Nature: Civil law deals with disputes between individuals or entities (such as individuals, corporations, or organizations) regarding private rights and remedies. These disputes typically involve issues such as contracts, property rights, family matters, torts (civil wrongs), and breaches of civil obligations.
Parties: In civil cases, the parties involved are typically private individuals or entities, such as plaintiffs (the party initiating the lawsuit) and defendants (the party against whom the lawsuit is brought).
Burden of Proof: In civil law, the burden of proof is usually on the plaintiff, who must prove their case by a preponderance of the evidence. This means that the plaintiff must show that it is more likely than not that the defendant’s actions or omissions caused the harm or injury alleged.
Penalties/Remedies: The objective of civil law is to provide compensation or remedies to the injured party (plaintiff) for the harm or loss suffered due to the defendant’s actions. Remedies in civil cases may include monetary damages, injunctions (court orders to stop certain actions), specific performance (forcing a party to fulfill contractual obligations), or declaratory relief (court determination of the parties’ legal rights).
Examples: Contract disputes, property disputes, divorce and family matters, personal injury claims, defamation, negligence.
Criminal Law:
Nature: Criminal law deals with offenses against the state or society as a whole. It involves actions or conduct that are considered harmful, dangerous, or threatening to public order, safety, or morality. Criminal offenses are prosecuted by the government (state or federal) on behalf of society, and the focus is on punishment and deterrence.
Parties: In criminal cases, the parties involved are the government (prosecution) and the accused (defendant), who is alleged to have committed the criminal offense.
Burden of Proof: In criminal law, the burden of proof is on the prosecution, which must prove the defendant’s guilt beyond a reasonable doubt. This is a higher standard of proof compared to civil law, requiring evidence that convinces the trier of fact (judge or jury) of the defendant’s guilt to a moral certainty.
Penalties: The objective of criminal law is to punish offenders for their wrongful conduct and deter others from committing similar offenses. Penalties in criminal cases may include imprisonment, fines, probation, community service, or other sanctions imposed by the court.
Examples: Murder, theft, assault, robbery, fraud, drug trafficking, burglary.
Key Differences:
Nature of Disputes:
Civil law: Deals with disputes between private parties regarding rights and remedies.
Criminal law: Deals with offenses against the state or society as a whole.
Parties Involved:
Civil law: Involves private individuals or entities as parties.
Criminal law: Involves the government (prosecution) and the accused (defendant) as parties.
Burden of Proof:
Civil law: Preponderance of the evidence (more likely than not).
Criminal law: Beyond a reasonable doubt (higher standard).
Penalties/Remedies:
Civil law: Compensation or remedies for the injured party.
Criminal law: Punishment and deterrence for offenders.
Aspect
Civil Law
Criminal Law
Nature of Disputes
Civil law primarily deals with disputes arising between individuals, organizations, or entities regarding private rights and remedies. These disputes may involve contractual breaches, property disputes, negligence claims, family matters such as divorce or child custody, and torts (civil wrongs).
Criminal law focuses on offenses committed against society as a whole. These offenses are considered harmful, dangerous, or threatening to public order, safety, or morality. Criminal offenses include murder, theft, assault, robbery, fraud, and other violations of criminal statutes.
Parties Involved
In civil law cases, the parties involved are typically private individuals, organizations, or entities. The aggrieved party, known as the plaintiff, initiates the lawsuit against the other party, known as the defendant.
In criminal law cases, the parties involved are the government, represented by the prosecution, and the accused individual or entity, known as the defendant. The government brings charges against the defendant for violating criminal laws.
Initiation of Case
Civil cases are initiated when the aggrieved party (plaintiff) files a lawsuit or petition in a civil court or tribunal. The plaintiff presents their claim and seeks remedies or compensation for the harm or injury suffered.
Criminal cases begin with the registration of a complaint with the police or law enforcement agency. The police conduct an investigation to gather evidence, and if they find sufficient grounds, they file a charge sheet or report with the court, initiating the criminal proceedings.
Objective
The primary objective of civil law is to protect the rights of individuals or organizations and ensure that they receive compensation or remedies for the harm or loss suffered due to the actions of another party. Civil law aims to resolve disputes between parties and provide equitable relief.
Criminal law aims to punish wrongdoers for offenses committed against society, deter others from engaging in similar conduct, and maintain law and order. It seeks to uphold justice, protect public safety, and safeguard societal values.
Initiator
Civil lawsuits are initiated by the aggrieved party (plaintiff), who files a complaint or petition in court outlining the basis of their claim and seeking relief or compensation. The plaintiff bears the burden of proof to establish their case by a preponderance of the evidence.
Criminal cases are initiated by the government (prosecution), which brings charges against the accused individual or entity for violating criminal laws. The prosecution presents evidence to prove the defendant’s guilt beyond a reasonable doubt.
Punishment
In civil law cases, there is no punishment in the form of incarceration or fines imposed on the defendant. Instead, if the plaintiff prevails, the court may order the defendant to compensate the aggrieved party for damages, losses, or injuries suffered. Remedies in civil cases may include monetary damages, injunctions, specific performance, or declaratory relief.
Criminal law imposes punishment on individuals found guilty of committing criminal offenses. The severity of the punishment varies depending on the seriousness of the crime and may include imprisonment, fines, probation, community service, or other sanctions imposed by the court.
Court’s Powers
In civil law cases, the court has the power to adjudicate disputes between parties, interpret contracts or agreements, and issue judgments or injunctions to enforce legal rights or compensate for damages. The court aims to provide equitable relief and resolve conflicts fairly and impartially.
In criminal law cases, the court has the authority to conduct trials, hear evidence presented by the prosecution and defense, and render verdicts based on the law and evidence. The court may impose sentences, including fines, imprisonment, probation, or other sanctions, to punish convicted defendants and uphold the rule of law.
Defendant’s Status
In civil law cases, the defendant is considered either liable or not liable for the alleged harm or injury suffered by the plaintiff. The court determines the defendant’s liability based on the evidence presented and applicable legal principles.
In criminal law cases, the defendant is considered either guilty or not guilty of committing the criminal offense charged by the prosecution. The court presumes the defendant’s innocence until proven guilty beyond a reasonable doubt, and the burden of proof rests with the prosecution to establish the defendant’s guilt.
Resolution of Dispute
Civil law cases aim to resolve disputes between parties and provide compensation or remedies to the aggrieved party for the harm or loss suffered. If the plaintiff prevails, the court may order the defendant to compensate the plaintiff for damages, and the dispute is considered settled.
Criminal law cases aim to resolve criminal offenses committed against society and punish wrongdoers for their actions. If the defendant is found guilty, the court may impose punishment, such as imprisonment or fines, to hold the defendant accountable for their conduct and maintain public order and safety.
Conclusion:
In summary, while both civil and criminal law address legal disputes, they differ in their nature, parties involved, burden of proof, and objectives. Civil law focuses on resolving disputes between private parties and providing compensation or remedies, while criminal law focuses on punishing offenders for offenses against society and maintaining public order and safety.
