knowledge of what transpired before the mediator. It was the counsel-on-record who informed Pahwa of what transpired in the mediation proceedings, the defence claimed, adding that there was no malice or motive on their part in doing so.
Finally, Pahwa argued that the single judge ruling dismissing Oswal’s plea was in line with the view held by courts for around 140 years that statements made by lawyers during judicial proceedings are privileged and that such privilege is absolute.
Origins of the absolute privilege doctrine
“Absolute privilege, in defamation cases, refers to the fact that in certain circumstances, an individual is immune from liability for defamatory statements,” as per the non-profit Legal Information Institute at the Cornell Law School in New York.
The doctrine applies to statements made in certain contexts or places, and is a complete defense. When such privilege applies to a person’s speech, it is immaterial whether the defamatory speech was false or what the speaker’s intention was.
The US tort law extends this privilege to judicial officers, attorneys, jurors, and witnesses in legislative proceedings, legal publications, and statements made by parties during trial or in pleadings.
Meanwhile, the UK Defamation Act, 2013, immunises certain “privileged” statements if the person responsible for them made them on a matter related to public interest, if they are made in a peer-reviewed academic or scientific journal, or if they were reported in court proceedings, among other situations. Section 14 of the Defamation Act of 1996 also said that reports of court proceedings will be protected by absolute privilege.
In Munster vs. Lamb (1883), one of the decisions relied on by the defense, the UK Court of Appeals, held that defamatory words, uttered by an advocate with reference to, and in a judicial inquiry, are not actionable.
How Indian courts have interpreted this
Pahwa’s lawyers in the present case also relied on the Allahabad High Court’s full bench ruling in Chunni Lal vs. Narsingh Das (1917), where the court pointed out that, in England, the rule of “absolute privilege” had its origin “in a feeling that the conduct of judges and advocates should not be made the subject of an inquiry by a jury”. It was also extended to other persons engaged in judicial proceedings, like witnesses, parties, and jurors, the court said, adding that no such considerations arise here in the Indian context.
Underlining the legal vacuum on this principle, the court said that in the absence of statute law in India regarding civil liability for libel, there is no reason why English law should not be followed and held that defamatory words used in a suit were not actionable, on the ground of absolute privilege.
In the present case, too, a two-judge bench of the Delhi HC observed that the entire action in the suit revolved around the alleged defamatory statement made by Pahwa during the criminal revision proceedings.
It, then, emphasised that the proceeding sheet (a document that records details of court proceedings) did not refer to any utterances made by Pahwa. “The proceedings sheet of that date simply records that the matter was part-heard. Therefore, the case set up by the appellant was, in substance, one of slander and not libel,” the court clarified.
What is the law on defamation
The offence of defamation includes both civil wrongs and criminal offenses. Criminal defamation is covered under Section 499 of the IPC and Section 356 of the Bharatiya Nyaya Sanhita.
Meanwhile, civil defamation is liable to be punished with monetary compensation and is further categorised into two forms—libel and slander. While the former refers to defamatory statements published in writing, the latter refers to such statements being made by way of the spoken word.
In the present case, the HC also pointed out that it is well-established that a defendant in a defamatory action has certain defenses available to him. These include truth, fair comment, and privilege.
What are the different kinds of defenses against defamation
While truth or justification is a “complete defense”, the defendant is required to establish that the statement made by him is substantially true, the court said.
As for the defense of “fair comment”, the court said this is ordinarily resorted to by publications, journalists, and opinion-makers and requires courts to examine if the views expressed “could have been honestly held by a fair-minded person based on facts” that were known at the time such an opinion was expressed.
Coming to the defence of privilege, the court said it is of two types—qualified and absolute. Qualified privilege protects defendants from defamatory action only when it is properly exercised in performing legal or moral duties” and is also referred to as “conditional privilege”. The court added that this type of privilege “occupies the space between two extremities, that is, the total absence of privilege and the presence of absolute privilege.
On the other hand, the court said that absolute privilege “immunises a defendant, no matter how wrongful or motivated the action is”. Saying that this contrasts sharply with the defense of truth, fair comment, or qualified privilege, where motive plays a significant role, the court said that broadly, the doctrine of privilege seeks to relax the principle of strict liability for certain occasions, such as in public interest, and where hindering free expression of views on matters of importance will cause a detrimental impact on society’s welfare.
“Likewise, where Court and Parliamentary proceedings are concerned, the doctrine of privilege kicks in based on public interest,” the court ruled. Stating that the doctrine of absolute privilege prohibits entertaining claims against judges, lawyers, witnesses, or parties in judicial proceedings made in courts or tribunals, the court said that such privilege also extends to statements, testimonies, and documents used and prepared for use in judicial proceedings.
Pointing to an exception where absolute privilege would not protect someone, the court said that statements that are “not uttered for the purposes of judicial proceedings by a person who has a duty to make a statement in the course of the proceedings” or statements having no reference at all to the subject matter of the proceedings, will not be covered under this doctrine.
“The respondent (Pahwa), in our view, was well within his right and within the framework of the doctrine of absolute privilege available to him to respond to the suggestion of the learned Sessions Judge as to why settlement through mediation was, perhaps, not feasible,” the court said, while holding that the utterance, even if assumed to be true, would be protected by the absolute privilege doctrine.
Dismissing Oswal’s defamation suit, the court also rejected his reliance on Subramanian Swamy’s case, adding that the 2016 judgment “does not, in any way, run counter to the doctrine of absolute privilege enunciated by Courts as far back as the 19th century”.
(Edited by Zinnia Ray Chaudhuri)
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