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A Case Comment on P.B. Sawant v. Times Global Broadcasting Co. Ltd and
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DOI: 10.2139/ssrn.2020139

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A Case Comment on P.B. Sawant v. Times Global

Broadcasting Co. Ltd and Anr.

Rahul Hemrajani,

Symbiosis Law School.

Akshat Anand,

Symbiosis Law School.

Electronic copy available at: http://ssrn.com/abstract=2020139

Abstract

On 26th April 2011, the Pune District Court held that Times Global Broadcasting Co. Ltd was

liable for defaming Justice Sawant, a former chairman of the Press Council of India and a

former Judge of the Supreme Court. 1 The 6th Joint Civil Judge Senior Division Smt. V K

Deshmukh, further awarded the plaintiff damages to the tune of Rupees hundred crores

(£12.5 million). The judgement and the quantum of damages have been met with heavy

criticism from various circles of the media.

This paper attempts to analyze the reasoning of the Pune Court from a neutral standpoint and

demonstrate how the judgement may not be tenable inter alia existing Jurisprudence relating

to tortuous liability. The paper is divided into two parts, the first dealing with liability of

Times Global Broadcasting and the second dealing with the quantum of damages awarded.

Facts and Judgement of the Case

The plaintiff, Parshuram Babaram Sawant, was the former chairman of Press Council of

India, the former president of World Association of Press Councils and had retired as a Judge

from the Supreme Court of India. In view of these achievements, it is reasonable to say that

the plaintiff is a man of high repute. The defendant, Times Now, is a company incorporated

in the field of news and broadcasting. It is a 24 hour channel and has garnered a wide

audience. Times Now is a company with Rs. 250 crore as its paid-up capital.

The cause of action arose during the time of the Ghaziabad Provident Fund Scam, when

Times Now in its broadcast at 6:30 PM on 10th September 2008, erroneously broadcasted the

1 Parshuram Babaram Sawant v. Times Global Broadcasting Co Ltd and Anr. , Special Civil Suit No.
1984/2008, 6 Th Jt. Civil Judge Senior Division, Pune. Judgement available at :
http://inforrm.files.wordpress.com/2011/11/judgment.pdf ( last accessed on 18th March 2012).

Electronic copy available at: http://ssrn.com/abstract=2020139

photo of P.B. Sawant in place of PK Samantha, an alleged corrupt Judge involved in the

Provident Fund Scam. After becoming aware of the error, within the passage of 15 seconds, it

retracted the photo from the broadcast and the photo of PB Sawant was not shown again.

However, no public apology or clarifications was issued.

The plaintiff in a letter sent on 15th September, 2008 called the defendant to issue a public

apology and pay compensation for damages to the tune of Rs. 50 Crores. The defendant

company in its reply sent on 25th September 2008, tendered an apology and further informed

that the news channel had issued a public apology by running the apology in its news ticker

continuously for five days. The apology read as follows, “On the 10th September 2008,

Times Now erroneously showed Justice P.B. Sawant as an accused in the P.F. scam case.

Justice Sawant is a man of high regard and esteem.” It was in this reply that the company first

made it clear that there was never an intention to show P.B. Sawant’s photo instead of P.K.

Samantha, and that the act could only be termed as an unintentional error. The reply however

remained silent over the issue of paying compensation.

The plaintiff found the reply of the defendants to be belated and insincere and in further

correspondence two days later, 27th September 2008, the plaintiff raised its previous demand

for compensation from Rs. 50 Crores to Rs. 100 Crores. Subsequently the plaintiff, a resident

of Pune, filed the defamation suit for damages and compensation at the Pune district court.

The Pune District Court held that the said flashing of photograph created false impression

amongst all the viewers in India and abroad that plaintiff was involved in PF Scam which is

per se highly defamatory. Though the said channel stopped publishing the photograph of the

plaintiff when the mistake was brought to their notice, no corrective or remedial steps to undo

the damage caused to the reputation of the plaintiff were taken by the defendants on their own

amd This tortious act of the defendants has enormously and irreparably damaged the
reputation of the plaintiff. It therefore ordered the defendants to pay the sum of Rs 100 crore

as and by way of damages for the tortious acts, omissions and commissions.

