Law gives absolute protection to statements made by persons on certain occasions; even if those statements happen to be false and malicious. Such statements are said to be absolutely privileged.
In such cases, it is in the interest of the State and of the public in general that persons should have full freedom of speech. The interests of the public outweigh that of the injured private individual. For example, a member of Parliament is allowed full freedom of speech on the floor of the House.
But this absolute immunity is granted only in a strictly limited number of cases for the strongest reasons of public policy.
The chief classes of statements which enjoy absolute privilege can be classified thus:
(1) Statements made in Parliament - In England, the members of Parliament have secured this right by the Bill of Rights. In India, Articles 105 and 194 of the Constitution of India confer this right on the members of the Indian Parliament and State Legislatures.
(2) Reports, papers, notes, and proceedings ordered to be published by either House of Parliament - There is an absolute privilege for all reports, papers notes of proceedings of either House of Parliament which are published by the order of such House.
(3) Judicial proceedings - Judges enjoy absolute immunity for whatever they say from the Bench while engaged in the discharge of their official duties.
Article 211 of the Indian Constitution says: "No discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties."
This privilege also extends to counsel, jurors parties, and witnesses provided that what they say has some reference to the proceedings before the court.
The privilege also applied to the statements made in quasi-judicial proceedings (such as before an arbitrator, commissioner, official receiver, liquidator, etc.) and to statements in documents filed in the course of such proceedings.
This covers any pleading, affidavit, or answer thereto, report to the court of the official liquidators in insolvency proceedings, and that of official receivers in winding-up proceedings of companies.
It has been held by the Court of Appeal in More v. Weaver, that any professional communication between solicitor and client is absolutely privileged but there is a difference of opinion amongst jurists as to the nature of the privilege that should be conferred on them. Winfield has expressed the opinion that it needs to be an only qualified privilege.
Section 129 of the Indian Evidence Act, 1872 protects such confidential communications between lawyers and clients.
(4) Statements made by an officer of State in course of official duty - No action will lie against military or naval officer for any defamatory statement in a report made by him in the course of duty to his superior officer or against any officer of State for any defamatory statement contained in an official report made by him to the head of his department; even though such statement is published maliciously and without reasonable or probable cause. A comparable principle based on the comity of nations is that a foreign embassy document is subject to absolute privilege.
(5) Fair and accurate reports in newspapers of proceedings publicly heard before a court in the United Kingdom exercising judicial authority, if published contemporaneously, neither blasphemous nor indecent - In England, this defence has been grounded in statutory law. In India, however, there is no such statute, and as such newspapers can have only qualified privilege, which is the common-law rule.