Supreme
Court in Zee Telefilms Ltd. (supra), in Para 33, observed that when a private
body exercises public functions, even if it is not a state, the aggrieved person
has a remedy not only under the ordinary law but also under the
Constitution, by way of a writ petition under Article 226
In the light of the aforesaid discussion, I am of the view, that the press
and the media perform a public function and discharge a public duty of:
disseminating news, views & information;
The controversy in the present case, as aforementioned, relates to the
alleged disclosure of the identity of the petitioner‟s daughter, who had
reported a case of alleged child sexual abuse against her own father, by the
respondents herein. The duty of the respondents herein to maintain utmost
secrecy and confidence in the matter of identity of the petitioner‟s daughter
has not been disputed. Such a duty of the press & media stems from the
need to prevent social obliteration and humiliation of the victim. The
potential of the press and media to cause such harm is immense because the
press and the media enjoy a position of trust in the society and also because
of their reach. Any function/activity, alleged to be in violation of such duty,
would fall within the ambit of scrutiny of this court exercising jurisdiction
under Article 226, especially when the same is alleged to have infringed the
fundamental rights of the victim. Therefore, the respondent nos. 2 and 3 are
subject to the writ jurisdiction of this court in respect of the public function
and public duty performed by them.
A perusal of the aforesaid article shows that particulars which would
identify the victim of alleged child sexual abuse, have not been disclosed.
Mere reference to the age, academic standard and residential district of the
victim cannot be considered as revealing her identity. These particulars are
too general for anyone to identify the petitioner or her daughter as the
locality is very large and there could be hundreds of children in the locality
who could meet the description given by respondent no.2.
W.P.(C.) No. 12730/2005
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 05.02.2013
ABC ..... Petitioner
versus
COMMISSIONER OF POLICE & ORS. ..... Respondents
HON’BLE MR. JUSTICE VIPIN SANGHI
1. The present writ petition has been preferred under Article 226 of the
Constitution of India by the petitioner herein on behalf of her daughter
(minor at the time of filing of the present petition) as her mother and next
friend, alleging violation of the right to privacy and confidentiality of her
daughter under Article 21 of the Constitution of India, and other legal rights
and seeking appropriate relief in respect thereof
2. The cause of action giving rise to the present petition relates to the
alleged disclosure of First Information Report (FIR) of the petitioner‟s
daughter, alleging a case of sexual abuse against her own father, by
Respondent No. 1 herein to other respondents herein viz. respondent No.2 -
Hindustan Times House, and respondent No.3 - Aaj Tak, and consequent
publicity of the same by the latter.
3. Keeping in view the gravity and nature of allegations and also the
social object of preventing societal victimisation, ostracism and
embarrassment of the victim of alleged sexual abuse, as taken note of by the
Supreme Court in State of Karnataka v. Puttaraja, (2004) 1 SCC 475, I
have directed the registry not to mention the name of the petitioner and her
daughter in the cause title of the present petition, and also propose to not
mention the same in the judgment. The name of the petitioner and her
daughter occurring in the petition and the documents filed with it have been
obliterated while preserving copies/originals of the same.
Petitioner’s Submissions
4. It is the petitioner‟s case that an FIR was registered by her daughter
alleging a case of sexual abuse against her father in the concerned Police
Station on 02.08.2005. It is alleged that the contents of the said FIR were
leaked by respondent no. 1, as the same came to be- quoted and published in
the newspaper article dated 04.08.2005 of respondent no. 2, and also
reported & aired by respondent no. 3 in its television programme on
07.08.2005.
5. It is alleged that the newspaper article dated 04.08.2005 of respondent
no. 2 reveals the age of the petitioner‟s daughter, the locality in which she
resides, the class in which she studies and the occupation of her father. It is
alleged that the said article extensively quotes not only the contents of the
FIR but also the statement of the police officer concerned with the said
complaint.
6. As regards respondent no. 3, it is alleged that the crew members of
respondent no. 3 approached the petitioner and her daughter at their home
and attempted to interview them in a deceptive manner against their will. It
is alleged that thereafter, respondent no. 3 aired a programme on its
television channel on 07.08.2005, telecasting the said intrusion and giving
wide publicity to the incident- by revealing the name, designation, and office
of the accused father; by showing several images of the colony in which the
Petitioner and her family were residing along with the petitioner‟s doorstep;
and by airing the recorded voice of the Petitioner refusing entry to crew
members of respondent no. 3.
7. Ms. Satpute, learned counsel for the petitioner, submits that publicity
of such minute details was sufficient for the identity of the
victim/prosecutrix to be revealed. Respondents having done so, without
obtaining the consent/authorisation from the petitioner, have violated the
provisions of Section 228A of the Indian Penal Code, 1860 (hereinafter
referred to as the „IPC‟); the „Norms of Journalistic conduct‟ laid down by
the Press Council of India (PCI), governing respondent no. 2 & 3; and above
all the right of the minor victim of alleged sexual abuse to privacy and
confidentiality enshrined in the right to life guaranteed under Article 21 of
the Constitution of India. In this regard, reliance is placed on the judgments
of the Supreme Court in R. Rajagopal ALIAS R.R. Gopal & Another v.
State of T.N. & Ors., (1994) 6 SCC 632, and Delhi Domestic Working
Women‟s Forum v. Union of India and Ors., (1995) 1 SCC 14; of this
court in Court on its own motion v. State & Anr., W.P.(Crl.) No. 930/2007,
Court on its Motion vs. State and Anr., 146 (2008) DLT 429, Commission
for Women v. Delhi Police, W.P.(Crl.) No. 696/2008, and Virender v. State
of Delhi, Crl. A. No. 121/2009; and of the House of Lords in Campbell v.
MGN Limited, [2004] UKHL 22.
8. It is further submitted that respondent no. 1 by making the contents of
the FIR known to the other respondents violated its own circular No.
XXXIX/140/Spl./48927-49020/C&T(AC-II)/PHQ dated 17.12.2002 wherein
it has been specifically mentioned that, “Under no circumstances the name
and identity of the victim shall be given to the media and the press briefing
shall always be given only by the concerned DCP or the Joint C.P.
ranges/C.A.W. Cell. No member of Crisis Intervention Centre shall brief the
media about the incident or follow up action taken nor permit photographs
to be taken.”
9. It is argued by learned counsel for the petitioner that on account of
such publicity, the prosecutrix was faced with irremediable social
embarrassment, and was unable to attend school regularly. She was
constrained to move cities and had to start her education afresh in the middle
of the school term, which led to great mental trauma and agony. So much so,
the petitioner and the victim went into oblivion and were not contacting
even their counsel for years. It was only during the pendency of the matter,
on 14.12.2012, learned counsel for the petitioner submitted that she has been
able to locate the petitioner.
10. The petitioner, therefore, by the present petition seeks a direction to
respondent no. 1 to order an immediate inquiry into the disclosure of the FIR
and its details by the representatives of respondent no.1 to the other
respondents herein and to forthwith restrain the respondents from passing
off such information anymore. The petitioner also claims compensation
from the respondents for the blatant violation of the fundamental and other
legal rights of her daughter.
11. Ms. Satpute submits that this court under Article 226 of the
Constitution is conferred with wide powers- for the purpose of enforcement
of fundamental rights as well as other legal rights. Citing reference to the
judgments of the Supreme Court in Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors v. V.
Rudani & Ors., (1989) 2 SCC 691, and Zee Telefilms & Anr. v. Union of
India & Ors., (2005) 4 SCC 649, Ms. Satpute argues that the power of this
court to issue directions, for the purposes of enforcement, and to remedy the
breach of, fundamental rights of the aggrieved, is confined not only to
statutory authorities and instrumentalities of the State but also covers
persons or bodies performing public functions and discharging public duties.
