Title: R. Rajagopal vs State Of T.N on 7 October, 1994

Supreme Court of India
R. Rajagopal vs State Of T.N on 7 October, 1994
Equivalent citations: 1995 AIR 264, 1994 SCC (6) 632, AIR 1995 SUPREME COURT 264, 1994 (6) SCC 632, 1994 AIR SCW 4420, 1994 (2) UJ (SC) 661, (1995) 2 SCJ 86, 1994 (6) JT 514, 1994 (3) SCC(SUPP) 644, 1995 (2) BOM CJ 98
Author:
B.P.  Jeevan Reddy
Bench:
B.P.  Jeevan Reddy
,
S.C.  Sen
PETITIONER:
R. RAJAGOPAL

	Vs.

RESPONDENT:
STATE OF T.N.

DATE OF JUDGMENT07/10/1994

BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
SEN, S.C. (J)

CITATION:
 1995 AIR  264		  1994 SCC  (6) 632
 JT 1994 (6)   514	  1994 SCALE  (4)494


ACT:



HEADNOTE:



JUDGMENT:
The Judgment of the Court was delivered by
B.P.  JEEVAN  REDDY,  J.- This petition	 raises	 a  question
concerning  the	 freedom  of press vis-A-vis  the  right  to
privacy of the citizens of this country.  It also raises the
question  as to the parameters of the right of the press  to
criticise  and	comment on the acts and	 conduct  of  public
officials.
2.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  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.  Auto Shankar affirmed this desire in  several
letters	 written to his advocate and the  first	 petitioner.
The  autobiography  sets  out the close	 nexus	between	 the
prisoner  and several IAS, IPS and other officers,  some  of
whom  were  indeed  his partners  in  several  crimes.	 The
presence  of  several  such officers  at  the  house-warming
ceremony  of  Auto Shankar's house is proved  by  the  video
cassette  and  several photographs taken  on  the  occasion.
Before	 commencing   the   serial   publication   of	 the
autobiography  in their magazine, the petitioners  announced
in  the	 issue dated 21-5-1994 that very soon  the  magazine
would  be  coming out with the sensational life	 history  of
Auto  Shankar.	 This announcement sent	 shock	waves  among
several	 police	 and prison officials who were	afraid	that
their  links with the condemned prisoner would	be  exposed.
They  forced  the said prisoner, by  applying  third  degree
methods, to write letters addressed to the second respondent
(Inspector  General  of Prisons) and  the  first  petitioner
requesting  that his life story should not be  published  in
the magazine.
637
Certain	 correspondence ensued between the  petitioners	 and
the prison authorities in this connection.  Ultimately,	 the
Inspector General of Prisons (R-2) wrote the impugned letter
dated 15-6-1994 to the first petitioner.  The letter  states
that  the  petitioner's	 assertion  that  Auto	Shankar	 had
written his autobiography while confined in jail in the year
1991   is  false.   It	is  equally  false  that  the	said
autobiography  was handed over by the said prisoner  to	 his
wife   with  the  knowledge  and  approval  of	the   prison
authorities.  The prisoner has himself denied the writing of
any  such  book.   It is equally false	that  any  power  of
attorney was executed by the said prisoner in favour of	 his
advocate,  Shri	 Chandrasekharan  in  connection  with	 the
publication  of	 the  alleged book.  If a  prisoner  has  to
execute a power of attorney in favour of another, it has  to
be done in the presence of the prison officials as  required
by  the	 prison rules; the prison records do  not  bear	 out
execution  of  any  such  power	 of  attorney.	 The  letter
concludes:
"From   the   above  facts,  it	is   clearly
	      established  that the serial in your  magazine
	      under  the caption 'Shadowed Truth'  or  'Auto
	      Shankar's	 dying	declaration' is	 not  really
	      written by Gauri Shankar but it is written  by
	      someone else in his name.	 Writing an  article
	      in  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	occasion  when	 the
petitioners'   magazine	  published,   on   16-8-1991,	  an
investigative report of tapping of telephones of  opposition
leaders	 by  the  State	 Government,  the  then	 editor	 and
publisher  were arrested, paraded, jailed and  subjected  to
the third degree methods.  There have been several instances
when  the  petitioners'	 press was  raided  and	 substantial
damage done to their press and properties.  The	 petitioners
are apprehensive that the police officials may again do	 the
same since they are afraid of their links with the condemned
prisoner  being	 exposed  by the  publication  of  the	said
autobiography.	The petitioners assert the freedom of  press
guaranteed  by
Article 19(1)(a)
, which, according  to  them,
entitles  them	to publish the said  autobiography.   It  is
submitted that the condemned prisoner has also the undoubted
right to have
638
his  life  story published and that he cannot  be  prevented
from doing so.	It is also stated in the writ petition	that
before approaching this Court by way of this writ  petition,
they  had  approached  the Madras  High	 Court	for  similar
reliefs	 but  that the office of the High Court	 had  raised
certain	 objections  to	 the  maintainability  of  the	writ
petition.   A learned Single Judge of the High Court, it  is
stated,	 heard the petitioners in connection with  the	said
objections but no orders were passed thereon till the filing
of the writ petition.