The defendant broadcaster appealed to the High Court in Bombay and sought a stay of

execution pending the hearing of the appeal. In a Judgment given on 28 September 2011 the

High Court ordered that the defendant should deposit Rs 20 crore (£2.5 m) with the High

Court Registry along with a bank guarantee for Rs 80 (£1o m) as a condition for a stay of

execution. 2

On Monday 14 November 2011, the Supreme Court of India dismissed the defendant’s

appeal against this order. A bench of Justices G S Singhvi and S J Mukhopadhaya declined to

grant relief to petitioner saying there was no error in the high court’s interim order. The court

said “We find no reason to interfere with high court’s order directing the petitioner to deposit

Rs 20 crore and furnish bank guarantee for the rest“.

The decision of the Supreme Court was at once met with reaction from the Press Community.

The court orders directing Times Now to deposit Rs 100 crore as a precondition for appeal in

a defamation case involving Justice P B Sawant appears to have become a rallying point for

the media, both electronic and print. 3 On Friday, three top media organizations joined two

journalist bodies, Editors' Guild of India and Foundation of Media Professionals, to stress that

2
Times Global Broadcasting Co. Ltd. and anr. Vs. Parshuram Babaram Sawant, Caf-3994-11, Bombay High
Court.
Judgement available at :http://inforrm.files.wordpress.com/2011/11/72768992-order-of-bombay-high-court.pdf
3
Times News Network, ‘Times Now-like orders can cripple the media’, available at
:http://articles.timesofindia.indiatimes.com/2011-11-19/india/30419294_1_news-media-media-companies-
defamation.
such orders pose a threat to the very existence of media and freedom of the press. They

appealed to the higher judiciary to reconsider its orders. 4

The Chairman of the Press Council of India, Justice Markandey Katju, found the award

disproportionate. He also termed as “incorrect” the orders of both the higher courts and urged

for their reconsideration. 5 The International Press Institute termed the award

“disproportionately high” and warned that such large damages could “place such an

economic burden on media outlets that their survival is seriously threatened as a

consequence”. The Indian Broadcasting Foundation (IBF) expressed concern that such

decisions would cripple the functioning of the media and jeopardise the media business. 6 The

News Broadcasters Association (NBA) said: “If innocent errors committed by media are

visited with such dire consequences, and if media companies are compelled to pay such

disproportionately exorbitant damages despite the issuance of a public apology, it would

effectively cripple the functioning of the media” 7.

Leader of Opposition in the Rajya Sabha and lawyer Arun Jaitley terms the Rs.100-crore

damages "disproportionate". "As someone having familiarity with the quantum of damages

Indian courts award, this order appears to be somewhat unusual," says Jaitley "There is no

better way of shutting down Indian media than by awarding punitive damages against

journalists, newspapers or TV channels that are completely disproportionate to the value of

money in Indian society". 8 President of the Indian Newspaper Society (INS) Ashish Bagga

says the Times Now case will potentially threaten the survival and existence of media in

4
Ibid.
5
V.Venkatesan, Costly ‘mix-up’, available at: http://www.frontline.in/fl2825/stories/20111216282509800.htm .
6
Ibid.
7
Ibid.
8
Bhavna Vij-Arora and Kiran Tare, War on Media, available at : http://indiatoday.intoday.in/story/times-now-
defamation-case-rs-100-cr-fine-justice-sawant/1/161563.html .
India. While recognising that the law of defamation is an important qualification of the

fundamental right to freedom of expression, he says it should be construed in such a manner

that it does not constrain the normal functioning of the media. 9

The defendants have, as of date, not deposited the 20 crores nor have they furnished a bank

guarantee.

Critical Analysis

Liability of the Defendants

There are certain conditions which need to be fulfilled in order that action be taken by a

person for defamation. Firstly, the statement must be defamatory. Secondly, the statement

must refer to the plaintiff. Thirdly, the statement must be published by the defendant. While

the third condition is satisfied prima facie; the first two are not so clear-cut.

Further while dealing with defamation suits by public figures against journalists, as in this

case, some jurisdiction require that the statement must have been made malicious for it to

constitute defamation.

(1) The statement must be Defamatory

For the tort of defamation it is necessary that there is publication of a defamatory statement.

Therefore the liability of the defendants depends heavily on which definition of ‘defamatory

statement’ a particular court chooses to use. The definition that The Learned Judge preferred

to use in this case was, “A defamatory statement is a statement calculated to expose a person

to hatred contempt or ridicule or to injure him in his trade, business, profession, calling or

office or to cause him to be shunned or avoided in the society.”

