We had a post last week about the extraordinary defamation case of Sawant v Times Global Broadcasting Co Ltd – where a petition for stay was recently rejected by the Supreme Court. We have now located a copy of the Judgment [pdf] of the Judge of Pune District Court, V K Desmukh, in which she awarded the plaintiff, retired Indian Supreme Court justice, Parshuram Babaram Sawant, the sum of Rs 100 crore (£12 million).
This remarkable case merits further examination – if only to determine how the Indian judge can have gone so badly wrong and produced a result so plainly contrary to common sense.
The judgment is in form which will be familiar to common lawyers around the world. In 52 paragraphs, over 29 pages, the Judge considers the evidence and legal submissions. We note, in passing, that evidence was heard over a remarkable period of 26 days, with 10 days of legal argument (although the Court’s case details do not disclose whether these were full days).
The judge begins by recording the fact that the plaintiff’s photograph was shown onscreen in the course of a broadcast about the “infamous provident fund scam”, recording that
“The said flashing of photograph created false impression amongst all viewers in India and abroad that plaintiff was involved in PF scam which is per se highly defamatory” 
She then goes on to record the fact that the defendants did not take “corrective or remedial measures” on their own but that, in response to a letter from the plaintiff it tendered an apology and said that the error was unintentional.
The defendants advanced the bold contention that they had not defamed the plaintiff, relying on the fact that the photograph was only shown for a short duration. The evidence was that the photograph was displayed because the wrong photograph was retrieved from a database to illustrate a breaking news story . This argument was, understandably, rejected. The broadcast to millions of viewers of a photograph identifying the plaintiff as being involved in a scam – even for a short period – was plainly defamatory.
Liability was, therefore, clearly established and the Judge then moved on to consider issues of damages. The plaintiff himself did not give evidence and there was no evidence of actual damage to reputation. Nevertheless, as the Judge pointed out (quoting, inter alia, from the Bhagwad Gita), a person’s reputation is at common law “an absolute personal right” and a defamation is actionable without proof of damage.
When considering damages, the Judge correctly recorded that the purpose of defamation damages is to compensate the plaintiff for the wrong he has suffered, vindicate his good name and take account of the distress, hurt and humiliation caused . Referring to the Bombay High Court case of Khan v Gonsalves 2010 (1) ALL MR 74 she indicated that the amount of damages depended on factors such as the gravity of the allegation, the size of circulation, the effect of the publication, nature of the claimant’s reputation and the behaviour of the parties.
In this case, the plaintiff was a former judge of the Supreme Court of India and Chairman of the Press Council and the photograph had a very substantial circulation. The defendants allowed the defamation to go uncorrected for 13 days. The Judge described their attitude as “extremely casual, callous and cavalier” .
The Judge’s conclusion on damages is as follows
“Under the circumstances, from the evidence, documents and citations relied upon by both the parties, the plaintiff is entitled to damages for Rs 100 crores“. 
The judge refused, however, to award interest at the claimed rate of 12%. Contrary to some press reports, no award of exemplary damages was made. The award was purely compensatory.
The case concerned an unintentional defamation by the publication of a photograph for a very short period of time. The judgment on appeal (although not at first instance) suggests it was shown for only 15 seconds. In England and any other common law jurisdiction (outside the United States), the damages would, at most have been in the low tens of thousands of pounds.
Before we look at damages there is an interesting argument on liability which should be mentioned. Although a defamatory publication is actionable without proof of either intention or special damage in English law it must be shown that a “substantial tort” has been committed (see and Lait v Evening Standard  EWCA Civ 859). In this case it is unclear as to whether – despite the fact that the item was broadcast to millions – any significant number would have been able to identify the plaintiff from the photograph. It is not clear from the report how clear or large the photograph was and whether the plaintiff was easily identifiable . The only witness who saw the broadcast was the plaintiff’s former personal secretary, Shrinivas Kamatha (Judgment ). There is some suggestion that the plaintiff’s name may also have been broadcast (see Judgment ) but this is not a point which appears to have been relied on or developed.
However, even assuming that liability was properly established the sum awarded in compensatory damages far beyond any possible rational justification on ordinary common law principles. The sum of R100 crores – £12 million, €14 million, US$18.5 million – is an enormous sum from any perspective. It is even more extraordinary in an Indian context – in a country where the GDP per head is less than US$1,500 it is 12,360 times that figure – an equivalent award in the UK would be £445 million.
The sum awarded is nearly 50 times higher than the maximum figure which could be awarded by an English court – for an allegation of murder, terrorism or paedophilia, wrongly persisted in until judgment the most an English court could now award would be £250,000. Taking into account the relative GDP per head in England and India, the award is 12,300 times higher than the sum which could be awarded for the most serious possible defamation. This for a 15 second display of a photograph the practical defamatory impact of which is likely to have been, at best, limited.
What went wrong? Although there are aspects of the judge’s reasoning that could be criticised, her exposition of the damages principles is unimpeachable. Things start going wrong when she approaches assessment. She appears to place great weight on the failure of the defendants to act quickly to apologise but this is, at best, a minor aggravating feature. A failure to correct for 13 days is, from the perspective of the English press, rather difficult to describe as as “extremely casual, callous and cavalier” . It is unlikely that Lord Justice Leveson would be impressed.
The Judge gives no explanation as to how she arrives at the figure of Rs 100 crores – the sum included by the plaintiff in his letter of claim. No “comparables” – whether in India or elswhere – are discussed in the judgment. There is a passing reference to Karanjia v Thackersey 1970 Bom 424 – a case involving newspaper allegations of serious criminality. Damages were reduced on appeal to Rs 1.5 lakhs (from Rs 3 lakhs) – that is Rs 150,000 (or, allowing for inflation, Rs 2.8 million or £35,000. A little high in English terms but within an acceptable range. The judge rejects the comparison on the basis of the nature of the plaintiff and the fact that the Karanjia case involved a newspaper article published in 1960 – at a time when the “awareness of the public at large of current affairs” cannot be be compared to that in 2008 (Judgment  – ).
There is no rational basis for the Judge’s award of compensatory damages in this case. Its “chilling” effect on freedom of expression is obvious. It seems clear that defamation law in India needs to be brought in line with modern standards – where proportionate awards are made to reflect the damage actually suffered by the plaintiff. As we indicated in our previous comment, it is to be hoped that the appeal will proceed and that the award will be overturned. If this does not happen then serious international harm will be done to the reputation of the Indian legal system.