6.Respondents  2  and 3 have filed  a  counter-affidavit,
sworn  to by Shri T.S. Panchapakesan, Inspector	 General  of
Prisons,  State	 of  Tamil  Nadu.   At	the  outset,  it  is
submitted that the writ petition filed by the petitioners in
the High Court was dismissed by the learned Single Judge  on
28-6-1994  holding inter alia that the question whether	 the
said  prisoner	had  indeed written  his  autobiography	 and
authorised the petitioners to publish the same is a disputed
question  of fact.  This was so held in view of the  failure
of  the learned counsel for the petitioners to	produce	 the
alleged	 letters written by the prisoner to his counsel,  or
to   the  petitioners,	authorising  them  to  publish	 his
autobiography.	It is submitted that the letter dated  15-6-
1994  was  addressed  to the first  petitioner	inasmuch  as
"there	was a genuine doubt regarding the authorship of	 the
autobiography alleged to have been written by the  condemned
prisoner  while	 he  was in  prison  and  which	 purportedly
reached	 his wife.  Besides, it was also not  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  parties to this writ petition.  We  do  not	have
their  version	on  the disputed  question  of	fact,  viz.,
whether	 Auto Shankar has indeed written  his  autobiography
and/or	 whether   he  had  requested  or   authorised	 the
petitioners to publish the same in their magazine.  In	this
writ  petition	under
Article 32
of  the  Constitution,  we
cannot go into such a disputed question of fact.  We  shall,
therefore, proceed on the assumption that the said  prisoner
has neither written his autobiography nor has he  authorised
the  petitioners to publish the same in their  magazine,  as
asserted by the writ petitioners.  We must,
639
however,  make it clear that ours is only an assumption	 for
the purpose of this writ petition and not a finding of fact.
The said disputed question may have to be gone into, as	 and
when necessary, before an appropriate court or forum, as the
case may be.
8.On the pleadings in this petition, following
	      questions arise:
(1)Whether  a citizen of this  country  can
	      prevent  another person from writing his	life
	      story  or biography?  Does  such	unauthorised
	      writing	infringe  the  citizen's  right	  to
	      privacy?	  Whether  the	freedom	  of   press
	      guaranteed  by
Article 19(1)(a)
entitles	 the
	      press to publish such unauthorised account  of
	      a	 citizen's life and activities and if so  to
	      what  extent and in what circumstances?	What
	      are  the	remedies open to a citizen  of	this
	      country  in case of infringement of his  right
	      to  privacy and further in case  such  writing
	      amounts to defamation?
(2)(a) Whether the Government can maintain  an
	      action for its defamation?
(b)Whether  the  Government has  any  legal
	      authority	 to  impose prior restraint  on	 the
	      press  to	 prevent  publication  of   material
	      defamatory of its officials? and
(c)Whether   the	public	 officials,   who
	      apprehend that they or their colleagues may be
	      defamed, can impose a prior restraint upon the
	      press to prevent such publication?
(3)Whether the prison officials can prevent
	      the  publication	of  the	 life  story  of   a
	      prisoner on the ground that the prisoner being
	      incarcerated and thus not being in a  position
	      to adopt legal remedies to protect his rights,
	      they are entitled to act on his behalf?