9
Ibid.
Ramanatha Aiyar’s Advanced Law Lexicon, defines it as “an intentional false

communication, either published or publicly spoken, that injures another’s reputation or good

name, holding up of a person to ridicule, scorn or contempt in a respectable and considerable

part of the community”. 10 Another famous test for a statement to be defamatory was given in

Sim v. Stretch where Lord Atkin expressed the view that “...after collating the opinions of

many authorities I propose in the present case the test: would the words tend to lower the

Claimant in the estimation of right-thinking members of society generally?” 11 Other

expressions include citizens of “fair average intelligence” 12 and “ordinary decent folk in the

general community. 13

In the case of SNM Abdi v Prafulla Kumar Mahanta and Ors 14, the court stated-

“The law regarding defamation is now well settled. The law is that in order to be

defamatory a publication must tend to lower the plaintiff in the opinion of men whose

standard of opinion the Court can properly recognise, or tend to induce them to

entertain an ill opinion of him. However, the plaintiff need not show a tendency of the

imputation to prejudice him in the eye of everyone in the community or all of his

associates, but it is suffice to establish that the publication tends to lower him in the

estimation of a substantial, respectable group, even though they are a minority of the

total community or of the plaintiffs associates.”

In the absence of a consistent and universally accepted definition an English Court rightly

held that, “No exhaustive definition of “defamatory” emerges from the cases for, Lord Reid

10
P Ramanatha Aiyar, Advanced Law Lexicon, 3rd Edition , Lexisnexis Butterworths Wadhwa Nagpur.
11
Sim v Stretch [1936] 2 All ER 1237.
12
See Slayer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7, 14 ALR 693 , HC (Aust.).
13
See Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 172, SC (NSW); J Ramdhara v
Phulwatibai (1969) MP LJ 483, (1970) Cr LJ 286.
14 AIR 2002 Gau 75.
once said, it is not for the judges to ‘frame definitions or to lay down hard and fast rules. It is

their function to enunciate principles and much that they say is intended to be illustrative or

explanatory and not to be definitive”. 15 One can nevertheless achieve a working description

by combining two statements, namely; a reputation of another by exposing him to hatred,

contempt, or ridicule and which tends to lower him in the esteem of right-thinking members

of society. 16

Let us now consider specifically the two classes of society which saw the report on Times

Now- The people who knew Mr. P. B .Sawant and the people who did not. The people who

knew Mr.PB Sawant knew that the man in the picture was not PB Samantha and hence there

was no possibility of any defamation with regard to such class of people. The reputation of

Mr Pb Sawant would not diminish in the eyes of such people as they would immediately

know that the channel was making a mistake. The people who did not know Mr. PB Sawant

were unaware also of his reputation and therefore he could not be defamed in front of them.

If there are two possible interpretations of an allegedly defamatory statement or publication,

the defamatory meaning is not the preferred meaning. 17 Therefore it would seem that there

Mr Sawant was not defamed in front of Right-Thinking Member of Society.

The learned judge in his dissertation of facts concluded “The said flashing of photograph

created false impression amongst all the viewers in India and abroad that plaintiff was

involved in PF Scam which is per se highly defamatory.” Such a statement is devoid of any

legal value. If the defamatory statement consists of an article with a headline and photograph

the whole of the article including the headline and photograph has to be taken together and

considered whether in its natural and ordinary meaning which may be ascribed to it by

15
See Cassek & Co Ltd. v Broome (1972) AC 1027 1085.
16
See R.W.M . Dias & B.S Markesinis, Tort Law 423-24 ( 2nd ed. 1989).
17
See Habib Bhai Bhai v Pyarelal AIR 1964 MP 62 (1963) MPLJ 891 , (1963) Jav LJ 979.
ordinary men as being defamatory of the plaintiff. 18 It is impossible to know whether the

telecast created a false impression amongst all viewers in India and abroad. The only

evidence that was taken in this regard was that of Mr Shrinivas Kamat, The Personal

Assistant of Mr PB Sawant. It seems highly improbable that Mr PB Sawants reputation

would diminish in the eyes of his own secretary-who would certainly know that Mr Sawant is

not Mr Samantha, after watching the broadcast.

(2) The statement must refer to the plaintiff

The channel explained that its database contained numerous photographs, images, videos and

so on, and the required content was picked up on the basis of tags associated with each

component of the database. The channel pointed out that because of a similarity in the names

of the plaintiff and Justice P.K. Samantha, and in the nature of their description (judges) and

the tags associated with each component of the database, the automated application picked up

the plaintiff's photograph instead of Justice Samantha's.

