The right to privacy as an independent and distinctive concept originated in the field to 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 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 – purpose 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.
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 Uttar Pradesh (1964) 1 SCR 332). A more elaborate appraisal of this right took place in a later decision in Govind v. State of Madhya Pradesh(1975) 2 SCC 148) 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. Connecticut ((1965) 381 US 479:14 L Ed 2d 510) and Roe v. Wade ((1973) 410 US 113). After referring to Kharak Singh and the said American decisions, the learned Judge stated the law in the following words:
“….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 catalogue 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 government interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case. (See The Wages of Crying Wolf:A Comment on Roe v. Wade , 82 Yale LJ 920, 932)
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 protectible 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 as themselves, an image that may reflect the values of their peers rather than the realities of their natures. (See 26 Stanford Law Rev 1161, 1187).
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 September 3, 1953 represents a valiant attempt to tackle the new problem. Article 8 of the Convention is worth citing (See “Privacy and Human Rights”, Ed. AH Robertson, p. 176):
1. Every one 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.”
10. 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.
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 Harward Law Review 193, in the year 1890.
Though the expression “right to privacy” was first referred to in Olmstead v. United States ((1928) 277 US 438:72 L Ed. 944), it came to be fully discussed in Time Inc. v. Hill (1967) 385 US 374:17 L Ed 2d 456). 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 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 seige 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 re-enacted the entire incident, and photographed it, showing inter alia that the members of the family were illtreated 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. Sullivan ((1964) 376 US 254:11 L Ed 2d 868) and set aside the award of damages holding that the jury was not properly instructed in law. It directed a re-trial. 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 disregard of the truth.”
The learned Judge added:
“We create grave risk of serious impairment of the indispensable services of a free press with the impossible burden of verifying to a certainty the facts associated in a news article with 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.”
The next relevant decision is in Cox Broadcasting Corporation v. Cohn ((1975) 420 US 469:43 L Ed 2d 328). 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 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”.
Before proceeding further , we may mention that the two decisions of supreme court referred to above (Kharak Singh (supra) and Gobind (supra) as well as the two decisions of the United States Supreme Court, Griswold and Roe v. Wade, referred to in Gobind, are cases of governmental invasion of privacy. Kharak Singh 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 learned 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. Gobind was also a case of surveillance under M.P. Police Regulations. Kharak Singh was followed even while at the same time elaborating the right to privacy, as set out hereinbefore.
Griswold 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 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 invade the area of protected freedoms “. NAACP v. Alabama….. 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 – order 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.”
Roe v. Wade ((1973) 410 US 113) 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 Griswold. 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 area 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. Connecticut, 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. Virginia (1966) 388 US 1:18 L Ed 1010; procreation, Skinner v. Oklahoma (1941) 316 US 535:86 L Ed 1655, contraception; Eisenstadt v. Baird (1971) 405 US 453:31 L Ed 2d 349; family relationship, Prince v. Massachusetts (1943) 321 US 158:88 L Ed 2d 645; and child rearing and education. Pierce v. Society of Sisters (1924) 268 US 510:69 L Ed 1070; Meyer v. Nebraska (1922) 262 US 390:67 L Ed 1042.
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 right 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. Casey (1992) 120 L Ed 2d 683), the central holding of this decision has been left untouched – indeed affirmed.
We may now refer to the celebrated decision in New York Times v. Sullivan, referred to and followed in Times Inc. v. Hill. 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 emphasizing 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 defence 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 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 of 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….”
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”.
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 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.
The principle of Sullivan was carried forward – and this is relevant to the second question arising in this case – in Derbyshire Country Council v. Times Newspapers Ltd. (1993(2) WLR 449), 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. (2 1990(1) AC 109), popularly known as “Spycatcher case” the House of Lords had opined that “there are 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 Co. v. Sullivan and certain other decisions of American Courts and observed – and that 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.
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 Antiqua and Barbuda (1990(2) AC 312) which arose under S.33 (B) of the Public Order Act, 1972 (Antiqua 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 disturb 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 S. 12(1) of the Constitution of Antiqua 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 S. 12 stated that nothing contained in or done under the authority of law was to be held inconsistent with or in contravention of the 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 S. 12(1) ultra vires the Constitution. It held that S. 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 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 levelled 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 criminalises statements likely to undermine public confidence in the conduct of public affairs with the utmost suspicion.”
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, I.P.C. 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.