IN THE HON’BLE SUPREME COURT OF INDIA.
(INDIA).
In the matter of
Dr. Raj Kumar & Another
Appellants
Vs.
Ramesh Pandey & Another
Respondents
MEMORANDUM FOR RESPONDENTS
Amita Bais
Counsel for Respondents
1
TABLE OF CONTENTS
INDEX OF AUTHORITIES………………………………………………………………….........03
STATUTES
Books………………………………………………………………………....................03
Judicial Decisions………………………………………………………...................... 02
ABBREVIATIONS…………………………………………………………………………………...........................0
4
STATEMENT OF JURISDICTION...................................................................................................05
STATEMENT OF FACTS................................................................................................................06
QUESTIONS PRESENTED............................................................................................................07
SUMMARY OF PLEADINGS...........................................................................................................08
PLEADINGS……………………..................................................................................................09
PRAYER FOR RELIEF…...……………………………………………......................................13
2
INDEX OF AUTHORITIES
BOOKS
1. Ratanlal and Dhirajlal, The Law Of Torts, , Lexis Nexis Butterworth’s, 25th Edition
2. Bangia R.K., Law Of Tort, Allahabad Law Agency , 21st Edition, Salmond And Heuston,
Law of Torts, Sweet and Maxwell Universal Law Publishing Pvt. Ltd. 12thEdition
3. Winfield P.H., A Textbook on the Law of Torts, Sweet and Maxwell Universal Law
Publishing Co Pvt. Ltd., 17thEdition
4. Pillai P.S, Law of Tort, Eastern Book Company, 9th Edition.
JUDICIAL DECISIONS
1. Bharwada Bhogiabhai Hirjibhai v. State of Gujarat, 1983 SCR (3) 280
2. Ugar Ahir v. The State of Bihar, AIR 1965 SC 277.
3. Surendra Shetty v. Sanjiva Rao, AIR 1982 Kant. 84.
4. S. Rayta and Anr. etc vs. Gowrawwa Channabasappa and Anr. Etc, AIR 1987 Allah. 107.
3
ABBREVIATIONS
1. & ……………………………………………………………………..And
2. AIR…………………………………………………………………. .All India Reporter
3. All E R ……………………………………………………………....All England Reporter
4. Art…………………………………………………………………....Article
5. C.J……………………………………………………………………Chief Justice
6. Del……………………………………………………………………Delhi
7. Ed…………………………………………………………………….Edition
8. HC……………………………………………………………………High Court
9. Hon’ble……………………………………………………………… Honourable
10. Id……………………………………………………………………...Ibid
11. J……………………………………………………………………….Justice
12. P………………………………………………………………………Page
13. Para…………………………………………………………………....Paragraph
14. SC……………………………………………………………………. Supreme Court
4
15. SCC……………………………………………………………………Supreme Court
Cases
16. Vs………………………………………………………………………Versus
17. Ex............................................................................................................Extension
18. P.W..........................................................................................................Prosecution
Witness.
5
6
STATEMENT OF FACTS
1. Dr. Raj Kumar (Appellant No. 1) was a professor in general medicine having experience of
25 years in teaching and medical practice in the Government Medical College and was
elected to the Legislative Assembly in the year 2009.
2. In June 2010, Dr. Raj Kumar (Appellant No. 1) wrote an article titled “Persisting Problem
of AIDS in State of Nyayasthan: Causes and Impact – A Study” which was based on a study
conducted by a group of expert doctors in the State of Nyayasthan where the study team
had interviewed number of persons affected with AIDS and made its conclusion.
3. Dr. Kumar (Appellant No. 1) referred the above said report in his article which was
published in the June 2010 Volume of Health Review a bi-annual publication of
department of Family and Welfare, State of Nyayasthan.
4. In his article Dr. Kumar (Appellant No. 1) pointed out the difficulties of persons affected
with AIDS by referring the real incident of Mr. Ramesh (Respondent No. 1) an employee
of Milkman’s Society of Raipur, which was reported in the study report.
5. While referring the incident of Mr. Ramesh (Respondent No. 1), Dr. Raj Kumar (Appellant
No. 1) commented that, “Ramesh, a member of Pandey family in Raipur may have got this
disease from Gopal Nagar, a place in Raipur where 80% of the Sex workers of the State
reside”.
6. When the article written by Dr. Kumar (Appellant No. 1) published attracted huge amount
of media attention and the content and conclusion of the article became a subject of
discussion in several debates organized by TV Channels and educational institutions and
due to this people started identifying Mr. Ramesh (Respondent No. 1) because of which
Milkman’s Society of Raipur terminated his service and als his friends and relatives started
to avoid him.