The law relating to the similarity of names was laid down in Hulton v Jones. In Hulton v

Jones 19 the House of Lords held that if reasonable men understood the words to refer to the

plaintiff, the defendants would be liable notwithstanding the absence of any intention to

defame the plaintiff. The principle has been followed in India. 20 The rule has been criticised

as extending the liability for defamation beyond the limits of older precedents 21 and was

abrogated in England by the ‘Defamation Act 1952’. 22 In a madras case 23 it has been held

18
See Charleston v New Group Newspapers Ltd [1995] 2 All ER 313.
19
[1910] AC 20; [1909] 2 KB 444.
20
See Ogilvie v Panjab Akbharat Co (1919) ILR 11 Lah 45;Also See Naganatha v Subramania (1917) 32 MLJ
392, 298.
21
Holdsworth, ‘Accidents’ , Law of Libel, 57 LQR 74 ; See Knuppfer v London Express Newspaper [1942] 2
All ER 555, 561, per Goddard LJ.
22
Section 4 Defamation Act , 1952 (England).
that the rule in Hulton v Jones did not apply to India. It has been further observed that Indian

courts should take into account the criticism of the said rule even in England and the

subsequent legislation there. 24 When there is such a similarity of names inadvertent errors are

bound to happen and the court should have taken these factors into account.

(3) The requirement of malice

Intention usually does not form a necessary ingredient to the tort of defamation. However,

The 1964 case New York Times Co. v. Sullivan 25, dramatically altered the nature of libel law

in the United States by elevating the fault element for public officials to actual malice—that

is, public figures could win a libel suit only if they could demonstrate the publisher's

"knowledge that the information was false" or that the information was published "with

reckless disregard of whether it was false or not". This view was expressed by Thompson, CJ,

of Supreme Court of Illinois who very emphatically stated ‘: Every citizen has the right to

criticise an inefficient or corrupt government without fear of civil as well as criminal

prosecution. This absolute privilege is founded on the principle that it is advantageous for the

public interest that the citizen should not be in any way fettered in his statement, and where

the public service or due administrating of justice is involved, he shall have the right to speak

his mind freely’. 26

In England, In Reynolds v Times Newspaper Ltd, the court of appeal suggested to allow the

defence of qualified privilege to be raised by the press when commenting on public figures. 27

This has been accepted in principle by the Supreme Court of India. 28 The learned judge

23
See TVR v AMA Mohidden AIR Mad 398, (1972) 1 MJL 508.
24
Ibid.
25
376 U.S. 254 (1964).
26
City of Chicago v Tribune Co (1923) 307 Ill 595, 607.
27
[1998] 2 all ER 961 (CA).
28
See Raj Gopal v State of Tamil Nadu AIR 1995 SC 264, 277.
herself arguably accepted this when she referred to the R.K. Karanjia Vs.

K.M.D.Thackersey 29 case- a case specifically dealing with Journalist's right to comment on

public interest and the requirement of proving Malice therein.

The Picture was erroneously flashed for a period of 15 seconds and was removed as soon as

the channel became aware of the error and therefore there seems to be no prima facie

evidence of malice. The only reason that the court believes that malice exists is that

apparently the photo was shown until the Personal Assistant of P.B.Sawant- Shrinivas Kamat

notified the channel after which it was withdrawn. This seems to be incorrect. The photo of

Mr PB Sawant was shown only for 15 seconds. It seems highly unlikely that, within these 15

seconds Mr Shrinivas Kamat watched the news story and called Times Now . Even if this

was the case, it could hardly be evidence of malice. On the contrary, it would be evidence of

the defendant’s willingness to remove the picture.

Another indication of the channels lack of malicious intent is the fact that they rendered a

public apology. An apology, under common law, is not a defence to an action for defamation

but is only a circumstance in mitigation of damages. 30 However in England under the Libel

Act of 1943 31, it is available, under certain conditions, as a defence in actions for libel against

newspapers and other periodical publications.

They are (a) The libel should have been published originally in the newspaper or other

publication without malice and without Gross negligence; (b) The defendant should at the

earliest opportunity have inserted or offered to insert a sufficient apology in the newspaper or

periodical publication (c) A sufficient amount of money must be paid into the court by way of

amends at the time the plea is delivered (d) No other defence denying liability is joined with

29
AIR 1970 Bom 424.
30
See Smith v Harrison (1856) 1 F& F 565.
31
6 & 7 Vict C 96 amended by 8 & 9 Vict C 75.
the plea of apology. It is also available under the Defamation Act in 1952. It is the view of

the authors that such a defence is available in India as part of common law and that since

there was no malice involved, the defendants cannot be liable.

