TORT
Which means “wrong” or “injury” an individual who commits a tort is called a tortfeasor, or a wrongdoer. And where there are multiple individuals involved, then they are called joint tortfeasors. Their wrongdoing is called as a tortious act and they can be sued jointly or individually. The main aim of the Law of Torts is the compensation of victims.
Section 2(m) Limitation Act 1963, Addresses tort as being a civil wrong which is not just exclusively a breach of contract or a breach of trust.
John Salmond, He addresses tort as being only a civil wrong which has unliquidated damages (those damages for which there is no fixed amount) in the form of remedy and which is not just exclusively the breach of contract or the breach of trust or breach of merely fair and impartial obligation.
Richard Dien Winfield, Tortious liability emerges from the breach of a duty primarily fixed by the law, this duty is towards the other people generally and its breach is redressible by an action for unliquidated damages.
Fraser, A tort is an infringement of a right in rent of a private individual giving a right of compensation at the suit of the injured party.
Objectives
1. Basically involve in Individuals Fundamental Rights.
2. To determine rights between the parties to a dispute.
3. To prevent the continuation or repetition of harm i.e. by giving orders of injunction.
4. To protect certain rights of every individual recognized by law i.e. a person’s reputation.
5. To restore one’s property to its rightful owner i.e. where the property is wrongfully taken away from its rightful owner.
Three essential elements which constitute a tort are,
1. A Wrongful act or omission, and
2. Duty imposed by the law.
3. The act must give rise to legal or actual damage, and
It should give rise to a legal remedy in the form of an action for damages.
Wrongful Act
A wrongful act can be either morally wrong or legally wrong and can also be both at the same time. A legal wrongful act is one which affects one’s legal right, the wrongful act must be one recognized by law, the act must be in violation of the law to be a legal wrongful act
For example, Forcing to do one action where it cannot be done by the individual.
Legal damage
Legal damage- to affect injuriously. “damage” refers to actual loss or injury.
maxim, “Injuria sine damno” where ‘Injuria’ refers to “infringement of the legal right of a person” and the term ‘damnum’ means “substantial harm, loss or damage to that individual”. The term ‘sine’ means “without”. However, if there is no violation of a legal right, no action can lie in a court despite of the loss, harm or damage to the plaintiff caused by the defendant.
Example :- A runs a Shop, after 5 months another shop opens up nearby due to which he suffered heavy losses in the business, here he has suffered no legal damage but has only suffered damage in terms of business value so he cannot sue the competitor Shop for any kind of damages (similar to the case of Gloucester Grammar School Case(1410) Y B 11 Hen IV 27).
two maxims namely:
· Injuria sine damno, and
· Damnum sine injuria.
Injuria sine damno means injury without damage.
Example : where the plaintiff was a Member of the parliament and was not allowed to enter into the premises of the Assembly election by a police constable, hence his legal right was infringed.
Damnum sine injuria whereas translates to damage without injury, here the party affected suffers damage which may also be physical but suffers no infringement of their legal rights.
Tort and Crime
(1) A tort is basically a private wrong – Against individual,crime is a public wrong, i.e. is against the whole world and the state.
(2) The remedy torts - form of damages, crime - punishment.
(3) In the case of a tort, a suit is filed. Whereas, in the case of a crime, a complaint is filed.
(4) torts is an uncodified law whereas law of crimes is a codified law.
(5) In tort, intention is important but not in all cases, whereas in the case of criminal law intention is the crux of the offence itself.
Example: A good example of this can be Assault, where the party who has been assaulted can bring charges against the person who has assaulted him or her. Also he or she can claim for damage in the civil courts under Tort law.
Torts and Breach of Contract
Example : A father who employs a surgeon for the treatment of his minor son, and if his son is injured by the surgeon’s carelessness. Here the father can sue the surgeon for the breach of contract also, as there is no contract between the minor son and the surgeon, the minor son can sue the surgeon(for the careless act which amounts to negligence) in tort and can also put charges on the surgeon but he cannot sue for the breach of contract.
Torts and Breach of trust – Distinguished
(1) In the case of a tort, the compensation is in the form of unliquidated damages, whereas, in the case of breach of trust, the compensation is in the form of liquidated damages.
(2) Law of trust is regarded as a division of the law of property, whereas, law of tort is not regarded as a division of the law of property.
