Tushar Kanti Ghose vs Bina Bhowmick

Chakravartti, C.J.—This appeal was strenuously argued for several days and certain points were canvassed on behalf of the Appellants which they or their advisers do not appear to have thought of at the time of the trial. They had pleaded in wide terms and taken all conceivable pleas in defence, more or less in the set language of the text-books; but, actually, they had joined issue on only certain of those pleas. As a result, in urging other pleas in the appeal, their learned Counsel was at times in some difficulty, as he himself candidly admitted, because the case had not been built up in the Court below in the form in which he was trying to present it.

The appeal arises out of a suit for damages brought by two Plaintiffs against three Defendants for the publication of an alleged libel in the issue of an English daily paper, known as the "Amrita Bazar Patrika", for September 18, 1948. The first Defendant, Tushar Kanti Ghose, is the editor of the paper; the second Defendant, Nirmal Kanti Ghose, is its printer and publisher; and the third Defendant, Amrita Bazar Patrika, Limited, is a limited liability company by which the paper is owned.

There were originally two Plaintiffs, each suing in a dual capacity. The first Plaintiff, Mrs. Bina Bhowmick, sued "for "self and as President, Amrita Bazar Patrika Press Workers''. "Union"; and the second Plaintiff, Tarak Nath Thakur, sued "for self and as secretary and on behalf of the members" of the said union. In so far as the suit was a representative suit on behalf of the members of the union, the requisite leave of the Court under Order 1, Rule 8 of the CPC was taken.

It appears that as soon as the case was opened before the learned trial Judge, an objection was taken on behalf of the Defendants that in view of Section 13 of the Indian Trade Unions Act, a suit on behalf of a registered Trade Union, such as the Amrita Bazar Patrika Press Workers'' Union was, could be brought only in the name of the union itself and that a representative suit by and in the name of the president or the secretary was not maintainable. The learned Judge gave effect to that contention and by a decree passed on April 24, 1951, he dismissed the suit so far it was a representative suit. At the same time he ruled that in spite of such dismissal the suit, so far as it concerned an alleged libel on the first Plaintiff Mrs. Bina Bhowmick in her personal capacity, might proceed. The effect of that decision was that the second Plaintiff, Tarak Nath Thakur, was eliminated from the suit and the claim of the union or its members, whether made through the first Plaintiff or the second, also disappeared. The first Plaintiff having agreed to limit her claim to such damages as she could recover personally from the Defendants, the suit proceeded on that basis and ultimately the learned Judge passed a decree in her favour for Rs. 5,000 and costs and also granted an injunction against the Defendants, restraining them from further publishing the libellous words complained of or other words of like effect concerning the first Plaintiff. It is against that decree that the Defendants have appealed.

The contest in the appeal is thus only a contest between the Defendants and the first Plaintiff in her personal capacity, although both the Plaintiffs have been impleaded as Respondents in both the capacities which they assumed in the plaint. In view of such limited scope of the appeal, it is necessary to state the facts only so far as they bear upon the allegation of a personal libel on Mrs. Bina Bhowmick and henceforward I shall refer to her alone as if she was the sole Plaintiff.

As already stated, the libellous matter complained of was published in the issue of the "Amrita Bazar Patrika", dated September 18, 1948. It consisted of the following head-lines and paragraphs:

PATRIKA AND JUGANTAR COPIES LOOTED.

HAZRA ROAD INCIDENT.

Another Daylight Robbery by Discharged Employees.

The Management of the "Amrita Bazar Patrika" have issued the following: Another daylight robbery was committed by Mrs. Bina Bhowmick''s union members and their hirelings early yesterday (Friday) morning when our van containing thousands of copies of "Patrika" and "Jugantar" was looted at the Hazra Road junction distributing centre. As soon as copies of "Patrika" and "Jugantar" were taken out of the van 20 to 25 men pounced upon them, destroyed some and carried away the rest presumably for selling them and pocketing the ill-gotten gains.

This is the second occasion when our van has been attacked and papers looted at the Hazra Road distributing centre.

SHRI DEO''S ADVICE DEFIED.

We have always held the view that Mrs. Bhowmick''s union is not a B.P.N.T.U.C. union at all but that it was deliberately affiliated to the B.P.N.T.U.C. as a subterfuge by some designing men. It is not at all surprising, therefore, that its members should have totally defied the appeal, published on Thursday, by Shri Sankar Rao Deo, General Secretary of the A.I.C.C., to observe non-violence, and resorted to violence. This is another conclusive proof that the union is neither B.P.N.T.U.C. nor non-violent in its ideals and methods. We understand some of our dismissed employees were arrested on the spot in this connection.

Mrs. Bhowmick held a meeting of her workers two days ago. We do not know what advice she gave them. But it is clear that the so-called strike which is being conducted under her guidance has nothing to do with bona fide trade unionism. When the country is in the grip of a grave national emergency, is there any justification for depriving thousands of our readers of news pouring in from Hyderabad, Kashmir, Paris and London ?

Let us reiterate once again that the overwhelming majority of our workers are loyally and whole-heartedly serving their papers, and a small minority has no right to coerce them.

The plaint set forth all the above-quoted words and alleged that they had been printed and published, of and concerning the Plaintiff, falsely and maliciously and with the intention of injuring her. It was further alleged that by the words contained in the third of the offending paragraphs, the Defendants meant, and were understood to mean, that the Plaintiff was among the designing persons who had deliberately got the Amrita Bazar Patrika Press Workers'' Union affiliated to the B.P.N.T.U.C. as a subterfuge, while the members of the union were, in fact, pursuing methods of violence. It may be explained here that the B.P.N.T.U.C. is the local Provincial branch of the I.N.T.U.C., i.e., the Indian National Trade Union Congress, which is an organisation sponsored and recognised by the Indian National Congress as propagating the Congress ideals among the labourers and working for its policy and programme of non-violence among them. It was further alleged that by the words contained in the fourth and the fifth of the offending paragraphs, the Defendants meant, and were understood to mean, that the strike that was being conducted under the guidance of the Plaintiff was mala fide trade unionism and the whole object of the publication was to suggest to the public that the Plaintiff and the members of the union, who constituted a small minority of the workers of the newspaper, were coercing the overwhelming majority of them. According to the Plaintiff, the publication was a gross and malicious libel which had greatly injured her in her reputation and which, in view of her position in public life, was calculated to have far-reaching consequences. She claimed a sum of Rs. 75,000 as damages.