Quantum of Damages

Even assuming that the defendants were liable for defamation, the quantum of the damages

awarded to the plaintiff to the tune of Rs. 100 crores does not follow the established

principles of law.

In certain circumstances the court may award more than the normal measure of damages,

taking into account the defendant’s motives or conduct. Such damages may be ‘aggravated

damages’ or ‘exemplary damages’. Aggravated damages are compensatory in nature.

Exemplary damages are punitive in nature and are awarded to punish the wrongdoer and not

to compensate the plaintiff for the loss. 32

It is pertinent to note that Rs. 100 crores awarded to the plaintiff was not as a measure of

awarding exemplary damages; rather the court was merely granting compensation by way of

accepting the prayer of the plaintiff. However, it cannot be logically surmised that claiming

Rs. 100 crores by way of compensation is not by itself exemplary in nature but if seen from a

broader perspective, it can be said to be exemplary or punitive in nature.

The Indian courts have been reluctant to award punitive damages and the view taken is that if

the offender is to be punished then recourse must be had to the penal law. 33 It is also pertinent

to note that exemplary damages have in fact been awarded but only in the case of public

32 See Organo Chemical Industries v Union of India AIR 1979 SC 1803, Also See Prema Korgaonkar v Mustak
Ahmed AIR 1987 Guj 106 (1987).
33 See I.A Subramanta Iyer v R H Hitchcock AIR 1925 Mad 950, 85 IC 900 (no exemplary damages will be
awarded where defendant’s conduct is not motivated by private malice or personal grudge).
functionaries acting in contravention to the fundamental rights guaranteed by the

Constitution. 34 Award of exemplary damages must in any case be made sparingly. If official

power is exercised in bona fide manner, exemplary damages should not be awarded despite

the fact that unintended injury is caused to someone. 35 Exemplary damages may also be

awarded in cases where the defendant has calculated such as to make a profit for himself

which may exceed the compensation payable to the plaintiff, and this extends to cases where

the defendant is seeking to gain some object at the plaintiff’s expense. 36

With respect to the Pune District Court’s Judgment, it is pertinent to note the following

points. The error committed on part of the defendant was committed as part of an inadvertent

human error with the absence of any mala fide intention. This is understood from the

argument made by Times Now wherein they claim that they are a live TV channel and that

it’s not practically possible for them to review everything twice before they broadcast due to

paucity of time. Moreover, they claimed that the names were similar in some aspects and

hence, it cannot be seen as a mistake which could not have been made. Furthermore, it must

be seen that the defendant’s act cannot be termed as one which is calculated to make a profit

at the plaintiff’s expense. This is understood from the fact that they mistakenly broadcasted

the picture of PB Sawant, but they still carried the name along with it of the person actually

accused, PK Samantha. Therefore, this conclusion can only seem plausible.

Furthermore, in the judgment itself, it was discussed if there existed any enmity or any reason

for the Defendants intentionally or deliberately to show the photographs of the plaintiff with a

view to cause harm or with a view to defame him. The court found the answer to be in

34See Common Cause, A registered society v Union of India AIR 1996 SC 3081; Lucknow Development
Authority v M K Gupta AIR 1994 SCW 1537.
35 Ibid Common Cause.
36 Ibid; See Rookes v Barnard [1964] AC 1129 at pgs 1226-1227; Also See Supra at n.29
negative. Therefore, in view of the above statement of the court itself, the authors fail to

understand the blatant ignorance of law practiced by this Hon’ble Court in the awarding of

exemplary damages which is prima facie, wrong in law. There should have been aspect of

mitigation of damages in awarding the aggravated damages. Awarding of exemplary damages

was wholly wrong in law.

The plaintiff cannot claim damages for the loss he suffers from the defendant’s wrong which

he can mitigate by taking reasonable steps. 37 If the plaintiff willfully allows himself to suffer,

even though the defendant is primarily guilty, the responsibility is on the plaintiff for that

sufferance. This an equitable rule to attenuate the rigour of the law. 38 It is a universal rule

applicable to actions for damages in tort. In the present case, it should be seen that the

plaintiff himself communicated of any sort after having waited for five days. For these five

days, the plaintiff is equally liable for not receiving any relief inasmuch as the defendant is,

and hence these five days should be disregarded. Thus when the first communication made

by the plaintiff was made on 15th September and on 25th September the Defendant company

replied saying that it had already broadcasted its public apology as a corrigendum which ran

for five continuous days (starting on 19th September), it cannot be said that the defendant

acted in a callous and an insincere manner towards the plaintiff. The defendants ensured that

their mistake was rectified at the earliest instance when it was brought to their notice, on 10th

September, since they ensured that they did not repeat the same mistake.

