Legal Reasoning

(1-5) Defamation, which works contrary to the popular rhyme, “Sticks and stones will break
my bones, but words will never hurt me”, was derived from the Latin term ‘Diffamare’ which
means ‘spreading evil report about someone’. The offence of defamation involves causing
damage to the reputation of the other. Justice Cave therefore very rightly defined defamation
as a “false statement about a man to his discredit.”

“A defamatory statement is one which has a tendency to injure the reputation of the person to
whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking
members of the society generally and in particular to cause him to be regarded with feelings
of hatred, contempt, ridicule, fear, dislike or disesteem. The statement is judged by the
standard of an ordinary, right thinking member of the society.”1

The right to reputation, which is recognized as a dimension of the right to privacy,

fundamental right under Article 21 of the Constitution of India, is what is protected by the
law of defamation. Reputation is how a person is perceived by others, i.e., the opinion of the
community against a person. The Supreme Court in a landmark judgment held that an
individual has a right to protect his reputation from being unfairly harmed and such
protection of reputation needs to exist not only against falsehood but also certain truths.
Intention to cause harm to reputation of a person is sine qua non of the offense of
defamation.2

“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. 3” Therefore,
the essential elements which constitute defamation are -

1. Publication of words, spoken or written or signs or any visual representation;

2. With the intention or belief that such imputation would lower the estimation of such a
person.

3. Such defamation is done before the right-thinking members of the society. Publication
which is the primary sense of communication becomes one of the most important factors in
1
Salmond and Heuston on the Law of Torts, 20th edition.
2
http://lawtimesjournal.in/the-law-of-defamation-in-india/
3
Section 499 of the Indian Penal Code, 1860.
suit for defamation. It is publication through which the third party gets to hear or come to
know about the alleged defamatory imputations. Such a publication could be done in 2 ways.

a. Libel – This is words written

b. Slander – This is words spoken, thus temporary in nature.4

1) Nikhil tells Prateek, who manages Nikhil’s kirana shop that – “Sell nothing to Rishabh
unless he pays you ready money, for I have no opinion of his honesty”. When Rishabh comes
to buy ration from the shop, Nikhil refuses to sell him ration and tells him about the warning
given by Prateek. Outraged by this, Rishabh files a suit for defamation against Prateek. Will
Rishabh succeed?

(a) Rishabh will succeed as Prateek made a defamatory statement against him and conveyed
the same to Nikhil.

(b) Rishabh will succeed as Prateek deliberately degraded Rishabh’s reputation in front of
Nikhil and therefore should be charged under IPC.

(c) Rishabh will not succeed as Prateek made certain imputations in good faith to save
himself from any further losses.

(d) Rishabh will not succeed as there was no publication of the defamatory statement.

2. Mr. Chawla a sitting judge of sessions court, while rejecting the bail application of Riya
who is involved in a case of contractual fraud, called her a woman of bad character and made
remarks about her being physically involved with men without marriage. Riya filed a case
against Mr. Chawla for defaming her. Decide.

(a) Riya will succeed as remarks made by Mr. Chawla were uncalled for and are defamatory
in nature.

(b) Riya will succeed as remarks made by Mr. Chawla harmed her reputation in the eyes of
right-thinking people of society.

(c) Riya will not succeed as she is an accused in an unlawful act and Mr. Chawla said what is
true in reality.

(d) Both (a) and (b)

4
http://lawtimesjournal.in/the-law-of-defamation-in-india/
3. The Hindu, a renewed Newspaper, initiated an ad campaign where it exhibited how
irrelevant information is provided by other newspapers. Seeing the ad, people started creating
mockery of Indian Newspaper, rival newspaper of The Hindu, believing that ad by The Hindu
was meant against Indian Express. It was found the ad was created by Mr. Dsouza, editor of
The Hindu. In the meantime, TOI, another newspaper, also objected to the ad stating that
along with Indian Express, it was also referred in the ad which was clear from the usage of
the word "Indian". Against this, Indian Express also initiated an ad campaign thereby
mentioning how The Hindu is maligning it by providing unauthentic information. This led to
the reputation loss of The Standard.