It will be seen that besides complaining that the words of the impugned publication, taken in their plain meaning, were defamatory of her, the Plaintiff also complained that the third, fourth and fifth paragraphs contained innuendos affecting her credit.

Two written statements were filed, one on behalf of the first and the second Defendants and one on behalf of the third and by them certain common defences were taken. Leaving aside the general denials, it was pleaded that the words of the publication did not bear any libellous meaning; that, in any event, according to their natural and ordinary signification, they were true in substance and in fact, in the alternative, that they were printed and published without malice in reasonable self-defence and for the protection of public as well as the Defendants'' own interest; in further alternative, that they constituted fair comment on matters of public interest; and that the Plaintiff had not been, and was not likely to be, injured as alleged.

On the pleadings set out above, five issues were raised, two as to the meaning and effect of the publication as concerning the Plaintiff personally, one on the plea of justification, one on the plea of fair comment and one as to the question of damages. No issue was raised on the plea that the impugned words had been published for the protection of public as well as the Defendants'' own interest and were therefore privileged.

The learned Judge overruled a preliminary objection taken on behalf of the Defendants that the words complained of referred to the Plaintiff only in her capacity as the president of the union and that the claim in the plaint had also been laid on that basis and that, therefore, the suit having been dismissed so far as it was a representative suit, there was nothing left to be tried. It was held that the impugned words aimed at the Plaintiff both personally and as the president of the union, that she had sued in both capacities, that in law she was entitled to do so and that the dismissal of the representative part of the suit only meant that no claim on the basis of an attack on the collective and corporate reputation of the union could be further pursued, but not also that even in respect of an attack on the Plaintiff in her individual capacity for her personal activities in relation to the affairs of the union, she had been non-suited. This finding as to the survival and maintainability of the suit so far as the Plaintiff''s personal claim was concerned, was not questioned before us.

On the merits, the learned Judge held that the publication in question did contain defamatory statements concerning the Plaintiff personally. He held further that the plea of justification must, on the evidence, fail. He also held that the Defendants had overstepped the limits of fair comment and had been actuated by malice in publishing the libel complained of. He remarked on the dignity and restraint with which the Plaintiff had put her case in the course of her evidence and as her object in bringing the suit had only been to vindicate herself and not to make money, he thought that a sum of Rs. 5,000 would be fair compensation for the injury done to her reputation.

Against that decision of the learned Judge, three points were urged before us by Mr. Chaudhuri. He contended that the words complained of were not, on a fair construction, defamatory of the Plaintiff ; that they constituted fair comment; and that, in any event, they were protected by the privilege attaching to a newspaper''s duty of publishing information of public interest and to the right of the Defendants to protect their own interests with their subscribers and advertisers. No argument was addressed to us on the plea of justification and matters of fact were referred to only incidentally, so far as they were said to furnish a basis for fair comment.

In my opinion, it is impossible to say that the publication in question is not defamatory of the Plaintiff in the sense of aiming at her personally and containing statements to her discredit. It was contended by Mr. Chaudhuri that the Plaintiff was not entitled to rely on any innuendo which she had not pleaded. On behalf of the Plaintiff, Mr. Mukerji accepted that proposition and submitted that he would not rely on any innuendo in respect of the first of the offending paragraphs and even in respect of the rest, he would rely, in the first instance, on the plain meaning of the words used, apart from the innuendos pleaded. The learned Judge did not deal with those innuendos separately, apparently on the ground that it was unnecessary to do so, since he held that some of the words of the publication were grossly defamatory of the Plaintiff even in their ordinary meaning. I am in entire agreement with the learned Judge in his reading of the publication. The first paragraph states that "another daylight robbery was committed by Mrs. "Bina Bhowmick''s union members and their hirelings". Mr. Chaudhuri did not contend that if that sentence meant that the Plaintiff had been associated with the commission of daylight robbery or the employment of hirelings or with an organisation of men who committed such misdeeds, it would not be defamatory of her, but what he contended was that whatever allegation the sentence contained was only about the members of the union and not about the Plaintiff. That reading of the sentence is, in my view, clearly untenable. The union is referred to not as the Amrita Bazar Patrika Press Workers'' Union but as "Mrs. Bina "Bhowmick''s union" and the point in describing the union in those terms is plainly to convey the meaning that the union is a special group, composed of the adherents of Mrs. Bina Bhowmick, and that it is an organisation of which she is the controller and leader. When the sentence proceeds to state that "Mrs. Bina "Bhowmick''s union members and their hirelings" committed "another daylight robbery" early yesterday, no reader of ordinary intelligence would take it as leaving the Plaintiff out of the charge and making no allegation so far as she herself was concerned. The plain meaning of the sentence is that an organisation of men which has Mrs. Bina Bhowmick at its head, had committed one or more daylight robberies in the past and they, together with some mercenaries hired by them, committed another such robbery on the previous day. To my mind, the sentence associates the Plaintiff both with the commission of the robbery and the employment of hirelings by representing those misdeeds as activities of the members of the union which she has formed and which she leads. Equally plain is the meaning of the third paragraph of the publication. There it is stated that the writers have always been of the view that-

Mrs. Bina Bhowmick''s union is not a B.P.N.T.U.C. union at all but that it was deliberately affiliated to the B.P.N.T.U.C. as a subterfuge by some designing men.