37 See British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Rlys Co of London
Ltd [1912] AC 673; Also see Gedebal Karibasavana Gowd v Nandavaram Verrabadrappu (1912) ILR 36
Mad 580, 16 IC 14, (where the Judge held that consequences which the plaintiff can reasonably avoid
cannot be called direct and natural consequences of the defendant’s wrong since it is at the plaintiff’s
option to suffer them. In such a case, he is not damaged by the defendant’s act but by his own negligence
to the consequences).
38 Refusal to compensate for avoidable consequences has usually been rationalized by the courts on
ground that, in the interest of conserving human and material resources, a plaintiff must not be permitted
to recover for losses which accumulated while he sits idly. See 61 Harv L Rev at 131.
The principle of mitigation of loss does not give any right to the party who is responsible for

the wrongful act. However, the principle must be borne in mind by the court in awarding

damages. 39 An action by the plaintiff which results in the diminution of the loss must be

taken into account and the damages reduced accordingly, even if there was no duty on the

plaintiff to act. 40 Here, in the present judgment, it is seen that the court has acted in

contravention to these established principles of law.

From the Judgment, “While deciding quantum of damages, according to the plaintiff status

and financial ability of the defendant needs to be seen.” 41 It is pertinent to note that the

authorized paid up capital of Times Now is Rs. 250 crores 42, and by asking to pay a sum of

Rs. 100 Crore, is a fine of 40% of its total assets. It is therefore to be seen that the Court has

even though agreed on principle in this aspect, but have not actually appreciated it.

The judgment relies on the case of Rustom K. Karanjia And Anr. vs Krishnaraj M.D.

Thackersey 43 wherein the manner that compensatory damages are to be awarded once

defamation is proved. However, in the same case it was discussed, which was overlooked by

the present court that the defendants contended the damages were excessive and unreasonable

and the court laid down guidelines as to when can exemplary damages be awarded. They

quoted the decision of the House of Lords in Rookes v. Barnard, 44 and the decision of the

Court of Appeal in McCarey v. Associated Newspapers, Ltd.,45 that, at common law,

damages for defamation are purely compensatory. It is pertinent to note that though the court

39 See M Lachia Shetty & Sons Ltd v Coffee Board, Bangalore AIR 1981 SC 162
40 Supra n. 37
41 Supra n. 1 , Para 39
42 According to the website of the Ministry of Corporate Affairs, reported on
http://www.mylaw.net/Article/Judgement_day_/
43 AIR 1970 Bom 424,
44 (1964) 1 All ER 367
45 (1964) 3 AH ER 947
was right in taking the view that damages could only be compensatory, it grossly erred in its

reasoning that any amount asked by way of damage can be done under the garb of

compensation. In simple terms, the court according to this reasoning would have awarded any

amount PB Sawant would have quoted, whether it was Rs. 100 crores or Rs. 1,000 crores.

The court failed to appreciate the nature of compensation asked by way of damages. The

court failed to realize that Rs. 100 crore, a fine of 40% on its total assets, cannot in any way

be termed as only compensatory.

It was further stated in the instant judgment that a successful plaintiff may properly look to an

award of damages to vindicate his reputation particularly when it is not based on truth. This

principle has been laid down in John v. MGN Ltd 46. It is pertinent to note that it was only the

photo of PB Sawant which was shown. Therefore, defamation was only to the extent of the

face and not the name. The reputation which was tarnished after this event still remained that

of PK Samantha. It was only for people who could relate the name to the face, would be the

sample set in whose eyes his reputation would be tarnished and even for them, reputation of

PB Sawant would remain the same because the name used was not his, but that of PK

Samantha. Therefore, again we can see that the court has agreed in principle but has

effectively failed to administer it.

It is also to be seen that a plaintiff must act reasonably to avoid loss caused by the defendant’s

wrongful act and the question regarding the standard of conduct can be ‘what a prudent man

not having a claim for compensation would do under the circumstances’ 47. Whether the

plaintiff has acted reasonably is a question of fact, and not a question of law, which is to be

decided upon in the circumstances of each case. 48 Regard must be had to the fact that a

46 (1996) 2 All ER 35 (CA).