Liquidated damages and Unliquidated damages
Both of these damages solidifies the plaintiffs right to be compensated. Liquidated damages - have their amount of compensation fixed while on the unliquidated damages - have no prior fixed amount, they change with the intensity of the offence committed by the defendant.
Mental Cause – Tort liability
A tortious liability arises when an individual or a person causes any injury to another person’s property, reputation, his life, etc. It is civil in nature and the intention due to which such an injury was caused may or may not be necessary, i.e., it doesn’t matter if it was caused intentionally or by accident in most of the cases in the law of torts. The important thing is to figure out the mental element in order to determine the tortious liability of an individual, and on the basis of intention, tort can be either Intentional tort or unintentional tort.
· Intentional Tort
Intentional tort is one in which the tort is committed with full knowledge of the outcome of Mental
Intentional torts are –
· Battery.
· Assault.
· False imprisonment.
· Trespass to land, etc.
· Unintentional Tort
Unintentional torts are caused usually by accident or by mistake by the defendant to the plaintiff without any mala fide (Evil or Wrongful) intention towards doing such an act. Negligence is a great example of this kind of tort - slip and fall
the motive is the ultimate object for which an act is done, the intention refers to the immediate purpose of the act. Now the question arises whether these mental elements play a significant role in the determination of tortious liability or not? In criminal law the concept of mental element plays a significant role in determining the role of a person’s liability but in case of law of tort, mental element does not usually play a significant role, as there are some torts that can be committed without having the intention to do them and the person who still ends up committing these offences still end up being responsible for them, such as in the case of negligence, while on the other hand mental element is necessary in order to prove a person’s liability in the case of Battery, Assault, etc.
Torts in India
· The law of torts is underdeveloped in India as most of the people are not at all aware of these due to high amount of unawareness about its existence in our nation, another thing is the fact that not everyone can afford a lawyer and the process of court-work which takes a lot of time as well as a lot of money.
· Still the law of torts play a significant role in the Indian courts as there are many frequent cases of Defamation, Negligence, etc.
General Defences
When a plaintiff brings an action against the defendant for a tort committed by him, he will be held liable for it, if there exists all the essential ingredients which are required for that wrong. But there are some defences available to him using which he can absolve himself from the liability arising out of the wrong committed. These are known as ‘General defences’ in the law of tort.
The defences available are given as follows:
· Volenti non fit injuria or the defense of ‘Consent’ - a plaintiff voluntarily suffers some harm, he has no remedy for that under the law of tort. Example When you yourself call somebody to your house you cannot sue your guests for trespass; consent of the plaintiff was freely given. Limitation - Similarly When the plaintiff voluntarily comes to rescue someone from a danger created by the defendant then in such cases the defence of volenti non fit injuria will not be available to the defendant.
The wrongdoer is the plaintiff - “Ex turpi causa non oritur actio” which says that “from an immoral cause, no action arises – Example there was a rider who was 18 years of age. He encouraged his friend who was 16 years old to drive fast under drunken conditions. But their motorcycle met with an accident, the driver died on the spot. The pillion rider suffered serious injuries and filed a suit for claiming compensation from the relatives of the deceased person. This plea was rejected as he himself was the wrongdoer in this case.
Inevitable accident – Defendant not liable. Accident means an unexpected injury and if the same accident could not have been stopped or avoided in spite of taking all due care and precautions on the part of the defendant, then we call it an inevitable accident. Example - a bus of S.E.T.C. reached near a village where a cyclist suddenly came in front of the bus and it had rained heavily so even after applying breaks the driver could not stop the bus as a result of this the rear portion of the bus hit another bus which was coming from the opposite side. It was known that there was no negligence on the part of both the drivers and they tried their best in avoiding the accident. This was held to be a case of inevitable accident. The defendant i.e. S.E.T.C. was held not liable for this act.
Act of god – Strict Liability - natural forces play their role and causes damage. For example, heavy rainfall, storms, tides, etc. Example - the wall of a building collapsed due to normal rainfall of about 2.66 inches. The incident resulted in the death of the respondent’s children. The court held that the defence of Act of God cannot be pleaded by the appellants in this case as that much rainfall was normal and something extraordinary is required to plead this defence. The appellant was held liable.
Private defence - purpose of self-defence, protection of property – Example - a landowner i.e. the defendant had laid a network of live wires on his land. The plaintiff in order to reach his own land tried to cross his land at 10 p.m. He received a shock and sustained some serious injuries due to the live wire and there was no notice regarding it. The defendant was held liable in this case and the use of live wires is not justified in the case.
