Report No. 69
84.10. Section 150.-
Under section 150, if the court is of opinion that any such question was asked without reasonable grounds, the court may, if it was asked by any barrister-pleader, vakil or attorney, report the circumstances of the case to the High Court or other authority to which such barrister-pleader, vakil or attorney is subject in the exercise of his profession. The words referring to barrister etc. should now be replaced by "legal practitioner". This is a purely verbal change.
84.11. Question of liability of counsel.-
There is a point of considerable interest relating to the obligations of the counsel and their protection in respect of questions put to witnesses. Though the matter is one of substantive liability, it has some connection with the law of evidence and may be discussed while on section 150. The question has been extremely discussed in Indian judicial decisions, namely, whether, in India, an advocate can be proceeded against either civilly or criminally for the words uttered as advocate and if so, what is the extent of the protection.
That counsel enjoy a certain amount of protection is well-established. First, as to the rationale, it has been observed:-
"It belongs to every subject to this realm in all Courts of Justice to assert and defend his rights, and to protect his liberty and life by the free and unfettered statement of every fact, and make use of every argument and observation that can legitimately-that is, according to the rules and principles of our law-conduce to these important ends. Every man has this right, and may exercise it in his own person-he may commit its exercise to counsel, who takes it as his delegates; its nature and character is not altered by this delegation; it is still the same to be exercised in the same manner and for the same purposes and subject to the same limitation and control as it would be if the party were pleading his own cause.
These considerations will at once show the fallacy of the argument that instructions to counsel are the test by which we should try whether or not the line of duty has been passed; no instructions can justify observations that are not warranted by facts proved, or which may legally be proved; and it is the duty of counsel towards their clients to use their own judgment and experience and discretion and as the result, whatever be their instructions, to exclude all topics and observations of which the case does not properly admit. Subject to its just and necessary limits, this right, when duly exercised and directed to its proper purposes, should not be fettered or impeded; for if it be (fettered or impeded), an injury is sustained, not by the advocate, but by the client, and not by the client alone, by the whole community, whose interests are inseparably connected with a right essential to the administration of justice."1
The advocate, it has been stated, is not bound to consider the position in life of the person whose conduct he is condemning. His words and acts ought only to be guided by a sense of duty-duty to his client-and by a constant recourse to his own sense of right to guard against the abuse of the powers and privilege entrusted to him.2
This, in a broad sense, is the rationale underlying the privilege. But if is necessary to state the position in greater detail with reference to (i) civil liability; and (ii) criminal liability.
1. Per Lord Chief Justice Blackburn in Butt v. Jackson, 10 ILR 120 (123).
2. Sullivan v. Norton, ILR 10 Mad 28.
84.13. English law-Civil liability.-
In England, a plaintiff is not permitted to obtain compensation by reason of statements made by the defendant in certain situations, regardless of the motive of the person making the statement and regardless of the truth of such statement. The reason for such immunity lies in public policy-without this total protection from actions for libel and slander, the process of the law itself would be seriously inconvenienced. Among the statements absolutely privileged are those made during and connected with the trial of any action in court. This privilege extends to judge, jury, parties, witnesses and advocates.
84.14. Scope of the protection in England-Civil liability.-
The leading English case on the subject of privilege of counsel is Munster v. Lamb, (1882) 11 QBD 588; See Jagat Singh v. Kalipado, 1921 ILR 1 Pat 371: AIR 1922 Pat 104. In that case the defendant, an advocate, was sued for having, while defending an accused, used expressions suggesting that the plaintiff was accustomed to keep and use drugs for immoral purposes. Brett. M.R., observed:
"This action is brought against a solicitor for words spoken by him before a court of justice, whilst he was acting as advocate for a person charged in that court with an offence against the law. For the purpose of my judgment, I shall assume that the words complained of were uttered by the solicitor maliciously, i.e., to say, not with the object of doing some thing useful towards the defence of his clients; I shall assume that the words were uttered without any justification or even excuse and from the indirect motive of personal or anger towards the prosecutor arising out of some previously existing cause; and I shall assume that the words were irrelevant to every issue of fact which was contested in the court when they were uttered.
Nevertheless, inasmuch as the words were uttered with reference to and in the course of a judicial enquiry which was going on, no action will lie against the defendant, however improper his behaviour may have been . If upon the grounds of public policy and free administration of the law, the privilege be extended to judges and witnesses, although they speak maliciously and without reasonable or probable cause, is it not for the benefit of the administration of the law that counsel also should have an entirely free mind? Of the three classes, judge, witness and counsel, it seems to me that a counsel has a special need to have his mind clear from all anxiety. A counsel's position is one of the utmost difficulty. He is not to speak of that which he knows. He is not called upon to consider whether the facts with which he is dealing are true or false.
