TMI Blog1994 (10) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s communication dated 15-6-1994 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 but they are not pressed before us. 3.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 31-5-1991 which was confirmed by the Madras High Court on 17-7-1992. His appeal to this Court was dismissed on 5-4- 1994. It is stated that his mercy petition to the President of India is pending consideration. 4.The petitioners have come forward with the following case: Auto Shankar wrote his autobiography running into 300 pages while confined in Chenglepat sub-jail during the year 1991. The autobiography was handed over by him to his wife, Smt Jagdishwari, with the knowledge and approval of the jail authorities, for being delivered to his advocate, Shri Chandrasekharan. The prisoner requested his advocate to ensure that his autobiography is published in the petitioners' magazine, Nakkheeran. The petitioners agreed to the same. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a magazine in the name of a condemned prisoner is against prison rules and your claim that the power of attorney is given by the prisoner is unlawful. In view of all those it is alleged that your serial supposed to have written by Auto Shankar is (false?) since with an ulterior motive for this above act there will arise a situation that we may take legal action against you for blackmailing. Hence, I request you to stop publishing the said serial forthwith. 5.The petitioners submit that the contents of the impugned letter are untrue. The argument of jeopardy to prisoner's interest is a hollow one. The petitioners have a right to publish the said book in their magazine as desired by the prisoner himself. Indeed, the petitioners have published parts of the said autobiography in three issues of their magazine dated 11-6-1994, 18-61994 and 22-6-1994 but stopped further publication in view of the threatening tone of the letter dated 15-6-1994. The petitioners have reasons to believe that the police authorities may swoop down upon their printing press, seize the issues of the magazine besides damaging the press and their properties, with a view to terrorise them. On a previous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t clear whether the said prisoner had as a matter of fact authorised the petitioner to publish the said autobiography. In the context of such a disputed claim both as to authenticity as well as the authority to publish the said autobiography, the said communication was addressed to the petitioners herein, since the petitioners have threatened to publish derogatory and scurrilous statements purporting to (be?) based on material which are to be found in the disputed autobiography, It is submitted that the allegation that a number of IAS, IPS and other officers patronised the condemned prisoner in his nefarious activities is baseless. It is only in the context of such a situation coupled with the fact that the petitioner might under the guise of such an autobiography tarnish the image of the persons holding responsible positions in public institution that the communication dated 15-6-1994 was sent to him , say the respondents. They also denied that they subjected the said prisoner to third degree methods to pressurise him into writing letters denying the authorisation to the petitioners to publish his life story. 7.Neither Auto Shankar nor his wife nor his counsel are made partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the same coin (1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising or non-advertising purposes or for that matter, his life story is written whether laudatory or otherwise and published without his consent as explained hereinafter. In recent times, however, this right has acquired a constitutional status. We shall proceed to explain how? Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21. The first decision of this Court dealing with this aspect is Kharak Singh v. State of U.P1 A more elaborate appraisal of this right took place in a later decision in Gobind v. 1 (1964) 1 SCR 332: AIR 1963 SC 1295 : (1963) 2 Cri LJ 329 State of M.P2 wherein Mathew, J. speaking for himself, Krishna Iyer and Goswami, JJ. traced the origins of this right and also poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Cri) 468 3 381 US 479 14 L Ed 2d 510 (1965) 4 410 US 113 35 L Ed 2d 147 (1973) 5 See The Wages of Crying Wolf. A Comment on Roe v. Wade, 82 Yale LJ 920, 932 as themselves, an image that may reflect the values of their peers rather than the realities of their natures.6 The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute. The European Convention on Human Rights, which came into force on 3-9-1953, represents a valiant attempt to tackle the new problem. Article 8of the Convention is worth citing7: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a retrial. Brennan, J. held: We hold that the constitutional protections for speech and press preclude the application of the New York statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with the knowledge of its falsity or in reckless (emphasis added) We create grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in press news articles with a person's name, picture or portrait, particularly as related to non-defamatory matter. Those guarantees are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society. That books, newspapers and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded...... 12.The next relevant decision is in Cox Broadcasting Corpn. v. Cohn A Georgia law prohibited and punished the publication of the name of a rape victim. The appellant, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right to privacy, as set out hereinbefore. 