Mistake – law & fact - both conditions, no defence is available to the defendant. Example - the defendant by mistake published a statement that the plaintiff had given birth to twins in good faith. The reality of the matter was that the plaintiff got married just two months before. The defendant was held liable for the offence of defamation and the element of good faith is immaterial in such cases.
·
Necessity - If an act is done to prevent greater harm, even though the act was done intentionally, is not actionable and serves as a good defence. Example - A’s sister-in-law hid some jewellery after the death of A from the room where he was lying dead, thinking that to be a more safe place. The jewellery got stolen from there and a case was filed against A’s sister-in-law for trespass to the jewellery. She was held liable for trespass as the step she took was unreasonable.
·
Statutory authority - complete defence and the injured party has no remedy except for claiming compensation as may have been provided by the statute. Example - the servants of a railway company negligently left the trimmings of hedges near the railway line. The sparks from the engine set fire to those hedges and due to high winds, it got spread to the plaintiff’s cottage which was not very far from the line. The court held that the railway authority was negligent in leaving the grass hedges near the railway line and the plaintiff was entitled to claim compensation for the loss suffered.
Absolute and conditional authority
The authority given by a statute can be of two types:
Absolute - nuisance or some other harm necessarily results. Example - the hospital authorities i.e. the appellants were granted permission to set up a smallpox hospital. But the hospital was created in a residential area which was not safe for the residents as the disease can spread to that area. Considering it a nuisance an injunction was issued against the hospital. The authority, in this case, was conditional.
· Conditional
Tort Discharge
A tort is an act/conduct that is twisted. It means the violation of a legal right of a person by the act of the other person, i.e. the breach of the legal right of the other person.
Discharge of Tort
seven different modes through which tort is discharged and no remedy will lie for tort. It is a process through which the tort comes to an end. A wrongdoer is not liable for his actions.
Following are the methods of discharge of torts.
1. Death of the parties
Plaintiff Death - Actio personalis moritur cum persona this is the important maxim, it means if the person who commits a tort or the person against whom the tort is committed dies, the personal right or the right to receive the damages or the right of action dies with the person.
Example - If A files a case against the act of tort done by B. If A dies during the course of trial and the case is still pending before the court. Due to the death of the A, the tort gets discharged, as the right of action of A dies with him only.
Exceptions
The Legal Representative Suits Act, 1885
If A died during the procedure of trial of court. His legal heir or representative can represent him in the court of law.
Similarly, in different laws/act like Fatal accident act, the Indian Succession Act, Workmen Compensation Act etc. the representative of the plaintiff can represent him in the court of law.
Defendant Death - who commits tort i.e. Defendant
the defendant dies, the tort gets discharged.
Example
If Ram commits the act of tort against Geeta, if Geeta files a complaint against Ram, but if during the course of trial Ram died, then his right of action also dies with him i.e. the discharge of tort.
Similarly decree-holder by misrepresentation of the facts, the liability would be personal and could not be extended to his son under the law, as whatever the relief a decree-holder has against the father ended with the father’s death.
Waiver
The concept of waiver is when a person has more that one remedy available to him, as a result, he has to elect one of them. He cannot apply for both the remedy except in the case of defamation and assault.
Example - If A files a case against B that B has committed a tort against A. If A has right to get more than one remedy he has to choose any one of them, i.e. if he has the remedy in both tort and contract law, now he has to choose one between them.
two principles in the doctrine of Waiver are:
1. The person has to choose any one remedy.
2. If the person fails to get the remedy he chooses, the court of law does not allow him to go back to an alternative remedy.
Example : If A files a case against Z and has two remedies for which he can approach the court of law. If he chooses the first remedy and loses the case. A cannot approach to the court for the alternate remedy i.e., remedy number 2.
The Waiver can be Implied or Express
In Express waiver, the person expressly communicates about his choice in the court of law. Example - If A file a case and he has the remedy in both, contract as well as Tort. When the court asks him he has to communicate his choice to the court.
In the Implied form of waiver, the person impliedly communicates about his choice for which remedy he is applying. Example - If A has two remedies available to him like one under contract and one under Tort. if he applies for Contract, it becomes clear, he elects the remedy under the contract.