7
7. Mr. Ramesh Pandey (Respondent No. 1) filed the petition in the ordinary civil court for
issuing an injunction for prohibiting the further publication of the journal and its
withdrawal from the public. He also claimed Rs. 10 lakhs from Dr. Kumar. (Appellant No.
1)
8. But his petition was dismissed by the ordinary civil court.
9. Mr. Ramesh Pandey (Respondent No. 1) filed an appeal to the Nyayasthan High Court
against the order passed by the civil court.
10. Mr. Ramakant Pandey (Respondent No. 2), a member of prominent Pandey family in
Raipur and opponent of Dr. Raj Kumar (Appellant No. 1) in the Legislative Assembly
argued in the lower court that the reference of Ramesh Pandey (Respondent No. 1), a
member of Pandey family from Raipur, was an intentional and deliberate effort to defame
the reputation of his family which is a highly respectable family of the city and thus filed a
suit against him.
11. This petition was also dismissed by the lower court.
12. Mr. Ramakant Pandey (Respondent No. 2) filed an appeal to the High Court of Nyayasthan
against the order passed by the lower court in which he included the Chief Minister of the
State of Nyayasthan (Appleant No. 2) because he was the Patron of Health Review Journal.
13. Both the petitions were heard together and were allowed.
14. The appeal is now filed to the Supreme Court against the order passed by the Nyayasthan
High court.
8
QUESTIONS PRESENTED
1. Whether the publication in question contains any defamatory statement?
2. Whether the appellant can claim the protection of defence of fair comment?
3. Whether the Chief Minister (Appellant No. 2) is liable for the publication of article in
question?
4. Whether Ramakant Pandey (Respondent No. 1) is entitled for any relief?
9
SUMMARY OF ARGUMENTS
10
ARGUMENTS AND SUBMISSION
CONTENTIONS: -
1. THE PUBLICATION IN QUESTION CONTAINS ANY DEFAMATORY
STATEMENT?
The “Defamatory Statement” is one which has a tendency to injure the reputation of the person
to whom it refers; and in particular to cause him to be regarded with feelings of hatred, contempt,
ridicule, fear, dislike or disesteem1.
Any words will be deemed defamatory which
a. expose the plaintiff to hatred, contempt, ridicule, or obloquy; or
b. tend to injure him in his profession or trade; or
c. cause him to be shunned or avoided by his neighbours2.
It is humbly submitted that the statement in the publication is the defamatory statement as it
caused Mr. Ramesh Pandey (Respondent No. 1) to be regarded with feelings of ridicule, fear,
dislike or disesteem as it is clearly mentioned in the above facts that after the publication, friends
and relatives of Mr. Ramesh (Respondent No. 1) started to avoid him.
It is humbly submitted the publication had injured Mr. Ramesh Pandey in his profession as after
the publication he was terminated from his service and therefore it is a defamatory statement as
declared in case of Capital and Countries Bank v. Henty3 that “A statement is defamatory if it
amounts to a reflection upon the fitness or capacity of the plaintiff in his profession or trade or
any other undertaking assumed by him”.
The statement is judged by the standard of an ordinary, right thinking member of the society.
Hence the test is an objective one, and it is no defence to say that the statement was not intended
to be defamatory, or uttered by the way of joke4.
1
Sim v. Stretch (1936) 52 T.L.R 669, 671, per Lord Atkin.
2
3
(1882) 7 App. Cas. 741
4
Capital and Countries Bank v. Henty (1882) 7 App. Cas. 741,742.
11
2. THE APPELLANT CAN CLAIM THE PROTECTION OF DEFENCE OF
FAIR COMMENT.
The appellant in the given matter cannot claim the protection of defence of fair comment because
there are factual substratums available in the published article.
The main essentials of a fair comment are:-
a. that it is a comment or criticism and not a statement of fact,
b. that the comment must be a fair comment,
c. that the comment is on a matter of public interest be based upon
Comment in order to be fair must be based upon facts, and if the defendant cannot show that his
comment contains no misstatements of fact he cannot prove a defence of fair comment. 5 The
comment to be fair must be based on true facts and must be objectively fair in the sence that any
man however, prejudiced and obstinate could have honestly held the views expressed.6
3. THE CHIEF MINISTER IS LIABLE FOR PUBLICATION OF ARTICLE
IN QUESTION.
5
Digby v. Financial News, (1907) 1 KB 502; Peter Walker & Sons Ltd. V. Makundi Lal, (1909) 1 KB 239, 256.
6
Telnikoff v. Matusevitch, (1991) 4 All ER 817: (1992 ) 2 AC 343 (HL); Renolds v. Times Newspapers, (1999) 4
All ER 609, p. 615.
12
13
