# R. RAJAGOPAL@ R.R. GOPAL AND ANR v. STATE OF TAMIL NADU AND ORS

- **Citation:** [1994] Supp. 4 S.C.R. 353
- **Court:** Supreme Court of India
- **Decided:** 1994-10-07
- **Bench:** B.P. Jeevan Reddy, Suhas C. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-rajagopal-r-r-gopal-and-anr-v-state-of-tamil-nadu-and-ors-12485
- **Pages:** 25

## Headnote

B
Constitution of India, 1950: Articles 19(l)(a) and (19)2.
Freedom of Press-Right of Press to publish autobiography of a condemned prisonei-Extent of-Whether prison officials can prevent publication
C
of prisoner's autobiography to protect his right-Right of Press to criticise the
acts and conduct of public officials-State whether can impose prior restraint
to prevent publication of material defamatory of its officers.
Article 21-Right to privacy-Two important aspects of-General law
of privacy affording action in tort in case of invasion of privacy-Constitu- D
tional right as part of Article 21 providing protection against unlawful Government invasion-Remedies to citizens in case of violation of right to
privacy-Essential principles of right to privacy and exceptions to right stated.
Article 32-Writ filed in Supreme Court-Disclosure by petitioner that E
writ was also filed in High Court for similar relief but no orders passed by
High Court till the date of filing writ in this Court-Maintainability of writ.
The petitioners, Editors of a Tamil Weekly Magazine 'Nakkheeran'
filed a writ petition in this Court seeking directions for (i) restraining the
respondents-State and its officers - from Interfering with the publication
F
of the autobiography of a condemned prisoner, Auto Shankar and (Ii) ror
restraining the Inspector General of Prison, Madras from taking the legal
action as communicated by him in his letter dated 15th June, 1994. The
petitioner's case was that, while in jail, the prisoner wrote his autobiography exposing nexus between prisoner and several officers or the State
and with the knowledge and approval of the jail authorities, handed over G
the same to his wife for being delivered to his advocate with a request that
it should be published in the petitioner's magazine; and that the prisoner
also wrote several letters to his advocate and the petitioners in which he
affirmed his aforesaid desire. Consequently, the petitioners, in their
magazine Issue dated 21st May, 1994 announced that soon they would be H
353
354
SUPREME COURT REPORTS (1994) SUPP. 4 S.C.R.
A
coming out with the sensational life history of Auto Shankar. Since the
respondents were afraid that by the said publication, links of many officers
with the condemned prisoner would be exposed, they not only forced the
prisoner to write to the Inspector General of Prisons and to the petitioner
requesting that his life story should not be published but also threatened
B the petitioners, by their communication dated 15th June, 1994, with legal
action for black mailing. The petitioners also stated that before they filed
a writ petition in this Court, they approached the Madras High Court for
similar relief but no orders were passed by the High Court ll11 the filing
of the petition.
C
The respondents denied pressure on the prisoner and disputed the
authenticity of the autobiography said to have been written by the prisoner
as well as authority of the petitioners to publish the same. According to
them no power of attorney was executed - which has to be done in the
presence of the prison officials under the Prison Rules - by the prisoner in
favour of his advocate in connection with publication of the alleged book. .
D They further stated that on account of petitioner's failure to produce letter
written by prisoner authorising them to publish autobiography, the High
Court dismissed the petition. As the publication was likely to tarnish the
image of persons holding responsible positions in the public Institutions
under the guise of autobiography they sent the communication dated 15th
E June, 1994 proposing to take legal action against the petitioners.
In view of the fact that in a writ petition under Article 32 this Court
does not go into disputed questions of fact - whether the petitioner has
indeed written his autobiography and authorised the petitioners to publish
the same - this Court proceeded on the assumption that the condemned
F prisoner has neither written hi

## Text

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R. RAJAGOPAL@ R.R. GOPAL AND ANR.
A
v.
STATE OF TAMIL NADU AND ORS.
OCTOBER 7, 1994
(B.P. JEEVAN REDDY AND SUHAS C. SEN, JJ.]
B
Constitution of India, 1950: Articles 19(l)(a) and (19)2.
