The doctrine of absolute privilege prohibits the entertainment of defamatory claims made against judges, counsel, witnesses or parties qua judicial proceedings made in Courts or tribunals.

In the matter of Pankaj Oswal vs. Vikas Pahwa, RFA (OS) 14/2023, decided by the Hon’ble Delhi High Court on 21.02.2024.

Facts of the case–

The Appellant instituted a defamation suit against the Respondent, who is a Senior Advocate for allegedly making a defamatory statement in Criminal Revision Petition No. 554/2018 held on 14/7/2022 before the Sessions Court, Patiala House Courts. The Ld. Single Judge of Delhi High Court rejected the plaint vide judgement dated 09.02.2023, taking recourse to the provisions of Order VII Rule 11 CPC on the ground that action was bereft of cause of action.

Against the said order, the Appellant filed the present First Appeal on the ground that lawyers are not conferred with absolute privilege if, in exercising their right of audience before a Court, they infringe a person’s fundamental right to reputation, which is embedded in Article 21 of the Constitution. Further, as the defamatory statement was irrelevant to the said proceedings, it was not protected by the privilege that the law confers on a lawyer.

Reasons and Analysis–

As the plaint was summarily rejected by the Ld. Single Judge, the Hon’ble Court accepted, for the moment, that the Respondent did make the alleged defamatory statement in the criminal proceedings before Session Judge, PHC. The question which arose before the Hon’ble Court was ‘whether the statement alleged to have been made by the respondent on 14.07.2022, during judicial proceedings, if accepted as the correct state of affairs, would be actionable’?

The Court observed that broadly, the following defenses are available to the defendant in a defamation action: truth, fair comment, and privilege. As regards the defense of privilege, it is of two kinds: qualified and absolute privilege.

‘Qualified privilege ring-fences a defendant from a defamation action only when the privilege is properly exercised in performing legal or moral duties. Qualified privilege is also termed as conditional privilege. It occupies the space between two extremities, i.e., total absence of privilege and presence of absolute privilege.

Whereas, absolute privilege immunizes a defendant, no matter how wrongful or motivated the action is. This contrasts sharply with the defence of truth, fair comment or qualified privilege, where motive plays a significant role. If the plaintiff is able to establish that the defamatory statement was made with malice, the defence that it was a true or fair comment or that the defendant was invested with qualified privilege would not suffice.

Thus, the doctrine of absolute privilege prohibits the entertainment of claims made against judges, counsel, witnesses or parties qua judicial proceedings made in Courts or tribunals. This privilege extends to witness statements, testimonies, and documents properly used and regularly prepared for use in judicial proceedings. The only exception that is carved out concerns a statement which is not uttered for the purposes of judicial proceedings by a person who has a duty to make a statement in the course of the proceedings, or the statement made has no reference at all to the subject matter of the proceedings. The doctrine of absolute privilege does not protect such statements.’

The Court concluded that “in the given facts and circumstances, one would have to conclude that, since the alleged defamatory statement was made by the Respondent, albeit orally, in the course of judicial proceedings held before the Sessions Court, it would be protected by the doctrine of absolute privilege, unless one were to hold that it had no reference to the subject proceedings.”

As it was evident from the assertions in the plaint that the alleged defamatory statement was made in response to a query raised by the Session Court, therefore, the Hon’ble Court upheld the impugned judgement and dismissed the appeal.