Defamation laws and media trials play a pivotal role in shaping public opinion and ensuring the right to reputation and fair trial in India. While these mechanisms aim to strike a balance between freedom of speech and the right to reputation, the intersection of these concepts often leads to debates about the role of media in influencing legal proceedings and public perception. This essay explores the defamation laws and media trials in India, examining their implications for the media, individuals, and the justice system.
Defamation Laws in India
Defamation in India is primarily governed by two statutes: the Indian Penal Code (IPC) and the Civil Law. Under the IPC, defamation is a criminal offense punishable with imprisonment and/or fine. Section 499 of the IPC defines defamation as any imputation made with the intention of harming a person’s reputation or with knowledge or reason to believe that it will harm the reputation of the person.
The law recognizes two types of defamation: libel, which refers to defamation through written or published words or images, and slander, which pertains to defamation through spoken words. To constitute defamation, the statement must be false, must harm the reputation of the person, and must be made without lawful justification or excuse.
Civil Defamation:
In the law of torts, defamation refers to the publication of a false statement that harms the reputation of an individual or entity. It is a civil wrong that allows the aggrieved party to seek damages for the harm caused to their reputation. Defamation can occur through spoken words (slander) or written or published words or images (libel).
Definition of Defamation in Tort Law:
Defamation is the act of making a false statement about another person that injures their reputation. To constitute defamation, the statement must be:
False: The statement must be untrue.
Harmful: The statement must harm the reputation of the individual or entity.
Published: The statement must be communicated to a third party, either orally (slander) or in writing (libel).
Unprivileged: The statement must not be privileged, meaning it cannot be protected by an absolute or qualified privilege, such as statements made in court proceedings or legislative debates.
Elements of Defamation:
False Statement: The statement must be false and not merely an opinion or a statement of fact.
Publication: The false statement must be communicated to a third party.
Harm to Reputation: The false statement must harm the reputation of the individual or entity.
Fault: In some jurisdictions, the plaintiff may need to prove that the defendant acted with negligence or malice in making the false statement.
Case Law: R. Rajagopal vs State of Tamil Nadu (1994)
In the landmark case of R. Rajagopal vs State of Tamil Nadu, the Supreme Court of India recognized the right to privacy as a part of the right to life and personal liberty guaranteed under Article 21 of the Constitution. The court held that a person’s reputation is an integral part of their right to privacy, and unauthorized publication of defamatory material can infringe upon this right, entitling the aggrieved party to seek civil remedies.
Defamation can be categorized into civil and criminal defamation under Indian law. Both types of defamation aim to protect an individual’s reputation, but they differ in their nature, procedure, and remedies. Below are the definitions of civil and criminal defamation as per the relevant sections of the Indian law, along with some landmark case laws that have shaped the understanding and interpretation of these provisions.
Criminal Defamation
Criminal defamation is a criminal offense punishable with imprisonment and/or fine. It is considered a public wrong and allows the state to prosecute the accused for harming the reputation of an individual or entity. The burden of proof lies with the prosecution to establish that the accused intended to harm the reputation of the aggrieved party or had knowledge or reason to believe that the imputation would harm their reputation.
Section: The primary provision governing civil defamation in India is Section 499 of the Indian Penal Code (IPC).
Section 499 IPC: “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, 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, is said, except in the cases hereinafter expected, to defame that person.”
Section: The primary provision governing criminal defamation in India is Section 500 of the IPC.
Section 500 IPC: “Punishment for defamation.—Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.”
Case Law: Subramanian Swamy vs Union of India (2016) In this case, the Supreme Court upheld the constitutional validity of criminal defamation under Sections 499 and 500 of the IPC, ruling that the right to reputation is a fundamental right guaranteed under Article 21 of the Constitution. The court held that criminal defamation serves a legitimate aim in protecting an individual’s reputation and deterrence of malicious statements.
Media Trials and Their Impact
Media trials refer to the sensationalized coverage of ongoing legal proceedings by the media, often before a case is concluded in court. While the media plays a crucial role in informing the public and acting as a watchdog, the practice of media trials has raised concerns about its impact on the right to a fair trial, the presumption of innocence, and the integrity of judicial proceedings.
In India, media trials have become increasingly common, particularly in high-profile cases involving celebrities, politicians, and other public figures. The intense media scrutiny and biased reporting can influence public opinion, prejudice potential jurors, and even sway the court’s decision. Moreover, the media’s focus on sensationalism and ratings can distort facts, sensationalize issues, and compromise the privacy and dignity of the individuals involved.
Balancing Freedom of Speech and Right to Reputation
The Indian Constitution guarantees freedom of speech and expression under Article 19(1)(a) but also recognizes reasonable restrictions on this right under Article 19(2). The challenge lies in balancing the right to freedom of speech with the right to reputation and fair trial.
Defamation laws serve as a mechanism to protect an individual’s reputation and deter false and malicious statements. However, the criminalization of defamation has been criticized for being draconian and a deterrent to free speech. Critics argue that civil remedies should be sufficient to redress harm to reputation without resorting to criminal sanctions, which can be misused to suppress dissent and criticism.
On the other hand, media trials, if unchecked, can undermine the judicial process, compromise the integrity of legal proceedings, and violate the principles of natural justice. While the media has the right to report on legal cases, it also has a responsibility to ensure balanced, accurate, and fair reporting that respects the rights of the accused and the principles of justice.
Conclusion
Defamation laws in India, encompassing both civil and criminal dimensions, are essential tools designed to safeguard an individual’s reputation from false and damaging statements. Civil defamation offers a recourse for the aggrieved party to seek redress through monetary compensation, while criminal defamation empowers the state to take punitive action against those found guilty of defaming others.
The dynamic and evolving landscape of defamation laws, coupled with the challenges brought forth by the digital era, highlights the pressing need to strike a delicate balance between the sacrosanct principles of freedom of speech and the equally important right to reputation. As society undergoes continuous transformation and technological advancements reshape the way information is disseminated and consumed, it becomes imperative for the legal framework governing defamation to remain adaptable and responsive. This adaptability ensures that the law not only keeps pace with evolving societal norms and technological changes but also remains relevant, effective, and equitable in its quest to safeguard individual rights. In doing so, the legal system can uphold the principles of justice and fairness, ensuring that neither freedom of speech is unduly curtailed nor the right to reputation is unjustly compromised.
Malice is a term with many meanings. Firstly, it is often used to mean spitefully or with ill will. Like other motives, malice in this sense is invariably irrelevant in the Law of Torts and, therefore, is not essential to the maintenance of an action for tort. Bradford Corporation v. Pickles Mr. Pickles was annoyed at the Bradford Corporation’s refusal to purchase some land from him at the inflated price he demanded. In order to force their hand, he sank a shaft on his land, which interfered with water percolating from higher land belonging to the Corporation.