She further submits that the Press and the media, being the fourth pillar of
democracy, perform a public function and discharge a public duty in
providing news, information and infusing transparency in governmental
functioning. By doing so, the press and the media assume a public character
and as such become subject to the writ jurisdiction of this court in relation to
the performance of their public duty. To bolster the said submission,
learned counsel for the petitioner places reliance upon the judgment of the
Calcutta High Court in Rainbow Production Pvt. Ltd. v. Programme
Executive (Sponsored Section), Prasar Bharati (Broadcasting Corporation
of India), (2001) 2 CHN 356.
12. Learned counsel for the petitioner, therefore, submits that the
respondent nos. 2 and 3 apart from respondent no. 1 herein, having violated
the rights of the petitioner‟s child, are amenable to the writ rule of this court
and are, accordingly, liable to compensate her.
Respondent No.1’s Submissions
13. The Station House Officer (SHO) of the concerned Police Station, on
behalf of Respondent no. 1, in his affidavit has not disputed the factum of
the registration of the afore-said FIR. However, at the same time he refutes
the allegation of the petitioner that the contents or details of the FIR have
been revealed to anyone by respondent No.1. It is stated that the as per
practice, one copy of the FIR was given to the complainant, one was sent to
the Court, one copy to the DCP‟s office and one was kept in the records of
Respondent no. 1. It is submitted that due care has been taken to maintain
secrecy and the Police authorities are not the source of publicity of the
contents or details of the FIR in the present case.
Respondent No.2’s Submissions
14. Respondent no. 2, in its counter affidavit has submitted that the
allegations contained in the petition, and the acts and omissions with which W.P.(C.) No. 12730/2005 Page 7 of 48
the petitioner is aggrieved relate to the other respondents herein, and not to
the answering respondent.
15. It is submitted that respondent no. 2 has no intention of writing about
the episode again and, as such, the prayer for injunction as against it- is
infructuous. Learned Counsel for respondent no. 2, Mr. Bhambhani submits
that respondent No.2 is a private entity with no governmental control and
the present writ for enforcement of a fundamental right is not maintainable
against a private party. Reference in this regard is made to the judgment of
this court in Indu Jain v. Forbes Inc., I.A. 12993/2006 in CS (OS) No.
2172/2006 decided on 12.10.2007. Placing reliance upon the judgments of
the Supreme Court in Rudul Shah v. State of Bihar & Anr., (1983) 4 SCC
141, and Nilabati Behera (Smt.) Alias Lalita Behera v. State of Orissa &
Ors., (1993) 2 SCC 746, it is submitted that compensation that may be
awarded in writ proceedings are “Public law damages”, which could be
granted against the State. He submits that if the petitioners wish to claim
“Private law damages” against a private party, i.e., respondent No.2 for the
alleged tort attributed to them, the petitioners can approach the Civil Court.
16. Mr. Bhambhani submits that the present petition is not maintainable
qua the answering respondent since the petitioner has other efficacious
alternate remedies. He submits that claim for compensation for breach of the
right to privacy and/or defamation, as alleged in the present petition, if at all
tenable, may only be brought by way of a suit and not by invoking the writ
jurisdiction of this Court under Article 226 of the Constitution of India,
since the same requires to be proved by leading evidence in accordance with
law. Further, the PCI, under and by way of the Press Council Act, would be W.P.(C.) No. 12730/2005 Page 8 of 48
the proper forum for entertaining and adjudicating complaints of the nature
made by the petitioner in the present petition. It is submitted that the
petitioner herein could also raise its grievances under the Juvenile Justice
(Care and Protection of Children) Act, 2000 which makes publication of the
name of the juvenile, involved in proceedings under the said Act,
punishable.
17. On merits, it is argued by Mr. Bhambhani that the respondent no. 2
has neither violated any norms of the journalistic code of conduct, as laid
down by the PCI, nor has it acted with any impropriety while writing and
publishing the said article. It is submitted that nowhere in the article has
respondent no. 2 revealed the name of the minor in question, nor has it
revealed any particulars or specifics of the minor as would likely make the
identity of the minor discoverable. It is submitted that by way of the said
article, it has also reported the statistics on similar sexual crimes, which
would make its motives and bona fides clear.
18. Mr. Bhambhani argues that it is not only the right but also the
bounden duty of the press to publish such reports so as to expose the
perversion in the society and that respondent No. 2 while doing so in the
present case, in eminent public interest, has made a sincere endeavour to
strike a balance between such right and its duty to protect the identity of the
minor victim of sexual abuse. He submits that the report must be read in the
context in which it was reported, i.e. reporting/highlighting of such heinous
acts, which was required to be pointed out, and not of highlighting the
particular incident. However at the same time, it is stated that it would not
have been possible to cover the incident meaningfully and effectively, if the
said article was shorn of contents of the police complaint relating to the
incident, which is a public document and which had been obtained from the
Police Officers concerned with the investigation.
Respondent no.3’s Submissions
19. Mr. Salwan, learned Counsel for Respondent no. 3, at the outset,
states that the allegations in the present petition do not pertain to the
answering respondent, who has been impleaded as an afterthought i.e. after
two months from the date of the impugned telecast. Reliance is placed on
application under Order I Rule 10 of the Civil Procedure Code moved by the
petitioner, being C.M. No. 13315/2005, and the amended petition, wherein it
is stated that correspondent of the deleted respondent, namely Star News,
had in a treacherous manner interviewed the petitioner and her daughter.
20. Mr. Salwan submits that the petitioner had herself given an Interview
to the deleted respondent, namely Star News, and had thereafter filed
through her counsel the present petition without effacing or concealing her
daughter‟s identity. Having done so, it does not lie in the mouth of the
petitioner to allege violation of the right of confidentiality or other legal
rights of her daughter, as she is seeking to do now.
21. Mr. Salwan disputes the violation of the right of confidentiality or
other legal rights of the petitioner‟s daughter by respondent no. 3 and the
consequent alleged mental trauma suffered by her, as claimed in the petition.
It is submitted that the crew members of the answering respondent, on
getting information about the episode from its sources in the media,
contacted the petitioner at her home and after disclosing the full identity of
the respondents correspondent - sought her response on the complaint filed
by her daughter as well as her further course of action. However, the
petitioner did not step out of her flat and did not even open the main door. It
is stated that since the petitioner refused to reply to any of the queries of the
news correspondent of respondent no. 3, no further questions were asked by
the said correspondent, who thereafter left with the other crew members. It
is submitted that when the correspondent initiated talks with the petitioner,
the recording mike and the camera were put into motion- which were made
fully visible and of which the petitioner was duly informed about, and no
attempt had been made to hide or conceal the same. Since the petitioner
refused to answer any of the correspondent‟s queries and had also refused to
step out of the door and speak on the matter, neither the face of the
petitioner was visible, nor her child‟s interview was recorded or photograph
taken.
22. Mr. Salwan submits that the same is evident from a perusal of the
telecast as well as the transcript of the said telecast, which only mentioned
that a complaint had been filed by the child to the police. Neither the
petitioner nor her child was interviewed by the correspondent of the
answering respondent nor any information pertaining to the petitioner or the
child was disclosed or stated in the telecast. It is further submitted that the
telecast did not contain explicit information relating to the episode or the
petitioner‟s child‟s allegations against her father. No part of the FIR was
disclosed or discussed in the telecast. In fact, the answering respondent took
all precautions of not disclosing the address or block where the petitioner
resided. Even the office address of the petitioner‟s husband was not
disclosed. Nowhere in the story visual shots of the child in question were
shown nor her name or was any other evidence/fact, which could directly
establish her identity, telecast.