Question Nos.  1 and 2
9.The  right  to privacy as an independent  and	 distinctive
concept	 originated in the field of Tort law, under which  a
new  cause  of action for damages  resulting  from  unlawful
invasion  of  privacy was recognised.  This  right  has	 two
aspects	 which are but two faces 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
640
State  of  M.P2	 wherein Mathew, J.  speaking  for  himself,
Krishna	 Iyer  and Goswami, JJ. traced the origins  of	this
right and also pointed out how the said right has been dealt
with by the United States Supreme Court in two of its  well-
known decisions in Griswold v. Conneticut3 and Roe v. Wade4.
After  referring  to  Kharak Singh1 and	 the  said  American
decisions, the learned Judge stated the law in the following
words: (SCC pp. 155-57, paras 22-29)
	      "...  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.
*	 *	    *
	      privacy primarily concerns the individual.  It
	      therefore	 relates  to and overlaps  with	 the
	      concept of liberty.  The most serious advocate
	      of privacy must confess that there are serious
	      problems of defining the essence and scope  of
	      the right.  Privacy interest in autonomy	must
	      also be placed in the context of other  rights
	      and values.
Any  right  to  privacy  must  encompass	 and
	      protect  the personal intimacies of the  home,
	      the family, marriage, motherhood,	 procreation
	      and  child-rearing.  This	 cataloger  approach
-to   the	  question  is	obviously   not	  as
	      instructive  as  it does not  give  analytical
	      picture of the distinctive characteristics  of
	      the  right  of  privacy.	 Perhaps,  the	only
	      suggestion  that	can be offered	as  unifying
	      principle underlying the concept has been	 the
	      assertion	 that  a  claimed right	 must  be  a
	      fundamental  right implicit in the concept  of
	      ordered liberty.
As Ely says:
There is nothing to prevent one from using the
	      word  'privacy'  to mean the freedom  to	live
	      one's life without governmental  interference.
	      But  the Court obviously does not so  use	 the
	      term.   Nor could it, for such a right  is  at
	      stake in every case.5
	      There are two possible theories for protecting
	      privacy of home.	The first is that activities
	      in  the  home harm others only to	 the  extent
	      that  they  cause offence resulting  from	 the
	      mere   thought  that  individuals	  might	  be
	      engaging	in  such activities  and  that	such
	      'harm' is not constitutionally protectable  by
	      the  State.   The second is  that	 individuals
	      need  a place of sanctuary where they  can  be
	      free from societal control.  The importance of
	      such a sanctuary is that individuals can	drop
	      the  mask, desist for a while from  projecting
	      on  the  world  the  image  they	want  to  be
	      accepted
2 (1975) 2 SCC 148 : 1975 SCC (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
641
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
or   the  economic  well-being	of  the	 country,  for	 the
prevention  of	disorder  or crime, for	 the  protection  of
health	or  morals or for the protection of the	 rights	 and
freedoms of others."
Since  the right to privacy has been the  subject-matter  of
several	 decisions  in	the  United  States,  it  would	  be
appropriate  to	 briefly  refer to  some  of  the  important
decisions in that country.
10.The	right to privacy was first referred to as a  right
and  elaborated	 in  the celebrated article  of	 Warren	 and
Brandies (later Mr Justice Brandies) entitled "The right  to
privacy" published in 4 Harvard Law Review 193, in the	year
1890.
11.Though  the	expression "right to  privacy"	was  first
referred  to  in Olmstead v. United States8, it came  to  be
fully  discussed in Time, Inc. v. Hil19.  The facts  of	 the
case are these: On a particular day in the year 1952,  three
escaped	 convicts intruded into the house of James Hill	 and
held  him  and members of his family  hostage  for  nineteen
hours,	whereafter they released them unharmed.	 The  police
immediately  went after the culprits, two of whom were	shot
dead.	 The  incident	became	prime  news  in	 the   local
newspapers and the members of the press started swarming the
Hill's home for an account of what happened during the hold-
up.   The  case of the family was that they  were  not	ill-
treated	 by the intruders but the members of the press	were
not  impressed.	  Unable  to stop the  siege  of  the  press
correspondents,	 the  family shifted to	 a  far-away  place.
Life magazine sent its men to the former home of Hill family
where  they reenacted the entire incident, and	photographed
it, showing inter alia that the members of the
6 See 26 Stanford Law Rev. 1161, 1187
7 See Privacy and Human Rights, Ed.  AH Robertson, p. 176  8
8 277 US 438 72 L Ed 944 (1927)
9 385 US 374 17 L Ed 2d 456 (1967)
642
family	were  ill-treated  by  the  intruders.	 When	Life
published the story, Hill brought a suit against Time  Inc.,
publishers  of Life magazine, for invasion of  his  privacy.