The corporation unsuccessfully sought an injunction to restrain him from polluting and diminishing their water. The House of Lords rejected the claim, Lord McNaughton remarking that “It is the act, not the motive for the act, that must be regarded. If the act, apart from motive, gives rise merely to damage without legal injury, the motive, however reprehensible it may be, will not supply that element.” In this first sense, malice is occasionally relevant as a necessary element required to establish the defendant’s liability, e.g., to rebut the defense of qualified privilege in libel or slander. Malice has a second meaning. In this legal sense, malice means the intentional commission of an act with an improper motive. This is much wider than the layman’s use of the word malice. Malice is usually used in this sense in the few contexts in which it is relevant in tort.
For instance, malice is defined as any motive other than merely starting a prosecution to bring a person to justice in the tort of malicious prosecution. Sometimes malice is used in it archaic sense to mean simply an intentional performance of a tortuous act. It is in this sense that pleaders in libel and slander actions traditionally allege that the defendant “falsely and maliciously…” In fact, this means merely that the defendant’s publication of the defamatory matter was either intentional or negligent. Malice in this sense would appear to be a confusing and unhelpful use of the word and, hence, should be avoided.
Malice in Fact and Malice in Law
It is of two kinds:’malice in fact’ (or express malice or actual malice) and’malice in law’ (or implied malice).
MALICE IN LAW
In the legal sense, malice means intentional wrongdoing. Any wrongful act done with intentions is known as malice in law. It doesn’t justify any act done with evil or improper motives. Still, it simply explains that “a wrongful act done internationally without justification or excuse .” it is the conduct done intentionally with any cause. We can also call it implied malice.
CASE LAWS
In Melia v. Neate, (1863) 3 F & F at p. 763, Baron Bramwell said that malice in law is a kind of “disinterested malevolence.” The idea of giving injury without just cause or excuse is malice in law
In shearer v. shields, 1914 A.C. 808, at 813,
Viscount Haldane described the law as “an individual who inflicts an injury to another individual in contravention of the law is not allowed to say that he did it with an innocent mind. He must act within the law, or he must have knowledge of the law. He will be guilty of the malice of law; although his state of mind is concerned so far, he acts innocently”.
MALICE IN FACT
In a wider sense, malice, in fact, means any wrongful conduct with an evil motive. When a defendant acts wrongful with the feeling of spite or ill-will, it is said to be done ‘maliciously.’
Motive means the eventual reason for the conduct. Motive is different from intention, which relates to wrongful conduct itself. For example, a person intends to commit theft, but the motive of the theft is to buy food or to help someone.
A wrongful act doesn’t become lawful just because the motive for the act was good. Similarly, a legal act doesn’t become wrongful because of an evil motive.
CASE LAWS
In Bromage v. prosser, 1825 4 B. and C. 247
Bayley, j. called malice, in fact, an ill will against any person, which was later called a vindictive feeling.
In Bradford corporation h. pickles, 1895 AC C. 587
The defendant excavated his own land, resulting in the water flowing in unknown channels from his lands to adjoining lands being discolored. It was done with the defendant’s motive to pressure the plaintiff to purchase the defendant’s land at a high price. In this case, the damage has been done by the defendant, and at the same time, he was making lawful use of land. Thus, it was held that the defendant was not liable.
DOCTRINE OF TRANSFERRED MALICE
The doctrine of transferred malice is not defined anywhere in the Indian Penal Code, but the essentials are given under Section 301 of the Indian Penal Code.
According to Section 301 of the Indian penal code,” if a person does any act which he knows or intends that is likely to cause death, he commits culpable homicide, and by causing the death of any person, whose death he neither intends to nor knows by himself that his act will cause the death of that person.”
Culpable homicide here means that the person had the intention and knowledge to kill someone, but instead, he killed someone else.
For instance, ‘A’ intends to kill ‘B’ but kills ‘D’ instead of ‘B .’Thus, he will be guilty of killing ‘D .’The doctrine of transferred malice is applied here.
EXCEPTION OF THE RULE
In some defamation cases, motive becomes relevant when qualified privilege is pleaded as a defense. This defense is available in the publications made in good faith. The presence of an evil motive negatives good faith, and the defendant can’t avoid his liability. Malice may result in aggravation of damages.
One of the elements that must be demonstrated by the plaintiff in torts of deceit, conspiracy, and malicious prosecution is on the defendant’s part. Causing personal discomfort by unlawful motive may turn a lawful act into a nuisance
CONCLUSION
In simple words, malice is wrongful conduct or wrongdoing done with a bad intention. One can’t save himself from his crime, which includes under section 301 of the Indian penal code. Transferring malice in the Indian penal code has punishments.
Article 300 of the Indian Constitution mentions the concept of state culpability. It stipulates that for the purposes of a lawsuit or legal procedures, the Union of India and the States are juristic persons. Although both the Union of India and the State Governments are capable of being sued and being sued, those situations have not been addressed. We must look back and determine the extent of the liability imposed on the East India Company by the Courts in order to determine whether the state is or is not responsible for a certain act.
Here, the words “administration” and “state” are interchangeable. It is a difficult question to answer whether the government would be held accountable for the wrongdoings of its employees, especially in emerging nations where the scope of state involvement is expanding. The Constitution’s clauses and the public law principles inherited from British common law control the government’s tort liability. Three guiding concepts serve as the foundation for the concept of the State’s vicarious culpability for the wrongs carried out by its agents:
Respondeat superior (let the principal be liable).
Quifacit per alium facit per se (he who acts through another does it himself).
Socialization of Compensation.
Constituents of Vicarious Liability
So the constituents of vicarious liability of state are:
There must be a relationship of a certain kind.
The wrongful act must be related to the relationship in a certain way.
The wrong has been done within the course of employment.
State Liability
The saying “The King can do no wrong” is a part of English common law, and it states that the King is not liable for the wrongs done by his or her subordinates. However, the standing of the ancient Common law maxim in England was revised by the Crown Proceedings Act of 1947. Previously, the King was immune from tort liability for any wrong that it genuinely authorized or that was committed by one of its subordinates while they were working for it.
The Crown is now equally liable for any wrongdoing committed by its employees as a private individual as a result of the Crown Proceedings Act, which was created in reaction to the expanding state’s functions. In a manner similar to this, the Federal Torts Claims Act of 1946 in the United States establishes the guiding principles and effectively resolves the question of State culpability.
In the case of Peninsular and Oriental Steam Navigation Company v. Secretary of State for India, the Supreme Court classified the functions of secretary of state into two –
1. Sovereign functions
2. Non-Sovereign functions
Sovereign Functions: These are the functions of the state for which the state is not liable under any provision for the wrong ful act so fits employees. For example,functions like defence activities, preserving armed forces, maintaining peace and war, diplomacy are some of the sovereign functions for which the state is not liable.
Non Sovereign Functions: These are the functions of the state which are other than the Sovereign Functions.
In Peninsular and oriental steam navigation company v. Secretary of State for India, 1861 5 H.C.R it was held that, the East India Company would not have been responsible for the act if it had been carried out in the execution of a sovereign function; however, if the function had been one that could have been carried out by a private individual without any delegation of authority by the Government, the company would have been responsible.