23. It is further submitted that the telecast was with the prime intention of
highlighting the destruction of a pious relationship of a father and a
daughter. The telecast was primarily with the aim of initiating a process of
infusing values and good education in order to ensure that such episodes are
not repeated in future, and not to harm the reputation of the petitioner‟s child
or to bring her to any disrepute. In view of the same, it is submitted that the
present petition is liable to be dismissed.
24. Even otherwise, it is submitted that the present case raises disputed
questions of fact - which this court in the present jurisdiction cannot decide.
Mr. Salwan submits that in writ jurisdiction this court would not go into the
quantification of damages and, as such, the present petition seeking
compensation is not maintainable.
Discussion
25. At the outset, I shall deal with the preliminary objection as regards
maintainability of the present petition, on the ground that, firstly, the same
does not lie against private respondents and, secondly, the petitioner has
alternate efficacious remedies available to her.
Writ against private respondents
26. The relevant extract of Article 226 of the Constitution of India, reads
as under:
“226. Power of High Courts to issue certain writs.—(1)
Notwithstanding anything in Article 32, every High Court shall
have power, throughout the territories in relation to which it
exercises jurisdiction, to issue to any person or authority
including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, or any of them, for the enforcement of any of
the rights conferred by Part III and for any other purpose.
x x x x x x x x x x”
(emphasis supplied)
27. Article 226 confers wide powers on the High Courts to issue writs in
the nature of prerogative writs. Under Article 226 writs can be issued to
“any person or authority”. Further, it can be issued for the enforcement of
any of the fundamental rights and for any other purpose.
28. The jurisdiction conferred on the High Court is thus very wide.
However, it is a public law remedy and it is available even against a private
body or person performing a public function or discharging a public duty,
that is to say that, there must exist a public element in the act of such body
or person. Thus, in respect of a cause of action arising out of such public
functions or duties, writ jurisdiction can be exercised in appropriate cases.
29. The scope and ambit of the writ jurisdiction of the High Courts, in
context of the aforesaid, was set out by the Supreme Court in Andi Mukta
Sadguru (Supra), wherein it was observed as under:
“20. The term “authority” used in Article 226, in the context,
must receive a liberal meaning unlike the term in Article 12.
Article 12 is relevant only for the purpose of enforcement of
fundamental rights under Article 32. Article 226 confers power
on the High Courts to issue writs for enforcement of the
fundamental rights as well as non-fundamental rights. The
words “any person or authority” used in Article 226 are,
therefore, not to be confined only to statutory authorities and
instrumentalities of the State. They may cover any other
person or body performing public duty. The form of the body
concerned is not very much relevant. What is relevant is the
nature of the duty imposed on the body. The duty must be
judged in the light of positive obligation owed by the person or
authority to the affected party. No matter by what means the
duty is imposed, if a positive obligation exists mandamus
cannot be denied.”
(emphasis supplied)
30. Quoting with approval its aforementioned observation, the Supreme
Court in Zee Telefilms Ltd. (supra), in Para 33, observed that when a private
body exercises public functions, even if it is not a state, the aggrieved person
has a remedy not only under the ordinary law but also under the
Constitution, by way of a writ petition under Article 226.
31. The Supreme Court in Federal Bank Ltd. v. Sagar Thomas and
Ors., (2003) 10 SCC 733, after referring to a catena of judgments on the said
aspect, laid down the scope of the expression “any person or authority”, as
occurring in Article 226 of the Constitution, in the following words:
“18. From the decisions referred to above, the position that
emerges is that a writ petition under Article 226 of the
Constitution of India may be maintainable against (i) the State
(Government); (ii) an authority; (iii) a statutory body; (iv) an
instrumentality or agency of the State; (v) a company which is
financed and owned by the State; (vi) a private body run
substantially on State funding; (vii) a private body discharging
public duty or positive obligation of public nature; and (viii) a
person or a body under liability to discharge any function
under any statute, to compel it to perform such a statutory
function.”
(emphasis supplied)
32. This court in Indu Jain (supra), relied upon by respondent no. 2
herein, did not consider the aforementioned pronouncements of the Supreme
Court dealing with the scope of the power of the High Court under Article
226 vis-à-vis a public duty discharged by a person who is, otherwise, not a
public authority or an instrumentality of the State. In Indu Jain (supra), the
Court observed that in order to seek enforcement of fundamental right, the
dispute must not be between two private individuals, but must be between
an individual and the State. The Court was not called upon to examine
whether writ jurisdiction could be invoked against a private person
discharging a public duty. The said observations, therefore, would have to
be taken in the context in which they were made, i.e., in the exercise of civil
jurisdiction. The Court was not dealing with a petition under Article 226 of
the Constitution of India. The observations cannot be read as a general
proposition of law applicable in cases of enforceability of fundamental
rights in writ jurisdiction against a person discharging a public duty owed to
the person invoking the Court‟s jurisdiction, or to the person on whose
behalf that jurisdiction is invoked. Consequently, the said decision would
not come to the aid of the respondents in the present case.
33. Are respondent nos. 2 & 3 performing public functions or discharging
public duties when they report a news item or air/publish views in the
press/media? The answer to this question depends on the answer to the
question, as to what would constitute public function or public duty, in
context of exercise of jurisdiction under Article 226. The Supreme Court in W.P.(C.) No. 12730/2005 Page 15 of 48
VST Industries v. Workers‟ Union, (2001) 1 SCC 298, had the occasion to
consider the same. Endorsing the comments of de Smith, Woolf and Jowell
in their book „Judicial Review of Administrative Action‟ (5th Edn.),
Rajendra Babu J. observed as under:
“7. In de Smith, Woolf and Jowell's Judicial Review of
Administrative Action, 5th Edn., it is noticed that not all the
activities of the private bodies are subject to private law, e.g.,
the activities by private bodies may be governed by the
standards of public law when its decisions are subject to
duties conferred by statute or when, by virtue of the function
it is performing or possibly its dominant position in the
market, it is under an implied duty to act in the public interest.
By way of illustration, it is noticed that a private company
selected to run a prison although motivated by commercial
profit should be regarded, at least in relation to some of its
activities, as subject to public law because of the nature of the
function it is performing. This is because the prisoners, for
whose custody and care it is responsible, are in the prison in
consequence of an order of the court, and the purpose and
nature of their detention is a matter of public concern and
interest. After detailed discussion, the learned authors have
summarised the position with the following propositions:
(1) The test of whether a body is performing a public function,
and is hence amenable to judicial review, may not depend
upon the source of its power or whether the body is ostensibly
a “public” or a “private” body.
(2) The principles of judicial review prima facie govern the
activities of bodies performing public functions.
(3) However, not all decisions taken by bodies in the course of
their public functions are the subject-matter of judicial review.
In the following two situations judicial review will not normally
be appropriate even though the body may be performing a
public function:
(a) Where some other branch of the law more appropriately
governs the dispute between the parties. In such a case, that
branch of the law and its remedies should and normally will be
applied; and
(b) Where there is a contract between the litigants. In such a
case the express or implied terms of the agreement should
normally govern the matter. This reflects the normal approach
of English law, namely, that the terms of a contract will
normally govern the transaction, or other relationship between
the parties, rather than the general law. Thus, where a special
method of resolving disputes (such as arbitration or resolution
by private or domestic tribunals) has been agreed upon by the
parties (expressly or by necessary implication), that regime,
and not judicial review, will normally govern the dispute.”