Mr. Chaudhuri very fairly conceded that the use of the word "men" was not sufficient to exclude the Plaintiff, a woman, but his contention was that there was nothing in the sentence to include the Plaintiff among the designing persons who were stated to have obtained the fraudulent affiliation. That reading of the sentence, again, does not commend itself to me. It will be remembered that with regard to the third paragraph of the publication, an innuendo has been pleaded, but I am not proceeding here on the basis of the innuendo. When an association is referred to as a particular person''s association, the ordinary signification of that form of expression is that the person concerned started the association as his own show and, if I may use a colloquial phrase, bosses over it and a reference to the circumstances or the manner in which the association was started, inevitably involves him. When, therefore, the sentence under consideration states that "Mrs. Bina Bhowmick''s union" was "deliberately affiliated to the B.P.N.T.U.C. as a "subterfuge by some designing men", it is impossible to read the sentence as meaning anything else than that certain designing persons, among them Mrs. Bina Bhowmick, deliberately got her union affiliated to the B.P.N.T.U.C. in order to use such affiliation as a cloak of good credentials, while in practice the union indulged in activities inconsistent with the ideals of the B.P.N.T.U.C. In my opinion, there is no lack of clarity in the sentence, though there may be some lack of courage in that the Plaintiff is not included among the "designing men" directly, but in a roundabout manner. Next, the fourth paragraph states, openly and clearly, that the so-called strike that is being conducted under the Plaintiff''s guidance has nothing to do with bona fide trade unionism. The plain meaning of that sentence is that the Plaintiff has engineered, and is continuing, a strike under a pretence of trade unionism, though the strike is not a genuine trade union strike at all but has been brought about by the Plaintiff for other purposes and is being conducted by her in a manner foreign to trade union principles. The fifth paragraph of the publication speaks of a small minority coercing the overwhelming majority of the workers of the paper and it is clear from the context that the reference is to the strikers led by the Plaintiff. In my opinion, the learned Judge was entirely right in holding that even according to the plain meaning of the words used, the publication in question accused the Plaintiff of trickery, coercion, disloyalty to true trade union principles and other forms of dishonourable conduct. As such, it was a clear attack on her character and credit.

Passing on, now, to the innuendos pleaded, it is clear that in view of the finding I have arrived at, on the plain meaning of the publication, it is immaterial whether the Plaintiff succeeds or fails in establishing the innuendos alleged by her. If she fails, she can treat the unproved innuendos as surplusage and still contend that the words of the publication are defamatory in their natural and ordinary meaning. Holdsworth Ltd. v. Associated Newspapers Ltd. [1937] 3 All E.R. 872 (C.A.); Watkin v. Hall (1868) L.R. 3 Q.B. 396. Indeed, it appears to me that the innuendos pleaded in the present case are a surplus age in the true sense of the term, because what has been pleaded as an innendo is, except to a certain extent in the case of the fifth paragraph, only the plain meaning of the words. But if on a plain reading of the third, fourth and fifth paragraphs of the publication, there be any uncertainty at all as to whether the Plaintiff herself was being attacked in her personal capacity, such uncertainty is completely removed by the surrounding circumstances and in view of those circumstances which, as I shall show, may legitilately be taken to have been, known to the readers of the paper, there could be no mistaking the fact that the Plaintiff was the target of the attack. In order to prove an innuendo, evidence of surrounding circumstances which would lead those who read the libel to conclude that the Plaintiff was the person referred to is admissible, River Wear Commissioners v. Adamson [1877] 2 A.C. 743, 763; Jones v. E. Hulton and Co. [1909] 2 K.B. 444, 479, 480. The only surrounding circumstances I need refer to are the activities of the union under the leadership of the Plaintiff and the reference thereto in previous publications in the Defendant''s, paper. It is settled law that when the alleged libel is contained in a newspaper, the Plaintiff can, in explaining its meaning, put in evidence any article or paragraph contained in the same or a previous, issue of the same newspaper which is connected with the subject-matter of the libel (see Gatley on Libel and Slander, Third Edition, pp. 619-20 and the cases there cited). In the present case, the Plaintiff put in a number of such publications and although Mr. Chaudhuri, who had not appeared in the Court below, had, at first, some doubt as to whether they had been properly admitted, he satisfied himself by reference to the records that they were included in the agreed bundle and had gone in without demur.

It appears that the union was started in September, 1946 and the Plaintiff was its president from the very beginning. For some time there was another union, called the Amrita Bazar Office Workers'' Union, but in 1947 it was amalgamated with the union of which the Plaintiff was the president. In November, 1946, there was a strike which lasted up to January, 1947, when it was settled, but the settlement did not terminate the dispute between the employers and the employees. Mutual complaints are reflected in a letter, dated July 19, 1948, which Tushar Kanti Ghose addressed to the Plaintiff and in the Plaintiff''s reply, dated July 28, 1948, the former accusing the workers of indiscipline and communist proclivities under the leadership of the Plaintiff and the latter refuting the charges and accusing Tushar Kanti of withdrawing privileges which the workers had long enjoyed, even in less prosperous times. On July 19, 1948, the union passed a resolution to the effect that since the management had paid no independence bonus in 1947, the members would not do any extra work for the independence number of the paper for the then current year. The Plaintiff states in her evidence that in 1947 the workers asked for a month''s salary as independence bonus, but Tushar Kanti offered them only a day''s salary, though even the "Statesman" paid a bonus on the basis of fifteen days'' pay. She states, further, that on the matter being taken to the industrial tribunal, the tribunal asked Tushar Kanti to consider the demand favourably, but in spite of that direction nothing was paid. However, on receiving a copy of the resolution, Tushar Kanti addressed a letter to the Plaintiff on July 30, 1947, in the course of which he informed her of his intention to dismiss eleven of the workers and asked for eleven undertakings to be given by the union by 10 p.m. of August 1, failing which recognition would be withdrawn from the union. The letter also stated that the office would remain closed for three days for the final settlement of the matter. A police force appears to have been posted at the paper''s office on July 30. When the office re-opened on August 2, all members of the staff were asked to sign a fidelity bond before they could be allowed to enter the office and thereupon a strike started. On August 3, the Plaintiff issued an appeal to the public, calling attention to the three days'' lock-out, the employment of the police force and the demand to sign a loyalty bond, alleging that the management was trying to bring out the paper with the help of black legs and to distribute it with police help and asking the public to shun the paper till Tushar Kanti came to a settlement with the employees on honourable terms. On August 13, there was an incident at the crossing of the Hazra and Russa Roads at which the Plaintiff was present and in the course of which a delivery van of the paper was attacked and copies of the paper were snatched away and burnt. In connection with that incident, the Plaintiff was arrested with two members of the union, tried and acquitted.