What he has to do is to urge as best he can without degrading himself in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. If amidst the difficulties of his position, he were to be called upon during the heat of his argument to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he will have his mind so embarrassed that he could not do the duty which he is called upon to perform. That rule is founded upon public policy. With regard to counsel, the question of malice, bona fide and relevancy, cannot be raised. The only question is whether what is complained of has been said in the course of the administration of the law."1
1. A spiteful advocate, may be nevertheless amenable to the disciplinary jurisdiction of the Court and the Bar Council, but see Brook v. Montague, (1605) 79 ER 77; Flint v. Pike, (1825) 107 ER 1136.
84.15. Position in India-Civil liability.-
The position in India is the same so far as civil liability is concerned. For some time, a doubt existed as to whether advocates, parties and witnesses have an absolute privilege or only a qualified privilege, so far as civil liability is concerned. Though the language of the section of the Indian Penal Code suggested that the privilege was only qualified, and therefore it was thought that whether it was a civil case or a criminal case, the privilege was only qualified, the privilege is now regarded as absolute.
84.16. In one civil case1, the Bombay High Court held that a member of the Bar has no absolute privilege and that an advocate who makes defamatory statements in the conduct of a case has no wider protection than a layman. This view, with respect, is not a well considered one, and is opposed to the general trend of authority.
1. Tulsidas v. Billimoria, AIR 1932 Bom 490.
84.17. The present view is that the privilege of parties, witnesses and counsel is absolute1 as regards civil liability.
1. (a) Thiruvengada v. Thiripurasundari, ILR 49 Mad 728: AIR 1926 Mad 906;
(b) Dinshaut Edalji v. Jehangir, ILR 47 Born 15: AIR 1922 Born 381; Bai Shanta v. Umrao, ILR 50 Boni 162: AIR 1926 Born 141;
(c) Nikunja v. Harendra, 1913 ILR 41 Cal 514;
(d) Banerjee v. Anukul, 1928 ILR 55 Cal 85: AIR 1927 Cal 823;
(e) Bhikumber v. Becharam, 1888 ILR 15 Cal 264;
(f) Woolfun Bibi v. Jasarat, 1900 ILR 27 Cal 262;
(g) Alraja Naidu (in re:), 1906 ILR 30 Mad 222;
(h) Jagat Mohan v. Kalipado, 1922 ILR 1 Pat 371.
84.18. Criminal liability in England.-
In England, the protection for such statements is absolute even in criminal cases. The matter is governed by the same rules whether it be a party, witness or counsel. In England, the right of free speech is, having regard to the occasion, allowed to prevail over the right of reputation. In the Royal Aquarium case,1 Lopez L.J., observed:-
"The authorities establish beyond all question this: that neither party, witness, counsel, jury, nor judge can be put to answer civilly or criminally for words spoken in Office; that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties, for words written or spoken in the course of any proceeding before any court recognised by law, and this though the words written or spoken were written or spoken maliciously without any justification or excuse, and from personal and anger against the person defamed. This absolute privilege has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that courts of justice are presided over by those who from their high character are not likely to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them."
1. Royal Acquarium etc. Society Ltd. v. Parkinson, (1892) 1 QB 431 (451).
84.19. Position in India in criminal cases.-
The position in India in criminal cases is, however, different. The matter is governed by the Indian Penal Cod.-section 499, 7th and 9th Exceptions. These Exceptions confer only a qualified privileg.- qualified because good faith is an essential ingredient of the Exceptions in question. Good faith, as defined in section 52 of that Code, postulates
(i) honesty of motive, plus
(ii) due care and attention.
Since the use of the occasion for an improper purpose takes the matter outside the realm of good faith, the privilege cannot be described as absolute and must be described as a qualified on.- if one has to use terminology that is employed in dealing with civil liability. Malice, however, is not presumed. Rather, there is, to begin with, a presumption of good faith on the part of counsel.
84.20. Malice of counsel not to be presumed.-
Judicial decisions illustrate the position. Where a pleader was prosecuted for the use of defamatory words in the course of his address (calling the witness "loafers"; during the trial of a suit, and convicted of defamation, it was held, reversing the conviction and sentence, that in the absence of express malice (which was not to be presumed, the pleader was protected by the ninth Exception to section 499.1
1. Nagardas (in re:), 1894 ILR 19 Born 340.
84.21. Good faith.-
In considering whether there was good faith, i.e., under section 52, Indian Penal Code, due care and attention of the person making the imputation must be taken into consideration. The good faith of an advocate is well expressed by the Master of Roils (Lord Esher) in Munster v. Lamb, 11 QBD 588 (603). "The advocate speaks from instructions; he reasons from facts sometimes true, some times false. He does not express his own inferences, his own opinion or his own sentiments, but those which he desires the Tribunal, before which he appears, to adopt. This duty the law allows, almost compels him to perform. Such being his duty, it seems that where express malice is absent (and it ought not to be presumed) "a court having due regard to public policy would be extremely cautious before it deprived the advocate of the protection of Exception 9 to section 499, I.P.C."1
It is clear from the reported decisions that the presumption in the case of pleaders asking questions in cross-examination is that such questions are put in good faith for the protection of the client's interests within the Exception to section 499,2 Indian Penal Code.
