The post is an attempt to anticipate the trajectory of decisions following the Puttaswamy judgment, in dealing with cases where the right to freedom of speech and right to privacy are seemingly in conflict, based on a decisions of a few High Courts in this regard.

The Puttaswamy judgment affirming the position of right to privacy as a ‘fundamental right’ has led to a paradigm shift in privacy jurisprudence in India. One possible avenue for now bringing privacy claims can be against news organisations, especially when they intrude too deeply into the private affairs of individuals. They routinely publish information about private lives of public individuals- a function claimed to be for ‘public interest’. Right to privacy in these cases then involves an element of protecting people from intrusive interference from news organisations, most of which happen to be non-state (private) actors. This post seeks to trace the jurisprudence related to this interaction, interpretation used by various High Courts of the Puttaswamy judgment and problems which may arise if similar line of reasoning is adopted in future cases also.  

News outlets have been dragged into litigation for publishing intimate details about public figures in various cases such as those of Radia Tapes, Biopic of Veerappan, among others. A landmark case in this regard is Rajagopal v. State of Tamil Nadu The case was related to the biography of Auto Shankar who was convicted and sentenced to death. His biography had details about his private interactions with a few police officers, who claimed that the publication of the book would violate their right to privacy. The court held that in cases of ‘public figures’ and when information relating to them is already in public gaze, or when someone thrusts themselves into controversy – protection under a right to privacy cannot be claimed. The Court in this case employed the right to privacy only as a common law right and not a fundamental right. This is significant since State in the latter case cannot introduce legislation that abrogates the right but is only available directly against State actors. On the other hand, a common law right to privacy provides a much-weaker level of protection and can be taken away by State at any time. This right however, is also available against private parties, for instance through a case of breach of confidence.

The standard that was utilised in Rajagopal was employed in multiple other cases such as those of Selvi. Jayalalitha v. Penguin Books India, Akshaya Creations v. Muthulakshmi and Khushwant Singh. v. Maneka Gandhi. The courts had taken a consistent line of reasoning in not granting pre-publication injunctions, even in cases related to right to privacy. Remedy could only be sought through after the publication of the material. More importantly, the courts treated both the rights of free speech and privacy on an equal pedestal. It is at this juncture that the Puttaswamy judgment in recognising the fundamental right to privacy becomes relevant.

An increasing number of cases which initially were filed as defamation suits against newspapers for reporting details about public personalities can now agitate an additional ground in the form of breach of right of privacy. This is especially possible because of J. Kaul’s concurring opinion which has been understood, according to various High Courts, to allow the right to be horizontally enforceable.

The Horizontal application of Privacy?

The line of reasoning adopted by courts post the Puttaswamy judgment is a cause of worry. There is increasing tendency on the part of courts to injunct publication on the ground of violation of right to privacy, for example in cases filed by Mr Jay Shah against The Wire and Ramdev Baba against Juggernaut Books. The Madras High Court’s decision in the case of Kanimozhi v. Varadarajan is one such judgment. In this case Ms. Kanimozhi had succeeded in a suit against Kumudan Reporter for publishing defamatory material and consequent, loss of reputation in gaining an interim order, stating that no article, representation about the plaintiff could be published without seeking her prior permission. On appeal, the court refused to vacate an order on the ground that the publication of material connected to Kanimozhi violated her right to privacy. Despite referring to the Rajagopal case, the Court did not utilise the standard adopted in that case. The Court however referred to Puttaswamy judgment (specifically J. Kaul’s opinion) holding that, “the Hon’ble Supreme Court had while recognising the right of privacy is a fundamental right, in fact called for a new order, which would offer a preeminent position to the right of privacy.” In light of the above, the court held that the right to privacy would trump over other rights in Part-III and granted a pre-publication injunction against Kumudan Reporter.

One of the biggest concerns with the judgment is that the HC ignores the test provided in Rajagopal without giving any reason for the same and applies the fundamental right to privacy against a private party. This is against Rajagopal where the court laid down that the right of privacy of the petitioner against the respondent was a common law right and not a fundamental right. The court relies on Puttaswamy in applying the ‘fundamental right’ against private parties as flowing from Part-III which, I contend is based on an incorrect reading of the judgment. The SC in Puttaswamy recognised the importance of bringing private parties under the ambit of right of privacy, but none of the opinions explicitly allow the enforcement of the right as a ‘fundamental right’ against private parties. In fact, the Court specifically held that the right to privacy as a common law right can co-exist with a fundamental right to privacy. If the Court had desired to allow for the direct enforcement of right of privacy as a fundamental right against all kinds (private and public) actors, there would be no reason for the Court to affirm a common law right to privacy It was only J. Kaul who observed that the enforcement of the fundamental right to privacy against private parties could be applicable but, this too he stated had to be through an act of Parliament.

The Pre-eminent position of Privacy

A reference being made to J. Kaul’s judgment in providing a preeminent position to the right to privacy as a justification for privileging it over freedom of speech is also based on an incorrect reading of his opinion. The opinion speaks only of recognising the right to privacy as a fundamental right and not as it being more important than other fundamental rights. This is misunderstood to mean that the right to privacy has been offered a privileged position.

Moreover, there is no reason for the right to privacy to be given a privileged position over and above other fundamental rights in cases such as these. A right to privacy with little to no restrictions on its exercise brings several problems with it. Too little privacy can lead to state control over private lives, but at the same time, too much privacy leads to a situation where individuals are able to act with complete autonomy without a proportional responsibility. If a legal system allows individuals to pursue their own interests, without being cognizant of the good for the public, they would exhaust the resources that enabled the development of this system in the first place. This becomes especially important to understand in the context of public figures, who by the virtue of their position must be subjected to reasonable public scrutiny. When Courts excessively privilege the right to privacy over the right to freedom of free speech and expression they reduce scrutiny over the actions of public officials to a huge and undesirable extent. While the current framework allows for scrutiny into actions of public official’s affairs through schemes like the right to information, the private affairs of public officials such as their foreign bank accounts, properties registered under their spouses’ names, etc, should also be available for public scrutiny.

The trajectory being followed by the Courts after the Puttuswamy judgment is similar to the trend that was observed in the United Kingdom. The English courts started giving not only injunctions on the publication of details of public figures but also super injunctions where the news organisations were prevented from even reporting the existence of a litigation around the cases against media organisations after the enactment of the Human Rights Act, 1998. The Act enabled courts to recognise a right to privacy in cases which were earlier filed only on the grounds of defamation. This has led to increasing litigation against newspapers and media organisations, with disastrous consequences for freedom of speech.

Allowing claims of right to privacy against private parties directly while privileging it over the freedom of speech and expression will lead to a chilling effect. The most likely victims of this are news organisations at the hands of powerful figures in society who have the wherewithal to file suits to stifle any form of negative publicity about their activities. Unlike the cases in the past, where courts only allowed the aggrieved party to claim damages after the publication of the material leading to a breach of privacy, the court in the cases mentioned have passed gag orders injuncting the publication of the material. The potential for misuse is massive in these and the courts need to carefully tread this path which could compromise transparency and accountability of public officials.

Written by
Vishal Rakhecha
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