Indian Kanoon - Search engine for Indian Law

14. Before going to this judgment it may be necessary to state that the ultimate question would be whether the right of privacy of an individual is part of right of speech. The Supreme Court in this case (1 supra) considered this aspect of the matter. In para-9 of the judgment the Supreme Court held;

"9. The right to privacy as an independent and distinctive concept originated in the filed of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognized. 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.P . A more elaborate appraisal of this right took place in a later decision in Gobind v. State of M.P 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 ( 381 US 479) and Roe v. Wade (410 US 113). After referring to Kharak Singh 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 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.

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 Europe Convention on Human Rights, which came into force on 3-9-1953, 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).

17. The learned Advocate General has also brought to our notice a Division Bench Judgment reported in K.V. Ramaniah Vs. Special Public Prosecutor (2) in which this question has already been addressed to and decided. We do not find ourselves in disagreement with the views expressed by the Division Bench as such we are bound by the judgment of a coordinate Bench.

18. Now, coming to the last argument of Mr. S. Ramachandra Rao that truth should be a defence without further conditions, there are two conditions under section 499 I.P.C for truth to become an effective defence in a complaint of defamation. One is that it should be factually correct and the other is that it should be in public interest. We do not find how it is unreasonable. It is not always necessary to bring truth to the notice of general public. Let us assume that there is a victim of rape. In Indian society, if it is known that a particular woman has been subjected to rape there is guarantee for a miserable life to her. In such a social order the poor victim may try to hide this truth from the public. Would it be right for the press to publish such a story. After all, it is not going to serve any public purpose. In such a situation that poor lady shall be entitled to have a right to privacy although factually it would be correct that such a lady was raped. Therefore, it would not be always sufficient defence that the story published was factually correct. If the contention pleaded before us is accepted that truth should be a defence without further qualifications, then the pressmen shall enter anybody's bed-room. As has been held in R. Rajagopal's case (1 supra) that the right to privacy and right of freedom of press have to be balanced, therefore, a laxman rekha has to be drawn somewhere and in our view the laxman rekha is the public interest. If publication of truth is in public interest it would not be a defamation, but if it has nothing to do with public interest and relates to privacy of an individual then it would certainly be defamatory. Therefore, in our view it would be dangerous if truth without further qualifications is made a defence in an action against defamation.