1. The plaintiff in this case was the Editor and Managing proprietor of the Swadeshabhirnani a tri-weekly newspaper published in Malayalam in Trivandrum and the defendant is the Proprietor and Editor of the ' Indian Patriot', a daily newspaper published in English in Madras. On the 26th September' 1910 His Highness the Maharajah of Travancore issued a proclamation, in which it was stated His Highness was satisfied that in the public interests the Swadeshabhimani should he suppressed and the plaintiff deported and orders were given to that effect. The action of the Travancore Government was the subject of discussion in the Press and was supported by the defendant's paper on the ground that the plaintiff had brought it on himself by the articles published in his ' paper during the preceding three years. The present suit is brought in respect of five articles which appeared in the Indian Patriot in the months of September and October 1910 which are alleged to be defamatory of the plaintiff. The defendant pleads that, in so far as the said articles and extracts contain any assertions of fact, namely those relating to the character and tendency of the plaintiff's writings and the procedure, adopted by him on various (sic) in Travancore, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comments made in good faith and as part of ordinary duty of a journalist and without malice upon the said facts which are matters of public interest. The defendant therefore relies upon pleas of justification and fair comment. As regards the latter plea it is quite clear that the articles published by the plaintiff in the Swadeshabhimani and the action of the Travancore Government in deporting him and suppressing his paper were matters, of public interest on which the defendant was entitled to comment and that no suit will lie against him for defamation unless he has exceeded the bounds of fair comment or has been actuated by malice of which there is no evidence in this case.
2. Now I propose, in the first place, to deal with the defence of fair comment because, if that is a good defence, it relieves me from the necessity of going into the question as to whether the defence of justification has been proved. As I have already said, there can be no doubt that fair comments upon any matter of public interest in which are included the publications in a newspaper are protected publications in the absence of malice. Whether they should properly be called priveleged or not has been the subject of discussion, but as it is laid down in Merivale v. Carson (1887) 20 Q.B.D. 275 and Thomas v. Bradbury Agnew & Co,, Ltd.(1906) 2 K.B.D. 677 by Collins M. R. the question whether you call such publications of comment privileged or not is of no practical consequence. A more important question which was somewhat argued at the bar is as to the extent of the right of fair comment. Perhaps the leading case is, at any rate, the passage which has been most often cited occurs, in the Judgment of Cockburn C. J. in Campbell v. Spottiswoode (1863) 3 B. & Section 760 s.c. 122 E.R. 288 . Cockburn C.J., says 'It is said that it is for the interests of society that the public conduct of men should be criticised without any other limit than that the writer should have an honest belief that what he writes is true. But it seems to me that the public have an equal interest in the maintenance of public character of public men, and public affairs could not be conducted by men of honour with a view to the welfare of the country, if we were to sanction attacks upon them; destructive of their honour and character, and made without any foundation. I think (now these are important words), the fair position in which the law may be settled is this : that where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct so that a Jury shall say that the criticism was not only honest but also well founded, an action is not maintainable.' And later on Crompton J., says ' It is always to be left to a Jury to say whether the publication has gone beyond the limits of a fair comment on the subject matter discussed'. (That is the way in which the question has been almost invariably left to the Jury). The next case to which I would refer is Dakhyl v. Labouchere (1908) 2 K.B. 325 a case in the (sic) which is reported in a note in Hunt v. The Star Newspaper Company Ltd. (1908) 2 K.B. 309. In that case the defendant had published in his paper ' Truth' that the plaintiff was ' a quack of the rankest species,' and Lord Atkinson in giving his judgment says that in his opinion, 'A personal attack may form part of a fair comment upon given facts truly stated if it not be warranted by those facts, in other words, in my view, if it be a reasonable inference from those facts. Whether the personal attack in any given case can reasonably be inferred from the truly stated facts upon which it purports to be a comment is a matter of law for the determination of the Judge before whom the case is tried, but if he should rule that this inference is capable of being reasonably drawn, it is for the Jury to determine whether in that particular case it ought to be drawn.' And he proceeds to cite the passage in Campbell v. Spottisyoode(1853) 3 B. & Section 760 Section 122 E.R. 288 at p. 291. He says: ' The well known passage from the judgment of Crompton J., in Campbell v. Spottiswoode(1853) 3 B. & Section 760 Section 122 E.R. 288 relied upon so strongly by Sir Edward Clarke, was not confined to literary criticism but (and that is important) applied ' to writers on any public matter,' and distinctly laid down the principle that if base and sordid motives which are ' not warranted by the facts be imputed, the fact that the writer bona fide believed his imputation to be well-founded affords no defence.' The question was again considered in the case of Hunt v. Star