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TMI Blog1910 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... the Canal colonists are mostly old soldiers, therefore in close touch with the sepoys. The native officers further urged that unless the provisions of the Canal Colonies Legislation were vetoed they could not answer for the loyalty of the native army in the Punjab. The commanding officers confidentially told Lord Kitchener that unless the Canal Colony Legislation was vetoed, and Lala Lajpat Rai and Ajit Singh arrested, they could not answer the loyalty of the native army in the Punjab. Lord Kitchener lost no time in seeing Lord Minto, and the latter at once telegraphed to the civil authorities in the Punjab for corroboration of these alarmist reports. The civil authorities at Lahore were already in a panic as to the occurrences at Lyallpur and promptly confirmed all Lord Kitchener;s statements, but they demurred to the vetoing of the Canal Colonies Legislation, and said the deportation of Lajpat Rai and Ajit Singh would be sufficient. Lord Minto was inclined to side with the civil authorities in the Punjab, but Lord Kitchener put his foot down and said that if the Canal Colony Legislation was not vetoed, and Lajpat Rai and Ajit Singh deported, he would resign as a protest. As neith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commons, the Secretary of State for India, both in the answers which he gave to questions relating to the plaintiff, and in speeches which he made on the same subject, had made in effect the same statements as those which appeared in their newspaper: they also relied on the circumstance that the plaintiff had in fact been deported. 8. The learned Judge was of opinion that the libel imputed to the plaintiff the commission of an offence punishable under Section 131 of the Indian Penal Code with transportation for life: that the statements of fact made by the defendants were false and the comments were unfair, and has awarded to the plaintiff damages to the extent of ₹ 15,000. 9. For the appellants it has been argued (i) that the words referring to the plaintiff are not defamatory per se and do not in themselves allege the commission of a criminal offence (ii) That the statements which do refer to the plaintiff were comments made bona fide on allegations made in Parliament, and that the defendants were entitled to make use of statements made by the Secretary of State in Parliament. (iii) That the alleged libel only defamed the plaintiff politically. The damages, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed or not: were topics of public interest on which the defendants in common with all the other subjects of the King were entitled to comment fairly, and to express opinions either in favour of or against any proposal to release the plaintiff. Had the defendants, therefore, contented themselves with commenting on the fact of deportation of the plaintiff, and confined themselves to expressions of opinion as to the propriety of his release or otherwise, there would have been nothing to complain of as long as the comment was fair--for it is well-settled that fair comment on a matter of public interest is not libel: see Merivale v. Carson (1887) 20 Q.B.D. 275, 283 at page 283 per Bowen, L.J. But the defendants have gone further and have stated that the plaintiff has been guilty of a criminal offence: that is a statement of fact which, not having been justified by the defendants, must be presumed to be untrue. The article, therefore, contains an untrue statement of fact concerning the plaintiff for which the maker is liable in damages; the question, therefore, whether the remainder of the article is comment or not has no bearing on the question whether the defendants be liable or not. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en given out either in Parliament or elsewhere, and that the assertions of fact that the writer goes on to make were based on information not accessible to the public. The only reference to what was said in Parliament is a reference, not to any statement of fact, but to a half promise given by Mr. Morley in Parliament for the release of Lajpat Rai. 21. No doubt the fair and accurate report of a speech made in Parliament is privileged, even though it contains facts defamatory to the plaintiff. But no authority has been cited for the proposition that a person is entitled to republish those defamatory statements, not as a report of what has been said in Parliament, but as a statement of his own. 22. Such a proposition is directly contrary to the law laid down by the learned author of Odgers on Libel and Slander, 4th Edition, page 169, who says that the prior publication of a libel is no justification for its being copied and republished. If the first publication be privileged, that will not render the second publication privileged. I have no doubt that this is a correct statement of the law, and that a libel which is privileged when it appears as the report of a speech in Parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by calling the reporter, or obtaining his evidence on commission. He could produce the report he had made at the time, and refreshing his memory from what he had written down when the speech was delivered, he could prove what the speaker said--and he would be liable to be cross-examined to show that he had misreported what was said. On principle, if it is sought to prove things said, some person in whose presence the things were said must be called, in order that the person against whom the evidence is given may be enabled to question its accuracy by cross-examination. 