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Report No. 89

37.20.Legislative History.- Before 1871, the period of limitation in India probably followed the English practice. The period of one year proposed for suits for libel was explained in the statement of Objects and Reasons annexed to the Bill that lead to the Act of 1871, as follow.-

"On the other hand, we have diminished to one year the period fixed for suits for false imprisonment, for any other injury to the person, for a malicious prosecution, for libel, for slander, for taking or damaging movables, for loss of service occasioned by seduction, for inducing breach of contract, for illegal distress, and for wrongful seizure of movables under legal process1".

1. Statement of Objects and Reasons, National Archives File, 1871, p. 4.

37.21. When the draft Limitation Bill, 1877 was circulated for comments, a plea was made for counting the period from the time when the libel came to the knowledge of the person libelled. One comment, making such a suggestion, may be quote.-

"I would suggest an alteration in the period applicable to libel; for I think the term now fixed, namely, one year from publication, may, as I know it has done, work a great hardship on the person libelled. The term should in my opinion, run from the date when the libel became known to him.

I do not refer to cases of libel published in newspapers, for there a man reads at once what has been written of him, and can generally bring his action without further delay: but I allude to private communications, or those written under a sense of duty to a public official, where the person libelled, although he may have sustained loss from what he knows has been said of him, still is unable,
through obstacles put in the way either by the writer or receiver of the communication, to discover what has been said against him until the year from the date when it was sent has expired, and so, though the statements or charges made against him may have been totally unfounded and grossly calumnious, and he has suffered the greatest loss, still because of the present state of the law, his suit would be barred unless it was brought within a year of the time when it was sent to the post.

Section 19 of the Act would not help him, for he may have been kept from the knowledge of his right to sue without any fraud on his libeller's part, but by simple obstructions which he has put in his way. Or if it be said he knew of his right to sue before the time of limitation expired, inasmuch as he had been told he had been libelled, still he might not have been able to bring a suit, because, he could not, until it was too late, see or get a copy of the libellous document.

A case of this kind occurred some few years ago in Calcutta where great injury resulted to a merchant whose conduct in a certain mercantile transaction had been improperly and falsely represented by his Counsel to the Minister of Foreign Affairs of their country. The High Court was of opinion that the communications were highly libellous, and that the plaintiff would have been entitled to heavy damages, had it not found that the suit had been brought beyond the period allowed from the date of publication, although it was brought at the earliest opportunity. The case is Charriol v. Lombard, and is reported in 1 Indian Jurist N.S., p. 209 et seq."1

Another suggestion made by Mr. Field was to combine the two articles dealing with 'libel' and 'slander' into one composite article for defamation2:

"For 'libel' and 'slander' might be substituted "defamation" which includes both, and which is the peculiar term of Indian L.-see section 499 of the Penal Code".

1. C.J. Wilkinson, Recorder of Rangoon to the Secretary to Chief Commissioner, British Burma, Letter No. 5733, dated 27th April, 1877, National Archives File, 1877, Paper No. 19, p. 3.

2. Letter dated 19th April, 1877, Charles D. Field, National Archives File, 1908, Paper 6, p. 13.

37.22.Comment (1907).- In 1907, Sir Lawrence Jenkins, Chief Justice of the Bombay High Court also expressed himself thus:11/p> "Articles 25 and 24 should be only one article providing for defamation."

1. Chief Justice L. Jenkins, Bombay High Court, Letter No. 2469, dated 18-12-1907, National Archives File, 1908, Paper 6, p. 13.

37.23.Law Commission's Report.- The Law Commission, in its Report on the Act of 1908, did not examine the above question, because it preferred one article for all tortious acts and observed thus.-

"Article 24 relates to an action for libel and the period of limitation is one year from the time when the libel is published. Article 25 relates to slander and the period provided for is one year from the date when the words were spoken or, if the words are not per se actionable, when the special damage complained of results. It is settled law that the cause of action for libel accrues from the date of the publication of the defamatory statement.