On August 14, 1948, the "Amrita Bazar Patrika" published a statement by the management of the Amrita Bazar Patrika, Ltd., headed "Mrs. Bina Bhowmick''s Activities". In the course of that statement, it was said that Mrs. Bina Bhowmick was "now playing a desperate game" ; that on the previous day, the office van had been attacked "by some of our misguided "employees and some hired men in the immediate presence of "Mrs. Bina Bhowmick" ; that though a woman, she was "going "into the thick of a fight between hawkers and her own men" ; that the union "under her leadership but more at the instigation "of her communist office-bearers" was "injuring the paper in "every possible way"; that "having failed in her efforts to "persuade the public or the hawkers not to take our paper, "organised violence is now being resorted to"; that this was not trade unionism; that although Mrs. Bina Bhowmick professed not to have anything to do with communists, she could not long deceive herself and that her associations belied her ; and that she had taken a great responsibility on herself in dissuading the workers from joining the office. The Plaintiff replied to that statement by a statement of her own, dated August 17, 1948, which seems to have been distributed in the form of hand-bills. On September 2, there was another incident in front of the Patrika office over picketing which, according to the Plaintiff, was peaceful but, according to the Defendants, violent. In connection with that incident also the Plaintiff was arrested and subsequently tried, but she was again acquitted. On September 3, an article appeared in the Amrita Bazar Patrika under the sub-heading "Mrs. Bina Bhowmick resorts to violent picketing" and in the course of that article it was stated that Mrs. Bina Bhowmick had "done it at last" and that having failed in her efforts to stop the circulation of the paper by first intimidating the hawkers and then appealing to the public, she had taken to direct action. The article then proceeded to give details of the violence committed by the Plaintiff and her pickets on September 1 and 2 and of the coercion applied to willing workers. The dispute was apparently reported to Shri Sankar Rao Deo, the General Secretary of the Congress and he, on September 15, 1948, issued a statement to the effect that he was in correspondence with the parties and in consultation with the I.N.T.U.C., that violence or intimidation, from whatever quarter it might come, was to be condemned and that labour should strictly observe non-violence in its actions. On September 17, a second incident, similar to the first, occurred at the Hazra Road crossing, but this time the Plaintiff was not present. On September 18, the impugned publication appeared in the "Amrita Bazar Patrika".

The dispute between the "Patrika" and the union of its workers was certainly being kept before the public eye by means of these statements and counter-statements, besides that a strike in the office of a well-established paper was itself sufficient to engage public attention. In those circumstances, it may legitimately be presumed that the publications concerning the Plaintiff, which had appeared in the "Patrika" on August 14 and September 3, had been read by the readers of the paper. I have no doubt in my mind that whoever had read those publications, could not but understand the publication of September 18, to mean that the Plaintiff herself had been concerned in the misdeeds enumerated therein, even if the plain meaning of the words of the publication was not sufficient to implicate her personally, which, I have held, is not a fact In many respects, the publication of September 18, has a family likeness with that of August 14, and in the latter publication the Plaintiff was directly charged with personal complicity in a similar act of daylight robbery, committed by members of the union and hired men, and she was also charged with activities which were described as "not trade unionism." Read in that context, the statement in the first paragraph of the impugned publication could only be understood to mean that it was the Plaintiff''s gang and their hired associates, acting in pursuance of the Plaintiff''s policy and programmer who repeated on September 17, their performance of August 13, and the statement in the fourth paragraph could only be understood to mean and imply that it was the Plaintiff, who was running the union as her own and exploiting its resources for non-trade union purposes, and it was she who, along with certain other designing persons like her, had got it affiliated to the B.P.N.T.U.C. as a subterfuge in order to create a misleading appearance as to its real character. If it had appeared from the evidence that the Plaintiff herself was a member of the union, a personal libel in the first paragraph would have been beyond controversy, but the evidence as to her membership is not very definite. Even otherwise, the imputation, to my mind, is clear. I have already pointed out that so far as it is stated in the fourth paragraph that the so-called strike conducted under the Plaintiff''s guidance has nothing to do with bona fide trade unionism, the imputation is direct. But the innuendo pleaded is that the strike is an instance of mala fide trade unionism which is a positive allegation of bad faith. In my view, having regard to the allegation of false pretences contained in the third paragraph and the allegations in previous publications, the innuendo is established and the effect of the fourth paragraph is to suggest not simply that the methods employed in conducting the strike under the Plaintiff''s guidance are different from those which a genuine trade unionist would employ, but that they are a deliberate and disingenuous perversion of true trade union methods by one who poses to be a trade unionist but has at the same time employed methods, forbidden to a trade unionist, to bring about a state of things which is miscalled a strike but is being passed by that name. The innuendo, in my opinion, is continued in the fifth paragraph, as pleaded, and any one would understand the "small minority" referred to there as a minority acting under the leadership of the Plaintiff. It is true that the burden of proving an innuendo lies on the Plaintiff, because it is a part of the burden of proving that the libel was published "of "and concerning the Plaintiff". In my opinion, the Plaintiff in the present case has discharged the burden by proving previous writings of the Defendants which point to the implication of the writing on the present occasion and by proving how the writing was actually understood by readers, although she called only one reader as a witness.