1. See Nagarji Trikamji (in re:), ILR 19 Born 340.
2. (a) Narayan Chandra Ganguli v. Harish Chandra Saha, AIR 1933 Cal 185. (b) Muhammad Taqi v. M.A. Ghani, AIR 1945 Lah 97.
84.22. It must be then presumed that the counsel acted honestly and without malice, if this were not so, counsel could not possibly discharge their duties to their clients. If a counsel renders himself liable to a prosecution foe defamation every time he makes serious allegations in a pleading on instructions, it would be quite impossible for him to carry on his duties at all. He is under a duty to his client to plead the allegations which his client makes, always provided that they are not so wild and reckless that no one would possibly accept them.1
1. U. Pike v. Makhin Theirs, AIR 1940 Rang 77.
84.23. The Court should presume, when a complaint is made against a legal practitioner for defamation, that the remark was made on instructions and in good faith, and that mere can be no defamation unless the circumstances showed that the remark was made wantonly, or from a malicious or private motive.1
1. McDonnel v. Emperor, AIR 1925 Rang 345.
84.24. Extent of immunity of an advocate.-
Regarding the extent of immunity which an advocate enjoys under the 9th Exception to section 499, Indian Penal Code, for words uttered in his capacity as advocate, the following observations of Mookerjee, A.C.J., in Satish Chandra v. Ram Dayal, 48 Cal 388: AIR 1921 Cal 1: 59 LC 143: 22 Cr LJ 31 (SB), are pertinent:
"In this country questions of civil liability for damages for defamation and questions of liability to criminal prosecution for defamation do not, for purposes of adjudication, stand on the same basis, as regards the former, we have no codified law, as regards the latter, relevant provisions are embodied in the Penal Code."
84.25. Advocate how far immune from criminal liability for defamation.-
The position appears to be that the immunity which an advocate enjoys in a criminal proceeding for words uttered or written in the performance of his functions as an advocate is not in the nature of an absolute privilege, but of a qualified privilege.1 It is highly improper for counsel to misuse the privilege of free speech which they enjoy when examining witnesses or presenting arguments for the consideration of the Court. They owe it to the Court and to the profession, of which they are members, not to indulge in their arguments in defamatory remarks of a gratuitous nature about the complainant, accused or witnesses in the cases entirely irrelevant for the purpose of protection of the interest of the party whom they are representing.
The weight of authorities appears to be in favour of the view that such gratuitous remarks reflecting on the conduct of a party, if made with a malicious intent to lower him in the estimation of his fellow-men in a case where the party's character is not in issue or relevant for the purposes of a right determination of the case, would not protect counsel from criminal defamation.2
1. See also Nagarji Trikamji (in re:), ILR 19 Born 340; Emperor v. Ganga Parsad, ILR 29 All 685.
2. L. Gendan Lal v. Rex, AIR 1948 All 409 (410).
84.26. Counsel's immunity from defamation on basis of unnecessary cross-examination.-
The responsibility of a lawyer for putting defamatory questions was thus dealt with by Bardswell, J., in Bashyam Ayyangar v. Andal Ammal, 1934 Mad WN (Cr) 81.:
"Where a pleader is charged with the offence of defamation punishable under section 500, I.P.C., in that he unnecessarily in cross-examination put to the complainant, who was a witness in a criminal case, certain questions which imputed immoral character and there is no allegation, and much less proof, that the pleader in putting the questions was actuated by any motive of private malice and was not acting in the interests of his clients, the pleader is entitled to the benefit of Exception 9 to section 499, I.P.C, and the charge which imputes no ill-faith but merely refers to the questions as having been put unnecessarily cannot stand and that therefore the entire proceedings against the pleader ought to be quashed."
These observations, with respect, state the law correctly.
84.27. Madras view criticized.-
It is, however, difficult to agree with the dicta in Madras in Sullivan v. Norton, ILR 10 Mad 28, and some later cases of that High Court,1 that the privilege is absolute even in criminal cases. Not only does section 499 of the Indian Penal Code give an indication to the contrary, but also section 2 of that Code puts the matter beyond doubt by providing expressly that all acts punishable under the Code shall be punished "under the Code and not otherwise". The invocation of rules of the English common law in relation to offences under the Code is excluded by section 2, where the matter is governed by an express provision.
