Justice Jeevan Reddy’s complete privacy law

In 1994 itself, Justice BP Jeevan Reddy gave complete law on privacy in relation with freedom of press and defamation in his famous judgment in R Rajagopal v State of Tamil Nadu. Facts of this case are interesting: Auto Shankar was tried for six murders, convicted and sentenced to death, which was confirmed by the Madras High Court and his appeal to Supreme Court was dismissed in 1994.

Auto Shankar wrote his autobiography running into 300 pages while confined in Chenglepat sub-jail during the year 1991. Through his wife and advocate he sent it to Nakheeran magazine for publication. His letters to his advocate prove this. 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 video cassette and several photographs taken on the occasion. The magazine announced that very soon it would publish 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 Autoshanker, by third degree methods, to write letters addressed to the Inspector General of Prisons and Editor requesting not to publish his life story. IGP ‘requested’ the editor to stop publishing the said serial forthwith.

Nakheeran published three parts but stopped in view of threatening tone of the police letter. He raids by police as earlier their office was raided, phones tapped and editor was arrested. Editor filed a writ petition in Madras High Court. The IG of Prisons disputed authorship and authorisation to publish. Neither Auto Shankar nor his wife nor his counsel was made parties to this writ petition.

Right to Privacy: Concept
Justice Jeevan Reddy explained 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 was given to 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.

The Constitutional Foundation
The Supreme Court proceeded to explain that though Right to Privacy was not enumerated as a fundamental right in our Constitution, it had been inferred from Article 21. This issue was dealt with in Kharak Singh v. State of UP and then explained in Gobind v. State of MP wherein US decisions Griswold v. Conneticut and Roe v. Wade were referred to. The learned Judge stated the law in the following words: (SCC pp. 155-57, paras 22-29)] "... If the Court does find that a claimed right is entitled to protection as a fundamental right to privacy, 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”.

He referred to European Convention on Human Rights and explained that privacy was human right. Justice Jeevan Reddy appropriately referred to US decisions in Olmstead v. United States, and Time, Inc. v. Hill, 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”. Justice Jeevan Reddy’s propositions are:

1. Privacy is part of liberty
The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

2. Public Records: An exception
If such publication is based upon public records including court records, it is not objectionable. 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, except where identity of victim of sexual crimes shall not be published.

3. No remedy for privacy invasion of public servants
In case of public officials, neither there is right to privacy, nor the remedy of action 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. 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 by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.

4. No prior restraint on Media based on privacy
There is no law empowering the State or its officials to prohibit or to impose a prior restraint upon the press/media, either on ground that it would invade the privacy or cause defamation.

5. Privacy invasion: A tort
The privacy is recognised by the Supreme Court in 1994 in R Rajagopal case as implicit part of right to life under Article 21. The right to information is upheld as part of Right to Freedom of Speech and Expression under Article 19 (1)(a), which is subjected to reasonable restrictions on grounds listed in Article 19(2).

On the ground of privacy, the freedom of expression cannot be restricted, because Constitution did not include ‘privacy’ as a ground for making law to impose reasonable restriction. Freedom of speech is far superior fundamental right which is essential in democracy than the implicit right of privacy of an individual. Thus, neither the Executive (police in this case) nor the Legislature nor the Judiciary (courts) can prevent a publication on the possibility of invasion of privacy or causing defamation. However, privacy and right to reputation are one’s own rights, if violated, can lead to suit for damages.

6. Defences/Exceptions to Privacy
According to Jeevan Reddy’s judgment, defences available for breach of privacy are: a) Consent: If the concerned person gives consent to publish the life story, it is a strong defence; b) Public 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”.

Committing wrong takes away the privacy. Privacy is not protection of secrecy so that wrongs can be committed secretly; c) Official duty: Officials do not have right to privacy for their acts and conduct relevant to the discharge of their official duties. However, in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen.

Justice Jeevan Reddy finally said that in R Rajagopal case, Nakheeran has right to publish the autobiography subject to legal remedies for defamation, if any. The Nine-Judge Constitutional Bench of the Supreme Court in K S Puttaswamy case reiterated that the right to privacy is a fundamental right. In Sareetha case, Justice PA Choudary traced roots of privacy right as Constitutional right under Articles 14, 19 and 21.

Later, Justice BP Jeevan Reddy dealt with right to privacy in a more comprehensive manner explaining its contours, components, consequences, exceptions, explaining privacy in terms of torts, Constitutional law in relation with freedom of expression and defamation. However, the 2017 order of SC Bench serves a larger purpose as binding precedent.