Freedom of Press-Right of Press to publish autobiography of a condemned prisonei-Extent of-Whether prison officials can prevent publication
C
of prisoner's autobiography to protect his right-Right of Press to criticise the
acts and conduct of public officials-State whether can impose prior restraint
to prevent publication of material defamatory of its officers.
Article 21-Right to privacy-Two important aspects of-General law
of privacy affording action in tort in case of invasion of privacy-Constitu- D
tional right as part of Article 21 providing protection against unlawful Government invasion-Remedies to citizens in case of violation of right to
privacy-Essential principles of right to privacy and exceptions to right stated.
Article 32-Writ filed in Supreme Court-Disclosure by petitioner that E
writ was also filed in High Court for similar relief but no orders passed by
High Court till the date of filing writ in this Court-Maintainability of writ.
The petitioners, Editors of a Tamil Weekly Magazine 'Nakkheeran'
filed a writ petition in this Court seeking directions for (i) restraining the
respondents-State and its officers - from Interfering with the publication
F
of the autobiography of a condemned prisoner, Auto Shankar and (Ii) ror
restraining the Inspector General of Prison, Madras from taking the legal
action as communicated by him in his letter dated 15th June, 1994. The
petitioner's case was that, while in jail, the prisoner wrote his autobiography exposing nexus between prisoner and several officers or the State
and with the knowledge and approval of the jail authorities, handed over G
the same to his wife for being delivered to his advocate with a request that
it should be published in the petitioner's magazine; and that the prisoner
also wrote several letters to his advocate and the petitioners in which he
affirmed his aforesaid desire. Consequently, the petitioners, in their
magazine Issue dated 21st May, 1994 announced that soon they would be H
353
354
SUPREME COURT REPORTS (1994) SUPP. 4 S.C.R.
A
coming out with the sensational life history of Auto Shankar. Since the
respondents were afraid that by the said publication, links of many officers
with the condemned prisoner would be exposed, they not only forced the
prisoner to write to the Inspector General of Prisons and to the petitioner
requesting that his life story should not be published but also threatened
B the petitioners, by their communication dated 15th June, 1994, with legal
action for black mailing. The petitioners also stated that before they filed
a writ petition in this Court, they approached the Madras High Court for
similar relief but no orders were passed by the High Court ll11 the filing
of the petition.
C
The respondents denied pressure on the prisoner and disputed the
authenticity of the autobiography said to have been written by the prisoner
as well as authority of the petitioners to publish the same. According to
them no power of attorney was executed - which has to be done in the
presence of the prison officials under the Prison Rules - by the prisoner in
favour of his advocate in connection with publication of the alleged book. .
D They further stated that on account of petitioner's failure to produce letter
written by prisoner authorising them to publish autobiography, the High
Court dismissed the petition. As the publication was likely to tarnish the
image of persons holding responsible positions in the public Institutions
under the guise of autobiography they sent the communication dated 15th
E June, 1994 proposing to take legal action against the petitioners.
In view of the fact that in a writ petition under Article 32 this Court
does not go into disputed questions of fact - whether the petitioner has
indeed written his autobiography and authorised the petitioners to publish
the same - this Court proceeded on the assumption that the condemned
F prisoner has neither written his autobiography nor has he authorised the
petitioner to publish the same in their magazine and considered the following questions :-
G
H
(1)
Whether a citizen of this country can prevent another person
from writing his life-story or biography? Does such unauthorised writing infringe the .citizen's right to privacy?
Whether and In what circumstances the press is entitled to
publish such unauthorised account of a citizen's life? What
are the remedies open to a citizen In i:ase_ of infringement of
his right to privacy and In case such writing amounts to
defamation?
R.R. GOPALv. STATE OFT.N.
355
(2)
Whether the Government or public officials can impose prior A
restraint on the press to prevent publication of defamatory
material?
(3)
Whether the prison officials can prevent the publication of the
life-story of a prisoner for protecting prisoner's right?