In state of Rajasthan v. Vidyawati A.I.R 1962 S.C. 933, According to the Supreme Court, the State is no longer a police state; instead, it has evolved into a welfare state and is gradually turning into a fully fledged socialist state. It would be excessive to assert that the state should be immune from the repercussions of tortious acts committed by its employees while they were employed given the scope of the state’s actions, which not only involve the use of sovereign powers but also its powers as employers in numerous public sectors.
However, In Kasturilal v. State of U.P AIR 1965 S.C. 1039, Due to the fact that the government representatives were exercising their sovereign authority, the state was not held accountable. The question to ask is whether the tortious act was committed by a public servant while performing statutory duties that are ultimately based on the delegation of sovereign powers of the state to that public servant. If so, there may be grounds for a claim for damages.If the answer is yes, the claim for damages for the loss brought on by such a tortious act would not be valid.
In Shyamal Baran Saha v. State of West Bengal A.I.R 1998 Cal 203, It has been noted that an action taken by a government employee in the course of exercising statutory authority is defenseable if it may also be described as an action taken “in the exercise of sovereign powers” or in the performance of official duties. The State was deemed accountable in the aforementioned case because the prerequisites for immunity from liability were not met.
In State of M.P v. Shantibai 2005 ACJ 313 (MP), it was held that the police officers have duty of care and do not enjoy sovereign immunity if their act is negligent (open firing), and State was held liable for such act.
Although the decision of the Supreme Court in Kasturilal’s case still holds good, it can be fairly concluded that for practical purpose its force has been considerably reduced by a number of decisions of the Supreme Court. Without expressly referring to Kasturilal or distinguishing or overruling this case, a deviation from this decision has been made. Under the circumstances in which state would have been exempted from liability if Kasturilal had been followed, state has been held liable in respect of loss or damage either to the property or to a person.
Conclusion
Before 1858, there was no legislation regarding the liability of Government for the wrongful acts of its subjects. The decision taken to formulate legislation for this purpose is indeed superior. As our nation is a sovereign,secular and democratic nation,this legislation should be there in order to protect all the above said words. It can be noted that the theory of constitutional tort is a revolutionary jurisprudence established by the courts given the reality that, in the past, the criteria encountered various critiques. A scientific criterion for future cases must evolve at the Apex Court. The U.S.“voting right model”can be introduced to assess the costs of proceedings under Constitutional Tort to prohibit the individual from violating their rights by statute.
The Strict Liability principle is also called as ‘No Fault Liability’. This is contradictory to the general principle of negligence in torts where a person can be held liable for commission of a tort only when the plaintiff can prove negligence on his part and the defendant himself is unable to disprove it. There are situations when a person may be liable for some harm even though he is not negligent in causing the same, or there is no intention to cause the harm, or sometimes he may even have made some positive efforts to avert the same. In other words, sometimes the law recognizes ‘NO FAULT’ liability. In this connection, the rules laid down in the decision of the House of Lords in RYLANDS V. FLETCHER (1868) L R 3 H.L. 330.
Rylands v. Fletcher case , the defendant got a reservoir constructed through independent contractor. There were old unused shafts under the site of the reservoir, which the contractors failed to observe and so did not block them. When the water was filled in the reservoir, it burst through the shafts and flooded the plaintiff’s coal mines on adjoining land. The defendant did not know about the shaft and had not been negligent, but he was held liable. This is also called the No fault’ liability. In the given case, the liability recognized was ‘strict liability’ i.e. even if the defendant was not negligent or did not cause any intentional harm; he could still be liable under the rule Court held defendant liable even though there was no negligence on the part of defendant Justice Blackburn formulated the rule –If any person brings keeps any collects any thing on his land which is not naturally there, if the thing escaped then he shall be liable for the consequences. It may not be even his fault in escape of that thing. He must keep the thing at his own peril.
Essentials:
Dangerous Things
According to this rule, the liability for the escape of thing from one’s land arises only when the thing collected was a dangerous thing. In Rylands v. Fletcher, the thing was large water body (reservoir). The rule is also applied to gas, electricity, vibration, sewage, explosive, etc.
2. Escape
For the rule in Rylands v. Fletcher to apply, it is also essential that the thing causing the damage must escape to the area outside the occupation and control of the defendant. The case of Read v. Lyons and Co, is an example of no escape and hence no liability. In this case, the plaintiff was an employee in the defendant’s ammunition factory, while she was performing her duties inside the defendant’s premises, a shell, which was being manufactured there, exploded and she was injured. There was no evidence of negligence on the part of defendant. It was held that the defendant was not liable because there was no escape of thing outside the defendant’s premises. So, the rule of Rylands v. Fletcher did not apply to this case.
3. Non-natural Use of Land
There should be non-natural usage of land to make the defendant liable. Like in Rylands v. Fletcher case, collecting large body of water is considered to be non-natural use of land. In Sochacki v. Sas, it has been held that having a fire place is natural use of land. Even if there is escape of fire from the fire place and the plaintiff suffers harm, the defendants were not held liable as there was no non-natural use of land
Exceptions to Strict Liability
The strict liability rule does not apply in cases involving the following exceptions:
1) Act of God
An act of God is a sudden, direct and irresistible act of nature that nobody can reasonably prepare for. It can cause damage regardless of how many precautions one may take. For example, tsunamis, tornadoes, earthquakes, extraordinary rainfall, etc. are acts of God. Any damage that occurs due to these acts does not attract strict liability.
2) Wrongful act of a third party
Sometimes, the involvement of third parties may be the cause of damages. For example, renovation work in one flat may cause some nuisance to another flat. Here, the tenant affected by the nuisance cannot sue his landlord. He can only sue the person renovating the other flat.
3) Plaintiff’s own fault
In several instances, the plaintiff may himself be at fault for the damage he suffers. In such cases, he cannot shift liability on some other person regardless of how much he suffers.
4) Common Benefit
Where the source of danger is maintained for the common benefit of both plaintiff and defendant, strict liability in torts would not be applicable. In the case of Box v. Jubb(1879) 4 Ex D 76 where the defendant’s reservoir got overflowed partly due to the plaintiff’s reservoir and partly because of the defendant’s act. It was held defendant can’t be made liable because such reservoirs were installed for the common benefit of both the party.
C) Consent of the claimant
This is basically a defense of ‘Volenti non fit injuria’ where the plaintiff has either explicitly or impliedly consented for the presence of such dangerous thing.
D) Statutory authority
If a particular act is done under authorization of a law or statute, for example, an act done by the government agencies, such an act cannot be made strictly liable. In Green v. Chelsea waterworks co (1894) 70 L.T. 547.,where the defendant’s company was engaged to maintain a continuous water supply under statutory authority, it was held that bursting of such water supplies was without any defendant’s fault and statutory protection would be granted.
Conclusion:
Due of preexisting exceptions that eventually assist the defendant in disassociating themselves from their liability, the concept of strict liability in torts is frequently questioned. But, we need also take into account the fact that this rule is an exception in and of itself. Only when someone is at fault can they be held accountable. Nonetheless, this theory enables us to hold someone accountable even in the absence of blame.