47See Le Blanche v London and North Western Rly Co (1876) 1 CPD 286, CA.
48See Payzu Ltd v Saunders [1919] 2 KB 581 at 588.
plaintiff who does not know that he has a right to mitigate his loss does not act unreasonably

in failing to exercise it. 49 A plaintiff must not only act in his own interests but also in the

interests of the defendant and keep down the damages as far as reasonably possible. It is to be

seen that the plaintiff has failed to exercise any such measure. The plaintiff did not make any

effort to mitigate the damages. The plaintiff in waiting for five full days before sending a

notice to the channel pleading for amends would be seen as an effort done deliberately so as

to increase the claim for compensation.

It is a duty to mitigate damages in tort. A plaintiff suing for damages in a tort action cannot

claim damages for the loss which he would avoid by taking reasonable steps. 50 It is again

reiterated that the plaintiff could have taken steps so as to ensure complete justice would have

been done without the matter being blown out of proportions. The question of reasonableness

is a question of fact. 51 The fact that the plaintiff waited for five days before filing his

complaint with the channel, is a fact where the authors believe is not reasonable on part of the

plaintiff.

The authors opine that if any damage was, at all, to be awarded, it should have been that of

aggravated damages. Aggravated damages may be awarded in actions in tort where the

defendant’s conduct, motive and manner of committing the tort have aggravated the

plaintiff’s damage by injuring his feelings of dignity and pride. 52 Aggravated damages are to

be distinguished from exemplary damages as has already been enunciated earlier herein. The

court may consider the defendant’s conduct from the time the tort was committed up to the

conclusion of the trial. Including what he or his counsel may have said before, after or during

49See Eley v Bradford [1972] 1 QB 155.

50 See for the general principles Selvanayagam v University of West Indies [1983] 1 All Er 824
51 See Ramasami Nayakar v Meenaskhisundaram Chettiar AIR 1925 Mad 222
52 Supra at n. 37
the trial. 53 It is also to be seen that aggravated damages have been awarded in cases of

defamation. 54 It should be noted that the defendants acted swiftly in response to the plaintiffs

averments. They made no delay in issuing the public apology which read as, “On the 10th

September 2008, Times Now erroneously showed Justice P.B. Sawant as an accused in the

P.F. scam case. Justice Sawant is a man of high regard and esteem.” Furthermore, no

derogatory behavior was advanced during the entire trial which shows that the defendants had

genuinely made a mistake and had made amends. Therefore, there is no question of awarding

exemplary damages in this defamation case.

Exemplary damages are damages awarded to the plaintiff over and above what will barely

compensate so as to provide solace to the plaintiff for mental anguish, laceration of his

feelings, shame, degradation or other aggravations of the original wrong or else to punish the

defendant for his evil behavior or to make an example of him, for which reason they are

called ‘punitive damages’ or ‘vindictive damages’ and are also in common parlance known as

smart money. 55 Exemplary damages are thus punitive and not compensatory in nature and are

usually awarded to punish the defendant and to deter him from similar conduct in future. 56

Exemplary damages can only be awarded in these three cases 57:

1. In actions against oppressive, arbitrary or unconstitutional action of the government or

its servants, in breach of the duty of its public functionaries to protect the fundamental

rights of the citizens. 58

53 See Cassell & Co Ltd v Broome [1972] AC 1027 at 1071.

54 See Lajpat Rai v Englishman (1909) ILR 36 Cal 883, also See, Pearson v Lemaitre (1843) 5 Man & G 700,
134 ER 742.
55 Supra n. 34
56 Organo Chemical Industries v Union of India AIR 1979 SC 1803
57 Supra at n. 36
58 Rudul Shah v State of Bihar AIR 1983 SC 1086
 2. Cases where the defendants conduct has been calculated by him to make a profit for

himself which may exceed compensation payable to the plaintiff and this extends to

case where the defendant is seeking to gain at the plaintiff’s expense. 59

3. Where exemplary damages are expressly authorised by statute. 60

It is worthy to note that none of the above three cases are met with in the present case, and

thus awarding exemplary damage is wrong in law.

Also, when awarding exemplary damages, the court must take into account the following

considerations 61:

1. That the plaintiff cannot recover exemplary damages unless is a victim of the

punishable behaviour.

