1. This is an application for revision against an order of discharge which was upheld by the Additional Sessions Judge in a complaint made under S. 500, Penal Code, for defamation. The complainant is Dr. N.B Khare who was for a time Prime Minister of the Congress Government which assumed power in 1937. The accused are the writer and publisher of a book called “India's Constitution at Work,” and the Editor and Publisher of a local daily paper known as the “Nagpur Times.” Dr. Khare complains that the book contains matter defamatory of him and that the “Nagpur Times” published extracts from these defamatory passages which also defamed him. The defence as particularised in argument rests on fair comment and on Excep. 9 to S. 499, Penal Code. Before dealing with the passages complained of, it will be advisable to have the law clear. It has been set out succinctly in Gatley on Libel and Slander, 3rd Edn., p. 378, and the following passages will bear repetition:
“In order that a comment may be fair, the following conditions must be satisfied:
(a) It must be based on facts truly stated.
(b) It must not contain imputations of corrupt or dishonourable motives on the person whose conduct or work is criticised, save in so far as such imputations are warranted by the facts.
(c) It must be the honest expression of the writer's real opinion.”
2. In expatiating on these principles so lucidly expressed Gatley observes at p. 389:
“The question which the jury must consider is this: Would any fair man, however prejudiced he might be, or however exaggerated or obstinate his views, have written this criticism?”
3. The learned author cites extracts from judgments in support of his views and I think it will be advisable to requote certain passages here. First of all, there is Lord Hewart C.J in (1924) 39 T.L.R 6771 (House of Lords Printed Cases, 1924 at page 375) quoting from Lord Bsher M.R in (1888) 20 Q.B.D 2752 at pp. 280 and 281.
“Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say (not whether they agree with it, but) whether any fair man would have made such a comment….. Mere exaggeration or even gross exaggeration would not make the comment unfair. However wrong the opinion expressed may he in point of truth, or however prejudiced the writer, it may still be within the prescribed limit.
4. The question which the jury must consider is this—would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has 6 said.”
5. Then again there is Bray, J. in R. v. Russell in an unreported case which Gatley quotes from Fraser's Law of Libel.
“When you come to a question of fair comment you ought to be extremely liberal, and in a matter of this kind…. you ought to be extremely liberal, because it is a matter on which men's minds are moved, in which people who do know, entertain very very strong opinions, and if they use strong language every allowance should be made in their favour. They must believe what they say….. If they do believe it, and they are within anything like reasonable bounds, they come within the meaning of fair comment.”
6. As against this, however, it must be remembered that the press and authors and publishers of books have no special privilege. They are in no better position than any other man. If they make assertions of facts as opposed to comments on them, and those assertions are defamatory, they must either justify those assertions, or, in the limited cases specified in Exception 9 to S. 499, Penal Code, show that the attack on the character of another was for the public good and that it was made in good faith. As the matter is of great public importance it will perhaps be as well to reproduce the language of their Lordships of the Privy Council in 41 Cal. 10233 at page 1063. They say:
“Their Lordships regret to find that there appeared on the one side in this case the time-worn fallacy that some kind of privilege attaches to the profession of the Press as distinguished from the members of the public. The freedom of the journalists is as ordinary part of the freedom of the subject, and to whatever length the subject in general may go, so also may be 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.”
7. I may state that Mr. Dutt who appeared for the non-applicants appreciated this and claimed no special privilege for his clients. Their Lordships also deal with the position of men in public positions and show that they can claim no immunity g, from criticisms even when the positions they hold are official. They show that though judge-baiting is a pastime not wholly unknown, not even Judges can claim any special immunity. I think it will be as well to reproduce their language again.
“Upon the other side it would appear from certain observations of the learned Judge that this false and dangerous doctrine may have been hinted at, that some privilege or protection attaches to the public acts of a Judge which exempts him, in regard to these, from free and adverse comment. He is not above criticism, his conduct and utterances may demand it. Freedom would be seriously impaired if the judicial tribunals were outside of the range of such comment. The present case affords a good illustration of what is meant.”
8. That applies equally to other officials and to public men, even to Provincial Prime Ministers. It is the penalty they pay in free countries for the honour and privilege of occupying posts of exceptional responsibility, power and advantage. But there are limits to the attacks which may be made upon them. They are not wholly without protection. This is also set out by the Judicial Committee. Dealing with the case before them they say:
“When the examination before Mr. Andrew” (the Magistrate attacked) “concluded with his declaration that in his judgment the action of McCormick was pure and philanthropic, the whole trial would seem to have been laid open to searching and severe observations, and no blame could be attached to these. But when the criticism was converted into an attack upon the Magistrate as a conspirator against justice a traitor to his oath, a trickster, a man who had manoeuvred his procedure, so as to defeat truth and protect an associate, then, of course, it is for the person who has uttered these things to justify them, or, under the Indian Penal Code, to establish affirmatively that he believed them to be true, and that on reasonable grounds.”
9. It must be remembered that in construing an agreement we are not concerned with what the parties intended but with what they did and what they said; what was the meaning of the words actually used; for an agreement does not consist of intentions and mental reservations but rests on the words actually used and in the language actually employed. Their Lordships of the Privy Council make this clear in 21 C.W.N 7074 at page 710 and in 53 Bom. 2305 at page 236. Therefore what Dr. Khare intended or thought is irrelevant in any event. We have to see what he did and what words he used. As he is not able to give us the exact words used, we can only gather their import from the impressions left in the minds of those present, and Dr. Khare admits in the passage quoted that the words used and conduct employed were capable of leaving an impression in the minds of an important and responsible section of the meeting that he had agreed to surrender his portfolio of Law and Order.
10. Application dismissed.