The New York Supreme Court found that the whole story was "a
piece  of commercial fiction"  and not a true depiction	 of
the event  and accordingly confirmed the award of  damages.
However, when the matter was taken to United States  Supreme
Court,	it applied the rule evolved by it in New York  Times
Co. v. Sullivan10 and set aside the award of damages holding
that  the  jury	 was not properly  instructed  in  law.	  It
directed 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
reporter of a newspaper obtained the name of the rape victim
from the records of the court and published it.	 The  father
of  the victim sued for damages.  White, J. recognised	that
"in  this sphere of collision between claims of privacy	 and
those  of  the free press, the interests on both  sides	 are
plainly rooted in the traditions and significant concerns of
our  society"  but chose to decide the case  on	 the  narrow
question whether the press can be said to have violated	 the
said  statute  or  the right to privacy	 of  the  victim  by
publishing her name, having obtained it from public records.
The learned Judge held that the press cannot be said to have
violated  the  Georgia	law or the right to  privacy  if  it
obtains the name of the rape victim from the public  records
and  publishes it.  The learned Judge held that the  freedom
of press to publish the information contained in the  public
records is
10 376 US 254: 11 L Ed 2d 686 (1964)
11 420 US 469: 43 L Ed 2d 328 (1975)
643
of   critical  importance  to  the  system   of	  Government
prevailing in that country and that, may be, in such matters
"citizenry  is	the  final judge of the	 proper	 conduct  of
public business".
13.Before proceeding further, we may mention that the  two
decisions of this Court referred to above (Kharak Singh1 and
Gobind2)  as well as the two decisions of the United  States
Supreme	 Court,	 Griswold3 and Roe v. Wade4 referred  to  in
Gobind2,  are  cases of governmental  invasion	of  privacy.
Kharak Singh1 was a case where the petitioner was put  under
surveillance as defined in Regulation 236 of the U.P. Police
Regulations.   It involved secret picketing of the house  or
approaches  to the house of the suspect, domiciliary  visits
at  night,  periodical	enquiries by  police  officers	into
repute, habits, association, income or occupation, reporting
by  police  constables on the movements of the	person	etc.
The   regulation   was	challenged  as	violative   of	 the
fundamental rights guaranteed to the petitioner.  A  Special
Bench  of seven teamed Judges held, by a majority, that	 the
regulation  was	 unobjectionable  except to  the  extent  it
authorised  domiciliary visits by police  officers.   Though
right to privacy was referred to, the decision turned on the
meaning	 and  content of "personal liberty"  and  "life"  in
Article	 21.
Gobind2 was also a case of surveillance  under
M.R  Police  Regulations.  Kharak Singh1 was  followed	even
while at the same time elaborating 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  manufacture or sale, seeks	 to  achieve
	      its   goals   by	means	having	 a   maximum
	      destructive  impact  upon	 the   relationship.
	      Such  a  law  cannot stand  in  light  of	 the
	      familiar	principle, so often applied by	this
	      Court, that a "governmental purpose to control
	      or prevent activities constitutionally subject
	      to  State	 regulation may not be	achieved  by
	      means  which sweep unnecessarily	broadly	 and
	      thereby
644
invade the area of protected freedoms".  NAACP
	      v.  Alabama12.  Would we allow the  police  to
	      search   the  sacred  precincts	of   marital
	      bedrooms	of  telltale  signs of	the  use  of
	      contraceptives?  The very idea is repulsive to
	      the   notions  of	 privacy   surrounding	 the
	      marriage relationship.
We deal with a right of privacy older than the
	      Bill  of	Rights	older  than  our  political
	      parties,	 older	than  our  schools   system.
	      Marriage	is a coming together for  better  or
	      for worse, hopefully enduring, and intimate to
	      the   degree  of	being  sacred.	 It  is	  an
	      association  that promotes a way of life,	 not
	      causes;  a  harmony in living,  not  political
	      faiths; a bilateral loyalty, not commercial or
	      social projects.	Yet it is an association for
	      as  noble	 a purpose as any  involved  in	 our
	      prior decisions."