(emphasis supplied)
Clearly, the present case is not covered by the two exceptions carved out in
para 3(a) and 3(b) in the above extract.
34. Similar view was taken by the Supreme Court in a more recent
decision in Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657, wherein, while
tracing the history of the law relating to judicial review of public actions, it
was observed as under:
“11. Judicial review is designed to prevent the cases of abuse
of power and neglect of duty by public authorities. However,
under our Constitution, Article 226 is couched in such a way
that a writ of mandamus could be issued even against a private
authority. However, such private authority must be discharging
a public function and the decision sought to be corrected or
enforced must be in discharge of a public function. The role of
the State expanded enormously and attempts have been made to
create various agencies to perform the governmental functions.
Several corporations and companies have also been formed by
the Government to run industries and to carry on trading
activities. These have come to be known as public sector
undertakings. However, in the interpretation given to Article 12
of the Constitution, this Court took the view that many of these
companies and corporations could come within the sweep of
Article 12 of the Constitution. At the same time, there are
private bodies also which may be discharging public
functions. It is difficult to draw a line between public
functions and private functions when they are being
discharged by a purely private authority. A body is performing
a “public function” when it seeks to achieve some collective
benefit for the public or a section of the public and is accepted
by the public or that section of the public as having authority
to do so. Bodies therefore exercise public functions when they
intervene or participate in social or economic affairs in the
public interest…”
(emphasis supplied)
35. The position that emerges from the aforementioned observations is
that, an activity/function of a body can be said to be a public function, for
the purposes of scrutiny by a writ court, when the same is performed under a
duty to act in public interest. Such duty may be cast upon the body: by virtue
of the nature of the function it is performing; by the fact that it is seeking to
achieve some collective benefit for the public or section of the public or
which is accepted by the public or the concerned section thereof as having
authority to do so. What is relevant is that such a body should participate, as
a part of its functions, in social or economic affairs in the public interest.
36. Respondent No. 2 while functioning as a widely read newspaper,
disseminating news & views to the public at large, and respondent No.3
while functioning as a news channel, perform the important public function
of disseminating information & views and holding public debates &
discussion in the society. The press and the media, in a democracy where
freedom of speech & expression is preserved, have an extremely vital role to
perform in the larger public interest. The press & the media are
instrumentalities through which the right to freedom of speech and
expression of the citizens is exercised and they are also the repository of
public trust and faith. Consequently, they owe a duty to the public at large
to report news & views which ought to be reported, correctly and wherever
necessary, with restrain and caution.
37. Mr. Justice Markandey Katju, (Retd.) Judge, Supreme Court of India
& presently the Chairman of the PCI, when he was the Judge of the
Allahabad High Court authored an Article on “Role of Media in the 21
st
Century”, reported as AIR 2002 Journal 273, wherein he observed as under:
“Historically, the media was born as an organ of the people
against feudal oppression. In Europe, the media played a
major role in the transformation of feudal society to a modern
one. Everyone is aware of the great role the print media played
in preparing for, and during, the great British, American and
French Revolutions. The only media at that time was the print
media, and this was used by great writers like Rousseau,
Voltaire, Thomas Paine, Junius, John Wilkes, etc. In the fight of
the people against feudalism and despotism. Everyone knows
of the great stir created by Thomas Paine‟s pamphlet
„Commonsense‟ during the American Revolution, or of the
letters of Junius during the reign of the despotic George III.
The media became a powerful tool in the hands of the
people at that time because the people could not express
themselves through the established organs of power, since these
organs were in the hands of feudal and despotic rulers. Hence
the people had to create new organs which would serve them.
It is for this reason that that that the print media became known
as the Fourth Estate. In Europe and America it represented the
voice of the future, as contrasted to the feudal or despotic
organs which wanted to preserve the status quo in society.”
38. In his concluding remark, the learned author quotes the following
passage from the judgment of Mr. Justice Hugo Black of the United States
Supreme Court in the decision in New York Times Vs. US, 1971 402 US
4713, (the Pentagon paper‟s case):
“In the First Amendment the Founding Fathers gave the free
press the protection it must have to fulfil its essential role in
our democracy. The press was to serve the governed, not the
governors. The Government‟s power to censor the press was
abolished so that the press would remain forever free to
censor the Government. The press was protected so that it
could bare the secrets of government and inform the people.
Only a free and unrestrained press can effectively expose
deception in government. And paramount among the
responsibilities of a free press is the duty to prevent any part
of the government from deceiving the people and sending
them off to distant lands to die of foreign fevers and foreign
shot and shell. In my view, far from deserving condemnation
for their courageous reporting, the New York times, the
Washington Post, and other newspapers should be commended
for serving the purpose that the Founding Fathers saw so
clearly. In ravelling the workings of government that led to the
Vietnam war, the newspapers nobly did precisely that which the
Founders hoped and trusted they would do.”
(emphasis supplied)
39. It is, therefore, clear that the press & media are essential and
indispensable organs of democracy which play a very significant and
important role in the process of development and evolution of the State. The
press & media act as mirrors – reflecting the conscience of the people of the
State. They act as instruments of change and revolution. The fundamental
freedoms of speech & expression guaranteed by Article 19(1)(a) of the
Constitution of India would remain mere theoretical concepts without a free
press and media as it is through the instrumentality of press & media that the
said freedoms are effectually exercised.
40. In Bennett Coleman Co. & Ors. Vs. Union of India & Ors., (1972) 2
SCC 788, the Constitution Bench of the Supreme Court while dealing with a
challenge to the import policy of newsprint on the ground of infringement of
the fundamental right to freedom of speech & expression under Article
19(1)(a), and the right to equality under Article 14 of the Constitution, and
also to some of the provisions of the Newsprint Control Order, 1962
commented on the freedom of press and the role of the press in a democratic
society. Mr. Justice A.N. Ray in his majority opinion observed as follows:
“80. The faith of a citizen is that political wisdom and virtue
will sustain themselves in the free market of ideas so long as
the channels of communication are left open. The faith in the
popular Government rests on the old dictum, “let the people
have the truth and the freedom to discuss it and all will go
well.” The liberty of the press remains an “Art of the
Covenant” in every democracy. Steel will yield products of
steel. Newsprint will manifest whatever is thought of by man.
The newspapers give ideas. The newspapers give the people
the freedom to find out what ideas are correct. Therefore, the
freedom of the press is to be enriched by removing the
restrictions on page limit and allowing them to have new
editions or new papers. It need not be stressed that if the
quantity of newsprint available does not permit grant of
additional quota for new papers that is a different matter. The
restrictions are to be removed. Newspapers have to be left free
to determine their pages, their circulation and their new
editions within their quota of that has been fixed fairly.”