When slander is actionable per se, the cause of action is its publication and time runs from that date. If the action is maintainable only on proof of the special damage, the happening of the damage is the cause of action. (See Burry v. Perry, 1725 Rayam 1588 and also Darley Main Colliary Co. v. Thomas, (1886) II AC 127). In respect, therefore, both of libel and slander, the time from which limitation runs coincides with the accrual of the cause of action. The suits under all these articles are suits founded on tort and a uniform period of three years may be fixed for the institution of these suits, time running from the date of the accrual of the cause of action."

1. Law Commission of India, 3rd Report (Limitation Act), para. 116.

37.24.History of article relating to slander.- As regards the article relating to slander in the Act of 1877, in the third column of the schedule, the words "or, if the words are not actionable in themselves, when the special damage complained of results" were added, alongwith the pre-existing words "when the words are spoken". Since then, there has been no change. The addition of these words was presumably intended to cover the cases which can arise under the rule of English Law that slanderous words are not actionable per se and a suit is maintainable only after when special damage is caused.

37.25.Position in India as to the tort of defamation, and need for amendment of the Limitation Act.- We have given anxious thought to the question whether Articles 75 and 76 (libel and slander) should be retained as they are. This necessitates an examination of the substantive law of defamation as a tort. The common law position is that libel is actionable per se, while slander is actionable without proof of special damage (unless the case falls within certain exceptional categories).

This distinction, however, hardly possesses any realistic importance in India, since most High Courts do not recognise the distinction between libel and slander. It can be asserted that net result of Indian judicial decisions is that both libel and slander are actionable as torts, without the need to prove special damage.

We are aware that there is one solitary ruling1 which holds that the distinction is still valid in the town of Calcutta, but the majority of the High Courts have, as stated above, taken the view that the technical distinction made by English common law has no validity in India, and is not in harmony with justice, equity and good conscience and is out of tune with the notions of Indian society.2-3-4

It should also be pointed out that even in the West, the distinction between libel and slander has not been regarded as satisfactory, and has been very strongly criticised both by academic writers and by law reform agencies who have had occasion to deal with the subject. Though the distinction still exists in the United Kingdom, the English Committee of Defamation, popularly known as the Faulks Committee in its Report recommended its abolition and removal from the law of England and Wales, so that for the purposes of civil proceedings in England and Wales, slander should be assimilated to libel.

In fact, in at least one Commonwealth country, namely, New Zealand, the distinction has been abolished by statute.5

It should also be recorded here that the reform effected in New Zealand has not given rise to any serious problems. Sir Denis Blundell (who later became the Governor-General of New Zealand), in his evidence given to the Faulks Committee, stated that in New Zealand the abolition of the distinction between libel and slander had not resulted in any spate of petty actions for slander.

The retention of the two articles in the present form in the Limitation Act thus tends to perpetuate a distinction which is unfair in principle, anachronistic in nature and, in any case, in the Indian context, almost out of tune with reality. It is also not in conformity with the position in substantive law, as generally understood in India. The Law of limitation should, as far as possible, maintain harmony with the substantive law and should not give a fillip to a distinction that is already discarded.

1. Bhooni Money v. Naohar, 1901 ILR 28 Cal 432 (452, 462, 463) (Case relating to Town of Calcutta).

2. A.D. Naryana Saha v, Kannamma, 1931 ILR 55 Mad 727: AIR 1931 Mad 445 (450, 451, 452).

3. Hirabai v. Dinshaw, 1926 ILR 51 Born 167.

4. Sukhan v. Bipad, 1907 ILR 34 Cal 48.

5. Section 4 of the (New Zealand) Defamation Act, 1954.

37.26.Recommendation.- In the light of the above considerations, we are of the opinion, and we recommend, that in place of Articles 75 and 76, one single article should be substituted, to deal with compensation for defamation, the period being one year and the starting point being the date of the publication or, where the defamatory statement is not published in a permanent form, the date when the defamatory matter comes to the knowledge of the plaintiff. When the words are not published in a permanent form, it is fair that the starting point should be the plaintiff's knowledge, so that the short period of limitation available does not commence to run until he has knowledge.