For the reasons given above, I am clearly of opinion that Judged both by the plain meaning of the words used, and the innuendos contained in some of them, the publication is defamatory of the Plaintiff in her personal capacity. Personal capacity of a person is not limited to his character as an individual in private life, but comprises also his personal conduct in relation to the affairs of associations or concerns with which he may be connected. The publication in the present case represents the Plaintiff as a person who has been guilty of trickery and employment of hirelings in conducting the affairs of the union of which she is the president and who has also been responsible for acts of violence, including daylight robbery, while outwardly professing to subscribe to the creed of the Congress labour organisation. Not only is that defamatory of her as regards her personal conduct in relation to her duties as the president of the union, but it also defames her as regards her general character on which such allegations are bound to re-act.

It was contended by Mr. Chaudhuri in the second place that even so, the publication was within the Defendant''s right of fair comment and if it was, slight excesses here and there would not make it actionable. It will be remembered that, in form, the publication is a statement issued by the management of the "Amrita Bazar Patrika" and, therefore, so far as the first Defendant is concerned, he could not claim it to be a comment by him as the editor of the paper. If the matter contained in the publication was libellous, the first Defendant, by inserting it in his paper, only repeated the libel. The second Defendant who is the printer and publisher of the paper is also in the same position as Defendant No. 1, both as regards liability and the defences available. When this difficulty was pointed out to Mr. Chaudhuri, he submitted that by publishing the statement, the paper had adopted the comment of the management as its own comment and, therefore, the defence of fair comment was available to the editor and the publisher. I do not think that that position is correct either in fact or in law, but in view of the conclusion I have arrived at on the merits of the plea, I need not pursue the matter further and would proceed on the basis adopted by Mr. Chaudhuri.

The right of fair comment is not a special privilege of newspapers, but is a right which every citizen or person has. It follows that although the publication is a statement by the management of the "Amrita Bazar Patrika", the defence of fair comment is open to the maker of the statement. I would also concede that the matter to which the publication related was a matter of public interest, which is one of the requisites for a defence of fair comment being available. But the comment must be fair in the sense that it must be based on facts truly stated and must consist in an inference, reasonably warranted by such facts and honestly drawn. Various cases were cited at the Bar as to the true nature and limits of the right of fair comment and, on behalf of the Plaintiff, special reliance was placed on the old case of Campbell v. Spottiswoode 3 B.&S. 769 : 122 E.R. 288. I do not consider it necessary to discuss the cases, for the principles are now well-established. If I may state the main principle as tersely as I may, it is that you must state as facts only the truth and cannot state mere matters of your belief, but after you have stated facts truly and laid a foundation for criticism, you may add observations by way of comment and such observations will be within the range of fair comment and so protected from an action for libel, if they consist in inferences which might legitimately be drawn from the facts stated and if the Plaintiff does not prove that although prima facie and objectively fair, the comment was nevertheless made with a malicious motive. If these conditions are satisfied, the mere fact that there was some exaggeration will not defeat the defence. But the exaggeration will be excused only if it is merely an excess of severity, short of violent invective and cannot take the form of an addition of untrue facts. It is true that an inference or comment may sometimes take the form of a statement of fact, but it must appear that what has been stated in terms of fact is only a conclusion or deduction from other facts truly stated and such deduction must be one fairly warranted. An independent and further allegation of dishonourable conduct cannot be made as a fact and immunity cannot then be claimed for it on the basis that it is comment.

It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of a particular act of misconduct.

[Davis v. Shipstone [1888] A.C. 187, 190, per Lord Herschell, L.C.]

Judged by the principles set out above, the publication in the present case is not defensible as protected by the right of fair comment. The learned trial Judge did not deal with the plea of fair comment at any great length, because he found that in publishing the impugned paragraphs, the Defendants had been actuated by malice. As proof of malice defeats a plea of qualified privilege as much as a plea of fair comment, I shall deal with the question of malice after I have dealt with the third plea of the Defendants. But quite apart from malice, the offensive statements in the publication do not, in their very nature, belong to the category of comment. Allegations that the Plaintiff, as the, leader of her union, has employed hirelings or has been concerned in the commission of daylight robberies or that she got her union affiliated to the B.P.N.T.U.C. as a subterfuge are not comment, but statements of fact. So is the allegation that the members of her union, under her leadership, resorted to violence and were coercing the larger section of the workers. Proof that such allegations are true will support a plea of justification but, in no view, can such allegations be regarded as comment, fair or otherwise. The statement that the strike conducted under the guidance of the Plaintiff has nothing to do with bona fide trade unionism might perhaps be regarded as comment, if it was based on facts truly stated. The onus of the right of fair comment is on the Defendant.

He must not only establish that the matter which he defends as comment is comment and is comment on a matter of public interest, but also that it is not founded on misstatements of facts in the so-called comment.

(Halsbury, Hailsham Ed., vol. 20, pp. 492-93.)

The learned Judge has found that it had not been proved that there had been any organised violence or coercion in the conduct of the strike, except that occasionally some excesses might have occurred on the part of individuals and I see no reason to differ from that conclusion. The comment as to the character of the strike is thus not based on any facts, proved to have been truly stated. As regards the remaining allegations, the Plaintiff has denied that any hirelings were employed and while stating that she had had a hand in getting the union affiliated to the B.P.N.T.U.C., she has strongly repudiated the allegation that the affiliation was a subterfuge. There is no evidence at all in rebuttal and in fact there is no evidence on the Defendants'' side that either of these allegations is true. Indeed, while the Defendants allege in the third paragraph that the Plaintiff''s union is not a B.P.N.T.U.C. union at all, it is remarkable to find that on July 31, 1948, shortly before the libel was published, the B.P.N.T.U.C. itself passed a resolution, supporting and commending the conduct of the union in respect of the dispute with the management. As regards the "daylight "robbery" on September 17, it is true that three of the members of the union were convicted on a plea of guilty, but those three persons were not examined and the conviction in the criminal case is not evidence for the purposes for the present case of the truth of the charge of which they were convicted. The witnesses who were actually called and spoke in the Defendants'' favour were disbelieved by the learned Judge who saw them and I can find no reason to take a different view of their testimony, particularly in view of the criticism made by the learned Judge of their conduct and demeanour. Further, it appears from a statement- published on September 18, by two student organisations, that it was students who had been responsible for the incident at the Hazra Road crossing on the previous day. In my view, the statements complained of are not comments at all, but offensive allegations of unproved facts and, as such, the defence of fair comment is not tenable.