30. It is contended that this does not apply in this country, and that, under the provisions of Section 57 of the Evidence Act, Hansard's Reports are admissible for the purpose of proving what was said in the House of Commons. 31. Section 57 provides that the Court shall take judicial notice of the course of proceeding of Parliament: but the course of proceeding appears to be something distinct from the proceedings themselves: they may be proved under Section 78(2) by the journals of the House of Commons or by copies purporting to be printed by order of the Government. If, therefore, it had been necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at a very high figure. The grounds which render the Courts in England reluctant to interfere on the question of damages in a case tried before a jury do not exist in this country. 39. The reasons which influence a jury in assessing the damages do not appear; but in this country the reasons which have influenced the learned Judge in assessing damages appear in the judgment, and therefore are as open to be dealt with by the Court of Appeal as any other portion of the judgment. The plea of justification being withdrawn, it was not open to the defendant to give evidence to prove the truth of the libel, nor was he entitled to put the plaintiff facts in cross-examination, which, if admitted, would have established a plea of justification. But the gist of the action is the damage to the plaintiff's character: the defendant, therefore, was quite entitled to cross-examine the plaintiff to show that he was a person whose reputation would not be damaged by this particular libel. 40. The particular libel contained the imputation of an offence of a political nature, viz., one under Chapter VI of the Indian Penal Code dealing with offences against the State and in estimating the inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly would not weigh heavily in reduction of damages, but it must not be looked at alone, but in conjunction with the events which have preceded, it. 44. In my view, the damage done to the reputation of a person who has taken a prominent part in inflaming the minds of the people against the Government by a libel imputing an offence against the State must be estimated on a far lower basis than that done to the reputation of a person who has not taken up such a position. 45. Had the plaintiff used the influence which he undoubtedly possessed for the purpose of promoting peace and contentment I should have agreed that he was entitled to very heavy damages for a libel imputing to him an attempt by underhand means to injure that which he professed to support. He thought proper, however, to throw his influence on the side of those whose object was to inflame the minds of the people, and is deported for the purpose of preserving the peace of the country. 46. The injury, therefore, to his reputation by the imputation contained in the defendant's libel is far less than it would have been had he professed to use his influence for the purpose of allaying rather than promoting disco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff; and that, having libelled him, they must pay damages; but that the evidence discloses circumstances which do not justify the award of the very large sum which the decree of Mr. Justice Fletcher has given him. 54. According to that evidence the plaintiff is a leading Indian politician. About March 1907 he took an active part in an agitation against the proposed Canal Colonization Bill, which affected a class from which the Punjab sepoys are drawn, as also colonist military pensioners. He says that the people were very angry and greatly excited: and in a memorial which he helped to prepare, it was alleged that the proposed Bill had created panic and commotion throughout the Punjab and that it was calculated to shake the confidence of the loyal peasant in the justice and benevolence of Government. There was generally then a state of affairs which is currently called political unrest. The plaintiff and a man, named Ajit Singh, who was subsequently deported, took apparently a leading part in the agitation against the Bill, though the plaintiff denies that in such agitation he was associated with Ajit Singh. The plaintiff, however, appeared at least on one occasion at Lyall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te prisoner when the reasons stated in the preamble seem to him to require it. The reasons of State there set out embrace amongst others the security of the British dominions from internal commotion; and this may be done even where there is ground for judicial proceedings, when such proceedings are not adapted to the nature of the case, or may for other reasons be unadvisable or improper. 