This article is written by Shreya Pandey, pursuing LLM from RamSwaroop University, Lucknow. The article critically analyses the present case in which the conflict between freedom of speech and freedom of privacy was discussed.
The case R. Rajagopal v. State of Tamil Nadu, (1994) is considered to be a landmark case on freedom of speech and expression and the right to privacy. The case was filed for preventing the publication of an autobiography book by a prisoner named Shankar who was given the death penalty. It was assumed by the state that the book contains many such incidents or statements that can cause harm to the reputation of the state and therefore, it prohibited the book to get published. The Supreme Court in this case held that it is a violation of the fundamental right to speech and expression if the book is prevented from getting published just for the sake that it was only apprehended to cause defamation. The Hon’ble Court held that the state cannot take any step prior to the publication but when the books get published and if in case the book consists of any defamatory sentence against the state then after the book gets published the state can sue for defamation.
Facts of the case
- An auto driver Shankar was accused of murder and was given death punishment.
- He wrote an autobiography book that discusses his relationship with some senior prison authorities with whom he had joined hands in illegal acts.
- While writing the book, he was in prison serving life imprisonment, and was punished with the death penalty.
- Before being hanged, he sent the biography to his wife through the prison officials.
- His wife gave the book to the petitioners (Editor, printer, and publisher of Nakkheeran, Tamily weekly magazine, and Associate editor of the magazine) to get it published.
- The Inspector-General of Prisons sent a letter to the petitioners claiming the autobiography to be false and that the publication of such a book is against the prison rules. The Inspector-General of Prisons threatened to take legal action if the book gets published because it was apprehended that the book was defamatory in nature to the staff and prison officials.
Issues raised in the case
- Whether a state has a right to prevent the publication of the book if it causes any infringement to the state’s right to privacy.
- Whether freedom of speech and expression prevails over the right to privacy.
Arguments by the plaintiff
- The arguments set forth by the plaintiff were entirely based upon their right to privacy.
- It was argued by the plaintiff that if the book gets published, it will have an adverse effect on the right to privacy of prison authorities.
- It was also argued that the book contains much information regarding various authorities and prison management that the plaintiff had no way to check upon.
- They argued that certain statements made in the book were not true at all and hence they are defamatory to the state and prison authorities.
- A point was raised by the plaintiff that it was not sure whether the book was actually written by Shankar or not, it was just alleged by the defendants that the book was written by Shankar. During the pendency of the proceedings, Shankar was hanged, so confirming from him whether he actually wrote the book or not was not possible.
Arguments by the defendant
- The arguments set forth by the defendants (Secretary of Home Department of State of Tamil Nadu, Inspector General of Prisons, Madras, and Superintendent of Prisons (Central Prison), Salem, Tamil Nadu) were entirely based upon their fundamental right to speech and expression.
- It was argued by the defendants that the Constitution of India provides every individual a fundamental right to express themselves in the way they like, which is subject to certain restrictions. But in this case, no restrictions are being violated.
- It was argued that during the case right to privacy was not considered as a fundamental right therefore freedom of speech and expression shall prevail over the right to privacy.
- It was stated in the argument that since the book was written by Shankar himself and all that he wrote were the incidents from his life, therefore it is true and so it can not fall under defamation as truth is one of the exceptions when it comes to the offence of defamation.
- It was also stated by the defendants that the proof that the book was written by Shankar himself is that it was recorded by the prison authorities that Shankar gave the book to his wife to get it published. Therefore, it is proved that the book was written by Shankar himself.
Laws involved in the case
- Article 19(1)(a) read with Article 19(2) of Indian Constitution – Right to freedom of speech and expression subject to certain restrictions.
- Article 21 of Indian Constitution – Right to life and personal liberty
- Section 499 and 500 of IPC – Defamation
- Official Secrets Act, 1923.
In this case, the right to privacy was discussed and the Court held that the right to privacy is a fundamental right that is inferred under Article 21 of the Indian Constitution. Therefore, every individual has a right to be left alone and so they have a right to try to safeguard their and their family’s privacy.
The Hon’ble Court stated that the right to privacy is not explicitly present in the Constitution but its essence is there in the Constitution and therefore, it needs to be considered and respected.
- The book can be published even without getting due authorization from Shankar as this is the right to freedom and expression to publish a book that does not fall under the category of reasonable restrictions under Article 19(2).
- The publishers can’t publish any secret information as that is violative of the right to privacy.
- The state has no right to prevent or stop the publication of the book but they have the remedy to file a case of defamation if the book contains any secret information that infringes their right to privacy.
