Courtesy:C H Mahadevan
Right to Privacy is guaranteed by Article 21 of the Constitution with only a few exceptions,
Supreme Court of India in Rajagopal and Another v. State of Tamil Nadu
The Inspector General of Prisons tried, on the basis of privacy and defamation law, to prevent publication of an autobiography of a prisoner which implicated a number of senior prison officers in crime.
________________________________________
Rajagopal and Another v. State of Tamil Nadu
(1995) 3 LRC 565; AIR 1995 SC 264 (Supreme Court of India)
Theme: Media regulation: general issues; Defamation; Other content restrictions; Miscellaneous
Sub-Issues: Prior scrutiny, seizures and bans; Public figures and bodies; Privacy; Prisoners and free expression
Test:
Penalty: Prior restraint
Decision: Violation of the right to freedom of expression; unanimous
Jurisdiction: India (Supreme Court)
Facts:
A prisoner convicted of murder wrote an autobiography which described his relationship with a number of senior prison officers, several of whom were his partners in crime. He gave the autobiography to his wife, with the knowledge of the authorities, who then handed it over to the petitioners' magazine. The prisoner requested the petitioners to publish it, which they agreed to do. The first three instalments had already been published when the Inspector General of Prisons wrote to the petitioners claiming the autobiography was false, that publication was against prison rules and threatened legal action if they proceeded with publishing. Fearing reprisals from the police, given that the prisoner described his links with a number of high officials, the petitioners sought a declaration that they had a right to publish. Since neither the prisoner, his wife nor his counsel were parties to the petition, the Supreme Court proceeded on the assumption that the prisoner had neither written his autobiography nor authorised the petitioners to publish the same in their magazine.
Held:
Importance of freedom of expression
The Court considered, as a matter of principle, that the right to freedom of expression is subject to reasonable restrictions placed thereon by law, including restrictions to protect the right to privacy. However, it stressed that in practice, it is necessary to restrict the right to freedom of expression no more than is consistent with the democratic way of life ordained by the Constitution. It should be borne in mind that the press play an important role in a democratic society:
Our system of government demands ... constant vigilance over exercise of governmental power by the press and the media among others. It is essential for a good government. (at 579)
Prior restraint
Having reviewed a range of comparative law material, the Court found that the State and its officials have no authority in law to impose a prior restraint upon publication of material defamatory of the State or of the officials. Quoting with approval the dictum of the United States Supreme Court in the Pentagon Papers case, the Court stated that:
'[A]ny system of prior restraints of [freedom of] expression comes to this court bearing a heavy presumption against its ... validity'. [I]n such cases the government 'carries a heavy burden of showing justification for the imposition of such a restraint'. (at 579)
Therefore, the Court held that no prior restraint or prohibition of publication could be imposed on the petitioners; any defamatory material should be challenged after publication.
The Court then summarised some general principles that were applicable in this case:
(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a 'right to be let alone'. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent -- whether truthful or otherwise and whether laudatory or critical. If he did so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. The position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency ... an exception must be carved out to this rule, viz a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.
(3) There is yet another exception to the rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, the right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that the judiciary, which is protected by the power to punish for contempt of court, and Parliament and legislatures, protected as their privileges are by ... the Constitution of India, represent exceptions to this rule.
(4) So far as the government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.
...
(6) There is no law empowering the state or its officials to prohibit, or to impose a prior restraint upon the press/media. (at 580-581)
For these reasons, the Court held that the petitioners had a right to publish the biography in so far as it appears from the public records, even without his consent or authorisation. However, if the petitioners went beyond what was on public record and published the entire life story, they might be invading the prisoner's right to privacy and they would be liable for the consequences in accordance with law. Similarly, the State or its officials could not prevent or restrain publication; any remedy of the affected public officials/public figures, if any, would be available after the publication.
Right to Privacy is guaranteed by Article 21 of the Constitution with only a few exceptions,
Supreme Court of India in Rajagopal and Another v. State of Tamil Nadu
The Inspector General of Prisons tried, on the basis of privacy and defamation law, to prevent publication of an autobiography of a prisoner which implicated a number of senior prison officers in crime.
________________________________________
Rajagopal and Another v. State of Tamil Nadu
(1995) 3 LRC 565; AIR 1995 SC 264 (Supreme Court of India)
Theme: Media regulation: general issues; Defamation; Other content restrictions; Miscellaneous
Sub-Issues: Prior scrutiny, seizures and bans; Public figures and bodies; Privacy; Prisoners and free expression
Test:
Penalty: Prior restraint
Decision: Violation of the right to freedom of expression; unanimous
Jurisdiction: India (Supreme Court)
Facts:
A prisoner convicted of murder wrote an autobiography which described his relationship with a number of senior prison officers, several of whom were his partners in crime. He gave the autobiography to his wife, with the knowledge of the authorities, who then handed it over to the petitioners' magazine. The prisoner requested the petitioners to publish it, which they agreed to do. The first three instalments had already been published when the Inspector General of Prisons wrote to the petitioners claiming the autobiography was false, that publication was against prison rules and threatened legal action if they proceeded with publishing. Fearing reprisals from the police, given that the prisoner described his links with a number of high officials, the petitioners sought a declaration that they had a right to publish. Since neither the prisoner, his wife nor his counsel were parties to the petition, the Supreme Court proceeded on the assumption that the prisoner had neither written his autobiography nor authorised the petitioners to publish the same in their magazine.
Held:
Importance of freedom of expression
The Court considered, as a matter of principle, that the right to freedom of expression is subject to reasonable restrictions placed thereon by law, including restrictions to protect the right to privacy. However, it stressed that in practice, it is necessary to restrict the right to freedom of expression no more than is consistent with the democratic way of life ordained by the Constitution. It should be borne in mind that the press play an important role in a democratic society:
Our system of government demands ... constant vigilance over exercise of governmental power by the press and the media among others. It is essential for a good government. (at 579)
Prior restraint
Having reviewed a range of comparative law material, the Court found that the State and its officials have no authority in law to impose a prior restraint upon publication of material defamatory of the State or of the officials. Quoting with approval the dictum of the United States Supreme Court in the Pentagon Papers case, the Court stated that:
'[A]ny system of prior restraints of [freedom of] expression comes to this court bearing a heavy presumption against its ... validity'. [I]n such cases the government 'carries a heavy burden of showing justification for the imposition of such a restraint'. (at 579)
Therefore, the Court held that no prior restraint or prohibition of publication could be imposed on the petitioners; any defamatory material should be challenged after publication.
The Court then summarised some general principles that were applicable in this case:
(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a 'right to be let alone'. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent -- whether truthful or otherwise and whether laudatory or critical. If he did so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. The position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency ... an exception must be carved out to this rule, viz a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.
(3) There is yet another exception to the rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, the right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that the judiciary, which is protected by the power to punish for contempt of court, and Parliament and legislatures, protected as their privileges are by ... the Constitution of India, represent exceptions to this rule.
(4) So far as the government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.
...
(6) There is no law empowering the state or its officials to prohibit, or to impose a prior restraint upon the press/media. (at 580-581)
For these reasons, the Court held that the petitioners had a right to publish the biography in so far as it appears from the public records, even without his consent or authorisation. However, if the petitioners went beyond what was on public record and published the entire life story, they might be invading the prisoner's right to privacy and they would be liable for the consequences in accordance with law. Similarly, the State or its officials could not prevent or restrain publication; any remedy of the affected public officials/public figures, if any, would be available after the publication.