56. The learned Judge has held that this fact should not be taken into consideration in any way, and we have been urged in appeal to close our eyes to what is perhaps the most outstanding and wide-known event in the political career of the plaintiff, who complains of libellous statements with respect to his conduct in such career. This event obviously throws light on the character of his agitation previous thereto. It may certainly be affirmed that (subject to certain well-known limitations), what has probative force is evidence. Were this not so, the law of evidence would lie in deserved discredit. Then is there any rule of law to be implied either (as the learned Judge has done) from the terms of the Regulation itself, or in the Evidence Act, which excludes this fact from our consideration? I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand, and as against this, it must be remembered that these proceedings are of a very exceptional and stringent character, and it is reasonable, therefore, to assume (as I do) the exercise of more than ordinary care and caution before a reluctant recourse was had to them. The circum stance that the executive order was ex parte might have required further emphasis had the question before us been one of mulcting the plaintiff; but that is not the case here, where the party against whom it is used is himself seeking a decree for damages against the defendant. The fact of the deportation is, however, not inadmissible merely because the order which is its authority was passed ex parte. To use the example cited, by the Advocate-General, upon an issue of lunacy, the fact that a person had been at some past time placed (otherwise than under the direction of the Court) in detention as a lunatic would be some evidence upon the question of his soundness of mind, notwithstanding that he was no consenting party to such detention, and may indeed (madly as it may have appeared to some and sanely to others) have protested against it. Other examples may be given. Upon the issue whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff was arrested and deported, and refusing certain information which it was against the public interest to disclose, said (I summarise and abbreviate) as follows. The conditions affecting the Colonisation Act, which was not the main cause of disturbance in the Punjab, were greatly misrepresented. Of 28 meetings held by the leading agitators in the Punjab, 5 only related, even, ostensibly, to agricultural grievances. The remaining 23 were all purely political. The plaintiff took part in two of these meetings, of which one related to the Bill and the other was political. Ajit Singh took part in 13, of which 11 were political. It was not the case that there was no connection between the plaintiff and Ajit Singh. The Secretary of State had himself read public utterances of the plaintiff which were strongly of the nature of ante-British propaganda, The report of his speech quoted in the Wafadar, and of his speech at Lyallpur reported in the Punjabi, contained language which were not within the limits of constitutional agitation, but they were not the only grounds or information for resort to the Regulation under which he was deported. It was not the case that the movement in the Pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact of an entirely legal and legitimate character and free from blame as he asserts. The conclusion, therefore, at which I arrive is (to put the matter in the most favourable form for the plaintiff) that his conduct did in fact go so far beyond the limits of legitimate constitutional agitation as to justify action under the Regulation being taken against him. I am unable, therefore, to accept the plaintiff's statement that in the agitation (which he admits) he was in no way to blame and gave no ground for the action taken against him. It is not necessary to hold--and I do not say that the plaintiff has said what he knows to be false in this matter--a conclusion which would be inconsistent with the personal character which has admittedly been given to him. It is possible that he may have believed, and still believes, that he., did not exceed the bounds of legality. He may, however, not be the best judge in this matter. If, as I think, there is reason to believe that the plaintiff's conduct was, from a political point of view, blameworthy, then he is not entitled to damages such as he has been awarded on the footing that he has been free from all blame. But this is a differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, then it may refer to appropriate books of reference as to those facts. Speeches made in Parliament do not come within those clauses, for the course of proceeding referred to in Clause (4) is a different matter. This phrase does not refer to what was in fact done on any particular occasion, but to the general rules of procedure. But the section also adds (and in this it goes beyond English Law) that in all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books of reference. This is doubtless a provision primarily for the benefit of the Court and I agree with my learned brother that the section does not absolve the party from proof of any fact which does not fall within the provisions of Clauses 1 to 13. Facts, however, of which judicial notice may be taken are not limited to those of the nature specifically mentioned in these clauses. These are mentioned because, as regards them, the Court is given no discretion. As to others, the Court must determine in each case whether the fact is of such a well known and established character as to be the proper subject of judicial notice. A matter of public history may be such a fact. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports of speeches are submitted to members for their approval before publication. The learned Judge, therefore, in my opinion rightly, in the circumstances of the present case, permitted reference to Hansard in the Court below. 