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Radheyshyam Tiwari v Eknath Dinaji Bhiwaripurkar: understanding the defences to defamation

According to Salmond, “A defamatory statement has a tendency to injure the reputation of the

According to Salmond, “A defamatory statement has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right thinking members of the society generally and particularly to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem”. To constitute defamation, there have to be certain elements satisfied –

  • A defamatory statement has to be made
  • It has to refer to the plaintiff in a way that a reasonable man can infer by reading the statement that it refers to the plaintiff
  • The defamatory statement has to be published.

The burden to prove that the statement was not defamatory in nature falls on the defendant. The defendant can, however, plead any of the defences to defamation, to escape his liability for defamation.

  • Justification of Truth i.e., a person making a true claim in a statement can escape his liability even if the statement is defamatory.
  • Fair comment i.e., making fair and reasonable criticism without any malicious intention does not amount to defamation. 
  • Privilege i.e., the law sometimes grants certain privileges to particular persons in some situations. Any statements by a person enjoying such privileges cannot amount to defamation. For example, a Member of Parliament has an absolute privilege for any statements he makes in Parliament.

Case facts 

In the case of Radheyshyam Tiwari vs Eknath Dinaji Bhiwaripurkar, the plaintiff was a Block Development Officer at Tirora. The defendant was the owner, editor, printer, and publisher of the Tirora Times, a local Marathi weekly produced from Tirora. On May 12, May 26, May 30, June 30, July 14, July 28, and August 4, 1971, the defendant published in his aforementioned publication articles containing significant charges and imputations against the plaintiff. He further claimed that the information in those articles was accurate. Moreover, he claimed that the plaintiff’s pay—the only source of income for a poor Koshit family who belong to a backward community—barely covered his family’s maintenance costs. His assets were alleged to be out of proportion to his income since he had an insurance policy of Rs. 1,000,000 and must pay an annual premium of Rs. 3000 to 4000. He was the subject of departmental inquiries for corruption while he was in Wardha and Gondia. He was put on trial for his sexual atrocities in Birsi Camp. The publishing of those articles was justified by Shri R.V. Dalal, who was then the Zilla Parishad’s Chief Executive Officer and a relative. He argued that the publications were made in his operation as B.D.O. and that as a result, the suit was ineligible without prior approval from the Zilla Parishad, Bhandara. He also claimed the protection of qualified privilege and fair remarks. The trial Court defined the required issues based on the aforementioned pleadings. The trial for the parties began. The plaintiff sent the defendants a registered notice dated 11/12/1971 demanding an apology and Rs. 10,000 in defamation damages.

After carefully examining the oral and written evidence, the learned trial Court concluded that (1) the facts in question were not true and correct, (2) the defendant had failed to prove that the publications in question were made in the public interest, without malice, and in good faith, (3) they were defamatory of the plaintiff. He dismissed other legal issues. 

Therefore, the learned Court issued an order for Rs. 3,000 and proportional costs against Defendant 1 by judgement and decree dated September 22, 1977. The original defendant appealed the judgement and decree issued by the Civil Judge, Senior Division, Bhandara on September 22, 1977, which determined that the original plaintiff was entitled to Rs. 3100/- in compensatory damages for defamation committed against him, as well as the appropriate share of the lawsuit’s costs.

Pleading of the defendant

The learned counsel for the appellant Shri Udhoji expressed his fervent support for the defence of “qualified privilege,” noting that the defendant owed a responsibility to the public by disclosing all facts of public importance, in “fair comments” even when they appear to be against the plaintiff. He said that the articles that were allegedly defamatory were true and substantively accurate. He thus argued that the decision issued by the trial Court was unlawful and should be overturned.

The Court emphasized Parke B.’s concept of “qualified privilege,” which was given in Toogood v. Spyring.

The defendant sought refuge by using the defence of fair comment. For a comment to be a defence – 

(1) The comment must be the author’s statement of opinion rather than a factual declaration.

(2) The comment must be fair in nature.

(3) The comment must be on a matter that is relevant to the general public.

(4) The comment must not be harmful. 

Hence, by the rules established in Balsubramanian v. Raja Gopala Charier, the defendant may claim and demonstrate that the publication was an honest expression of opinion made in good faith and for the benefit of the public. A comment is an opinion on a fact, hence it is not a declaration of fact. When it pertains to a topic of public interest, the law solely protects reasonable commentary, even if it is expressed in defamatory terms. The defence of fair remark is limited in scope. The defence of fair comment essentially only defends statements of opinion. It excludes factual accusations of defamation.

Observations of the Court

The Court noted that defamation is defined as the publication of a remark that tends to reduce someone’s reputation among generally right-minded members of society or that causes them to avoid or shun that person. The main rule regarding defamatory remarks is that they are considered to be untrue, and it is the defendant’s responsibility to establish that they are not. By providing his evidence, the plaintiff has proven beyond a reasonable doubt that these stories are false, defamatory, and have been published.

According to the court’s interpretation of the ruling in R.K. Karanjia v. Krishnaraj M.D. Thackersey, even if a journalist has a duty to the general public to report facts that are important for the public’s interest, he is not legally protected when defamatory remarks are published. Journalists are free to remark on topics of public concern fairly and, if necessary, harshly, so long as their assertions of fact are complete and accurate. If he conducts his research, he must ensure that all of his information is correct and truthful.

With the aforementioned facts, the defendant and his witnesses failed to persuade the court that he could be shielded by any of the following defences: (1) justification or truth; (2) fair remark; or (3) qualified privilege. The aforementioned publications were false, and the defendant purposefully tried to discredit the plaintiff while knowing full well that the accusations he was making and publicizing lacked any basis. In reality, the defendant lacks the right to assert a qualified privilege. The defendant likewise fell short of demonstrating that his articles constitute fair criticisms of topics of public interest. Even then, only statements of opinion are protected by the defence of fair comment. It excludes false statements about the facts.

It was one thing to have made comments about, or even harsh criticisms of, the known or facts about a public employee, but quite another to claim that he had engaged in specific acts of misconduct, misappropriation, or corruption, as was determined in T.G. Goswami v. State. The defendant also fell short of demonstrating the veracity of all the facts in the publications. A defendant who claims justification must substantiate the entirety of their claim. The argument that the words complained of were accurate in substance and fact indicates that all of these words were true. This argument encompasses not only the basic declarations of fact in the alleged libel but also any imputation that the words in the context may be interpreted to imply. With such a defence, the libel was proven to be true in both its factual charges and any accompanying statements. The Court consequently maintained and agreed with the trial court’s conclusion that all of the publications were categorically false and defamatory to the plaintiff. The plaintiff had experienced emotional stress and discomfort as a result of being suspended, dealing with departmental inquiries, and facing significant allegations. Considering the nature of the offensive language and the mental harm it caused to the plaintiff, the Court maintained that the plaintiff was granted damages that were both just and reasonable.


Article 21 simultaneously guarantees us the right to reputation and the right to freedom of speech and expression. Both these rights are subjected to reasonable restrictions. It is unacceptable for someone to use false statements to diminish another person’s standing in society, provided it is otherwise than to discharge a public duty of disseminating information regarding facts, or an exercise of the freedom of speech and expression during legislative proceedings.

Author(s) Name: Kasturi Bhowmick (University of Calcutta)