Advocate not liable for defamation: Madras HC

Advocate acting professionally as per client's instruction not liable for defamation: Madras HC

The Madras High Court has observed that an Advocate who acted professionally as per his client's instruction cannot be made criminally liable for defamation under section 500 of the Indian Penal Code (IPC).

Justice GK Ilanthiraiyan of the Madras High Court made the observation while quashing a criminal defamation complaint made against advocate ML Ganesh for statements made before National Company Law Tribunal (NCLT) in an insolvency proceeding case.

The case pertains to an application filed before NCLT in which an earlier appointed Resolution Professional (RP) – Venkata Siva Kumar was removed and replaced by another RP by advocate ML Ganesh on behalf of a Committee of Creditors (CoC). Before the NCLT, the reasons for his removal were cited as:

Resolution Professional is not up to the expected standard; He is only keen on entering into the brawl with everyone, thus undermining the judicial process, if he is allowed to continue the interest of COC will be jeopardized"; COC had already lost precious 50 days from the date of his appointment, no effective business has been conducted to evolve the resolution process in a forward moving directions; Resolution professional has misrepresented to media violating the code of conduct; seeking amendments in IBC is beyond the Rps scope; resolution professional again sent mails to the top executives wherein he had made statements to the top executives in a very unethical manner and uncalled for.

Venkata Siva Kumar subsequently filed a criminal defamation complaint against the CoC and advocate ML Ganesh alleging that the aforementioned statements made by them were baseless and defamatory.

The advocate and the CoC moved the Madras High Court seeking to quash the defamation complaint.

Justice GK Ilanthiraiyan in his order stated, "A lawyer is an advocate, one who speaks for another. Naturally beyond what his client tells him the lawyer has no opportunity to test the truth or falsity of the story put forward by the client. Therefore no lawyer could ever be prosecuted for defamation in regard to any instructions which he might have given to his lawyer, because it is the lawyer's business to decide whether he could properly act upon the instructions, and whatever responsibility might ensue from acting upon those instruction would be his, and no one else's, is opposed to the entire trend of decisions defining the scope and extent of the privilege conferred upon the lawyer."

The Court went on to hold that the Hon'ble Supreme Court of India and also various High Courts have repeatedly held that an advocate who acted professionally as per the instruction of his or her client cannot be made criminally liable for offence of defamation under Section 500 of the IPC unless contrary is alleged and established.

Justice Ilanthiraiyan was of the opinion that the impugned complaint is clear abuse of process of court and as such it cannot be sustained as against the petitioners.

The Court concluded that the allegations made in the application filed on behalf of the members of CoC filed by the respondent are not defamatory in nature and therefore quashed the defamation complaint against the lawyer and the CoC.