(emphasis supplied)
41. Mr. Justice Beg in his concurring view commented on the aspect of
the freedom of the press in the following words:
“95. It is difficult to over-emphasize the importance of
Freedom of the Press as one of the pillars of a Government
“of the people, by the people, and for the people”. I may quote
what Lord Bryce said in American Commonwealth (New and
Revised Edition)(pp. 274, 275, and 367):
„The more completely popular sovereignty
prevails in a country, so much the more
important is it that organs of opinion should be
adequate to its expression, prompt, full, and
unmistakable in their utterances.… The press,
and particularly the newspaper press, stands by
common consent first among the organs of
opinion.… The conscience and common sense of
the nation as a whole keep down the evils which
have crept into the working of the Constitution,
and may in time extinguish them.... That which,
carrying a once famous phrase, we may call the
genius of universal publicity, has some
disagreeable results, but the wholesome ones are
greater and more numerous. Selfishness, injustice,
cruelty, tricks and jobs of all sorts, shun the light;
to expose them is to defeat them. No serious evils,
no rankling sore in the body politic, can remain
long concealed, and, when disclosed, it is half
destroyed. So long as the opinion of a nation is
sound, the main lines of its policy cannot go far
wrong.‟
x x x x x x x x x x
97. Political philosophers and historians have taught us that
intellectual advances made by our civilisation would have
been impossible without freedom of speech and expression. At
any rate, political democracy is based on the assumption that
such freedom must be jealously guarded. Voltaire expressed a
democrat's faith when he told an adversary in argument: “I do
not agree with a word you say, but I will defend to the death
your right to say it”. Champions of human freedom of thought
and expression, throughout the ages, have realised that
intellectual paralysis creeps over a Society which denies, is
however subtle a form, due freedom of thought and expression
to its members.
98. Although, our Constitution does not contain a separate
guarantee of Freedom of the Press, apart from the freedom of
expression and opinion contained in Article 19(1)(a) of the
Constitution, yet, it is well recognised that the Press provides
the principal vehicle of expression of their views to citizens. It
has been said: „Freedom of the Press is the Ark of the
Covenant of Democracy because public criticism is essential
to the working of its institutions. Never has criticism been
more necessary than today, when the weapons of propaganda
are so strong and so subtle. But, like other liberties, this also
must be limited‟.”
(emphasis supplied)
42. Mr. Justice Mathew delivered a dissenting judgment. However, some
of the observations made by him throw light on the scope and the
characteristics of the functions performed by the press. These observations,
in my view, are also of relevance for the present purpose. He observed in
paragraph 168 of the judgment that the constitutional guarantee of the
freedom of speech is not so much for the benefit of the press as it is for the
benefit of the public. In this regard, he placed reliance on Time Vs. Hill,
385 US 374. In paragraph 174, His Lordship observed that public
discussion of public issues together with the spreading of information and
any opinion on the issues is supposed to be the main function of newspapers.
The highest and the lowest of intelligencia resorts to its volumes for
information. Newspaper is the most patent means for educating the people
as it is read by those who read nothing else and, in politics, the common
man gets his education mostly from newspaper. The right of the press to
import newsprint is founded upon, not only the fundamental right of the
press to impress itself, but also because the community has a right to be
supplied with information, and the Government a duty to educate the people
within the limits of its resources.
43. Once again, the Supreme Court had the occasion to deal with the
important aspect of the freedom of the press and the role that the press plays
in a democratic society in Indian Express Newspapers (Bombay) Private
Ltd. & Others Vs. Union of India & Others, (1985) 1 SCC 641. In
paragraph 32, the Supreme Court observed:
“32. In today's free world freedom of press is the heart of
social and political intercourse. The press has now assumed
the role of the public educator making formal and non-formal
education possible in a large scale particularly in the
developing world, where television and other kinds of modern
communication are not still available for all sections of
society. The purpose of the press is to advance the public
interest by publishing facts and opinions without which a
democratic electorate cannot make responsible judgments.
Newspapers being purveyors of news and views having a
bearing on public administration very often carry material
which would not be palatable to Governments and other
authorities. …………………… Governments naturally take
recourse to suppress newspapers publishing such articles in
different ways. Over the years, Governments in different parts
of the world have used diverse methods to keep press under
control. …………………… It is with a view to checking such
malpractices which interfere with free flow of information,
democratic constitutions all over the world have made
provisions guaranteeing the freedom of speech and expression
laying down the limits of interference with it. It is, therefore, the
primary duty of all the national courts to uphold the said
freedom and invalidate all laws or administrative actions which
interfere with it, contrary to the constitutional mandate.”
(emphasis supplied)
44. In the same judgment, the Supreme Court quotes from the Second
Press Commission Report in its volume 1 at pages 34-35, wherein the Press
Commission, inter alia, observes:
“39. The Second Press Commission has explained the concept
of freedom of press in its Report (Vol. I pp. 34-35) thus:
„x x x x x x x x
16. The theory is that in a democracy freedom of
expression is indispensable as all men are entitled
to participate in the process of formulation of
common decisions. Indeed, freedom of expression
is the first condition of liberty. It occupies a
preferred position in the hierarchy of liberties
giving succour and protection to other liberties. It
has been truly said that it is the mother of all other
liberties. The Press as a medium of
communication is a modern phenomenon. It has
immense power to advance or thwart the progress
of civilization. Its freedom can be used to create a
brave new world or to bring about universal
catastrophe.
17. ..... ..... ..... ..... ...... It is the function of the
Press to disseminate news from as many different
sources and with as many different facts and
colours as possible. A citizen is entirely dependent
on the Press for the quality, proportion and
extent of his news supply. ..... ..... ..... ..... ..... .....
The assumption in a democratic set-up is that the
freedom of the press will produce a sufficiently
diverse Press not only to satisfy the public interest
by throwing up a broad spectrum of views but also
to fulfil the individual interest by enabling virtually
everyone with a distinctive opinion to find some
place to express it‟”
(emphasis supplied)
45. In a recent decision, the Supreme Court in Sanjoy Narayan, Editor in
Chief Hindustan & Ors. Vs. Hon‟ble High Court of Allahabad through
Registrar General, 2011 (9) SCALE 532, has, inter alia, observed:
“5. The media, be it electronic or print media, is generally
called the fourth pillar of democracy. The media, in all its
forms, whether electronic or print, discharges a very onerous
duty of keeping the people knowledgeable and informed.
6. The impact of media is far-reaching as it reaches not only
the people physically but also influences them mentally. It
creates opinions, broadcasts different points of view, brings to
the fore wrongs and lapses of the Government and all other
governing bodies and is an important tool in restraining
corruption and other ill-effects of society. The media ensures
that the individual actively participates in the decision-making
process. The right to information is fundamental in
encouraging the individual to be a part of the governing
process. ….. ….. …..”
(emphasis supplied)
46. The Constitution and, consequently, the three limbs of the State,
namely the Legislature, the Executive and the Judiciary continue to
endeavour to not only provide protection to the press and the media against
infringement of the fundamental right to freedom of expression of the
citizens, guaranteed by Article 19(1)(a) of the Constitution, but also to
proactively promote the said fundamental right.
47. Dr. D.D. Basu in his “Law of the Press”, Fifth Edition 2010, enlists
the various rights & privileges especially conferred upon the press by State.
Apart from taking note of the various provisions of the Copyright Act which
permits fair dealing of works in which copyright exists, and reproduction of
articles of current economic, political, social or religious topics in certain
circumstances by the press, he also refers to various other statutory
provisions such as Section 81 of the Evidence Act and Sections 5 & 7 of the
Press and Registration of Books Act, which accord authenticity to
publications made in a newspaper. He also notices that no sales tax can be
imposed on a newspaper or an advertisement therein by a State Legislature
and only Parliament is vested with such power under Entry 92 of List I of
the Seventh Schedule. Pertinently, no such tax appears to have been
imposed by the Parliament so far. He also notices that under the Central
Sales Tax Act, 1956, the Central Government has excluded newspapers
from the scope of sales tax for purchase of goods in the course of inter-State
trade or commerce. Postal Regulations made under Section 9 of the Indian
Post Office Act, 1898 provides for a reduced rate in respect of newspapers,
subject to compliance of the prescribed conditions.