We, therefore, recommend that Articles 75-76 should be replaced by one single article to read as unde.-

"75. For compensation for defamation. One year. When the defamatory statement is published, or where the defamatory statement is not published in a permanent form, when it comes to the knowledge of the plaintiff."

37.27.Article 77 and case-law thereon.- This disposes of Articles 75-76. Article 77 prescribes a time limit of one year for a suit "for compensation for loss of service occasioned by the seduction of the plaintiffs servant or daughter". The time limit is to be counted from the date when the loss occurs. The article is identical with Article 26 of the Acts of 1908 and 1877 and Article 27 of the Act of 1871.

The first case on this article is from Allahabad, in which a Hindu father claimed damages for the seduction of his married daughter and consequential loss of services as a result of abduction by the defendant. He also claimed the costs incurred by him in prosecuting the defendant for the offence of abduction. The trial Court gave him a decree for Rs. 200 for the loss of his daughter's services and Rs. 300 for costs incurred by him in prosecuting the defendant.

In appeal, the High Court diSallowed the sum of Rs. 200 decreed as damages for the loss of service, while maintaining the decree for the costs incurred in prosecution. Stuart, C.J. discussed the English theory on which the remedy for seduction is based and expressed himself as against encouraging its introduction into the Indian legal system.

He pointed out that in Scotland and other European countries, the seduced woman needed no help from her father or other relation "but may sue directly for the wrong done to her." His colleague on the bench, Oldfield, J. was of the view that the English cause of action for seduction was founded not upon the wrongful act of the defendant but upon the loss of service of the daughter in which service the parent is by fiction, supposed to have a legal right or interest. He observed as unde.-

"It would be very undesirable to introduce a fiction of this kind into the law of this country. The plaintiff cannot be allowed to maintain a suit on a contract for service which is not seriously asserted, nor indeed found to exist in fact, and which is not consonant with Hindu custom. Hindu women are no doubt dependent to a great extent on their male relatives, and they have certain household duties which" they are expected to perform, but their position is not one of servitude, from which any contract of service can be implied.1"

1. Ram Lal v. Tula Ram, 1882 ILR 4 All 97.

37.28. In a Nagpur case, Mr. Justice Niyogi, while awarding damages for seduction, held that it was more appropriate to look at such a wrong as constituting an invasion of the right of the family to the security of domestic relations, rather as an interruption of the service rendered by the daughter to her father. However, this reasoning was not approved by the Division Bench that heard the matter on appeal.

It held that the law of torts was administered in the Central Provinces and Berar (as then constituted) under section 6 of the Central Provinces Laws Act as a rule of justice, equity and good conscience. The only law of seduction was that found in the English law of torts applicable to India and it was not open to Indian courts "to invent new heads of law not covered by the English law, though the legislature can.1"

1. Babu v. Sunbanshi Dhobi, AIR 1942 Nag 97.

37.29.Comments (1908).- It may be of interest to note that when the draft Bill which led to the Act of 1908 was circulated for comments, the District Judge, Guntur suggested that the words "or daughter" should be omitted from the article.1 On the other hand, Mr. Justice Knight of the Bombay High Court suggested a widening of the article by adding the words "or ward.2"

1. Dewan Bahadur S. Gopalachariar Avargal, Distt. Judge, Guntur, National Archives File, 1908, Letter No. 3073, dated 9th December, Paper No. 8, p. 10.

2. Letter No. 2469, dated 18-12-1907, National Archives File, 1908, Paper No. 6.

37.30.Present English law as to seduction.- It may also be mentioned that in England, by statute, actions for seduction have been abolished.1

1. Section 5, Law Reform (Miscellaneous provisions) Act, 1970 (English).



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