Accord and Satisfaction
the person who commits the tort and the person against whom the tort has been committed, come to an agreement and settle the dispute. Such an agreement is known as Accord. In general term, it means settling the issue by accepting some consideration
Satisfaction means the actual payment of consideration agreed by both, the person who commits a tort and the one against whom the tort committed.
When both the accord and satisfaction once completed, it results in the discharge of tort and the dispute does not proceed in a court of law.
Example - If A dies due to injury caused by B’s car. If A’s family comes to an agreement that B will pay Rs. 1,50,000 as compensation to them, that’s the situation of Accord. When they received the actual payment of 1,50,000 Rs. from B, that’s the situation of Satisfaction. So, by settling the issue and accepting some consideration A’s family lost their right of action and the act of tort discharged.
The only condition in the concept of Accord and Satisfaction is the consent of the party should be free and not from fraud, coercion or undue influence.
Release
Means when a person by his own choice discharged the tort. This right is only provided to the person against whom the wrong has been done. Example - If a person is a police inspector, commits an act of tort against another person. By using his position and by threat, take the consent of the injured person and release himself from the liability, that release is not a valid release.
Judgement
If once the court gives judgement on the matter, the tort gets discharged, no appeal for the same act of tort can be claimed for the same remedy in the court of law. The concept based on the legal maxim of Res-Judicata, it means, if any cause of action decided previously by the court, the same cause of action should not be entertained by the court twice.
Example - If A gets the remedy against B for the accident committed by him previously by the judgement of the court. Later he found that he needs to go through a further operation. He cannot claim another remedy for the same again in the court of law.The court denied the petition and state that, If once court gives judgement on the matter, no further appeal for the same act of tort can be filed in the court of law as the tort gets discharged.
Exceptions
· If the petition was between the same party but is for different remedy or the action taken in respect to the violation of another right. Then the petition can be allowed.Example - In this case, the plaintiff was a cab driver and already received compensation against the damage to his cab. Later discovered, due to the injury caused in the accident, he got a fracture in his hand. He has the right to apply for the remedy against the trespass to his body as well.
· If the person who is liable for the act previously does the same act another time. Example - If A commits the tort of trespass against B previously and held liable by the court of law. If he again commits the same crime against B. If A plea defence that the court cannot punish him for the same offence twice. The defence is not valid because this case was considered as a fresh one.
Acquiescence
The tort gets discharged because of the incapacity of the plaintiff himself i.e. if he has no time to go to court, no money to pay the court fees, or any other incapacity. Example - if A is entitled to enforce his right against B. If A neglects to enforce his right for a long time, it automatically waived B from his liability.
Law of limitation – After Exceeding certain time period limit tort get discharged
Like, in the case of false imprisonment or libel the limit to file a case is 1 year, in case of trespass to immovable property, the limit set is 3 years etc after the time limit gets over, no person can enforce his/her right.
Tort Remedies
There are two broad types of remedies in Tort Law.
1. Judicial Remedies
2. Extra-Judicial Remedies
Judicial Remedies
As the term suggests, these are the remedies that the courts of law provide to an aggrieved party. Judicial remedies are of three main types:
1. Damages - generally means ‘harm’ or ‘injury’. Amount of money paid to the aggrieved party to bring them back to the position in which they were, before the tort had occurred and to recover the loss they have suffered.
Types
1. Contemptuous– contemptuous damages are also called ignominious damages. The amount of money awarded by the court in this case is very low, as to show the court’s disapproval, that is, when the plaintiff himself is at some fault and cannot wholly be said to be ‘aggrieved’.
2. Nominal– Nominal damages are awarded when plaintiff’s legal right is infringed, but no real loss has been caused to him. For example, in cases of trespass, when damage has not been caused, a legal right is still infringed. Here, the objective is not to compensate the plaintiff.
3. Substantial– Substantial damages are said to be awarded when the plaintiff is compensated for the exact loss suffered by him due to the tort.
4. Exemplary/Punitive– These are the highest in amount. Punitive damages are awarded when the defendant has excessively been ignorant of the plaintiff’s rights and great damage has been caused to the defendant. The objective here is to create a public example and make people cautious of not repeating something similar.
Example - The plaintiffs in this case were relatives (mother and children) of a middle-aged couple who met with an accident when another moving bus drove over them as soon as they deboarded their own. The court delivered a judgement in favour of the plaintiffs, and they received compensation under the heading of ‘Pain, Shock and Sufferings’.