48. In the light of the aforesaid discussion, I am of the view, that the press
and the media perform a public function and discharge a public duty of:
disseminating news, views & information; initiating and responding to
debates; dealing with matters of current interest in the society in all fields
such as politics, morality, law, crime, arts, sports, entertainment, science,
philosophy, religion, etc. There is not an aspect related to human rights and
human existence which is not dealt with by the press and the media.
Considering the immense impact that the press and media has over the
polity, in my view, it cannot be said that they do not perform a public
function or discharge a public duty, inter alia, when they perform the act of
reporting news. Their functions touch the lives of practically everyone.
Their reach is very deep and pervasive. Infact, the audio-visual media
creates an even greater impact in today‟s time with deeper & wider
penetration all across the State. They command immense power of making,
moulding, sustaining or even changing public opinion. The functions
performed by the press & media are recognised by the State which,
consequently, accords various rights & privileges to them.
49. The controversy in the present case, as aforementioned, relates to the
alleged disclosure of the identity of the petitioner‟s daughter, who had
reported a case of alleged child sexual abuse against her own father, by the
respondents herein. The duty of the respondents herein to maintain utmost
secrecy and confidence in the matter of identity of the petitioner‟s daughter
has not been disputed. Such a duty of the press & media stems from the
need to prevent social obliteration and humiliation of the victim. The
potential of the press and media to cause such harm is immense because the
press and the media enjoy a position of trust in the society and also because
of their reach. Any function/activity, alleged to be in violation of such duty,
would fall within the ambit of scrutiny of this court exercising jurisdiction
under Article 226, especially when the same is alleged to have infringed the
fundamental rights of the victim. Therefore, the respondent nos. 2 and 3 are
subject to the writ jurisdiction of this court in respect of the public function
and public duty performed by them.
Existence of alternative efficacious remedies
50. I shall now deal with the other preliminary objection as regards the
maintainability of the present petition, on the ground that the petitioner
herein has other alternative efficacious remedies.
51. Under Article 226 of the Constitution the High Court, having regard
to the facts of the case, has discretion to entertain or not to entertain a writ
petition. The High Court, while doing so, has imposed upon itself certain
restrictions - one of which is that if an effective and efficacious remedy is
available to the aggrieved, the High Court would not normally exercise its
jurisdiction. But the existence of an alternative remedy has been consistently
held not to operate as a bar in at least the following contingencies, namely,
where the writ petition has been filed for the enforcement of any of the
Fundamental Rights, or where there has been a violation of the principle of
natural justice, or where the order or proceedings are wholly without
jurisdiction, or the vires of an Act is challenged.[See Whirlpool Corporation
v. Registrar of trademarks, Mumbai and Ors., (1998) 8 SCC 1].
52. In the present case, the petitioner herein has alleged violation of the
fundamental right to life of her daughter at the hands of the respondents.
Remedy against such alleged violation would, therefore, lie also by way of a
writ petition seeking enforcement of the infringed fundamental rights. The
existence of other alternatives would not prevent this Court from stepping in
and performing its constitutional mandate- which is to protect, uphold and
enforce the of fundamental rights that each individual, for the sustenance of
life as a human being, is entitled to.
53. Further, it cannot be stated that in every case involving claim of
compensation, recourse can only be had by way of a civil suit. In Rudul
Shah (supra), the Supreme Court was faced with a situation where the
petitioner, who was acquitted by the Court of Session, was released from jail
more than 14 years thereafter. The petitioner approached the Court asking
for his release on the ground that his detention in the jail was unlawful and
claimed compensation for his illegal incarceration. The petitioner was
released from jail and as regards the compensation for illegal detention the
Court held that though Article 32 cannot be used as a substitute for the
enforcement of rights and obligations which can be enforced efficaciously
through the ordinary processes of Courts, however, in order to rectify the
grave injustice perpetrated upon the petitioner by illegally detaining him in
jail for 14 years after his acquittal, which violated his fundamental right to
life and liberty guaranteed under Article 21 of the Constitution of India, the
Court in the exercise of its jurisdiction under Article 32 can pass an order for
the payment of money if such an order is in the nature of compensation
consequential upon the deprivation of a fundamental right. Chandrachud,
C.J. speaking for the bench observed as under:
“9. It is true that Article 32 cannot be used as a substitute for
the enforcement of rights and obligations which can be
enforced efficaciously through the ordinary processes of
courts, civil and criminal. A money claim has therefore to be
agitated in and adjudicated upon in a suit instituted in a Court
of lowest grade competent to try it. But the important question
for our consideration is whether in the exercise of its
jurisdiction under Article 32, this Court can pass an order for
the payment of money if such an order is in the nature of
compensation consequential upon the deprivation of a
fundamental right. The instant case is illustrative of such
cases. The petitioner was detained illegally in the prison for
over 14 years after his acquittal in a full-dressed trial. He filed
a habeas corpus petition in this Court for his release from
illegal detention. He obtained that relief, our finding being that
his detention in the prison after his acquittal was wholly
unjustified. He contends that he is entitled to be compensated
for his illegal detention and that we ought to pass an
appropriate order for the payment of compensation in this
habeas corpus petition itself.
10. We cannot resist this argument. We see no effective answer
to it save the stale and sterile objection that the petitioner may,
if so advised, file a suit to recover damages from the State
Government. Happily, the State's counsel has not raised that
objection. The petitioner could have been relegated to the
ordinary remedy of a suit if his claim to compensation was
factually controversial, in the sense that a civil court may or
may not have upheld his claim. But we have no doubt that if
the petitioner files a suit to recover damages for his illegal
detention, a decree for damages would have to be passed in
that suit, though it is not possible to predicate, in the absence
of evidence, the precise amount which would be decreed in his
favour. In these circumstances, the refusal of this Court to
pass an order of compensation in favour of the petitioner will
be doing mere lip-service to his fundamental right to liberty
which the State Government has so grossly violated. Article 21
which guarantees the right to life and liberty will be denuded
of its significant content if the power of this Court were
limited to passing orders of release from illegal detention. One
of the telling ways in which the violation of that right can
reasonably be prevented and due compliance with the
mandate of Article 21 secured, is to mulct its violators in the
payment of monetary compensation. Administrative sclerosis
leading to flagrant infringements of fundamental rights cannot
be corrected by any other method open to the judiciary to
adopt. The right to compensation is some palliative for the
unlawful acts of instrumentalities which act in the name of
public interest and which present for their protection the
powers of the State as a shield. If civilisation is not to perish
in this country as it has perished in some others too well
known to suffer mention, it is necessary to educate ourselves
into accepting that, respect for the rights of individuals is the
true bastion of democracy. Therefore, the State must repair the
damage done by its officers to the petitioner's rights. It may
have recourse against those officers.”
(emphasis supplied)
54. The order of compensation passed was in the nature of a palliative,
leaving the petitioner the liberty to file a suit for compensation, wherein the
nice points of facts and law could be adjudicated upon.
55. Apart from the aforementioned decision, the question has been dealt
with extensively by the Supreme Court in Smt Nilabati Behera (supra),
Chairman, Grid Corporation of Orissa Ltd. (Gridco) and Ors. v. Sukamani
Das (Smt.) and Anr., (1999) 7 SCC 298, Tamil Nadu Electricity Board v.
Sumathi and Ors., (2000) 4 SCC 543 and S.P.S Rathore vs. State of
Haryana, (2005) 10 SCC 1. The position that emerges from these decisions
is that the writ court may award compensation in appropriate cases, where
the facts are not in dispute; there is established negligence in the acts and
omissions of the respondent on the face of the record, and; there is
consequent deprivation of a fundamental right of the petitioner or his legal
representatives. The existence of an alternate remedy for claim of
compensation by way of a suit, as contended by the respondents, would,
thus, not bar this court from entertaining and allowing the present petition, if
the requisite essentials, as aforesaid, are fulfilled.
