“In many settings, if
we called someone a liar, cheat or incompetent or worse, we might be on the
receiving end of a defamation claim. If we need to say that during litigation,
we’re generally protected by the litigation privilege. The litigation privilege
confers absolute immunity from defamation claims for statements made during
both judicial and quasi-judicial administrative proceedings. The privilege
applies to attorneys, parties, judges and witnesses. To qualify for such
privilege, the statement must meet two general tests. First, it must have some
reference to the subject matter of the litigation. Second, it must be made in
connection with a judicial proceeding.”
This is the statement of law from American Jurisprudence.
The privilege is traceable to the “public policy of securing to attorneys as
officers of the court, the utmost freedom in their efforts to secure justice
for their clients”. The privilege therefore, is absolute.
But for a subtle change made by the House of Lords recently
in Arthur J.S Hall and Co. v. Simons, the British precedent would have been
identical. Attorneys continue to enjoy absolute immunity in addressing courts
during the proceedings from being sued either in civil law or under the
criminal dispensation, but this case removed the immunity enjoyed by advocates
from being sued for ‘negligence’.
Defended against a civil claim – many Madras High Court
decisions
Closer home, on January 1, 1800, the legendary Eardley
Norton was sued by Sullivan, a member of Madras Civil Service for defamatory
conduct in addressing the members of the jury in a criminal trial. A full bench
of five judges of the Madras High Court ruled that Norton enjoyed absolute
privilege from being sued in civil law for damages. In the absence of proof
that Norton was actuated by malice and because the allegedly defamatory
utterance was not alien or irrelevant to the matter in inquiry, the High Court
accepted Norton’s defence, “I acted under my instructions: all I said and did
was within the four corners of those instructions and my duty to my client
compelled me to say what I said”.
On December 2, 1926, the Madras High Court relied on
Sullivan v. Norton and decisions from the Bombay and Calcutta High Courts in
Thiruvengada Mudali v. Thirupura Sundari Ammal and ruled that when the
statement imputed with defamatory content was made in the course of a necessary
line of submission to aid the cause of a client, then even the presence of
malice will not override the presumption of good faith. Advocates who have been
accused of defamatory conduct are also protected by the Bombay High Court’s
decision in Navin Parekh v. Madhubala Shridhar Sharma, which in fact relied on
the ninth exception to Section 499 of the Indian Penal Code, 1860.
When “imputation was made in good faith (which is always
presumed) for the protection of interest of the person making it, or of any
other person, or for the public good”, then such utterance would not amount to
defamation. In February 2008, the Madurai Bench of the Madras High Court again
rescued an advocate from facing criminal prosecution for allegedly making
defamatory statements in the course of pleadings in a suit for partition.
All may not be lost for persons affected by such
submissions. In its decision in Sanjay Mishra in March 2012, the Delhi High
Court drew a subtle distinction between English and Indian law.
While in England, there is total immunity for a counsel for
such conduct from being proceeded against either for damages in a civil action
or under criminal law, that level of protection is confined to a civil action
alone in India.
Under the criminal law of defamation, the ninth exception to
Section 499 actually enables parties to sue a counsel if they can demonstrate
malice or a lack of good faith in the utterance or conduct. That, however, is
too thin a line, especially in a case of the kind that the Attorney General was
arguing – a one-off case, where the submissions were not too alien either.
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