14.Griswold3 was concerned with a law made by the State of Connecticut which provided a punishment to any person who uses any drug, medicinal article or instrument for the purpose of preventing conception...... The appellant was running a centre at which information, instruction and medical advice was given to married persons as to the means of preventing conception. They prescribed contraceptives for the purpose. The appellant was prosecuted under the aforesaid law, which led the appellant to challenge the constitutional validity of the law on the grounds of First and Fourteenth Amendments. Douglas, J., who delivered the main opinion, examined the earlier cases of that court and observed: ... specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help to give them life and substance.... Various guarantees create zones of privacy. The present case, then concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty', Palko v. ConneCticut13, are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia14; procreation, Skinner v. Oklahoma 15; contraception; Eisenstadt v. Baird16; family relationships, Prince v. Massachusetts17; and child-rearing and education, Pierce v. Society of Sisters 1 8, Meyer v. Nebraska 1 9. 12 377 US 288: 12 L Ed 2d 325 (1964) 1 3 302 US 319: 82 L Ed 288 (1937) 14 388 US 1 : 18 L Ed 2d 10 10 (1967) 15 316 US 535 : 86 L Ed 1655 (1942) 16 405 US 438: 31 L Ed 2d 349 (1972) 17 321 US 15 8 : 8 8 L Ed 645 (1944) 1 8 268 US 510: 69 L Ed 1070 (1925) 1 9 262 US 390: 67 L Ed 1042 (1923) This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon State action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to termina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars.... Under such a rule, would-be critics of official 20 120 L Ed 2d 683 (1992) conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which 'steer far wider of the unlawful zone'.... The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not. (emphasis added) 17.Black, J. who was joined by Douglas, J. concurred in the opinion but on a slightly different ground. He affirmed his belief that the First and Fourteenth Amendments not mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest in allowing governmental institutions to sue for libel, it was contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech and further that action for defamation or threat of such action inevitably have an inhibiting effect on freedom of speech . The learned Law Lord referred to the decision of the United States Supreme Court in New York Times v. Sullivan10 and certain other decisions of American Courts and observed and this is significant for our purposes- while these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which underlaid them are no less valid in this country. What has been described as 'the chilling effect' induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. Accordingly, it was held that the action was not maintainable in law. 20.Reference in this connection may also be made to the decision of the Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a statutory provision which criminalities statements likely to undermin e public confidence in the conduct of public affairs with the utmost suspicion. 21.The question is how far the principles emerging from the United States and English decisions are relevant under our constitutional system. So far as the freedom of press is concerned, it flows from the freedom of speech and expression guaranteed by Article 19(1)(a). But the said right is subject to reasonable restrictions placed thereon by an existing law or a law made after the commencement of the Constitution in the interests of or in relation to the several matters set out therein. Decency and defamation are two of the grounds mentioned in clause (2). Law of torts providing for damages for invasion of the right to privacy and defamation and Sections 499/500 IPC are the existing laws saved under clause (2). But what is called for today in the present times is a proper balancing of the freedom of press and said laws consistent with the democratic way of life ordained by the Constitution. Over the last few decades, press and electronic media have emerged as major factors in our nation's life. They are still expanding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecute the petitioners under Sections 499/500 IPC. This is for the reason that even if they are entitled to do so, there is no law under which they can prevent the publication of a material on the ground that such material is likely to be defamatory of them. 24.It is not stated in the counter-affidavit that Auto Shankar had requested or authorised the prison officials or the Inspector General of Prisons, as the case may be, to adopt appropriate proceedings to protect his right to privacy. If so, the respondents cannot take upon themselves the obligation of protecting his right to privacy. No prison rule is brought to our notice which empowers the prison officials to do so. Moreover, the occasion for any such action arises only after the publication and not before, as indicated hereinabove. 25.Lastly, we must deal with the objection raised by the respondent as to the maintainability of the present writ petition. It is submitted that having filed a writ petition for similar reliefs in the Madras High Court, which was dismissed as not maintainable under a considered order, the petitioners could not have approached this Court under Article 32 of the Constitution. The petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable 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 judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule. (4)So far as the Government, local aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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