Defamation is the publication of a statement which reflects on a person’s reputation and which tends to lower a person in the estimation of right thinking members of society generally, or, which tends to make him shun or avoid that person (Winfield). This definition is wider than those, which define, defamation to mean the publication of a statement which tends to bring a person into hatred, contempt or ridicule. Imputations of insincerity or insolvency etc., which may arouse only sympathy or pity in the minds of reasonable people, are also covered by the above definition.
A man’s reputation is considered valuable property and every man has a right to protect his reputation. This right is acknowledged as an inherent personal right and is a jus in rem i.e., a right good against all persons in the world. Defamation refers to any oral or written statement made by a person which damages the reputation of another person. As per Black’s Law Dictionary, defamation means “The offence of injuring a person’s character, fame, or reputation by false and malicious statements”. If the statement made is written and is published, then it is “libel”. If the defamatory statement is spoken, then it is a “slander”.
In the case of D.P. Choudhary Vs ManjulataA.I.R 1997 Raj 170 the plaintiff-respondent was a 17-year-old college student. There was a publication in the local news report of daily, Dainik Navjyoti, dated 18/12/77 that she ran away with a boy namely Kamlesh at 11 a.m.after she went out of the house by saying she was having lectures. The news item so published was wrong and was published negligently. She was shocked and was having bad effects on her known one and marriage prospects. It was therefore held that the words so published were defamatory and were actionable per se. she has entitled with an award Rs. 10000/- by way of general damages
Libel
Slander
It is addressed to the eyes.
It is addressed to the ears.
The defamatory statement is made in some permanent and visible form, such as writing, printing, pictures and effigies.
The defamatory statement is made by spoken words or some other transitory form, whether visible or audible, such as gestures, hissing or such other things.
It is an actionable tort as well as a criminal offence.
It is a civil injury only and not a criminal offence except in certain cases.
It is actionable per se (in itself) i.e., without proof of actual damage.
It is actionable only on proof of actual damage.
Essentials:
The statement or words must be: i) False ii) Spoken (slander) or written (libel) iii) Defamatory and iv) Published. i) False: The words used must be false. In fact, truth is a clean justification. It must be shown that the imputation was false and malicious. ii) The words may be spoken as in slander or may be in writing i.e., in a permanent form as in libel. Any writings, publication in a newspapers, sky writing, cinematography film, etc., are covered under libel. The leading case is Youssoupoff V. M.G.M. Pictures. The defendant D, produced a film named “Rasputin, the mad monk”. In that film, one princess “Natasha” had been raped by Rasputin, the mad monk. The princess Irina of Russia, the wife of prince Youssoupoff (plaintiff) claimed compensation on the ground that it was clearly understood that the reference was to prince Irina. The jury awarded 25,000 pounds as compensation and this was confirmed by the Court of
The Statement must be defamatory- Defamation starts with someone making a statement, and any person who makes a defamatory statement can be held liable for defamation. A defamatory statement tends to diminish the good opinion that others hold about the person and it has the tendency to make others look at him with a feeling of hatred, ridicule, fear or dislike. Abusive language may also be defamatory, for example, to call a man hypocrite or a habitual drunkard. A few illustrations to understand what is defamatory and what is not. To say a motorist drives negligently is defamatory. To criticize goods is not defamation. To say that a baker’s bread is always unwholesome is defamatory. To state that a person has not that degree of skill which he holds himself as possessing is defamatory.
The intention of the wrongdoer- The person making the defamatory statement knows that there are high chances of other people believing the statement to be true and it will result in causing injury to the reputation of the person defamed.
The Statement should be false- A defamatory statement should be false because the truth is a defence to defamation. If the statement made is true then there is no defamation as the falsity of the statement is an essential ingredient of defamation. The law does not punish anyone for speaking the truth, even if it is ugly.
The Statement should not be privileged- In some cases, the statements may be privileged i.e. the person who has made the statement is protected from such liability.
The Statement must be published- For defamation to occur, the statement should be published. The statement should be communicated to a third party. Any statement written in a personal diary or sent as a personal message does not amount to defamation, but if the sender knows that it is likely that a third person may read it, then it amounts to defamation. In Mahendra Ram v. Hartnandan Prasad, A.I.R 1958 Pat 445. The defendant was held liable because he had sent a defamatory letter written in Urdu despite knowing the fact that the plaintiff could not read Urdu and ultimately the letter will be read by someone else.
The third party believes the defamatory matter to be true- The other people of the society believe that the defamatory matter said about the plaintiff is true.
The Statement must cause injury- The statement made should harm or injure the plaintiff in some way. For example, the plaintiff lost his job because of the statement made.
Publication
words must be published: publication is an essential requirement. Whether a statement tends to lower a person’s reputation is decided by the standard of a reasonable man. Publication means publishing a particular item of news or information to a person, other than the person to whom it is addressed.
If A writes to B, defaming B and sends the letter by registered post, there is no publication and therefore A is not liable.
If A writes a post-card defaming B, and sends by post, there is publication if an inquisitive postman reads and publishes. A is liable in such a case. (Robinson V. Jones)
If A dictates to his steno defaming B and if the steno publishes it, there is publication.
In Huth V. Huth, A sent a defamatory letter in an unsealed cover to B. B’s butler, without authority opened and read it, held, that there was no publication as B had no authority to see.
Repetition of defamatory words
Generally, the person who first makes a defamatory statement is not liable if the statement is republished by another person even though he expressly states that he is reproducing what he has heard from some source. However, no person has the right to repeat a slanderous statement without any justification. If a person who is aware that a defamatory statement is false and still repeats or communicates it further, then he can also be held liable for defamation.
Defamation by omission
There may be publication by omission. Failure by a defendant authorized and able to remove defamatory matter which is the work of another is publication by him. For example, if someone puts up a defamatory letter on the notice board of a club and the person in charge has not removed it within a reasonable time, then he will be accountable.
Measures of Damages In Defamatory Publication
The Court must take the following things into consideration while deciding the question of compensation in a defamatory publication:
The conduct of the plaintiff.
His position and standing in society.
The nature of libel.
The absence or refusal of any retraction or apology of libel.
The whole conduct of the defendant from the date of publication of libel to the date of the decree.
In Gorantla Venkatashwarlu V. B.Demudu the respondent was a bank officer and was sent on deputation to work as the Managing Director of Co-operative society. The appellant, the President of Society sent a complaint to the Bank alleging that the respondent had illicit connections with ladies which affected the image of the society during his tenure as the Managing Director. The respondent sent a reply denying the allegations made against him. The branch manager of the bank conducted an inquiry and found out that the allegations were false and were made only with a view to see that the respondent is not deputed to inspect the affairs of the society. The respondent filed a suit of defamation claiming damages of Rs. 20,000. The court held that the allegations were per se defamatory and the appellant was liable to pay damages. However, the court considered the fact that the allegations were made known only to staff and the Bank and there was no wide publicity, so the appellant was liable to pay Rs. 5000 as damages.