Mr. Chaudhuri placed the strongest reliance on his third plea, the plea of qualified privilege. He did so naturally, because if it could be established that the circumstances were such that the plea was available, the publication would be protected even if it contained untrue and libellous statements, provided, however, the Plaintiff did not dislodge the plea by proof of express malice. In urging this plea, however, Mr. Chaudhuri found himself at times in some difficulty, as no issue had been raised on it in the Court below. A great deal of discussion took place at the Bar as to the nature of a. qualified privilege and the limit to which it afforded protection, but I think after the decision in Adam v. Ward [1917] A.C 309, 320-21, 334, 339-40, 348 ; (On appeal from (1915) 31 T.L.R. 299) and other leading cases, little room is now left for controversy. Broadly speaking, the law is as follows: When a person publishes statements which are false in fact and injurious to the character of another, the law regards such publication as malicious and therefore actionable, but in a case where such statements are

fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. [Toogood v. Spyring (1834) 1 C.M.R. 181: 40 R.R. 523].

the occasion rebuts or rather excludes the initial presumption of malice and throws upon the Plaintiff the burden of proving malice in fact [Wright v. Woodgate (1835) 2 C.M.R. 573: 41 R.R. 788]. In other words, the Defendant must first prove that the occasion on which the statement was made was in fact of the above character and therefore privileged, but once he proves it, he can claim that the statement, although untrue and libellous, is protected by the privilege. The plea, however, is not available if the statements are unconnected with or irrelevant to the duty or interest concerned [Adam v. Ward [1917] A.C 309, 320-21, 334, 339-40, 348 ; (On appeal from (1915) 31 T.L.R. 299), at pp. 320-21, 339-40, 348] and will be defeated if the statements were made from some indirect or wrong motive [Royal Aquariam v. Parkinson [1892] 1 Q.B. 454] and, therefore, although a privileged occasion is established, the Plaintiff may still succeed, if he proves irrelevancy or malice.

The passage quoted above from Toogood v. Spyring (1834) 1 C.M. and R. 181: 40 R.R. 523 as to the nature of a privileged occasion, which was approved of in Adam v. Ward [1917] A.C 309, 320-21, 334, 339-40, 348; (On appeal from (1915) 31 T.L.R. 299), contemplates two situations, a situation in which there is a duty to discharge and a situation in which there is an interest to protect. Mr. Chaudhuri accordingly advanced his argument in two branches, adjusted, respectively to the two situations. In the first place he contended that, as a newspaper, the "Amrita Bazar Patrika" had a duty to serve its readers with information relating to the strike and the activities of the Plaintiff''s union as also incidents of lawlessness occurring in the city and the statements complained of having been made in discharge of that duty, were made on a privileged occasion and were therefore protected. An occasion where an interest or duty creates a privilege has been described by Lord Atkinson in Adam, v. Ward (Supra), at p. -334 in the following words:

A privileged occasion is... an occasion where the person who makes a communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. The reciprocity is essential.

Mr. Chaudhuri contended that the Defendants, as persons conducting a newspaper, had a duty to inform its readers of all matters of news value and the readers had an interest in receiving such information. I think the proposition of Mr. Chaudhuri would be more accurately stated if he said that the Defendants had an interest in supplying information and the reading public had an interest in receiving it, for only on that basis he could make out reciprocity which could not be said to exist between duty and interest. Again, there could be no reciprocity of duty, because while a newspaper may have a duty to supply information to its readers, the readers have no duty to receive it. However that may be, it appears to me that the common interest or the reciprocal social, moral or legal duty contemplated by the rule stated above does not include the common interest of a newspaper and its readers in information of news value or the general duty of a newspaper to serve its readers with all items of interesting information. The cases in the books show, and reason supports the inference, that the interest contemplated is something affecting or concerning the rights and interests of the person concerned and not mere satisfaction of curiosity and the duty contemplated is something which arises out of a real obligation to speak and not duty in the loose sense of things which are commercially or otherwise proper and prudent or profitable to do. It is good journalism for a newspaper to publish all items of interesting information, but it is under no obligation to do so, so as to be privileged to publish untrue and libellous statements about anyone it pleases. Were it otherwise, all newspapers would be in a position to publish with impunity any statement about any person, however untrue and grossly defamatory it might be, and the person defamed would have no remedy at law. Mr. Chaudhuri referred to a dictum of Tenterden, C.J., that-

A man has a right to publish for the purpose of giving the public information that which is fit and proper for the public to know.

and contended that like a man, newspaper also had the same right. That dictum was dissented from by Buckley, L.J., in the Court of Appeal in the case of Adam v. Ward (1915) 31 T.L.K. 299, 304 ; [On appeal, see (7) supra.], but Mr. Chaudhuri pointed out that it had been referred to with approval by Cockburn, C.J., in Cox v. Feeny (1863) F.&F. 13, 19 and by the Court of Appeal in Allbutt v. The General Council of Medical Education and Registration (1889) 23 Q.B.D. 400, 412. Neither of the cases, however, was a case of a newspaper and the context in which the dictum was referred to would show that it was not being approved of or accepted or applied as a general proposition but only as applicable in circumstances where it was necessary for the public to have the information for the protection of their own interests and for regulating their own conduct. The case of Allbutt v. The General Council of Medical Education and Registration (supra) is itself a good illustration of circumstances in which the dictum may be applied, for it was a case where the Medical Council had published the minutes of one of its meetings, comprising a statement that the name of a particular medical practitioner had been removed from the register on the ground that he had been guilty of infamous conduct in a professional respect. The case of a newspaper publishing general news and views to its readers is far different. No special privilege attaches to the position of a newspaper [Arnold v. King-Emperor (1914) L.R. 41 IndAp 149, 169] and Mr. Chaudhuri''s contention that he was not claiming any special privilege, but the same kind of privilege that any ordinary subject had, conditioned only by the nature of the duty and interest of a newspaper, cannot be accepted, because the nature of that duty and interest is not such as to confer a latitude to publish any kind of statement in the name of publishing news. I am clearly of opinion that Mr. Chaudhuri''s argument, so far as it was based on a supposed general duty or interest of newspapers, must fail.