2. Injunction - Injunction is an equitable remedy available in torts, granted at the discretion of the court.
Example is that of a court ordering a company of builders to build on a land near a hospital, for the construction sounds may be creating a nuisance to the hospital.
To receive injunction against a party one must prove damage or the possibility of prospective damage (apprehended damage).
An injunction can be temporary or permanent, and mandatory or prohibitory
Law relating to injunctions is found in the Code of Civil Procedure, 1908 and from Section 37 to Section 42 of the Specific Relief Act (henceforth referred to as the Act), 1963.
A suit of injunction can be filed against any individual, group or even the State.
According to the Section 37 of the Act there are two types of injunctions–temporary and perpetual (permanent).
Section 37 in The Specific Relief Act, 1963
37. Temporary and perpetual injunctions.—
(1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908).
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.
Temporary Injunction Rule 1 and 2 of Order XXXIX (39) of the Code of Civil Procedure.
A temporary or interlocutory injunction is granted during the pendency of a case, to maintain the status quo and avoid further damage until the court passes a decree. It prevents the defendant from continuing or repeating the breach that he had been doing. A temporary injunction is granted to prevent the party from suffering through the damages during the court proceedings. They may be granted at any stage during the pendency of the case. Either of the parties can seek an injunction to be granted.The power to grant a temporary injunction is derived from Rule 1 and 2 of Order XXXIX (39) of the Code of Civil Procedure. Certain principles are kept in mind while granting a temporary injunction:
1. There has to be a prima facie case.
2. A balance of convenience has to be maintained. (That is, which party is more at loss, etc.)
3. There has to be an irretrievable damage. (The damage has to be such that cannot be compensated for, in money)
Cases in which temporary injunction is granted
A temporary injunction may be granted in any of the following cases:
· An injunction can be granted in favour of a party and against the government if the government is barring the party from doing a lawful act or freely exercising his rights.
· Under Section 80 of the CPC, an injunction can be granted against an act done by a government/public officer working in his official capacity.
· When the property in dispute is in danger of being damaged or wasted by either of the parties.
· In cases of tenancy. A plaintiff being unjustly removed as a tenant, that is, not through the due legal process, can seek an injunction against his/her landlords.
· In case of a continuing nuisance, where the defendant is asked to discontinue his act of nuisance so as to prevent further damage to the plaintiff while the case is being decided.
· In cases of trademark, copyright infringement, etc.
Permanent Injunction
A perpetual or permanent injunction is granted after the court has heard the case from both sides and passes a decree. Here, since it is a court decree, it is final and perpetually applicable. That is, the defendant cannot continue his wrongful act, or has to do a positive act for perpetuity.
Cases in which permanent injunction is granted
· To avoid multiplicity of judicial proceedings.
· When damages do not adequately compensate the plaintiff.
· When the actual damage cannot be ascertained.
Mandatory Injunction
When the court has asked the party to do something, it is a mandatory injunction. example, the court may ask a party to make available some documents, or to deliver goods, etc.
Prohibitory Injunction
When the court has asked the party to not do something that is wrongful, Example Court may ask the party to remove an object of nuisance or to stop his act of nuisance.
When can injunctions not be granted
According to Section 41 of the Specific Relief Act, an injunction cannot be granted:
1. To stop a person from filing a case in the same court in which the injunction suit is sought, unless such an injunction is being asked for, to prevent a multiplicity of proceedings.
2. To restrain or stop a person from filing or fighting a case in a court that is not subordinate to the one in which injunction is being sought.
3. To prevent a person from applying to any legislative body
4. To restrain a person from filing or fighting a criminal case
5. To prevent the breach of contract, performance of which is not enforced specifically
6. To prevent an act that is not a clear act of nuisance
7. To prevent a continuing breach in which the plaintiff has himself acquiesced
8. When an equally effective relief can be obtained in any other way or through any other sort of proceeding
9. When the conduct of the plaintiff (or his agents) has been so wrongful as to disentitle him from the assistance of the court.
10. When the plaintiff has no personal interest in the said matter.
Injunction Limitation Period
According to Article 58 of the Limitation Act, 1963, the period of limitation for filing an injunction suit is three years from when the ‘right to sue first accrues’, that is, when the right to cause of action commences, not the cause of action itself. It is an important question of law as to when the cause of action actually arises.