Newspaper Company Limited(1908) 2 K.B.309 in the same volume at page 309, by the Court of Appeal and the law was laid down in the same sense by Co/ens Hardy, M. R. He says : ' I cannot do better than adopt the language of Kennedy J. in Joyant v. Cycle Trade Publishing Co. (1904) 2 K.B. 292 ' The. comment must not mistate facts, because a comment cannot be fair which is built upon facts which are not truly stated, and, further, it must not convey imputations of an evil sort, except so far as the facts, truly stated warrant the imputation'; and then he proceeds to quote Dakhyl v. Labouchere (1908) 2 K.B. 325 And Lord Justice Buckley lays down the law in the same-way. ' Comment which tends to prejudice may still be fair; it may convey imputations of bad motive so far as the facts truly stated justify such an imputation.' And later ' whether the criticism be upon a literary production or the conduct of a public man, it is for the Jury, I think, to find whether the imputation based upon facts truly stated does or does not honestly represent the opinion of the person who gives expression to it and was not without foundation.' Some reliance was placed by Mr. Rosario on the judgment in the same case of Fletcher Moulton L. J. Lord Justice Fletcher Moulton calls attention to the fact that where matters are stated derogatory of the plaintiff, it must appear fairly clearly, that they are stated as matters of comment and not as matters of fact, because if they are stated as matters of fact, only a plea of justification will avail. The case in Barrow v. Hemchunder Lahiri (1908) I.L.B. 35 C. 495 and The Englishman Ltd. v. Lajpat Rai I.L.R. (1910) C. 760 in one of which the plaintiff was said to have, I think, suborned' perjury to bring about the conviction of an innocent man and in the other of which Lajpat Rai was said to have tampered with the fidelity of the soldiery, those are both cases in which what was shown to have been done by the plaintiff, was a statement of fact and was held not to be protected. The learned Lord Justice also lays some stress upon the fact that imputations of dishonesty should not ba lightly made, but I do not, think that he intended to Jay down the law differently from all the other cases in which it has been laid down; and in a still later case, in which the subject was again discussed, it. is the latest case 1 know of, Peter Walker and Son, Limited v. Hudgson (1909) 1 K.B. 239 , Lord Justice Buchely says: ' But the defendant may nevertheless succeed upon his defence of fair comment, if he shews that imputation of political bias, although defamatory, and although not proved to have been founded in truth, (that is to say although the justification is not proved), yet was an imputation in a matter of public interest made fairly and bonafide as the honest expression of the opinion which the defendant held upon the facts truly stated, and was in the opinion of the Jury warranted by the facts, in the sense (this is important) that a fair minded man might, upon those facts ' bona fide' hold that opinion'. So that what I have to find here is not whether such imputations as the alleged libels contain upon the plaintiff are proved in the sense of justification. It may be sufficient for me to find whether, in my opinion, as a Jury here, they were warranted by the facts ' in the sense that a fair minded man might upon those facts bona fide hold those opinions.''
3. That is the test which I have to apply in dealing with this case.
[His Lordship next proceeds to discuss the evidence.]
4. But Mr. Rosario argued if I understand him rightly that to say periodically that a writer had been guilty of sedition could not be fair comment because it was imputing to him a criminal offence: and he has cited those two Calcutta cases to which I have already referred. I do not think that they lay down any such proposition I am quite certain that no authority forthat, was cited to me of any English case or any English authority. In my opinion the question whether a comment is fair or not depends upon the facts of each case : and as to published matter if a reasonable man might hold the opinion that any published matter is either seditious or obscene 'or blasphemous, it seems to me, that he has a perfect right to express that opinion and that it is not incumbent on him to establish a plea of justification by proving that the author of that passage had brought himself within the meshes of the Criminal Law. It is not necessary as I have already said for me to consider in this case whether, in any one or more of these articles published by the plaintiff, there is matter which if prosecuted would lead to his conviction for sedition. I am perfectly clear and I may safely say, that several of these articles are at any rate on the border line of sedition and therefore it was perfectly open to the defendant if he thought so--and I have no reason to suppose he did not think so--to characterise them as seditious. As I have said it is no business of mine to take sides one way or the other or to express any sympathy either with the plaintiff or the defendant in respect of the views of Travancore politics which they take. All I have to see is whether the defendant has infringed the liberty which as a member of the public he possesses to comment fairly and freely on the writings of another journalist and on the event which those writings gave rise to namely the deportation of the plaintiff.
5. In the result the conclusion that I have come to, is, that it is not shown that the defendant has exceeded the rights of fair comment and therefore it is quite unnecessary for me to deal with the issue of justification, and to find whether in fact these statements made by the defendant derogatory of the plaintiff are true.
6. On the finding that I have come to the suit must be dismissed with costs.