56. The remedies provided for under the Press Council Act, 1978 and/or
the Juvenile Justice Act also cannot be said to be efficacious alternate
remedies, to the one claimed for by the petitioner herein. The PCI has been
constituted under the Press Council Act, 1978, mainly to preserve freedom
of press and to maintain and improve the standards of newspapers and news
agencies in the country. For such purposes the PCI, upon receipt of a
complaint alleging breach of standards of journalistic ethics or public taste
or professional misconduct, has been endowed with the power of censure
under Section 14 of the said Act. The existence of the said forum, conferred
with such power, cannot be treated an effective alternative efficacious
remedy for the alleged violation of fundamental right, as claimed by the
petitioner herein. Similarly, the Juvenile Justice (Care and Protection of
Children) Act, 2000 cannot be said to be an effective alternate remedy to
pursue for the alleged violation of the fundamental right of the petitioner‟s
daughter and the reliefs claimed herein. It is nobody‟s case that the
petitioner‟s daughter at the relevant time was a minor in conflict with Law.
The remedies provided for under the aforesaid Acts cannot be said to be
adequate and, indeed, cannot come in the way of this court to exercise
jurisdiction under Article 226 of the Constitution of India for the purposes of
enforcement of fundamental rights.
57. The present writ petition for claim of compensation, for alleged
breach of fundamental rights of the child, is, therefore, not barred by the
existence of alternate remedies, as contented by the respondents.
58. One of the contentions of the respondents herein is that the present
case involves determination of disputed questions of fact and that the same
cannot be gone into by this Court in exercise of writ jurisdiction. It is,
therefore, contended that the present petition seeking compensation cannot
be entertained.
59. In general, a disputed question of fact is not investigated in a
proceeding under Article 226. However, this is a rule of discretion and not
of exclusion of jurisdiction. Therefore, merely because a disputed question
of fact is raised, the High Court will not be justified in relegating the
applicant to seek relief by a lengthy, dilatory and expensive process of a
civil suit. Mr. Justice Khanna in the case of Babulal Patel v. Nandlal Barot,
(1974) 2 SCC 706, laid down the position of law in this regard, in the
following words:
“10. … The object of Article 226 is to provide a quick and
inexpensive remedy to aggrieved parties. Power has
consequently been vested in the High Courts to issue to any
person or authority, including in appropriate cases any
government, within the jurisdiction of the High Court, orders or
writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari. It is plain
that if the procedure of a suit had also to be adhered to in the
case of writ petitions, the entire purpose of having a quick and
inexpensive remedy would be defeated. A writ petition under
Article 226, it needs to be emphasised, is essentially different
from a suit and it would be incorrect to assimilate and
incorporate the procedure of a suit into the proceedings of a
petition under Article 226. The High Court is not deprived of
its jurisdiction to entertain a petition under Article 226 merely
because in considering the petitioner's right of relief,
questions of fact may fall to be determined. In a petition
under Article 226 the High Court has jurisdiction to try issues
both of fact and law. Exercise of the jurisdiction is no doubt
discretionary, but the discretion must be exercised on sound
judicial principles. When the petition raises complex questions
of fact, which may for their determination require oral evidence
to be taken, and on that account the High Court is of the view
that the dispute should not appropriately be tried in a writ
petition, the High Court may decline to try a petition (see
Gunwant Kaur v. Bhatinda Municipality [(1969) 3 SCC 769:
AIR 1970 SC 802)]. If, however, on consideration of the
nature of the controversy, the High Court decides, as in the
present case, that it should go into a disputed question of fact
and the discretion exercised by the High Court appears to be
sound and in conformity with judicial principles, this Court
would not interfere in appeal with the order made by the High
Court in this respect.”
(emphasis supplied)
60. The High Court, in exercise of writ jurisdiction, cannot shirk its
responsibility by dismissing a petition on the ground that it raises a disputed
question of fact when the material to determine the said question is on
record. [See L.G. Chaudhari v. Govt. of Bihar, AIR 1980 SC 383]
61. In the present case, the facts which are not disputed by the parties are:
the registration of the FIR by respondent no. 1 upon complaint by the
petitioner‟s daughter; publishing of a newspaper article in relation to the said
complaint by respondent no. 2; attempt to interview the petitioner and her
daughter by the crew members of respondent no. 3 at the petitioner‟s
residence in connection with the aforesaid complaint; reluctance of the
petitioner to give an interview in relation to the complaint; and telecast of a
programme, in connection with the complaint of the petitioner‟s daughter,
by respondent no. 3 on its news channel.
62. However, at the same time, the respondents have disputed certain
facts as alleged by the petitioner herein. Respondent no. 1 has disputed
giving information pertaining to the FIR to the other respondents herein.
Respondent no. 2 has disputed revealing the name of the minor in question
and/or any particulars or specifics of the minor as would likely make the
identity of the minor discoverable. Respondent no. 3 has disputed attempting
to interview the petitioner and her daughter deceptively and/or revealing
explicit information.
63. The newspaper article published by respondent no.2 and the news
item telecast by respondent no.3 are a matter of record, and are undisputed.
As to whether, or not, the said publication/telecast amount to infringement
of the fundamental rights of the petitioner‟s daughter, is, therefore, a matter
which can be examined by the Court. The only disputed question of facts is:
How respondent nos.2 and 3 got the particulars of the FIR registered with
respondent no.1? In my view, this aspect would not make any difference to
the liability, if any, of respondent nos.2 and/or 3. If at all, the same would
only impinge on the liability of respondent no.1. This objection is,
therefore, rejected. I now proceed to consider the case on merits.
Merits
64. The petitioner herein has alleged breach of the right to privacy and
confidentiality, of her daughter, under right to life guaranteed under Article
21 of the constitution of India. The “right to privacy” is recognised as an
integral part of the right to personal liberty under Article 21 of the
Constitution of India.
65. In R. Rajagopal (supra), the Supreme Court had the occasion to
comment on the origin, basis, nature and scope of the right to privacy in
India. Mr. Justice B.P. Jeevan Reddy, referring to the earlier decision of the
Supreme Court in Kharak Singh v. State of Uttar Pradesh, 1964 (1) SCR
332: AIR 1963 SC 129 and the decision in Gobind v. State of Madhya W.P.(C.) No. 12730/2005 Page 36 of 48
Pradesh, 1975 (2) SCC 148: AIR 1975 SC 1378, has summarized the
concept of right to privacy as under:
“(1) 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. None can 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 voluntarily invites or raises
a controversy.
(2) 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 privacy
no longer subsists and it becomes a legitimate subject for
comment by press and media among others. We are, however,
of the opinion that in the interest of decency [Article 19(2)] an
exception must be carved out 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 incident being publicised in press/media.”
(emphasis supplied)
66. The said right to privacy is subject to certain exceptions, as
enumerated by the Supreme Court hereinabove, such as where the matter
becomes part of a public record- in which case the right to privacy comes to
an end and the press and the media get a legitimate right to comment upon
the same. There are exceptions to this, as recognised by the Supreme Court
in cases, such as, where they pertain to a victim of sexual assault, kidnap,
abduction or a like offence. Therefore, even if the matter relating to a case of
alleged sexual abuse etc. becomes a part of the public record, the
fundamental right of the victim to be safeguarded from further disclosure of
identity and consequent subjection to social indignity does not come to an
end. Therefore, an act which violates the said right gives cause of action to,
inter alia, stake a claim of damages.
