Can newspaper call someone ‘terrorist worker’? Jammu and Kashmir and Ladakh High Court’s tough reality check for editors

“While a newspaper has the right to disseminate information obtained from antagonistic sources, it cannot disseminate false imputations against a person, as the same is restricted in terms of Clause (2) of Article 19 of the Constitution,” the order noted on March 12.

The court added that branding a person as over ground worker of terrorists or stating that the person has links with terrorists ex facie lowers the image of such a person in the estimation of those who know him.

Justice Sanjay Dhar said that the offending news item nowhere suggests that it is based upon briefing of security agencies or investigating agencies.

Emphasising the significance of the freedom of the press, the order added that when it comes to freedom of the press, it has to be noted that a newspaper or a media house is free to obtain information from all kinds of sources and to propagate the same amongst the readers/viewers, which is a fundamental right.

“However, the said right is subject to the reasonable restrictions, inter alia, on the ground of defamation as contemplated in Clause (2) of Article 19 of the Constitution,” it said.

The defamatory imputations

• The case originated from a criminal complaint filed by Prem Kumar, a businessman from Samba, before a judicial magistrate.
• Kumar alleged that the petitioners published a “fabricated” news item in a newspaper branding him an “over-ground worker (OGW) of militants”.
• The news report specifically alleged that Kumar had provided a vehicle to Lashkar-e-Taiba terrorists for the Nagrota attack and had direct links to top militants, including “Azahar Masood”.
• The respondent contended that the publication severely lowered his reputation among relatives and the public, especially since the petitioners refused to apologise after being served a legal notice.
• Appearing for the petitioner, advocate Atul Raina submitted that the news item that is the subject matter of the impugned complaint was already in the public domain, and it was based on the information received from the investigating agency that was investigating the Nagrota attack.
• It has been contended that the trial magistrate ought not have issued the process against the petitioners as it interferes with their right of freedom of speech and expression.

Content was defamatory against the complainant: Order

• In the news item, which is the basis of the impugned complaint, the headline, when translated to English, reads, “OGW- Prem has made a big disclosure upon his questioning”.
• The news item goes on to state that the respondent, Prem Kumar, who is a resident of village Nanga of Ramgarh, an overground worker of militants, has, during the questioning, disclosed that the attack at the Army Regiment at Nagrota, Jammu, and the BSF Chowki at Ramgarh Sector is revenge of Pakistan against the surgical strike.
• It goes on to state that Prem Kumar was arrested from his village as he had provided a vehicle to the terrorists of Lashkar-e-Taiba (a militant organisation) for accomplishing the attack at Nagrota, Jammu.
• It is also stated that upon further questioning of the respondent/complainant, there is a possibility of arrest of more overground workers.

• Another news item is also carried in the same newspaper, according to which the shop of the respondent/complainant was subjected to a search.
• The news item would reveal that the contents are, per se, defamatory against the respondent as he has been projected as over ground worker of terrorists having deep connections with them.
• It has also been alleged that he has assisted the terrorists in accomplishing the attack on security forces at Nagrota and Ramgarh.
• The contention of the petitioners that they had no intention to cause harm to the reputation of the respondent while publishing the said news item cannot be accepted.
• Section 499 of IPC brings within its purview not only a case where the person making or publishing any imputation intends to harm him.
• It also brings within its purview a case where a person has knowledge or has reason to believe that such an imputation will harm the reputation of the person against whom the imputation is made.
• Even if it is assumed that there was no intention on the part of the petitioners to harm the reputation, considering the nature of the news item, it can prima facie be said that they knew about it being harmful to the reputation of the respondent/complainant.

Defamation: intention or knowledge needed

• It is being contended that publication of the news item in question does not satisfy the ingredients of the offence of defamation as contained in Section 499 of RPC.
• An offence of defamation is made out whenever a person, by words spoken, etc., makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person.
• The Supreme Court in the case of Subramanian Swamy v Union of India, while interpreting the provisions of Section 499 of IPC, observed that for constituting an offence of defamation, it must be shown that the accused had intention or had reason to believe that such imputation would harm the reputation of the complainant.
• Thus, mens rea is a condition precedent to constitute the offence.
• There has to be an intention or knowledge on the part of the accused to cause harm to the reputation of the complainant.
• Without intention or knowledge, the offence would not be constituted.

‘News reports nowhere suggest it is based on agencies’ briefing’

• The other contention that has been raised by the petitioners is that the offending news item was already in the public domain, and it was based on the briefing given by the investigating agencies/security forces.
• The offending news item nowhere suggests that it is based upon briefing of security agencies or investigating agencies.
• The particulars of the investigating agency or the institution that has given such a briefing to the correspondent of the news paper is not mentioned or disclosed in the news item.

• The petitioners have not placed on record anything to show that the offending news item was already in the public domain, nor have they given any particulars in this regard.
• The question of whether the imputations published in the offending news item are true or the same are based upon accounts given by any State agency, and can be decided only during the trial of the case.

Liability of owner v editor

• The court highlighted that under Section 7 of the Press and Registration of Books Act, 1867, a statutory presumption arises only against the “Editor”—the person who controls the selection of matter.
• The court found that Abhimanyu Sharma was declared as the Editor for the Jammu and Kashmir edition. 
• Consequently, he is held accountable for the content selection and cannot escape liability at the threshold stage.
• The court noted that the complaint lacked specific allegations showing Sanjay Gupta’s involvement in the selection or publication of the offending report. 
• In the absence of such specific roles, the court held that the prosecution against the owner could not be sustained.