Allowing the petition, this Court
B
HELD : 1. 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 recogC
nised. This right has two aspects which are but two faces of the same coiu:
(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 govermental invacsion. The first aspect of this right must
be said to have been violated where, for example, a person's name or D
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. In recent times, however,
this right has acquired a constitutional status. [362-G-H, 363-A)
2. Right to privacy is not enumerated as a fundamental right in our E
Constitution but has been inferred from Article 21. 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 bas a right to
safeguard the privacy of his own, his family, marriage, procreation,
motherhood, child bearing and education among other matters. None can F
publish anything concerning the above matters without his consent -
whether truthful or otherwise and whether laudatory or critical. If he does
so, he would be violating the right to privacy of the person concerned and
would be liable in an action for damages. Position may, however, be
different, if a person voluntarily thrusts himself into controversy or volunG
tarily invites or raises a controversy. [363-B, 375-D-E)
3. The rule aforesaid is subject to the exception, that any publication
concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the .
reason that once a matter becomes a matter of public record, the right to H
356
SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R. ·
A · privacy no longer subsists and it becomes a ligitimate subject for comment
by press and media among others. However, in the interests of decency •
Article 19(2) ·an exception must be carved ont to this rule, viz., a female
who is the victim of a sexual assault, kidnap, abduction or a like offence
should not further be subjected to the indignity of her name and the
B
incident being publicised in the press/media. [375-F·G)
4. There is yet another exception to the Rule aforesaid indeed, this
is not an exception but an independent rule. In the case of public officials,
it is obvious, right to privacy, or for that matter, the remedy of action for
damages is simply not available with respect to their acts and conduct
C relevant to the discharge of their official duties. This is so even where the
publication is based upon facts and statements which are not lure, unless
the official establishes that the publication was made by the defendant with
reckless disregard for truth. In such a case, it would be enough for the
defendent • member of the press or media • to prove that he acted after a
reasonable verification of the facts; it is not necessary for him to prove
D that what he has written is true. Of course, where the publication is proved
to be false and actuated by malice or personal animosity, the defendant
would have no defence and would be liable 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, as explained
E
above. It needs no reiteration that judiciary, which is protected by the
power to punish for contempt of court and the Parliament and Legisla·
tures protected as their privileges are by Articles 105 and 104 respectively
of the Constitution of India, represent exceptions to this rule.
[375-H, 376-A·D)
F
5. So far as the government, local authority and other organs and
institutions exercising governmental power are concerned, they cannot
maintain a suit for damages for defaming them. [376-E)
6. The aforementioned Rules do not, however, mean that Official
G Secrets Act, 1923, or any similar enactment or provision having the force
of law does not bind the press or media. [376-EJ
7. There is no law empowering the State or its officials to prohibit or
to impose a prior restraint upon the press/media. The State or its officials
have no authority in law to impose a prior restraint upon publication of
H material defamatory of the State or of the officials, as the case may be.
R.R. GOPALv. STA1EOFT.N.
357
Accordingly no such prior restraint or prohibition of publication can be A
imposed by the respondents upon the proposed publication of the alleged
autobiography of 'Auto Shanker' by the petitioners. This cannot be done
either by the State or by its officials. In other words, neither the government
nor the officials who apprehend that they may be defamed, have the right to
impose a prior restraint upon the publication of the alleged autobiography B
of Anto Shankar. The remedy of pnblic officials/public figures, if any, will
arise only after the publication. (376-F, 373-H, 374-A-C]
New York Times v. United States, (1971] 40 U.S. 713, referred to.