I must point out, however, that while the general argument must fail, an argument based on common interest will still apply in the present case, because it was not another newspaper which had published the statement but the "Amrita Bazar Patrika" itself, which and the readers of which were equally and directly interested in the activities of the union of its workers which was trying to bring about a suspension of the paper. To that extent the occasion was privileged. Along with the argument based on common interest I may also take the second branch of Mr. Chaudhuri''s argument which was that the statement was made for the protection of the Defendants'' own interests, for the two branches of the argument are closely allied and may conveniently be dealt with together. It can certainly be said that since the union was trying to stop the production of the paper and interfere with its distribution and was also issuing statements against the management, the Defendants had a right to explain the position from their point of view in order to protect their interest with their readers, subscribers and advertisers. The Defendants were, therefore, so situated that a privileged occasion had arisen for their making a statement.

But the privilege, whether of making a statement to subscribers and advertisers on a matter of common interest or of making a statement in self-defence, was only a qualified privilege, limited to the necessities of the situation and carrying with it an obligation to be fair. It could not extend to any statement which exceeded the exigency of the occasion, nor justify any statement maliciously made. It is quite clear that Judged by that test, almost all the offending passages will be found to fall outside the privilege. What was of common interest to the Defendants and their subscribers and advertisers was the strike situation and also perhaps the reason why delivery of the paper in certain quarters of city was, on occasions, interrupted or delayed. The interest which the Defendants had to protect was their good name as employers and the patronage of their subscribers and advertisers. It could not possibly be necessary, in order to serve or protect either of those interests, to state that the members of the Plaintiff''s union had employed hirelings or that the union had been affiliated to the B.P.N.T.U.C. only as a subterfuge or that it was not a B.P.N.T.U.C. union at all. Nor could it be necessary to hold up the Plaintiff, directly as well as by implication, as a person guilty of bad faith in her activities as a labour leader and as a person given to trickery and organised violence. It is true that statements made on privileged occasions must not be weighed in too nice a scale and some allowance must be made for excesses caused by indignation or annoyance. But nothing could justify the wholly irrelevant and grossly defamatory statements to which I have referred and no plea of qualified privilege is sustainable in respect of them.

I have reserved the question of malice for separate treatment to which I must now advert. In my opinion, there is both intrinsic and extrinsic evidence of malice in the present case, as the learned Judge has rightly held. A defamatory statement, not germane in any way to the privileged occasion and not pertinent to the Defendant''s vindication, is itself evidence of malice, [Adam v. Ward (Supra) per Loreburn, L.C., at p. 321], and it may be such evidence as to the whole of the publication (ibid). It is true that the malice required to be proved is express malice, in other words, malice in fact, as distinguished from the implied malice which the law presumes from the mere publication of defamatory matter. In a case of qualified privilege, such implied malice is excluded by the nature of the occasion and in order to be able to succeed, the Plaintiff must prove express malice which means an actual wrong state of mind in which the Defendant acted, not bona fide and for a reason which would make the statement privileged but from an indirect and wrong motive such as, spite, ill will or prejudice or with knowledge that the statement was untrue or recklessly "careless whether it was "true or false". One of the ways in which the Plaintiff can prove such wrong state of mind is by referring to the statement itself which may, from its own nature alone, furnish evidence of express malice [per Lord Dunedin, Adam v. Ward (Supra), at p. 329] and it does so when it is found to contain libellous statements in no way pertinent to the exigency of the occasion. So also in case of a plea of fair comment, proof of malice defeats the plea [Thomas v. Bradbury, Agnew and Co., Ltd. [1906] 2 K.B. 627, 640] and malice is proved when the publication is found to contain unproved and libellous statements of fact, recklessly made [Morrison v. Belcher [1865] 3 F. and F. 614, and Hedley v. Barlow [1865] 4 F. and F. 225, 230]. It has already been shown that the publication in the present case contains several such statements. There is again a considerable body of extrinsic evidence to show that in fact the Defendants acted from malice, that is to say, not for the purpose which would excuse them but for an indirect purpose, if not also out of spite or in a vengeful spirit.

Such extrinsic evidence may be evidence of what the Defendant did or said before... so long as it is evidence from which the jury may infer malice existing at the time of the publication and actuating it. Thus, evidence of other defamatory statements or of a previous dispute may be extrinsic evidence of malice.

(Halsbury, Hailsham Ed., vol. 20, p. 505 and the cases there cited.)

I have referred to some of that evidence which the learned Judge has reviewed in detail and I entirely agree with him in his conclusion expressed in the following words:

It is not difficult to see that the Plaintiff was the life and soul of the union and the management of the "Patrika" realised that the only way to crush the activities of the union was to crush Bina Bhowmick and that is the determined object with which the "Patrika" authorities set themselves to work and went on carrying on propaganda against the Plaintiff. I have no doubt that it is with this object of alienating public sympathy towards the Plaintiff that articles were published whenever opportunity presented itself, including the article which is the subject-matter of the suit... I hold that the Defendants were actuated by malice in publishing the libel complained of.