15. Roe	 v.  Wade4  concerned the  right  of  an  unmarried
pregnant woman to terminate her pregnancy by abortion.	 The
relevant Texas law prohibited abortions except with  respect
to  those  procured or admitted by medical  advice  for	 the
purpose	  of   saving	the  life  of	the   mother.	 The
constitutionality  of,	the said law was questioned  on	 the
ground	that the said law improperly invaded the  right	 and
the  choice of a pregnant woman to terminate  her  pregnancy
and  therefore	violative  of  'liberty'  guaranteed   under
Fourteenth Amendment and the right to privacy recognised  in
Griswold3.  Blackmun, J. who delivered the majority opinion,
upheld the right to privacy in the following words:
"The Constitution does not explicitly  mention
	      any right of privacy.  In a line of decisions,
	      however,...  the Court has recognised  that  a
	      right  of personal privacy, or a guarantee  of
	      certain areas or zones of privacy, does  exist
	      under the Constitution.  In varying  contexts,
	      the Court or individual Justices have, indeed,
	      found at least the roots of that right in	 the
	      First  Amendment,... in the penumbras  of	 the
	      Bill of Rights,... in the Ninth  Amendment....
	      or in the concept of liberty guaranteed by the
	      first section of the Fourteenth Amendment.....
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)
645
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 terminate her pregnancy.
Though	this  decision received a few knocks in	 the  recent
decision  in  Planned  Parenthood v.  Casey2O,	the  central
holding	 of this decision has been left untouched   indeed
affirmed.
16.We may now refer to the celebrated decision in New York
Times  v. Sullivan10, referred to and followed in Time	Inc.
v.  Hil19.  The following are the facts: In the	 year  1960,
the  New York Times carried a full page	 paid  advertisement
sponsored by the "Committee to Defend Martin Luther King and
the  Struggle for Freedom in the South", which	asserted  or
implied	  that	law-enforcement	 officials  in	 Montgomery,
Alabama,  had improperly arrested and harassed Dr  King	 and
other  civil  rights  demonstrators  on	 various  occasions.
Respondent,  who  was  the elected  Police  Commissioner  of
Montgomery,  brought an action for libel against  the  Times
and   several	of  the	 individual   signatories   to	 the
advertisement.	 It  was found that some of  the  assertions
contained in the advertisement were inaccurate.	 The Alabama
courts found the defendants guilty and awarded damages in  a
sum of $ 500,000, which was affirmed by the Alabama  Supreme
Court.	According to the relevant Alabama law, a publication
was  "libelous	per  se"  if the words	"tend  to  injure  a
person ... in his reputation" or to "bring (him) into public
contempt".   The  question raised before the  United  States
Supreme	 Court was whether the said enactment  abridged	 the
freedom	 of speech and of the press guaranteed by the  First
and Fourteenth Amendments.  In the leading opinion delivered
by  Brennan,  J., the learned Judge referred  in  the  first
instance to the earlier decisions of that court	 emphasising
the  importance	 of freedom of speech and of the  press	 and
observed:
"Authoritative  interpretations of  the  First
	      Amendment guarantees have consistently refused
	      to  recognize  an exception for  any  test  of
	      truth   whether  administered  by	  judges,
	      juries,	or  administrative   officials	 and
	      especially one that puts the burden of proving
	      the truth on the speaker.
*      *	     *
	      A	 rule  compelling  the	critic	of  official
	      conduct  to  guarantee the truth	of  all	 his
	      factual  assertions  and to do so on pain	 of
	      libel judgments virtually unlimited in amount-
	      leads  to... "self-censorship".  Allowance  of
	      the  defense  of	truth, with  the  burden  of
	      proving  it  on the defendant, does  not	mean
	      that only false speech will be deterred.	Even
	      courts  accepting this defense as an  adequate
	      safeguard 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)
646
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
merely 'delimit' a State's power to award damages to 'public
officials  against  critics of their official  conduct'	 but
completely prohibit a State from exercising such a power".
