Author Name:   kumar sumit

In the present case the author examines the proposition which is raised is concerning the freedom of press vis-a-vis the right to privacy of the citizens of this country. It also follows the discussion as to the parameters of the right of the press to criticize and comment on the acts and conduct of public officials...

R. Rajagopal alias R.R. Gopal and Another Vs.State of Tamil Nadu and Others -
Writ Petition (C) No. 422 of 1994. - Decided On: 07.10.1994

“Freedom of Press is an Article of Faith with us, sanctified by our Constitution, validated by four decades of freedom and indispensable to our future as a Nation."

In the present case the proposition which is raised is concerning the freedom of press vis-a-vis the right to privacy of the citizens of this country. It also follows the discussion as to the parameters of the right of the press to criticize and comment on the acts and conduct of public officials. The first petitioner is the editor, printer and publisher of a Tamil weekly magazine 'Nakkheeran', published from Madras. The second petitioner is the associate editor of the magazine. They are seeking issuance of an appropriate, writ, order or direction under Article 32 of the Constitution, restraining the respondents, viz., (1) State of Tamil Nadu represented by the Secretary, Home Department, (2) Inspector General of Prisons, Madras and (3) Superintendent of Prisons (Central Prison), Salem, Tamil Nadu from taking any action as contemplated in the second ' respondent's communication dated June 15, 1994 and further restraining them from interfering with the publication of the autobiography of the condemned prisoner, Auto Shankar, in their magazine. Certain other reliefs are prayed for in the writ petition. Shankar (Gauri Shankar, Auto Shankar) was charged and tried for as many as six murders. He was convicted and sentenced to death by the learned Sessions Judge, Chenglepat on May 31, 1991 which was confirmed by the Madras High Court on July 17,1992. His appeal to this Court was dismissed on April 5, 1994. It is stated that his mercy petition to the President of India is pending consideration. The petitioners were the editor and associate editor of a weekly magazine published in Madras. They sought a court order restraining various state bodies from interfering with the publication in the magazine of the autobiography of a prisoner convicted of murder. The autobiography alleged, among other things, that public officials were implicated with the author in criminal activities. In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. A recent judgment of the Indian Supreme Court concluded that a public official cannot recover damages for libel for a defamatory publication about his or her official conduct unless he or she can prove that the publication was both false and made with reckless disregard for the truth. It is not necessary for a defendant to prove that the allegedly defamatory statement was true - simply that he or she made a reasonable effort to verify the facts of the statement. Publication without consent of anything that concerns person’s private life, whether truthful or not, will generally violate that person’s right to privacy and lay the foundation for an action for damages unless the person has voluntarily put him or herself in the public eye or the publication is based upon public records, including court records except where such records relate to the naming of victims of offences such as sexual assault[1]. The petitioners therefore, had the right to publish without consent, those parts of Auto Shanker’s autobiography that appeared from public records but, if they published any information that went beyond that source, they may be liable for breaching his right to privacy. The respondents cannot take it upon themselves to institute proceedings to protect Auto Shanker’s right to privacy in the absence of any evidence that he requested or authorised them to do so. Public officials (in this case, the police and prison officers) do not have the right to bring an action for damages in defamation in relation to acts they perform in the discharge of their official duties, unless they can prove that the publication is false and was made by the defendant with ‘reckless disregard for the truth’

The Supreme Court of India quoted at length from the landmark judgment of the US Supreme Court in New York Times vs. Sullivan (376 US 254 (1964)), which concluded that a public official can only recover damages for libel if a publication was false and made with a reckless disregard for the truth and also noted fundamental similarities between the systems of government in India, the US and the UK, and found that all demand "constant vigilance over exercise of governmental power by the press and the media among others. The Court next considered the judgment of the House of Lords in the United Kingdom in Derbyshire County Council vs. Times Newspapers Ltd. (1993 (2) W.L.R. 449). The House of Lords ruled that not only was there no public interest in allowing governmental institutions to sue for libel, but it was even "contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech". Further an action for defamation or threat of such action "inevitably has an inhibiting effect on freedom of speech." The Court also noted that differences in the approach to freedom of expression under the Indian, US and UK constitutions "may call for some modification of the principles emerging from the English and US decisions in their application to the Indian legal system". Despite these differences, “Indian society may not share the degree of public awareness obtaining in the UK or US". The court came with an opinion that a public official bears the burden of proving that a defamatory statement was both false and made with reckless disregard for the truth. In defence, the media defendant needs only to show that he made a reasonable effort to verify the facts. The concept of freedom of press is something which has gained acceptance only in the recent past and which is still evolving. Recent incidents which has brought the issue to the forefront are as follows, Spearheading the list is the Tehelka episode where the news portal was forced to shut down completely following the continued harassment of its journalists for having exposed the 'scam' in the defence department involving ex –defence Personnel's and central government ministers . Another issue which created a lot of hue and cry over press freedom was the threat to expel Alex Perry of the TIME magazine which questioned Prime Minister Vajpayee's physical fitness to lead the country. Journalists working in Gujarat and Kashmir have also been susceptible to frequent attacks for reporting on the political scene there. But the latest controversy which has brought the perennial problem [2]of protection of freedom of speech and press from arbitrary exercise of the power of punishing for contempt possessed by the legislature, back in to limelight, is the action of the Tamil Nadu Legislative Assembly, of punishing the editors and journalists of The Hindu for publishing reports of speeches in the Assembly and for editorial comments on its action of referring those reports to its privilege committee. Freedom of press has always been a cherished right in all democracies. It has been held that this right to freedom also includes press freedom.” The expression 'freedom of press' has not been used in Article 19 but it is comprehended within Article 19(1)(a). The expression means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers, magazine etc. Gradually liberal views and ideas started gaining more importance. The growth of democratic polity and liberty of press were intertwined. Blackstonian concept of freedom of press which was expressed as early as in 1769 contained four basic points [3] which still form the crux of the concept of press freedom

1) Liberty of the press is essential to the state.
2) No previous restraints should be placed on the publications.
3) That does not mean there is press freedom for doing what is prohibited by law.
4) Every freeman has the undoubted right to lay what sentiment he places before the public, but if he publishes what is improper, mischievous or illegal he must take the consequence of his own temerity.