8. Applying the above principles, it must be held that the petitioners C
have a right to publish, what they allege to be the life-story/autobiography
of Auto Shankar insofar as it appears from the public records, even without
his consent or authorisation. But if they go beyond that and publish his
life-story, they may be invading his right to privacy and will be liable for the·
consequences in accordance with law. Similarly, the State or its officials D
cannot prevent or restrain the said publication. The remedy of the affected
pnblic officials/public figures, if any, is after the publication. (377-A-B]
9. Respondents have not stated that the prisoner had requested or
authorised tlie prison officials or the Inspector General of Prisons, as the
case may be, to adopt appropriate proceedings to protect his right to E
privacy. If so, the respondents cannot take upon themselves the obligation
of protecting his right to privacy. No prison rule is brought to Court's notice
which empowers the prison offi<:ials to do so. Moreover, the occasion for any
such action arises only after the publication and not before. (374-F-G]
F
Kharak Singh and Ors. v. State of Uttar Pradesh and Ors., (1964] 1
SCR 332; Gobind v. State of Madhya Pradesh and Anr., (1975] 2 SCC 148;
Griswold v. Connecticut, (1965] 385 U.S. 479=14 L.Ed 2d 510; Roe v. Wade,
(1973] 410 U.S. 113; Olmstead v. United States, (1928] 277 U.S. 438 = 72
L.Ed:944; Time Inc. v. Hi/~ [1.967] 385 U.S. 374=17 L.Ed. 2d 456; New G
York Times Co. v. Sullivan, (1964] 376 U.S. 254=11 L.Ed.2d 868; Cox
Broadcasting Corporation v. Cohn, (1975] 420 U.S. 469 = 43 L.Ed. 2d 328;
Planned Parenhood v. Casey, (1992] 120 L.Ed. 2d 683; Derbyshire County
Council v. Times Newspapers Ltd., (1993] 2 W.L.R. 449; Attomey General v.
Guardian Newspapers Ltd. (2), (1990] 1 A.C. 109 and Leonard Hector v.
Attorney General of Antiqua and Barbuda, [1990) 2 A.C. 312, referred to.
H
358
SUPREME COURT REPORTS (1994) SUPP. 4 S.C.R.
A
The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale W
(920) 932 26 Standford Law Rev. 1167 (1187); Warren and Brandies "The
right to privacy" 4 Harvard Law Review 193 (1890), referre4 to.
Privacy and Human Rights, Ed. AH Robertson, p.176, referred to.
B
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 422 of
1994.
(Under Article' 32 of the Constitution of India.)
B.D. Sharma for the Petitioners.
c
A. Mariarputham and Ms. Aruna Mathur for the Respondents.
The Judgment of the Court was delivered by
B.P. JEEVAN REDDY, J. This petition raises a question concerning
D the freedom of press vis-a-vis the right to privacy of the citizens of this
country. It also raises the question as to the parameters of the right of the
press to criticize and comment on the acts and conduct of public officials.
E
F
The first petitioner is the editor, printer and publisher of a Tamil
weekly magazine 'Nakkheeran', published from Madras. The second
petitioner is the associate editor of the magazine. They are seeking issuance
of an appropriate, writ, order or direction under Article 32 of the Constitution, restraining the respondents, viz., (1) State of Tamil Nadu represented by the Secretary, Home Department, (2) Inspector General of
Prisons, Madras and (3) Superintendent of Prisons (Central Prison),
Salem, Tamil N adu from taking any action as contemplated in the second '
respondent's communication dated June 15," 1994 and further restraining
them from interfering with the publication of the autobiography of the
condem~ed prisoner, Auto Shankar, in their magazine. Certain other
reliefs are prayed for in the writ petiton but they are not pressed before
us.
Shankar @ Gauri Shankar @ Auto Shankar was charged and tried
for as many as six murders. He was convicted and sentenced to death by
the learned Sessions Judge, Chenglepat on May 31, 1991 which was confirmed by the Madras High Court on July 17, 1992. His appeal to this court
was dismissed on April 5, 1994. It is stated that his mercy petition to the
H President of India is pending consideration.
R.R. GOP AL v. STAIB OF T.N. [B.P J. REDDY, J.]