Meanwhile, Mr. Dsouza delivered a speech expressing how several newspapers are providing
wrong and irrelevant information, and that one should refer The Hindu only. Indian Express
filed a defamation suit against The Hindu for the ad campaign. Will Indian Express succeed
in its claim?

(a) Indian Express will succeed since the ad campaign by The Hindu was understood to be
against Indian Express by reasonable men.

(b) Indian Express will not succeed since ad campaign was not against it.

(c) Indian Express will not succeed since the ad campaign was not untruthful and false in
nature.

(d) Indian Express will succeed since ad campaign caused reputation loss to it.

4. In the above question, TOI also filed a defamation suit against The Hindu for the ad
campaign since word "Indian" was mentioned in it. Will TOI succeed in its claim?

(a) TOI will not succeed since there was nothing in the ad which was against TOI
unambiguously.

(b)TOI will succeed since the usage of word "Indian" made it clear that ad campaign was
directed towards it.

(c) TOI will succeed since the ad campaign was meant to damage the reputation of both
Indian Express and TOI.

(d) TOI will succeed since ad campaign did not have any proof for alleging that other
newspapers provide irrelevant information.
5. The Hindu filed a defamation suit against Indian Express for mentioning that The Hindu
had been maligning it. Will the Hindu succeed in its claim?

(a) Yes, The Hindu will succeed since ad campaign of Indian Express was truthful and
justified.

(b) Yes, The Hindu will succeed since ad campaign by Indian Express was meant against The
Hindu.

(c) No, The Hindu will not succeed since ad campaign only represented information which
was true.

(d) No, The Hindu will not succeed since by ad campaign Indian Express was merely
exercising freedom of speech.

Passage (Q.5 Q.10): Indian hospitals have been held liable for their services- rather lack of
services individually or vicariously. They can be sued for negligence either in Criminal
Courts, Civil Courts or Consumer Forums. The Supreme Court has held that every doctor
“has a duty to act with a reasonable degree of care and skill” in the case of State of Haryana
v. Smt. Santra.5The liability of a medical practitioner does not merely arise when the patient
has suffered an injury; it arises when the injury is a direct consequence of the conduct of the
doctor when he failed to exercise reasonable care. In other words, a doctor is not liable for
every injury suffered by the patient. First, existence of a duty of care by the doctor towards
the patient has to be established and then the patient must prove breach of such a duty. In
case there was no breach or the injury was not a direct consequence of the breach, the doctor
will not be liable. It was held in Calcutta Medical Research Institute v. Bimalesh
Chatterjee6 that the onus of proving negligence and the resultant deficiency in service was
clearly on the complainant. The liability of a hospital in cases of medical negligence could be
direct or vicarious. Direct liability in this sense would mean a deficiency in the services
provided by the hospital thus making it unsafe and not suitable for treatment. Vicarious
liability, on the other hand, would refer to the liability of the hospital as an employer for the
negligent acts of its employees.

The employer is responsible not only for his acts and omissions but also for those of his
employees, as long as such acts occur within the course and scope of employment. This
liability is based upon the maxims “respondent superior” which means “let the master
5
State of Haryana & 2 ors v. Smt. Santra 1 (2019) CPJ 211 (NC).
6
Calcutta Medical Research Institute vs Bimalesh Chatterjee I (1999) CPJ 13 (NC)(India)
answer” and “qui facit per alium facit per se” which means “He who acts through another
does the act himself.” An exception to the above principle is seen in the “borrowed servant
doctrine” according to which the employer shall not be liable for acts of an employee when
that employee is working under the direct supervision of another employer.

5. Professor and Nairobi conceived a baby through IVF. In her 26th week of pregnancy,
Nairobi developed gestational diabetes. She was prescribed with metformin. After 39 weeks,
Nairobi went into tough labour and gave a birth to baby boy. The baby was born with
permanent physical disability and had to be resuscitated. It was later found that the disability
is a side effect of metformin (a drug that should not be consumed by pregnant women).
Professor and Nairobi decided to sue the doctor. Decide.

(a) The doctor will be held liable as this is a clear case of negligence. It was the duty of the
doctor to inform about the side effects of the drug.

(b) The breach of duty of care by doctor while prescribing a wrong medicine makes him
accountable for medical negligence.