1. See cases collected in Satish Chandra v. Ram Dayal, AIR 1921 Cal 1 (Mookerjee, Ag.
84.28. Questions relating to civil liability for defamation are determined with reference to the rules of the English common law, to the extent to which those rules are shown to be applicable.1 This is on the principle that where no specific statutory directions are given, judges act on justice, equity and good conscience, and "justice, equity and good conscience.- generally, but not invariably.- mean the principles of English common law applicable to a similar state of circumstances.2
But the position in respect of criminal liability for defamation in India is not precisely the same. In cases of criminal prosecution for defamation, the court is bound to apply the codified law of India as contained in section 499 of the Indian Penal Code; and Exceptions 7 and 9 to that section (which are the Exceptions mainly relevant to the situation under discussion) recognise only a qualified privilege. With the exception of certain Madras rulings, the general trend of decisions in India now is that the privilege of counsel is a qualified one, being governed by the Penal Code.
1. Mayar of Lyons v. East India Company, (1836) 1 Moore Indian Appeals 176.
2. See discussion by Mookerjee, Ag., C.J. in Satish Chandra v. Ram Dayal, AIR 1921 Cal 1.
84.29. Care to be exercised.-
We have discussed these points relating to the privilege of counsel in order to show how important it is that counsel must exercise due care in putting questions making imputations against witnesses. The existence of a privilege from legal liabilit.- whether qualified or absolut.- does not affect their moral accountability to society as the members of an honourable profession. In fact, the greater the exemption, the higher may be the ethical standard expected by society of those so exempt.1
1. Satish Chandra v. Ram Dayal, AIR 1921 Cal 1 (11-13) (Reviews case).
84.30. In Gendan Lal v. Rax, AIR 1948 All 409 (Sapru, J.), the applicant in the revision was one Lala Gendan Lal. He (the applicant) was an accused person in a case, Habib v. Gendan Lal, under section 324, Penal Code, in the Court of the Bench Magistrates at Muzaffarnagar. Habib (the complainant) was represented in that case by an advocate, Mr. Banarsi Das. It was alleged that, while arguing the case for Habib, Mr. Banarsi Das made two defamatory statements regarding Gendan Lal. The first statement was that he, Gendan Lal, had abducted a Khattri woman, the second statement was that he had illicit connection with a Jain woman.
These statements were quite unnecessary for the purposes of argument in the case and the case of Gendan Lal in the present revision was that they were deliberately made with a view to lowering him in the estimation of his fellow men. The lower Court had acquitted Banarsi Das of defamation, presumably under section 499, 9th Exception, I.P.C. Dismissing the application for revision, Sapru J. made these observations:
"There is not the least doubt that Mr. Banarsi Das was perfectly reckless in the manner in which, in the course of his argument, he attacked the accused, Gendan Lal. From the point of view of presenting the case for his client, it was absolutely unnecessary for him to make statements of a prima facie defamatory character against the applicant, Gendan Lal, particularly when in cross-examination such questions which would have been in any case of an irrelevant nature had never been asked of the witnesses produced on his behalf. The only excuse that can be advanced for Banarsi Das and which has appealed to the Courts below is that these reckless statements were made by him in a moment of excitement, without premedication and forethought.
The reason for this excitement appears to have been the fact that counsel for the opposite party had in the course of his arguments indulged in an attack on his client. It is because of this consideration and the fact that the lower courts were not satisfied that he was actuated by malice that I have not considered it proper to interfere in this revision. Further this Court is reluctant to interfere in applications by private parties for revision against orders of acquittals."
He added that though technically, the case did not fall within section 500, I.P.C., yet the conduct of Banarsi Das was not worthy of a member of one of the most honourable professions in the world.
84.31. With respect, we may point out that if the statement of Banarsi Das was "reckless", then he could hardly claim exemption from criminal liability. The exemption requires good faith, and good faith requires due care and attention. Comments made recklessly cannot be privileged within the Ninth Exception1 to section 499, I.P.C.
1. Deep Chand v. Sampath Raj, AIR 1970 Mys 34.
84.32. Verbal change needed.-
The above discussion was intended to deal with certain questions allied to the subject matter of section 150.1 So far as the section is concerned, only a verbal change is needed, regarding the expressions "barrister" etc. Those expressions should be replaced by "advocate".
1. See introduction.
84.33. Recommendation.- The following redraft of section 150 is recommended:-
Revised Section 150
"150. If the Court is of opinion that any such question was asked without reasonable grounds, it may, if it was asked by any advocate, report the circumstances of the case to the High Court."1