359
The petitioners have come forward with the following case : Auto A
Shanl<ar wrote his autobiography running into 300 pages while confined in
Chenglepat sub-jail during the year, 1991. The autobiography was handed
over by him to his wife, Smt. Jagdishwari, with the knowledge and approval
of the jail authorities, for being delivered to his advocate, Sri Chandrasekharan. The prisoner requested his advocate to ensure that his autobiography is published in the petitioners' magazine, 'Nakkheeran'. The
petitioners agreed to the same. Auto Shankar affirmed this desire in several
letters written to his advocate and the first petitioner. The autobiography
B
sets out the close nexus between the prisoner and several IAS, and other
officers, some of whom where indeed his partners in several crimes. The
presence of several such officers at the house warming ceremony of Auto C
Shankar's house is proved by the video cassette and several photographs
taken on the occasion. Before commencing the serial publication of the
autobiography in their magazine, the petitioner announced in the Issue
dated May 21, 1994 that very soon the magazine would be coming out with
the sensational life history of Auto Shankar. This announcement sent shock
waves among several police and prison officials who were afraid that their D
links with the condemned prisoner would be exposed. They forced the said
prisoner, by applying third degree methods, to write letters addressed to
the second respondent (Inspector General of Prisons) and the first
petitioner requesting that his life-story should not be published in the
magazine. Certain correspondence ensued between the petitioners and the
prison authorities in this connection. Ultimately, the Inspector General of E
Prisons (R-2) wrote the impugned letter dated June 15, 1994 to the fust
petitioner. The letter states that the petitioner's assertion that Auto
Shankar had written his autobiography while confined in jail in the year
1991 is false. It is equally false that the said autobiography was handed over
by the said prisoner to his wife with the knowledge and approval of the
prison authorities. The prisoner has himself denied the writing of any such
book. It is equally false that any power of attorney was executed by the said
prisoner in favour of his advocate, Sri Chandrasekharan in connection with
the publication of the alleged book. If a prisoner has to execute a power
F
of attorney in favour of another, it has to be done in the presence of the
prison officials as requred by the prison Rules; the prison records do not G
bear out execution of any such power of attorney. The letter concludes,
"from the above facts, it is clearly established that the serial in your
magazine under the caption "Shadowed Truth" or "Auto Shankar's dying
declaration" is not really written by Gauri Shankar but it is written by
someone else in his name. Writing an article in a magazine in the name of H
360
SUPREME COURT REPORTS (1994) SUPP. 4 S.C.R.
A · a condemned prisoner is against prison rules and your claim that the power
of attorney is given by the prisoner is unlawful. In view of all those it is
alleged that your serial supposed to have written by Auto Shankar is
(false?) since with an ulterior motive for this above act there will arise a
situation that we may take legal action against you for black mailing.
B
Hence, I request you to stop publishing the said serial forthwith."
The petitioners submit that the contents of the impugned letter are
untrue. The argument of jeopardy to prisoners' interest is a hollow one.
The petitioners have a right to publish the said book in their magazine as
desired by the prisoner himself. Indeed, the petitioners have published
C parts of the said autobiography in three issues of their magazine dated June
11, 1994, June 18, 1994 and June 22, 1994 but stopped further publication
in view of the threatening tone of the letter dated June 15, 1994. The
petitioners have reasons to believe that the police authorities may swoop
down upon their printing press, seize the issues of the magazine ·besides
damaging the press and their properties, with a view to terrorise them. On
D a previous occasion when the petitioners' magazine published, on August
16, 1991, an investigative report of tapping to telephones of opposition
leaders by the State Government, the then editor and publisher were
arrested, paraded, jailed and subjected to the third degree methods. There
E
F
have been several instances when the petitioners' press was raided and
substantial damage done to their press and properties. The petitioners are
apprehensive that the police officials may again do the same since they are
afraid of their links with the condemned prisoner being exposed by the
publication of the said autobiography. The petitioners assert the freedom
of press guaranteed by Article 19(l)(a), which, according to them, entitles
them to publish the said autobiography. It is submitted that the condemned
prisoner has also the undoubted right to have his life-story published and
that he cannot be prevented from doing so. It is also stated in the writ
petition that before approaching this court by way of this writ petition, they
had approached the Madras High Court for similar reliefs but that the
office of the High Court had raised certain objections to the maintainability
G of the writ petition. A learned Single Judge of the High Court, it is stated,
heard the petitioners in connection with the said objections but no orders
were passed thereon till the filing of the writ petition.
The Respondent Nos. 2 and 3 have filed a counter-affidavit, sworn-to
H
by Sri T.S. Panchapakesan, Inspector General of Prisons, State of Tamil
R.R. GOPALv. STATE OFT.N. [B.PJ. REDDY,J.]