Certain exceptions to Defamation are:
1. The published statement was true,
2. Non-discriminatory ideas made in the public interest in terms of real events,
3. Certain persons have been given the right to make statements even if they are defamatory, for example, judicial and Member of Parliament.
Defamation VS. Freedom of Speech
The question that arises is whether liability arising out of defamation is a violation of the right to freedom of speech and expression. As we know that there is no specific fundamental right to privacy, the judicial interpretation includes it as a dimension of the right to life and liberty guaranteed under Article 21 of the Constitution. So the right to reputation also comes in the ambit of Article 21.
In the case of Subramanian Swamy V. Union of India,(2016) 7 SCC 221 a petition regarding the decriminalization of defamation was filed. The petition challenged the constitutional validity of Section 499 and 500 of the Indian Penal Code, 1860 is an unreasonable restriction on the freedom of speech and expression. The apex court held that criminal defamation under Section 499 and 500 did not violate Art. 19(1)(a) as it is a reasonable restriction under Art. 19(2). The term ‘defamation’ in Art. 19(2) includes both civil and criminal defamation. Section 499 and 500 IPC was held to be non-discriminatory and non-arbitrary and not violative of the right to equality guaranteed under Art. 14 of the Constitution. While in a democracy an individual has a right to criticize and dissent, but his right under Art. 19(1)(a) is not absolute and he cannot defame another person as that would offend the victim’s fundamental right to reputation which is an integral part of Art. 21 of the Constitution.In shereya Singhal V. Union of India, the petitioners challenged the validity of Section 66A of the Information Technology Act (ITA) contending that it was not a reasonable restriction on the freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution. They argued that the impugned section was unconstitutional because it provided protection against annoyance, inconvenience, insult, injury, or criminal intimidation which is not covered in Art. 19(2). The court found section 66A of (ITA) to be vague and invalidated it on the ground of being violative of the right to freedom of speech and expression.
Defenses available against Defamation
Justification:Truth or justification is a very good and complete defense. Defamation is the injury to a man’s reputation and if there is truth in the statement, then there is no defamation. The person is not lowered, but is placed to his proper level. The substance of the statement must be true, not merely a part of it. “How, a lawyer treats his clients” was an article which dealt with how a particular lawyer was treating his client. Held the article was in-sufficient to justify the heading. (Bishop V. Lautiar) ii) Fair Comment: The comment must be on a matter of public interest. Honest criticism is essential for the efficient working of democratic public institutions. The Government and its institutions may be criticized.
The main principles relating to the defence of fair comment have been stated by Duncan and Neill as follows:
The matter commented must be of public interest. The Government and its various wings and establishments and public institutions may be criticized. Novelists, Dramatists, Musicians, Actors, etc., may be criticized.
Fair comment must be an expression of an opinion and not an assertion of facts. Plaintiff was advertising in papers as a specialist in E.N.T the defendant commented on him as “a quack of the rankest species”. Held: that it was a comment, the Court always looks to the merit of the comments.
The comment must be fair: Mere violence in criticism by itself will not make the statements unfair.
Comment must be malicious. Even fictitious name may be used. That by itself will not render the statement unfair.
The same approach is followed in India. Any matter or subject which attracts public attention and is a matter of public interest. For example, A puts allegations on B of being corrupt in a newspaper. If A is not able to prove that the allegations were true, then his comment will not be considered fair comment.
Fair comment and justification distinguished
The plea of fair comment is available only in respect of both facts and opinion, it is not necessary to prove the truth of the comment. When justification is pleaded in respect of matters of opinion, the defendant must prove not only that he honestly held the views expressed but also that they were accurate.
Privileges:
Privileges are of two Kinds: absolute and qualified.
Meaning of privileges: They are occasions on which there ought to be no liability for defamation. This is because the public interest outweighs the plaintiff’s right to his reputation. Privileges are absolute when the communication is of paramount importance. Such occasions are protected, however malicious or outrageous they may be. The defendant may make statements even if they are false.
Examples for absolute privileges: • Statements made in Parliament or Legislature. • Reports, papers, etc., of either House of Legislature. • Judicial proceedings. • Communications between solicitor (advocate) and his client. • Communication between one officer and a foreign officer. Statements are qualified when the person makes the statement honestly even though they are false
Fair and accurate reports of Parliamentary debates, and proceedings.
Fair and accurate reports published in newspapers. Similarly broadcasting.
Statement made in pursuance of duties. A reports to B. about the conduct of C. If it is A’s duty to report and if he is to protect the interest of B, he may make c statements about C.
Where A and B are having a common interest to be protected. Statements made about the plaintiff P between A and B themselves are protected.
Statements made in self-protection and self-defense to procure redress of public grievances is protected.
Absolute Privilege
It gives the person an absolute right to make the statement even if it is defamatory, the person is immune from liability arising out of defamation lawsuit. Generally, absolute privilege exempts defamatory statements made:
during judicial proceedings,
by government officials,
by legislators during debates in the parliament,
during political speeches in the parliamentary proceedings and,
communication between spouses.
Parliamentary privilege in the Indian Constitution
Article 105 and 194 of the Indian constitution gives certain rights, immunity to the members of the Houses of Parliament. The members of the Parliament have been vested with the freedom of speech. This freedom is different from the freedom of speech and expression guaranteed under Art. 19(1)(a), as the freedom in Art. 105 and 194 are specifically for the members of the Parliament and is subject to rules and orders which regulate the parliamentary proceedings. Art. 19(1)(a) does not protect an individual absolutely for what he says and is subject to reasonable restrictions under Art. 19(2). The term freedom of speech in Art. 105 states that a member of Parliament shall not be liable to any proceedings, civil and criminal, in any court for the statements made in debates in the Parliament. The second clause of Art. 105 confers immunity, inter alia, in respect of anything said in Parliament the word anything is of the widest import and is equivalent to everything. The only limitation is that the words must be spoken during the sitting of the Parliament. This freedom is given even to non-members like the Attorney General of India so that every member can participate freely in the debates and discussions without any fear. In P.V. Narsimha Rao v. State (JMM Bribery Case)(CBI/SPE) (1998) 4 SCC 626 , the apex court held that the privilege in Art. 105(2) which gives immunity from court proceedings extends even to taking of bribes by the members of Parliament for the purpose of voting in a particular manner in Parliament.
2. Qualified Privilege
When a person making the statement has a legal, social or moral duty to make it and the listener has an interest in it, then the defence of qualified privilege is allowed. Following are the instances where this defence can be availed of:
Reference for a job applicant,
Answering the police inquiries,
A fair criticism of a published book or film in a review,
communication between parents and teachers,
communication between employers and employees,
communication between traders and credit agencies are all relationships that are protected by qualified privilege.
These privileged communications must relate to the business at hand, even if what was said was untrue. However, this does not give a licence to say false statements, the person making the statement must believe it to be true. This defence can fail if it is proved that the defamatory statement was made with a malicious intention. Discussions on government and political matters which are subjects for public debates are covered under this defence. For example, a teacher tells the parents about the child’s habit of stealing and warns them. In this case, the teacher can take the defence of qualified privilege as he made the statement in good faith and in the interest of the child.