60. It is next argued that, assuming that the statements are properly before the Court, they are not relevant. In my opinion they are. I have shown one instance of this in the case of the published reasons for the deportation. They are further relevant on the issue of comment, and were, I understand, on this ground referred to. It may be that the defendant may fail upon that issue, but that can only be determined after the admission and consideration of the matter upon which his plea is made to rest. I have already referred to several of the statements of the Secretary of State. I here mention that on which the most stress has been laid in justification of the libel. It is to be found at page 42 of the paper book, where the Secretary of State gives out merely as a report based on the statement of an Indian Governor that the plaintiff was a revolutionary, who, though his private character appeared to be above approach, was actuated by the most intense hatr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssip relating to facts certainly obtained from unauthorized sources, and possibly by illegal means, though it is not necessary to suggest that the writer himself was privy to the illegality, if any. It asserts the truth of certain of its statements, notwithstanding official denials which are said, in an euphemistic phrase, to be falsehoods. In some respects this article has not been correctly read in the judgment under appeal. It is in the first place clear on a reading of it that the defendants' counsel could not have contended that all its statements were drawn from Hansard. Secondly, the alleged official falsehoods do not refer to the matter of the libel. It is no doubt the case that no definite formal official charge has been made against the plaintiff in terms of the alleged libel. But there has been no public official denial of that fact. The statements which the writer asserted in spite of official denials refer to the alleged proposal and action of the Viceroy and the Commander-in-Chief. Thirdly, it is not the fact that the writer charged the Secretary of State with having concurred in the act of deportation solely because he dared not allow the then Commander-in-Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady dealt with the character of the statement in Parliament at page 42 of the paper book. It is further significant that throughout the debates a tone of greater certainty prevails as regards the part taken by Ajit Singh as appears, amongst others, from the statement at page 41 of a former Indian Official that the two agitators who had been deported had gone about the country tampering with the loyalty of the people and (in the case of Ajit Singh at least) with the loyalty of the troops. Neither then the evidence, nor the statements in Parliament, nor the deportation (for those statements do not assert that tampering with the loyalty of the sepoy was its ground) warrant as comment the libellous statement complained of. Indeed it has not been seriously contested that the actual statements in the article are not to be found in the debates on which it is alleged comment was made. It has, however, been contended, contrary to the statement of the law in Merivale v. Carson (1887) 20 Q.B.D. 275, 282 and Peter Walker Son v. Hodgson [1909] 1 K.B. 239, that fair comment Is a branch of the law of privileged occasion and that licentious comment will pass, provided that there is no expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish cases which deal with the question of the revision of damages by the Court of Appeal have no application in this country where the Jury system, with respect to which the English decisions have been given, does not prevail. Here, the Court acts as both Judge and Jury, whether sitting as Court of first instance or appeal: though in appeal it will not, of course, in this or in any other matter, interfere, unless the decision appealed against appears to it to be clearly erroneous. It has been pressed upon us that we should not do so, because it is said the Court of first instance was better situated than ourselves to assess the damages. I am unable to discover any ground for this argument, which has application only in cases of appreciation of oral testimony. Before affirming this decision, we should be satisfied that the plaintiff has in fact suffered damages to the extent of ₹ 15,000 or some like sum. I am wholly unable to bring myself to this conclusion. 62. In the first place, the learned Judge has, in assessing the damages, proceeded as though no question arose as to the political character of the plaintiff who seeks damages in respect of the injury to such character. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccredited and responsible statements of its officials in justification of it. Notwithstanding, however, all this, it is quite possible, having regard to the fact that the plaintiff's definite charge was in its possible consequences more injurious than any previously made against him, and was asserted as a matter beyond doubt that the plaintiff has in fact suffered as a strict result of the libel more than the merely nominal damages which it has been suggested, in last resort, should be awarded. I concur, therefore, in the order which my learned brother proposes to make as to the disposal of this appeal. I wish, however, to add a word as to the costs. Not merely have the defendants rendered themselves liable to costs by reason of their failure to establish their contention that they had not libelled the plaintiff, and that the suit should inconsequence be dismissed, but they do not appear to me to be deserving of further relief in this matter over and above reduction of damages, having regard to the character of the previous articles which they published of the defendant and their conduct in respect of that in suit in publishing a statement which, on the face of it, purported to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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