18.The	principle  of  the said	 decision  has	been  held
applicable  to	"public figures" as well.  This is  for	 the
reason that public figures like public officials often	play
an  influential role in ordering society.  It has been	held
that  as  a  class the public figures have,  as	 the  public
officials  have, access to mass media communication both  to
influence the policy and to counter-criticism of their views
and  activities.  On this basis, it has been held  that	 the
citizen	 has  a legitimate and substantial interest  in	 the
conduct	 of  such  persons and that  the  freedom  of  press
extends	  to  engaging	in  uninhibited	 debate	 about	 the
involvement of public figures in public issues and events.
19.The	principle of Sullivan10 was carried forward   and
this is relevant to the second question arising in this case
- in Derbyshire County Council v. Times Newspapers Ltd.21, a
decision  rendered by the House of Lords.  The plaintiff,  a
local  authority  brought an action for	 damages  for  libel
against the defendants in respect of two articles  published
in  Sunday  Times questioning the propriety  of	 investments
made for its superannuation fund.  The articles were  headed
"Revealed:  Socialist  tycoon deals with Labour	 Chief'	 and
"Bizarre deals of a council leader and the media tycoon".  A
preliminary  issue  was raised whether the plaintiff  has  a
cause of action against the defendant.	The trial Judge held
that such an action was maintainable but on appeal the Court
of Appeal held to the contrary.	 When the matter reached the
House  of  Lords, it affirmed the decision of the  Court  of
Appeal but on a different ground.  Lord Keith delivered	 the
judgment  agreed to by all other learned Law Lords.  In	 his
opinion,  Lord	Keith recalled that in Attorney	 General  v.
Guardian  Newspapers  Ltd.  (No.  2)22	popularly  known  as
"Spycatcher case", the House of Lords had opined that "there
are
21 (1993) 2 WLR 449: (1993) 1 All ER 1011, HL
22  (1990) 1 AC 109: (1988) 3 All ER 545 :(1988) 3 WLR	776,
HL
647
rights	available  to private  citizens	 which	institutions
of...  Government are not in a position to  exercise  unless
they  can show that it is in the public interest to do	so".
It  was also held therein that not only was there no  public
interest  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 Judicial Committee of the Privy Council  in
Leonard Hector v. Attorney General of Antigua and  Barbuda23
which arose under Section 33-B of the Public Order Act, 1972
(Antigua  and  Barbuda).  It provided that  any	 person	 who
printed or distributed any false statement which was "likely
to cause fear or alarm in or to the public or to disturb the
public	peace  or  to undermine	 public	 confidence  in	 the
conduct	 of public affairs" shall be guilty of	an  offence.
The  appellant,	 the editor of a newspaper,  was  prosecuted
under  the said provision.  He took the plea that  the	said
provision  contravened Section 12(1) of the Constitution  of
Antigua	 and Barbuda which provided that no person shall  be
hindered in the enjoyment of freedom of expression.  At	 the
same time, sub-section (4) of Section 12 stated that nothing
contained  in or done under the authority of law was  to  be
held  inconsistent with or in contravention  of	 sub-section
12(1) to the extent that the law in question made provisions
reasonably required in the interest of public order.  [These
provisions roughly correspond to
Articles 19(1)(a)
and
19(2)
respectively.] The Privy Council upheld the appellant's plea
and declared Section 12(1) ultra vires the Constitution.  It
held  that  Section 33-B is wide enough to  cover  not	only
false statements which are likely to affect public order but
also  those false statements which are not likely to  affect
public	order.	 On  that account, it  was  declared  to  be
unconstitutional.   The	 criminal  proceedings	against	 the
appellant  was	accordingly quashed.  In the course  of	 his
speech, Lord Bridge of Harwich observed thus:
"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
23  (1990)  2  AC 312: (1990)  2	All  ER	 103
	      :(1990) 2 WLR 606, PC
648
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.
	      At  the same time it is no less  obvious	that
	      the very purpose of criticism leveled at those
	      who  have	 the conduct of	 public	 affairs  by
	      their  political	opponents  is  to  undermine
	      public confidence in their stewardship and  to
	      persuade	the  electorate that  the  opponents
	      would  make  a  better job of  it	 than  those
	      presently	 holding  office.  In the  light  of
	      these  considerations their  Lordships  cannot
	      help  viewing  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
and in the process becoming more inquisitive.  Our system of
Government demands  as do the systems of Government of	the
United	States	of  America and United	Kingdom	  constant
vigilance  over exercise of governmental power by the  press
and  the  media among others.  It is essential	for  a	good
Government.   At  the same time, we must remember  that	 our
society	 may  not  share  the  degree  of  public  awareness
obtaining in United Kingdom or United States.  The sweep  of
the  First Amendment to the United States  Constitution	 and
the freedom of speech and expression under our	Constitution
is  not	 identical though similar in their  major  premises.