2. That the power to award exemplary damages is a weapon that must be used with

restraint.

3. The means of the parties

It is again worthy to note that court has paid utter disregard to the second and the third points

in the established considerations which a court must take into account.

In the case of SNM Abdi case 62, the court held,

“In deciding the question of compensation in such a situation the Court must take into

consideration the following things:

(1) the conduct of the plaintiff;

(2) his position and standing;

59 Crouch v Great Northern Rly Co (1856) 11 Exch 742.

60 Supra n. 34; as per the constitution of India Art 32 as per Sagar Ahmed J.
61
Supra n. 36, para 44.
62 Supra n. 14.
 (3) the nature of libel;

(4) the absence or refusal of any retraction or apology ; and

(5) the whole conduct of the defendant from the date of publication of libel to the date
of decree ;”

However, the instant case, the judgment considered that the amount of damages awarded in

respect of vindication and injury to reputation and feelings depends on a number of factors:

1. The gravity of the allegation.

2. The size and influence of the circulation

3. The effect of the publication.

4. The extent and nature of the claimant's reputation.

5. The behaviour of the defendant

6. The behaviour of the claimant.

The factors are in consonance with the established law as laid down by Supreme Court in the

SNM Abdi case 63, but yet again, as with most aspects of this case, the judgment recognizes

the correct laws but failed to apply it in a proper manner. The gravity of the allegation was

seen as that the plaintiff was a man of high regard and not that the photograph was shown as

a mistake and affixed with a different name. The effect of the publication was not actually

defamatory in nature since it could not be ascertained, as enunciated in the SNM Abdi case 64,

the behavior of the defendant was erroneously shown to be maligned in nature when it never

was and the behavior of the claimant was glorified in the judgment even though when the

plaintiff failed to act reasonably to mitigate damages and asked for exemplary costs by way

of compensation.

63 Ibid.
64 Ibid.
The damages awarded in this case, for a simple error, are unproportional even by

international standards. In England there is an effective cap of £250,000 on libel damages, in

Australia there is a statutory cap of Aus $250,000, even in the United States figures produced

by freedom of expression NGO Article 19 the average libel damages award is

US$471,221. 65 The European Court of Human Rights in Tolstoy v United Kingdom 66 while

dealing with a an award of a record £1,500,000 damages, concluded that the award was

"prescribed by law" but was not "necessary in a democratic society" as there was not, having

regard to its size in conjunction with the state of national law at the relevant time, the

assurance of a reasonable relationship of proportionality to the legitimate aim pursued.

Conclusion

The authors believe that the failure to appreciate certain aspects of law is evident in the

judgment. With respect to liability, the authors believe that the learned judge did not take into

consideration many important facts. Nowhere in the judgement has it been stated that the

picture appeared only for 15 seconds. Furthermore the learned judge did not seem to take

into consideration whether actual loss of reputation was caused and merely assumed the

same. In the absence actual intention to cause defamation and while dealing with news story

which was of public interest, the liability of the news channel is not as clear as the learned

judge has made it seem.

65
Freedom of expression: Indian media organisations condemn £12 million defamation damages award to
retired judge, available at :http://inforrm.wordpress.com/2011/11/19/freedom-of-expression-indian-media-
organisations-condemn-12-million-defamation-damages-award-to-retired-judge/, See Case Comment: Sawant v
Times Global Broadcasting Limited – an extraordinary award of compensatory damages by an Indian court
available at : http://inforrm.wordpress.com/2011/11/27/case-comment-sawant-v-times-global-broadcasting-
limited-an-extraordinary-and-unjustified-award-of-compensatory-damages/ .
66
(1995)20 EHRR 442.
 Even if it is assumed that the defendants were liable, The Learned Judge gave no basis for the

computation of the Rs. 100 Crore as damage. The authors believe that the learned judge has

made a gross error in law by awarding exemplary damages while following a compensatory

mechanism. Further the judge did not take into consideration important cases both national

and international where extraordinarily high damages awarded were quashed.

Freedom of expression - in particular, freedom of the press - guarantees popular participation

in the decisions and actions of government, and popular participation is the essence of

democracy. The authors believe that the judgement of the Pune District Court unreasonably

and unnecessarily restricts this freedom.

Recently both the Media and the Judiciary have been extremely critical of each other and the

balance between two very important pillars of democracy is at the point of a needle. If the

award is not overturned, freedom of speech and inevitably democracy will suffer.

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