Statement of Opinion
If the statement made is an opinion and not a statement of fact, then it cannot be defamatory. For example, if a person says that he finds an actor ugly, the statement is just an opinion. However, if he says that the actor is a drug addict or has had multiple affairs, then it will be a defamatory statement. If this statement results into the actor losing work or his job and the statement made are false, then there will be a case for defamation.
Consent
If the plaintiff consents to the statement made, then there is no defamation. The consent of the plaintiff gives absolute privilege to the publisher, it is immaterial whether the plaintiff knew that the information approved for publication was defamatory or not. Consent may be given by words or actions, including inaction. If the consent is obtained fraudulently or from a person of unsound mind then it will be invalid.
Censure passed in good faith by the person having lawful authority
It is not defamation of a person having over another authority either conferred by law or arising out of the lawful contract made with another to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. For instance, a judge censuring the conduct of a witness or a banker censuring the cashier of his bank or, an engineer submits a report to the municipality that the contractor had taken away the stock of metal. If the engineer has made the report in good faith, then he will not be liable for defamation.
The accusation made in good faith to the authorized person
An accusation made in good faith against a person who has lawful authority over that person is not defamation. It is not necessary for the person making allegations to prove that his allegations were true but he must prove that there were reasonable grounds for him to believe in the allegation. If a person signs a petition to the chairman of Lucknow Development Authority against defective construction of houses, along with several other residents of the locality, he can say to have acted in good faith.
Difference Between Civil Defamation And Criminal Defamation
Sr. No.
Defamation as a Tort
Defamation as a crime
1.
It is a civil wrong.
It is a criminal offence, which is bailable, non-cognizable and compoundable.
2.
It is based on tort law- an area of law which has no statutes to define wrongs and relies completely on case laws to define wrongs.
It has been defined as an offence under Section 499 and the punishment for the same is given in Section 500 of the Indian Penal Code, 1860.
3.
It provides redressal to the plaintiff by awarding damages in the form of monetary compensation from the accused.
It seeks to punish the offender and send a message to the society not to commit such an offence.
4.
Damages are awarded on the basis of probabilities.
The offence of defamation has to be established beyond a reasonable doubt.
5.
It is generally a slow process to seek relief in India.
The plaintiff can move to criminal court and ask the offender to take cognizance of his complaint.
6.
A person found guilty can be penalized only by making him pay damages.
A person found guilty can be punished with imprisonment up to two years or fine or with both.
Generally, defamation requires that the false statements be communicated without the consent of the allegedly defamed person. Words or pictures are interpreted according to common usage and in the context of publication. Injury only to feelings is not defamation; there must be loss of reputation. The defamed person need not be named but must be ascertainable. A class of persons is considered defamed only if the statements refer to all members of the class—particularly if the class is very small—or if particular members are specially imputed. The ambit of freedom of speech and expression is “sacrosanct” but is not “absolute”. It also said that the right to life under Art. 21 includes the right to reputation of a person and it cannot be violated at the cost of the freedom of speech of another.
Defamation is punishable under criminal law as well as civil law. But, to be criminally punishable, it must be such that it would provoke a breach of the peace or in some other way directly prejudice the public interest
Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.
In common law, assault is a tort, an act of the defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant. When the defendant creates his act by an apprehension in the mind of the plaintiff that he is going to commit battery against the plaintiff, the wrong of assault is completed. The wrong consists of an attempt to do harm rather than the harm being caused thereby. Assault charges must include conduct that is offensive which is offensive or causes another person to the fear of their safety. This clearly means that one can be guilty of assault even if he/she did not physically harm the victim. In the case of R.V.S George, the pointing of a loaded gun to another is an assault. If the pistol is not loaded, then even it may be an assault, if pointed at such a distance that it may cause injury. if a person advances the manner of threatening to use force , then there is assault. This was decided in the case of Stephens V. Myers.
Elements of Assault
If one or more elements have not been satisfied then It can be a defense to an assault charge. Elements of the crime of assault are:
An act or conduct intended to create: To prove a criminal attack, the defendants’ behavior must be motivated to create a situation of fear or danger in the victim’s mind. Accident acts do not include allegations of assault.
A reasonable apprehension: Further, the victim must reasonably believe that the defendant’s conduct will harm or humiliate him. The victim must understand the defendant’s potentially harmful or offensive acts.
Of imminent harm: The victim’s fear must be a direct response to a threat that is imminent. Future threats, such as “I will beat you tomorrow”, will not result in assault charges. In addition, there must be some kind of perceived physical threat to the victim in the loss; For this reason, words by themselves generally do not constitute an attack.
It is believed that the defendant’s actions would cause physical danger or abusive behaviour to the victim. Thus, the pretence of kicking or punching the victim may be an attack, as will attempt to spit on the victim (aggressive behaviour).
All of the above elements must be present and the evidence must be supported with evidence if found guilty for the attack.
It can be difficult to prove whether the defendant actually intended the attack. Similarly, judges often spend a lot of time determining whether a defendant’s actions are considered harmful or abusive. In determining this, they will consider what an average person may perceive as harmful or aggressive.
Distinction between Assault and Battery
S.no
Assault
Battery
1.
Meaning
Assault is defined as the attempt to commit a battery.
Battery is defined as the intentional use of force against the other person without a justifiable cause.
2.
Crucial Consideration
The threat of violence is sufficient to constitute an assault. Physical contact is not required.
There must be physical contact.
3.
Principle
Construct a reasonable fear in the victim’s mind that instant force & threat will be used.
The same should apply in the absence of any legal justification.
4.
Objective
To make a threat against someone.
To harm someone.
5.
Nature
Not always physically
Physical effort is required
Difference between Criminal and Civil Assault
Civil assault
Criminal assault
Meaning
In civil assault, to sue the respondent for the full extent of his loss, including lost earnings and pain and suffering of the past and future.
If the respondent is convicted, he may be imprisoned, and may also have to pay a fine and reinstatement. But the fine would be paid to the government, and restitution would most likely cover only the medical bills, not your non-economic losses such as pain and suffering stemming from the incident.
Procedure
Punishment
In civil assault case, a District Attorney is not involved. The matter is brought by the plaintiff. The plaintiff has more control in the case of civil assault.
A win for the District Attorney, results in jail term, a fine, or both.
After an attack, the victim should report to the police. The police will then make an arrest, take action on the alleged attacker and refer the case to the District Attorney.
When the plaintiff wins, the defendant will not go to jail, but will have to pay financial compensation.
Defenses
As with other types of criminal charges, there may be some defenses to assault charges. This will depend on each individual case, as well as other factors such as state law. Faults commonly charged with assault charges include:
Self-defense: This could be a defense if the defendant was acting out of self-defense. They should only use the amount or display of force that is appropriate in the situation and in proportion to the force being used against them.
Intoxication: In some cases, intoxication can be a legal defense, especially in cases where intoxication affects a person’s ability to act intentionally.