There cannot be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Freedom of press is a heart of social and political intercourse[4]. It is the primary duty of Courts to uphold the freedom of press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate. There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media. The present case contain discussion on different issues like those of decency or morality, the issue of privacy Vs right to information, defamation etc. It should not be forgotten that the press has a duty to show that it serves public interest at large. It is also the essential duty of press to strike that proper balance between citizen's right to privacy and public's right to information vis-à-vis the role of media i.e. the press. The press should show their functional accountability. The law says that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Protection of privacy is not expressly recognised by the Indian Constitution. It is the Supreme Court ruling in R Rajgopal v State of Tamil Nadu that laid down that the right to privacy is implicit in the right to life and liberty guaranteed to a citizen under Article 21 of the Constitution[5]. Article 21 states,

“No person shall be deprived of his life or personal liberty except according to procedure established by law.[6]” The right to personal privacy is also protected through the application of tort and/or criminal law, e.g. malicious falsehood, trespass, nuisance. In the present case the Supreme Court held that every citizen has the right to safeguard his or her privacy and that nothing could be published on areas such as the family, marriage and education, ‘whether truthful or otherwise’, without the person’s consent. In this case, two aspects of privacy were recognised by the Court – (a) the tortious law of privacy that affords an action for damages resulting from an unlawful invasion of privacy, and (b) the constitutional ‘right to be let alone’. The right to privacy was also recognised as specially originating out of certain specific relationships like doctor-patient, husband-wife etc. In Mr. X v Hospital Z, the Supreme Court held that the disclosure of even true private facts had the tendency to disturb a person’s tranquillity, generate complexes in him and even lead to psychological problems and therefore, the right to privacy was an essential component of the right to life as envisaged by Article 21 of the Constitution. The right to privacy in any event will necessarily have to go through a process of case-by-case development[7]. The Supreme Court in the present case are true reminiscence of the limits of freedom of press with respect to the right to privacy: “A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. No one can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.” The right to freedom of expression is probably the most universally accepted human right. The freedom of the press is considered to be the most important right which must be protected in a democratic society. This freedom can only be available in a society where there is a right to free speech and expression. Similarly, the freedom of information can be enjoyed only if there are sources from which information can flow. These sources, again, would be available where there is a right to speech and expression. The freedom of expression and the freedom to receive and impart information are corollary of one another. In fact, there is an overlap between the freedom of expression and the freedom to receive or impart information. The freedom to impart information can be considered as an expression of an opinion, of the informant or of a third person. The seeking of information, on the other hand, precedes the formation of an opinion by the person who seeks the information, and consequently also its expression. But with regard to the press, freedom of expression and information run parallel to each other. While the press might be the medium of expression, someone else might possess the information. Until and unless these two freedoms are exercised together both would be useless. In the case of information the only one who has the right of free distribution of that information is the party who is the author, originator or otherwise the intellectual owner of the information in question. In case of the press, however, the press can express opinions of others also, of course, held in good faith and believed to be true. It is incumbent on the press, with regard to the print media as well as audio-visual media, to impart information and ideas which the public has the right to receive. Otherwise, the press would not be able to play its role of ‘public watch dog’. Freedom of press is conferred on by virtue of article 19 (1) (a). This constitutional provision is getting obsolete in the newly evolved scenario and therefore it needs to be revised. Thus for exercising the freedom of expression one must have the freedom of information. In this regard, the approval of the Freedom of Information Bill, 2000 (Information Bill) by Indian Parliament would be a welcome move

In keeping with its affirmation that freedom of expression is “one of the essential foundations of a democratic society”, the Court has clearly shown a preference for freedom of press. In conclusion, it must be reiterated that the freedom of press and information are fundamental to healthy working of a democracy and therefore, must coexist with the freedom of speech and expression. At the time when the whole world is waking up to the need of the hour India must also rise and join the race of freedom and liberalization. However, as no freedom is absolute, India must put restrictions on these freedoms and must apply contemporary standards rather than international standards in determining the limits. But she must keep in mind that such limits must not be disproportionate with the compelling need. Possibilities for fair comment must be made available by the state and an atmosphere must be created in which neither the informant nor the information seeker has any fear or timidity.
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[1] Cox Broadcasting Corp v Cohn 420 US 469 (1975)
[2] http://www.thehindu.com/2003/11/14/stories/2003111401331000.html
[3] Press and the Law (1990) by Justice A.N.Grover; pg 7 para 2
[4] Indian Express Newspapers v Union of India; (1985) 1 SCC 641
[5] Kharak Singh v State of U P & Ors [1964] 1 SCR 332 and Gobind v State of M P (1975) 2 SCC 148 followed
[6] M P Jain, Indian constitutional law (Nagpur, Wadhwa: 2003)
[7] Gobind v. State of M.P., A.I.R. 1975 S.C. 1378, ¶ 28 as per Mathew, J. See also B.D. Agarwala, The
Right to Privacy: A Case-By-Case Development, (1996) 3 S.C.C. (Jour.)

The  author can be reached at: kumarsumit@legalserviceindia.com

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