(c) The hospital, along with doctor will be liable for medical negligence.

(d) The couple will not be able to proceed as it was their duty to consult an endocrinologist
for diabetes as it cannot be expected for a gynaecologist to prescribe correct medicine for
diabetes.

6. Mr. Batra after getting his heart surgery done from KEM Hospital, alleged that he was
treated badly by the staff of the hospital during his stay at the hospital. He also alleged that
Dr. Mahesh did not possess the required skills for conducting a surgery and when the first
procedure failed, to rectify his mistake he performed a corrective surgery. Hospital and Dr.
Mahesh denied all the allegations against them. As per the given passage, with whom does
the onus of proof lies?

(a) The onus of proof lies with defendant. Therefore, in the present case the doctor and the
hospital management should prove their innocence.

(b) The onus of proof lies with the accused. Therefore, in the present case Mr Batra should
prove negligence.

(c) The onus of proof lies with the plaintiff. Therefore, it’s the duty of Mr. Batra to provide
evidence.
(d) The onus of proof lies with the deponent. Therefore, it will be the duty of the Hospital and
Dr. Mahesh to provide evidence.

7. When Mrs. Roy went for her spinal cord surgery, Dr. James failed to convey her the risk
involved in the procedure nor did he discuss the outcomes of failure of the surgery. After the
surgery, Mrs Roy was left disabled with her lower part of the body. Mrs. Roy wishes to take
your advice. Kindly advise her.

(a) Mrs. Roy will succeed against Dr. James as he lacked possession of required set of skills
for a surgeon.

(b) Mrs. Roy will not succeed as she never asked the doctor about the possible ill outcomes of
the surgery.

(c) Mrs. Roy will succeed as Dr. James owed a duty of care towards his patients to keep them
well informed and he breached his duty of care resulting in negligence.

(d) Mrs. Roy will not succeed as every surgery has a possibility of failed outcome and this
should not be regarded as a breach of duty at the hands of the doctor.

8. Dr Udit and Dr Mihir are the resident doctors at DAIIMS, Delhi. Both of them are
appointed with the neo natal care unit in the hospital and are assigned the duty to monitor the
babies in the unit who are under critical care. Once on duty, Udit and Mihir indulged in
playing ludo and forgot to switch on the oxygen supply, resulting in death of four children. A
case was brought against the hospital decide.

(a) Hospital will not be held liable as the case doesn’t qualify under vicarious liability.

(b) The hospital will be vicariously held liable as the medical negligence took place during
the course of employment of two doctors.

(c) Dr Udit and Dr Mihir will be held liable and not the hospital.

(d) The hospital will be held liable and compensation should be paid by both the hospital as
well as the two doctors.

9. Which among the following cases are not justiciable?

i. Mistake done by anaesthesiologists resulting in permanent brain damage or death.

ii. A botched procedure involving a large ethanol injection causing a child’s face and nose to
deteriorate, requiring skin from his forehead and ear to repair it.
iii. Discharging Covid 19 suspect without conducting proper tests at the hospital quarantine
centre.

iv. Person injuring himself after falling in the hospital premise due to wet floor.

v. Patient forgetting that he has already taken his medicine, consumes another dose resulting
in high blood pressure due to over dose of medicine.

vi. An obstetrician in Mumbai fails to perform a C-section in a timely manner, resulting in

serious injuries to the baby.

(a) Only I, II and III

(b) Except V, VI, and IV

(c) Except IV and V

(d) Only I, II, IV and V

10. Sonu is suffering from kidney failure and requires dialysis every week. When he went to
get his dialysis done at AIIMS hospital, he caught corona virus infection and was later tested
positive for Covid 19. He decided to sue AIIIMS hospital for infecting him with Covid 19.
Decide.

(a) Sonu will succeed as AIIMS hospital breached its duty of care by failing to curtail the
infection.

(b) Sonu will succeed as AIIMS hospital failed to have separate quarantine centre for Covid
19 patience.

(c) Sonu will not succeed as hospitals are breeding grounds of infections and one cannot do
much about it.

(d) Sonu will not succeed as him catching corona infection cannot be regarded as breach of
duty on the part of the hospital.