Coercion: This may be a defense if the defendant was forced to attack under threat of harm (for example, if they are being held at gunpoint and for assault at the behest of someone).
Lack of proof / proof: As stated above, if the elements of proof are not found or supported with the correct evidence, it can serve as a legal defense. Many other types of avoidance may exist depending on the circumstances
Tuberville v Savage – the defendant during an argument put his hand on his sword and said “if it were not assize time I would not take such language from you”.It was held that the defendant committed no assault because his words negated the threat of his conduct.
R v St George – it was held that to point an unloaded gun at another could constitute assault if the person was not aware that the gun was unloaded however if the person was aware that the gun was unloaded there is no assault
conclusion:
Assault and Battery are two forms of Trespass to person. Battery is the intentional application of force to another person. Assault is an action of the defendant which application of force to another person. Assault is an action of the defendant which by the defendant. (Winfield) . The word force has a defined scope in the context of assault and battery ; infliction of light, heat, electricity, gas, odour and similar things which may be applied to such a degree as to cause injury or personal discomfort, amounts to force as required in battery. As Chief justice Holt, rightly said the least touching of another in anger is battery (Cole V. Turner). Hence spitting a man on his face is assault, but, if any drops fall on him, it is battery.
The term damage in legal parlance refers to the loss or any form of injury or disadvantage caused to a particular individual through natural means, and accident or intentional actions with motives can be termed as damage.
Damages might be associated with other terms that are used in legal parlances like compensation or indemnity. Damages can be awarded to people in cases of loss suffered to property, medical malpractice, the loss suffered in income or any other legal violation. An essential feature of damages is tangibility, but even this feature might differ from case to case depending on the nature of the damage sustained.
the basic difference between the two terms compensation & damage depends on the facts of the case, compensation is always fixed on basic principles under Sec. 73 of the Indian Contract Act, 1872 and damages are ascertained based on varying circumstances unique to the instance prevalent in a particular case.
Damage
The loss caused by one person to another or to his property, either with the design of injuring him, with negligence and carelessness, or by inevitable accident.
The loss which some one has sustained, and the gain which he has failed to make. e.g., by tempest, earthquake, or other natural cause, the loss must be borne by the owner.stances unique to the instance prevalent in a particular case.
Damages
Financial compensation is awarded to someone who suffered an injury or was harmed by someone else’s wrongful act.
The indemnity is given by law and is to be recovered from a wrongdoer by the person who has sustained an injury, either in his person, property, or relative rights, in consequence of the acts of another.
Damages are given either for breaches of contracts or for tortious acts.
Damages for breach of contract may be given, for example, for the non-performance of a written or verbal agreement, or of a covenant to do or not to do a particular thing.
As to the measure of damages, the general rule is that the delinquent shall answer for all the injury which results from the immediate and direct breach of his agreement, but not from secondary and remote consequences.
Damages for tortious acts are given for acts against the person, such as an assault and battery against the reputation, e.g., libels and slander; against the property, e.g., trespass, when force is used; for the consequential acts of the tort-feasor, e.g., when a man, in consequence of building a dam on his own premises, overflows his neighbor’s land; against the relative rights of the party injured, e.g., for criminal conversation with his wife.
Damages for torts are either compensatory or vindictive.:
Law grants damages by way of restitution or compensation and not by way of punishment.
Damages are awarded in terms of money.
The injured party can claim damages through a court of law.
Damage is not punishment but compensation for legal injury.
Awarding damages is the common law remedy.
Damages include compensation & other losses. Sometimes interest also.
The object of damages for breach of contract is to put the injured party in the same financial position. This is also called the doctrine of restitution.
Kinds of damages
1) General or substantial or ordinary.
2 ) Specific or particular damages
3 ) Vindictive or exemplary. Or punitive
4) nominal damages.
General damages are those which arise naturally in the ordinary course of events from the breach of contract.
These damages constitute the direct loss suffered by the injured party.
These are paid for the proximate cause of breach of contract.
Rule Of Hadley vs Baxendale evaluate.
It is recoverable from the promisor.
Specific or particular damages
Damages that arise from unusual circumstances known to both the parties to the contract are called special damages. Parties responsible for the special losses they made were known to the other party at the time of the making of the contract.
Vindictive or exemplary. Or punitive
Punitive damages areawarded the intention of punishing the default action party for not doing the same in the future. These are quite heavy in amount. These are not ordinarily awarded for breach of contract.
Ex: breach of promise to marry
dishonor of cheque.
Nominal damages or contemptuous damages
These are quite small in amount
These are neither compensatory nor punitive
The measure of damages (principles regarding damages )
The nature & extent of the injury.
Whether the liability of the defendant is vicarious or not
date of calculation
Cost of decree
The relationship between the plaintiff and the defendant
Actual loss date of calculation
Loss arising in the usual course of things
Same financial position
Duty to mitigate the loss
Damage agreed upon in advance in case of breach
Mental Pain & suffering
Default in the payment of money
Difficulty in the calculation.
Types of damages
1 ) Liquidated damages
2) Unliquidated damages
Liquidated damages ;(The sum is fixed in advance and written into the contract.)
Section 74 deals with liquidated damages, relating to stipulated damages. Thus, there has to be a breach of the contract In order for the plaintiff to claim damages. In cases where there may be a reasonable revocation of the contract without any breach of the terms of the contract, the claim for damages should not arise as there is no breach per se.
Liquidated damages, also referred to as liquidated and ascertained damages (LADs), are damages whose amount the parties designate during the formation of a Contract for the injured party to collect as compensation upon a specific breach (e.g. late performance). This is most applicable where the damages are intangible, such as a failure by the contractor on a public project to fulfill minority business subcontracting quotas.
The purpose of a liquidated damages clause is to increase certainty and avoid the legal costs of determining actual damages later if the contract is breached. Thus, they are most appropriate when (a) the parties can agree in advance on reasonable compensation for breach, but (b) the court would have a difficult time determining fair compensation at the time of the breach. Under the common law, liquidated damages may not be set so high that they are penalty clauses rather than fair compensation. Courts have no power to reduce or enhance the amount. these damages are t obe granted in full, irrespective of the extent of the loss.
Unliquidated damages
Unliquidated damages are damages that are payable for a breach of contract, the exact amount of which has not been pre-agreed
Section 73 deals with actual damages resulting from infringement of the contract and the injury arising from such infringement which is in the nature of unliquidated damages since such damages are granted by the courts on the basis of an evaluation of the loss or injury caused to the party against which the infringement occurred.
In order to award unliquidated damages to the plaintiff, the court opts for a compensatory approach:
Recover the loss incurred by the complainant
Return the complainant to the position he had before the breach
Minimize penalizing the respondent
Avoid enhancing the complainant’s position over and above where it would have been if the breach did not take place
The money value of damage that has not been determined in the contract , it is paid in case of contract.
The court decides the quantum of damages & compensation.
The damages, which can be fixed after the tortious liability arose, are called unliquidated damages.