361
Nadu. At the outset, it is submitted that the writ petition filed by the A
petitioners in the High Court was dismissed by the learned Single Judge
on June 28, 1994 holding inter a/ia that the question whether the said
prisoner had indeed written his autobiography and authorised the
petitioners to publish the same is a disputed question of fact. This was so
held in view of the failure of the learned counsel for the petitioners to B
produce the learned counsel for the petitioners to produce the alleged
letters written by the prisoner to his counsel, or to the petitioners, authoris:
ing them to publish his autobiography. It is submitted that the letter dated
June 15, 1994 was addressed to the first petitioner inasmuch as "there was
a genuine doubt regarding the authorship of the autobiography alleged to
have been written by the condemned prisoner while he was in prison and C
which purportedly reached )tis wife. Besides, it was also not clear whether
the said prisoner had as a matter of fact authorised the petitioner to publish
the said autobiography. In the context of such a disputed claim both as to .
authenticity as well as the authority to publish the said autobiography, the
said communication was addressed to the petitioners herein, since the D
petitioners have threatened to publish derogatory and scurrilous statements
purporting to (be?) based on material which are to be found in the
disputed. autobiography." It is submitted that the allegation that a number
of lAS, JPS and other officers patronized the condemned prisoner in his
nefarious acti'vi.ties is baseless. "It is only in the context of such a situation
coupled with the fact that the petitioner might under the guise of such an
E
autobiography tarnish the image of the persons holding responsible positions in public institution that the communication dated 15.6.94 was sent
to him", say the respondents. They also denied that they subjected the said
prisoner to third degree methods to pressurise him into writing letters
denying the authorisation to the petitioners to publish his life-story.
F
Neither Auto Shankar nor his wife - nor his counsel - are made
parties to this writ petition. We do not have their version on the disputed
question of fact, viz., whether Auto Shankar has indeed written his
autobiography and/or whether he had requested or authorised the G
petitioners to publish the same in their magazine. In this writ petition under
Article 32 of the Constitution, we cannot go into such a disputed question
of fact. We shall, therefore, proceed on the assumption that the said
prisoner has neither written his autobiography nor has he authorised the
petitioners to publish the same in their magazine, as asserted by the writ
petitioners. We must, however, make it clear that ours is only an assump· H
'
362
SUPREME COURT REPORTS (1994] SUPP. 4S.C.R.
A lion for the purpose of this writ petition and not a finding of fact. The said
disputed qur.stion may have to be gone into, as and when necessary, before
an appropriate court or forum, as the case may be.
On the pleadings in this petition, foll wing questions arise : ( 1)
whether a citizen of this country can prevent another person from writing
B
his life-story or biography? Does such unauthorised writing infringe the
citizen's right to privacy? Whether the freedom of press guaranteed by
Article 19(1)(a) entit!e the press to publish such unauthorised account of
a citizen's life and activities and if so to what extent and in what circumstances? What are the remedies open to a citizen of this country in case of
C
infringement of his right to privacy and further in case such writing
amounts to defamation?
(2)(a) Whether the government can maintain an action for its
defamation?
D
(b) Whether the government has any legal authority to impose prior
restraint on the press to prevent publication of material defamatory of its
officials? and
( c) Whether the public officials, who apprehend that they or their
colleagues may be defamed, can impose a prior restraint upon the press to
E
prevent such publication?
F
(3) Whether the prison officials can prevent the publication of the
life-story of a prisoner on the ground that the prisoner being incarcerated
and thus not being in a position to adopt legal remedies to protect his
rights, they are entitled to act on his behalf?
QUESTION NOS. 1 AND 2:
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
G
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
H been violated where, for example, a person's name or likeness is used,
R.R.GOPALv. STATEOFT.N. [B.P J. REDDY,J.]