It may be pointed out that the first Defendant who is the editor of the paper and, as such, was responsible for the publication, did not come to the box. It is true that so far as the plea of a qualified privilege was concerned, the Defendants might leave the occasion to be proved by the circumstances and were also not required to prove affirmatively that they had not acted from malice. But with respect to the plea of fair comment, the onus was on the Defendants to show that "the comment was fair and in so doing to negative the "writing or publication of the comment being actuated by an "unfair state of mind". It is impossible not to remark on the fact that the first Defendant did not come to the box to say what information he had had on which he founded his comment, if comment it was, and the sources from which that information had been obtained. I am aware that there is an exception in the case of newspapers, but in the first place, the dispute in the present case is not of the nature of an ordinary dispute between a member of the public and a newspaper which has defamed him, but a private dispute between the management of a paper and the leader of a union of its workers. In the second place, the exception applies only to the sources of the information and not to the information itself, [Plymouth Mutual Co-operative and Industrial Society, Ltd. v. Traders'' Publishing Association Ltd. [1906] 1 K.B. 403, C.A.]. Besides, the exception only means that a newspaper cannot be compelled to disclose the source, not that it is not expected to disclose it even when the burden lies on it to prove that it acted with fairness. I am, however, not basing my finding in any way on the fact of the first Defendant''s omission to offer himself as a witness, but on the positive evidence, extrinsic and intrinsic, to which I have referred.

I have already held that because of the very nature of the impugned statements, neither the plea of fair comment, nor the plea of qualified privilege can be claimed in respect of them. I hold further that even if the pleas were available, they have been displaced by proof of malice.

We have no materials before us to Judge the merits of the industrial dispute between the parties and it is no part of our duty to do so on the present occasion. But assuming the Plaintiff was unreasonable and had made herself and her union obnoxious to the management of the paper and it became necessary to counteract her activities by stating to the public what, according to the management, the true position was, it is greatly to be regretted that the Defendants, who own and conduct a well-established newspaper like the "Amrita Bazar "Patrika", should not have found it possible to do so with dignity and restraint, confining themselves to facts and such comments as the facts warranted, but should have so far disregarded their own position and status as to descend to running down an individual by making unwarranted and unjustifiable imputations against her in her personal capacity. In my opinion, the Plaintiff has proved that the accusations made against her were libellous in fact and in law and she is therefore entitled to adequate amends.

Mr. Chaudhuri contended in the last place that the damages awarded were excessive and referred in that connection to the Plaintiff''s own evidence as to the effect of the publication and the loss she had suffered. The claim, it will be remembered was for a sum of Rs. 75,000, but the learned Judge awarded only Rs. 5,000 on the ground that the Plaintiff''s object was not to make money out of the libel but only to rehabilitate her reputation. It is true that in England, a Court of Appeal rarely interferes on the ground of the quantum of damages being inappropriate, but that is for the reason that the quantum is a question for the jury. In India, an appellate Court may interfere on proper grounds being made out, because the appraisement of the damages is an act of the trial Judge himself and the appellate Judges are in the same position as he. The Defendants did not plead or prove any circumstance in mitigation of damages, but Mr. Chaudhuri contended that there being no question of special damages in the case, since the Plaintiff had suffered no temporal loss capable of being valued in money, the proper award would be only nominal damages. On behalf of the Plaintiff, reference was made to the principle that the conduct of the Defendant before action, after action and even in Court during the trial was a relevant consideration and it was pointed out that although called upon to tender an apology before the institution of the suit, the Defendants had not done so. I do not think the omission to tender an apology before the suit is an aggravating circumstance in the present case, because the demand for an apology was accompanied by a further demand for the payment of two sums of Rs. 50,000 and Rs. 1,00,000. But it is certainly a material circumstance that the Defendants pleaded justification and sought unsuccessfully to prove it, although I doubt whether on the kind of "rolled-up plea" which they took, they should have been allowed to raise the issue of justification at all, [Southerland, v. Stopes, [1925] A.C. 47; Digby v. Financial News Lid. [1907] 1 K.B. 502, C.A.]. Be that as it may, they were allowed to take and did take a plea of justification and persisted in it. As to the effect of the libel oh the Plaintiff, she has given evidence of the mental suffering to which she was subjected and the embarassment caused to her in her dealings with her associates in public life, whether individuals or parties, because on account of the publication of the libel, she came to be regarded as a person of dubious allegiance and lost the credit she had. It must be remembered that the Plaintiff is, or was at the relevant time, a person of considerable prominence in public life. She first came to public notice when, as a student, she shot at Sir Stanley Jackson, the then Governor of Bengal, at the Convocation of the University of Calcutta in 1932. She was convicted and sentenced for that act and after coming out of prison in 1939, she joined the Congress in 1940 and gradually rose to an important position, both in general politics and in the labour field. At the date of the plaint, she was a member of the Legislative Assembly of Bengal, a member of the West Bengal Provincial Congress Committee, a member of the Executive Committee of Indian National Trade Union Congress, the Treasurer of the Bengal Provincial National Trade Union Congress, a member of the Executive Committee of the Indian Women''s Conference and the president of ten labour unions, in addition to the Amrita Bazar Patrika Press Workers'' Union. After the publication of the libel, she had gradually to withdraw from all those organisations, because she found her position to be extremely uncomfortable and was practically shunned.

The labourers did not know in which camp I was standing, because of all this false propaganda against me.

They did not feel much confidence in me, for example, they did not like to have me in some committees.

In the Legislative Assembly also, members began to ask what was all that which the "Patrika" was writing against her and she lost public confidence which, she truly says, was the worst thing that could happen to a political worker. The parties with whom the Plaintiff lost credit thus formed a very wide and important circle and her character and effectiveness as a public worker was seriously damaged. Her reputation must also have been damaged in the eye of a large section of the general public, because the paper, which is simultaneously published from Calcutta and Allahabad, has a large circulation in India and Pakistan (see QQ. 90, 91), which is a material factor, [Gathercole v. Miall (1846) 15 M.&W. 319, 320: 71 R.R. 679]. The learned Judge took all these factors into consideration and arrived at the amount which he awarded. In a case of general damages, the amount is at large. In view of the circumstances of the case, I am by no means prepared to say that the learned Judge made an excessive estimate.

For the reasons given above, all the grounds urged on behalf of the Appellants fail. The appeal is accordingly dismissed with costs. Certified for two counsel.

S.R. Das Gupta, J.

I agree.