11. As would be obvious from the above, though in the application under Order VII Rule 11 of the CPC the grounds also of the allegations of defamation being vague and of the plaintiffs having not been defamed by the allegedly defamatory statements were pleaded but were not really pressed/urged during the hearing which was confined to the aspect of the privilege enjoyed by the defendant as a Member of Parliament. I may otherwise also state that on perusal of the plaint and a summary whereof has been set-out hereinabove, it cannot be said that on a reading of the plaint no cause of action for the relief for defamation can be deciphered.
12. As far as the aspect of privilege is concerned, I am unable to read Article 105 as allowing a Member of Parliament to, outside Parliament, in the name/garb of being a representative of the people of his constituency or in public interest, make statements which are defamatory, without being liable therefor. As far back as in Tej Kiran Jain Vs. N. Sanjiva Reddy (1970) 2 SCC 272 it was held that Article 105(2) though gives immunity in respect of everything said in Parliament but subject to the limitation that it should have been said during the sitting of Parliament and in the course of business of Parliament.
13. In Bira Gareri supra relied upon by the counsel for the defendant, the Division Bench of the High Court of Patna was not even concerned with the privilege against defamation if any enjoyed by the Member of Parliament. The question for adjudication therein was the extent of absolute privilege relating to judicial proceedings and qua which reliance was placed on pages 765 to 768 of the 11thEdition of ‘Clerk and Lindsell on Torts’ authoring that on occasions absolutely privileged, not merely are those protected who act in the honest discharge of their legal right or duty, but also those who abuse the opportunity with malicious motive and deliberate untruthfulness and that with regard to Judicial proceedings, “neither party, witness, counsel, Jury or Judge can be put to answer civilly or criminally for words spoken in office’ aDd that no action of slander or libel lies whether against Judges, counsels, witnesses or parties for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognised by law. On facts of that case it was held that the statements made in a communication to the Police was a step in judicial proceedings and that mere fact that a final report of closure was submitted in the case would not make any difference as judicial proceedings might start or might not. It was further held that else, nobody giving information to the police would be safe for he will have to run the risk of being civilly liable for the information.
14. Similarly, reliance on M/s. Crop Care Federation of India supra in turn relying on Webb Vs. Times Publishing Co. Ltd. 1960 (2) Q.B. 535 holding that a communication made bona fide upon any subject matter in which the party communicating has an interest or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter, which without this privilege, would be slanderous and actionable, is misconceived. It is the specific plea in the plaint that the communications of the plaintiffs containing the alleged defamatory statements are not bona fide. Whether they are bona fide or not, cannot be decided at the stage of Order VII Rule 11 of the CPC. The other passage relied on the said judgment, on the aspect of the plaintiff, therein (M/s. Crop Care Federation of India) being not entitled to sue for defamation of its members also is no relevance to the present controversy. The plaint herein expressly pleads defamation of the plaintiff no.1 as well as plaintiff no.2 Hockey India.
15. That brings me to the passage from the book “Parliament – Functions, Practice and Procedures”relied upon by the counsel for the defendant. I fail to see how the same helps the defendant; rather the authors, after noticing different opinion, have concluded that there was considerable uncertainty as to the precise meaning and limits of the terms “proceeding in Parliament”and that Parliamentary privilege of freedom of speech applies only to speech in the House and other proceedings of the House itself but not to reports of proceedings or debates by newspapers or others outside Parliament and that Parliamentary privilege does not protect a Member publishing his own speech apart from the rest of a debate.
16. On the contrary, D.D. Basu‟s Commentary on the Constitution of India, 8th Edition at page 5037 has opined that privilege under Article 105 covers only proceedings in Parliament and would not extend to letters written by a Member of Parliament to a Minister containing allegations against third parties. Jatish Chandra Ghosh supra also is to the effect that the immunity from liability to prosecution extends to only what is said in the walls of the Legislature and that whether in the circumstances of the case the Member of Parliament in that case acted with an innocent intention and without malice or whether the imputations were true and made for public good, were questions of fact which required to be investigated.
17. Dhanayapeta Charitable Trust supra has been relied upon by the senior counsel for the plaintiffs to show that a Trust or a Corporation can file a suit for defamation. Ram Jethmalani supra was cited to show that to succeed in a plea of fair comment, the defendant must establish that statement was a comment and not a fact and the comment had sufficient factual basis and was one which an honest person could hold and/or in public interest. All these are also questions of fact which cannot constitute a ground for rejection of the plaint.