363
without his consent, for advertising - or non-advertising - purposes or for A
that matter, his life-story is written - whether laudatory or otherwise - and
published without his consent as explained hereinafter. Jn 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 hen inferred from Article 21. The first decision B
of this court dealing with this aspect is Kharak Singh & Ors. v. State of Uttar
Pradesh & Ors., [1964] 1 S.C.R. 33'.2. A more elaborate appraisal of this
right took place in a later decision in Gobind v. State of Madhya Pradesh
& Anr., (1975] 2 S.C.C. 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 C
Supreme Court in two of its well-known decisions in Griswold v. Connecticu~ (1965] 385 U.S. 479=14 L.Ed. 2d. 510 and Roe v. Wade, (1973] 410..
U.S. 113. After referring to Kharak Singh and the said American decisions,
the learned Judge stated the law in the follwing 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 righ~ 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 (Srivacy must confess that there are serious problems
D
E
of defining the essence and scope of the right. Privacy interest in
autonomy must also be placed in the context of other rights and F
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 G
obviously not as instructive as it does not give analytical picture of
the distinctive characterstics 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................
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As Ely says:
There is nothing to prevent one from using the word 'privacy'
to mean the freedom to live one's life without governmental
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 Ll 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 ma} reflect the values of their peers rather than the
realities of their natures. (See 26 Stanfqrd 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 secutity, public safety or the economic
R.R. GOP AL v. STATE OF T.N. [B.P J. REDDY, J.]
365
well-being of the country, for the prevention of disorder or A
crime, for the protection of health or morals or for the
protection of the rights and freedoms of others."
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 U.S. 438=72 L.Ed. 944, it came to
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be fully discussed in Time Inc., v. Hi/~ (1967) 385 U.S. 374=17 LEd. 2d.
456. The facts of the case are these : on a praticular day in the year 1952,
three escaped convicted intruded into the house of J arnes Hill and held D
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 E
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
ill-treated by the intruders. When 'Life" published the story, Hill brought
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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 G
it in New York Times Co. v. Sulli~an, (1954) 376 U.S. 254=11 L.Ed. 2d. 868
and set aside the award of damages holding that the jnry 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 H
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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."
(Emphasis added)
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 a 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
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the press assures the maintenance of our political system and an
open society ....... That books, newspapers and magazines are
published and soid for profit does not prevent them from being a
form of expression whose liberty is safeguarded."
The next relevant decision is in Cax Broadcasting Corporation v.
E Cohn, (1975) 420 U.S. 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
F 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
G 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 matter "citizenry is tlie final judge of the
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R.R. GOPALv. STATEOFT.N. [B.PJ.REDDY,J.]
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Before proceeding further, we may mention that the two decisions of A
this court referred to above (Kharak Singh and Gobind) 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 B
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 con-
. stables 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 reguia-' C
lion 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 D
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 mediE
cal 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, F
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 creats zones of privacy
The present case, then concerns a relationship lying within I.he zone
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to achieve its goals by means having a maximum destructive impact
upon the relationship. Such a law cannot stand iu 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 rep~lsive
to the notions of privacy surroundiug the marriage relationship.
We deal with a right of privacy order than the Bill of Rights -
older than our political parties, older then our schools system.
Marriage is a comiug together for better or for worse, hopefully
enduriug, and iutimate to the degree of beiug sacred. It is an
association that promotes a way of life, not causes; a harmony iu
liviiig, not political faiths; a bilateral loyalty, not commercial or
social projects. Yet it is an association for as noble a purpose as
anj involved in our prior decisions."
Roe v. Wade, [1973] 410 U.S. 113 concerned the right of an unmamed
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pregnant woman to termiuate her pregnacy 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 iuvaded the right and the choice of a pregnant woman
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to termiuate her pregnancy and therefore violative of 'liberty" guaranteed
under Fourteenth Amendment and the right to privacy recognised iu
Griswold. Blackmun, !., who delivered the majority opinion, upheld the
right to privacy iu the followiug 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 areas or zones
of privacy, does exist under the Constitution. In varyiug contexts,
the Court or iudividual Justices have, iudeed, found at least the
roots of that right iu the First Amendment; in the penumbras of
the Bill of Rights; iu the Niuth Amendment; or iu the concept of
R.R. GOPALv. STATEOFT.N. [B.P.J. REDDY,J.]
369
liberty guaranteed by the first section of the Fourteenth AmendA
ment. These decisions make it clear that only personal right 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.