All  this may call for some modification of  the  principles
emerging  from	the English and United States  decisions  in
their application to our legal system.	The broad principles
set  out hereinafter are evolved keeping in mind  the  above
considerations.	  But before we set out those principles,  a
few more aspects need to be dealt with.
22.We may now consider whether the State or its	 officials
have  the authority in law to impose a prior restraint	upon
publication  of material defamatory of the State or  of	 the
officials,  as	the  case may be?  We  think  not.   No	 law
empowering  them  to  do so is brought to  our	notice.	  As
observed  in  New York Times v. United	StateS24,  popularly
known  as  the Pentagon papers case, "any  system  of  prior
restraints of (freedom of) expression comes to this
24 (1971) 403 US 713 : 29 L Ed 2d 822 (197 1)
649
Court bearing a heavy presumption against its constitutional
validity" and that in such cases, the Government "carries  a
heavy burden of showing justification for the imposition  of
such  a restraint".  We must accordingly hold that  no	such
prior restraint or prohibition of publication can be imposed
by  the	 respondents upon the proposed	publication  of	 the
alleged autobiography of "Auto Shankar" by the	petitioners.
This cannot be done either by the State or by its officials.
In other words, neither the Government nor the officials who
apprehend that they may be defamed, have the right to impose
a  prior  restraint  upon the  publication  of	the  alleged
autobiography  of  Auto	 Shankar.   The	 remedy	 of   public
officials/public figures, if any, will arise only after	 the
publication and will be governed by the principles indicated
herein.
23.We  must  make  it clear that we  do	 not  express  any
opinion	 about	the right of the State or its  officials  to
prosecute 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.
Question No. 3
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,  however,
did disclose the above fact but they stated that on the date
of their filing the writ petition, no orders were pronounced
by the Madras High Court.  It appears that the writ petition
was filed at about the time the learned Single Judge of	 the
Madras	High  Court  pronounced the  orders  on	 the  office
objections.  Having regard to the facts and circumstances of
the case, we are not inclined to throw out the writ petition
on  the said ground.  The present writ petition can also  be
and  is hereby treated as a special leave  petition  against
the orders of the learned Single Judge of the High Court.
26.  We may now summarise the broad principles flowing	from
the above discussion:
(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,
650
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 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.
(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 [
Article 19(2)
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,  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  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
	      authority	 and other organs  and	institutions
	      exercising  governmental power are  concerned,
	      they  cannot maintain a suit for	damages	 for
	      defaming them.
(5)Rules 3 and 4 do not, however, mean that
Official	Secrets	 Act, 1923
, or	any  similar
	      enactment or provision having the force of law
	      does not bind the press or media.
651
(6)There is no law empowering the State  or
	      its  officials  to prohibit, or  to  impose  a
	      prior restraint upon the press/media.
27.We  may  hasten  to	add  that  the	principles   above
mentioned  are only the broad principles.  They are  neither
exhaustive nor all-comprehending; indeed no such enunciation
is possible or advisable.  As rightly pointed out by Mathew,
J., this right has to go through a case-by-case development.
The  concepts dealt with herein are still in the process  of
evolution.
28.In  all  this discussion, we may clarify, we	 have  not
gone  into the impact of
Article 19(1)(a)
read	with  clause
(2)  thereof  on
Sections 499
and
500
of  the  Indian  Penal
Code.  That may have to await a proper case.
29.Applying the above principles, it must be held that the
petitioners have a right to publish, what they allege to  be
the  life story/autobiography of Auto Shankar insofar as  it
appears from the public records, even without his consent or
authorisation.	 But if they go beyond that and publish	 his
life  story, they may be invading his right to	privacy	 and
will be liable for the consequences in accordance with	law.
Similarly,  the	 State or its officials	 cannot	 prevent  or
restrain  the said publication.	 The remedy of the  affected
public	officials/public  figures,  if	any,  is  after	 the
publication, as explained hereinabove.
30.The	writ petition is accordingly allowed in the  above
terms.	No costs.
652
653
654
655
656
657
658