- The Court referred to Kharak Singh v. the State of UP, 1962, and Govind v. the State of MP, 1975 to deal with the aspect of the right to privacy. The Court also referred to Griswold v. Connecticut, 1965 and Roe v. Wade, 1973 and stated, “… 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.”
- The Supreme Court applied the rule of New York Times Co. v. Sullivan, 1964, and held that any publication that is alleged to be false reports on the matter of public interest can be regulated only if it is published in “reckless disregard of the truth”.
Observations by the Court
- Hon’ble Supreme Court Justice B.P. Jeevan Reddy observed that Shankar, his spouse, and lawyer are not the parties to the petition and it is unclear whether the book was actually written by Shankar or not. He stated, “We do not have their version… whether Shankar has indeed written his autobiography and/or…requested or authorized the petitioners to publish the same…” The Judge stated that he will proceed with hearing the case assuming that the book was neither written by Shankar nor did he give any authorization to anyone to get it published. It was also clarified by the Judge that it is a mere assumption. Stating his statement: “We must, however, make it clear that ours is only an assumption for the purpose of this writ petition and not a finding of fact.” Therefore it is clear that there is no absolute proof that the book was an autobiography of Shankar. So it is important to prove whether the book was actually written by Shankar or not.
- The Court observed that despite the fact that the right to privacy is not explicitly stated in the Indian Constitution, it comes under the ambit of Article 21, i.e., the right to life and personal liberty. Therefore, the book that allegedly contains details regarding prison authorities in a derogatory sense will amount to defamation (although maybe true).
- The state is not empowered by law to put a prior restraint on publication upon the press or media.
- It was taken into account by the Court that every individual has a right to privacy and the book is merely based upon one person’s thought that might be biased so it is immoral and illegal to defame such a person based upon someone’s experience. Public officials who are serving their public duty are also entitled to their right to privacy.
- The Court observed that every person has a right to get his/her autobiography published because every individual has the freedom of speech and expression under Article 19(1)(a).
- Article 19(2) imposes reasonable restrictions to the freedom of speech and expression therefore if any such information that is not true and is defamatory can not be published. So if it isn’t proven that the book was written by Shankar then it should not be published.
- The Court finally observed that the state has no such right to prevent the publication of the book merely on the ground that the book may be defamatory. However, the plaintiffs can sue after the publication of the book if the book turns out to be defamatory.
Implications of the judgment
The Hon’ble Court gave their decision on the following points:
- Shankar has a right to get his biography published because it was not made by any mala fide intention and has made no false statements.
- The book was published and did not reveal any secret information relating to the public officials.
- The right to privacy was not considered as a fundamental right during 1995 through any case law or any legislation. Therefore, it was important to discuss this right and bring it under the ambit of Article 21.
- The Supreme Court resolved the conflict between the right to press and the right to privacy. The Court held that the right to privacy has acquired a constitutional status.
The autobiography book got published without any alterations.
- The Court did not consider the point that if the book contained anything that could cause defamation to the plaintiff and till the time a case of defamation be sued, a lot of damage could have been caused to the plaintiff.
- The question of whether the book was actually written by Shankar or not, was not taken into consideration.
- The issue of whether the book was written or published by a mala fide intention or not was also ignored. It was important to take these issues into consideration as these issues could reflect whether the book can bring defamation to the plaintiff or not.
As per the author’s view, the publication of the book without taking into consideration who actually the author is or by what intention the book is being published might cause harm to the plaintiff. The book should have got a little modification before getting published such as removing the names of the prison authorities and police officers. In my view, the Hon’ble Supreme Court gave a better hand to the right to freedom of speech and expression in comparison to the right to privacy, but since both of them were considered as a part of the fundamental right, therefore, the Court should have chosen a midway to deal with this case.
It is to be noted that this case came before the time when the “right to privacy” was legally enforced in India. So it can be assumed that if this case were recent, the judgment might be different.
In my opinion, the Court should have considered that if the book was published with the names of the public officers, they would be highly criticized by the people without giving them a fair chance to even clear whether they were really involved in any such crime or not. If the book gets published with such information then although the state has a remedy to sue, till then the damage would be caused that could have been rectified if the Court would have been a little cautious while giving the decision entirely favoring the right to press.
The right to privacy has yet not been enumerated in the Constitution as a separate right still since it comes within the ambit of Article 21 therefore it needs proper implementation.
The right to freedom of speech and expression is a fundamental right that every individual possesses but it should be restricted in certain situations where such right is getting misused, defamatory sentences are being used, or where there is confusion regarding the truth of the alleged facts.
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