Example : In this case, the plaintiff filed a suit for perpetual injunction against M/s. India Stationery Products for infringement of their trademark on their product ‘Nataraj’, in respect of pencils, pens, sharpners, erasers, etc, claiming that the trademark was adopted by them in 1961, and that the defendants had wrongly got themselves registered a copyright similar to them. The court ruled in favour of the plaintiff granting the defendant an interim injunction.
3. Specific Restitution of Property - Restitution means restoration of goods back to the owner of the goods. When a person is wrongfully dispossessed of his property or goods, he is entitled to the restoration of his property.
Extra-judicial Remedies
On the other hand, if the injured party takes the law in their own hand (albeit lawfully), the remedies are called extra-judicial remedies. These are of five main types:
1. Expulsion of trespasser - A trespasses into B’s property. B has the right to use reasonable force to remove him from his property and re-enter himself.
2. Re-entry on land - The owner of a property can remove the trespasser and re enter his property, again by using a reasonable amount of force only.
3. Re-caption of goods - If A wrongfully acquires the possession of B’s goods, B is entitled to use reasonable force to get them back from A.
4. Abatement - A and B are neighbours. Branches of a tree growing on A’s plot enter B’s apartment from over the wall. After giving due notice to A, B can himself cut or remove the branches if they’re causing him nuisance.
5. Distress Damage Feasant - Where a person’s cattle/other beasts move to another’s property and spoil his crops, the owner of the property is entitled to take possession of the beasts until he is compensated for the loss suffered by him.
Defamation?
Defamation as the meaning of the word suggests is an injury to the reputation of a person resulting from a statement which is false. Defamation is defined in Section 499 & Section 500 of Indian Penal Code 1860,provides that a person committing an offense under this section is liable with simple imprisonment for a term of 2 years or fine or with both.
Defamation Essentials
A. The statement must be defamatory
Example: A publishes an advertisement in a local newspaper stating false information that the company of B has committed fraud of Rs 20,00,000. Now, this statement will amount to defamation as this newspaper will be read by many readers and will surely injure the reputation of B’s company.
However, it is to be noted that mere hasty expression spoken in anger, or vulgar abuse to which no hearer would attribute any set purpose to injure the character would not amount to defaming a person.
Example : If A an employer scolds his employee B for not coming on time in front of the whole staff, then B cannot take the plea that A has injured the reputation of B.
B. The statement must refer to the plaintiff
the plaintiff has to prove that the statement then defendant will then be liable
Example - If A, a bank publishes a notice to all its branches to not give the loan to any person from xyz as the people of xyz are more often repeated defaulters. Now due to this B, a resident of xyz has suffered a huge loss. Now B can hold A liable for defaming him although the bank did not directly focus on him.
C. The statement must be published
Publication of defamatory statement to some person other than the person defamed is a most important aspect for making any person liable, and unless that is done, no action for defamation will lie.
Forms of Defamation - both are treated as criminal offenses under Section 499 IPC
1. Slander–Defaming a person by way of words or gestures.
2. Libel–Defaming a person through a representation made in some permanent form like writing, printing etc.
Innuendo
innuendo which makes the statement defamatory.
Example - Z makes a statement that X is an honest man and he never stole my watch. Now this statement is at first instance may be innocent, but it can be defamatory if the person to whom it was made, interprets from this that X is a dishonest man having stolen the watch.
Defamation Defences
The Defences to an action for defamation are
1. Justification of truth - defendant is not able to prove the truth of the facts, the defense cannot be availed
2. Fair comment - X publishes serious allegations of bribery against Y in a newspaper. Later X is not able to prove the truthness of these allegations and therefore his comment will not amount to fair comment.
3. Privilege - giving special status
1. Absolute privileges– In matters of these complete immunity is given to person speaking and no action for defamation can lie against him. It includes 3 aspects
· Parliamentary proceedings– Article 105(2) of the Indian constitution gives immunity to parliamentarians to speak anything during the course of business of parliament and no action would lie against them.
· Judicial proceedings– This protection has been given to judges under Judicial Officers Protection Act 1850 . It also extends to counsels, witnesses, and parties to a suit.
2. Qualified privilege– This privilege is also available and under this, it is necessary that the statement must have been made without a malice i.e a wrongful intention.
Example, A, a shopkeeper, says to B, who manages his business, “ Sell nothing to Z unless he pays you ready money, as I am doubtful of his honesty. Now A will fall under this exception if he has made his imputation on Z in good faith for the protection of his own interest.
0 Comments