67. The petitioner herein has also alleged commission of an offence under
Section 228A, IPC on the part of the respondents- for disclosing the name of
the petitioner‟s daughter. The said submission cannot be considered by this
court in exercise of the present jurisdiction. The commission of the alleged
offence has to be adjudicated and decided upon by a Criminal Court of
competent jurisdiction. Consequently, I shall not delve into the said aspect
in these proceedings.
68. The submission of the respondent no. 1 that it did not disclose the
contents of the FIR to the other respondents herein does not appear to stand
the test of reason, and neither does it appeal to common sensibility. Firstly,
the contention of the petitioner herein as regards the alleged disclosure by
respondent no.1 has not been denied by the other respondents herein. To the
contrary, it is their categorical stand that the contents of the said FIR were
provided to them by the officials of respondent no. 1. Secondly, it is also not
respondent no. 1‟s case/allegation that the contents of the said FIR were
provided by the petitioner and/or her daughter to the other respondents. A
mere denial of it not having leaked the FIR cannot absolve respondent no. 1
of its obligation of maintaining utmost secrecy and confidentiality of the
name and identity of the victim of sexual assault.
69. As per respondent no. 1‟s own circular, as quoted above, no official
except the concerned DCP or the Joint C.P. Ranges/CAW Cell could have
briefed the press about the incident complained of. With no such briefing
having been referred to, or having been brought to the notice of this court by
respondent no. 1 herein, I cannot but reject the submission of respondent
no.1 and, accordingly, hold them liable for the disclosure of the FIR. Such
conduct of the officials of respondent no. 1 herein is nothing short of gross
negligence and dereliction of duty which has, consequently, resulted in
breach of the very basic right of privacy and confidentiality of the
petitioner‟s daughter.
70. In order to test the merits of the petitioner‟s case qua the conduct of
the other respondents herein and the counter submissions of the latter, I also
consider it appropriate to briefly refer to the norms of journalistic conduct,
as laid down by the PCI in 1996 and thereafter revised in 2005, which are
germane to the issue involved in the present case. The same read as under:
“ NORMS OF JOURNALISTIC CONDUCT
Principles and Ethics
The fundamental objective of journalism is to serve the people
with news, views, comments and information on matters of
public interest in a fair, accurate, unbiased, sober and decent
manner. To this end, the Press is expected to conduct itself in
keeping with certain norms of professionalism, universally
recognised. The norms enunciated below and other specific
guidelines appended thereafter, when applied with due
discernment and adaptation to the varying circumstance of
each case, will help the journalist to self-regulate his or her
conduct.
x x x x x x x x x x
Right to Privacy
i) The Press shall not intrude or invade the privacy of an
individual, unless outweighed by genuine overriding public
interest, not being a prurient or morbid curiosity. So, however,
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 the Press and the media, among
others.
Explanation: Things concerning a person's home, family,
religion, health, sexuality, personal life and private affairs are
covered by the concept of PRIVACY excepting where any of
these impinges upon the public or public interest.
ii) Caution against Identification: While reporting crime
involving rape, abduction or kidnap of women/females or
sexual assault on children, or raising doubts and questions
touching the chastity, personal character and privacy of
women, the names, photographs of the victims or other
particulars leading to their identity shall not be published.
iii) Minor children and infants who are the offspring of
sexual abuse or 'forcible marriage' or illicit sexual union
shall not be identified or photographed.
x x x x x x x x x x
Recording interviews and phone conversation
i) The Press shall not tape-record anyone's conversation
without that person's knowledge or consent, except where the
recording is necessary to protect the journalist in a legal
action, or for other compelling good reason.
ii) The Press shall, prior to publication, delete offensive
epithets used by a person whose statements are being reported.
iii) Intrusion through photography into moments of personal
grief shall be avoided. However, photography of victims of
accidents or natural calamity may be in larger public interest.
x x x x x x x x x x
Paramount national interest
i) Newspapers shall, as a matter of self-regulation, exercise due
restraint and caution in presenting any news, comment or
information which is likely to jeopardise, endanger or harm the
paramount interests of the State and society, or the rights of
individuals with respect to which reasonable restrictions may
be imposed by law on the right to freedom of speech and
expression under clause (2) of Article 19 of the Constitution of
India.
x x x x x x x x x x”
(emphasis supplied)
71. As per the aforementioned norms of journalistic conduct, it is the
duty of the press to not reveal the particulars of the victim of sexual abuse
which would lead to the disclosure of his/her identity and resultant breach of
his/her right to privacy. It is on the anvil of such duty emanating from the
fundamental right to privacy of the victim of sexual abuse that the alleged
conduct of the respondent no. 2 and respondent no. 3 has to be evaluated, for
the purposes of the present petition.
72. Respondent no. 2 published an article in relation to the incident
complained of by the petitioner‟s daughter, which came to be registered by
respondent no. 1. In the said article, respondent no. 2 has revealed the age,
the district in which she resides and the class in which she studies. Apart
from this, the article also mentions- the particulars of the incident reported
and registered by the respondent no. 1 both in quotes and also otherwise;
and the figures of the incidents of police cases in the year 2004, wherein the
rapist was a relative of the victim.
73. A perusal of the aforesaid article shows that particulars which would
identify the victim of alleged child sexual abuse, have not been disclosed.
Mere reference to the age, academic standard and residential district of the
victim cannot be considered as revealing her identity. These particulars are
too general for anyone to identify the petitioner or her daughter as the
locality is very large and there could be hundreds of children in the locality
who could meet the description given by respondent no.2. The particulars
pertaining to the complaint made by the petitioner‟s daughter, which have
been referred to in the said article, are not such which could lead to the
inference of the possibility of the identity of the victim being revealed. The
same only cites the instances of alleged sexual advances/abuse by the father
of complainant victim, without any further particulars which could lead to
the identification of the victim. I also find merit in the submissions of
Mr.Bhambani that respondent no.2 has exercised discretion and restraint in
lifting the details and particulars from the FIR lodged by the petitioner‟s
daughter. The article also displays a journalistic trait in as much, as, it raises
the issue of prevalence of such crimes in the society. The focus of the
article is not the particular incident of the petitioner‟s daughter, but the
occurrence of such crimes in our society.
74. Consequently, I do not find merit in the submissions of the petitioner
herein qua respondent no. 2. Accordingly, I do not find the conduct of
respondent no. 2 guilty of negligence and consequent breach of fundamental
right of the petitioner‟s daughter, in publishing the aforementioned article,
for the purposes of the present petition.
75. Respondent no. 3, as aforesaid, broadcasted a programme on its news
channel, in connection with the complaint made by the petitioner‟s daughter
to respondent no. 1. Having so done, respondent no. 3 cannot pass the buck
upon the deleted respondent and try to wash away its hands. The said
broadcast, therefore, would have to stand the test of judicial scrutiny as
mentioned above.
76. Learned counsel for the respondent no.3 has submitted that the
petitioner herself has brought the information regarding the alleged incident
experienced by her daughter in public domain by, firstly, giving an interview
to the deleted respondent, i.e., Star TV and, secondly, by filing the present
petition in her own name, i.e., in the name of the victim‟s mother. The
petitioner has explained that the Star TV reporter had coaxed the
petitioner/her daughter into making some disclosures to Star TV. The
specific averment made by the petitioner in this regard reads as follows,
which is contained in their legal notice sent to Star TV:
“x x x x x x x x x x
3. A representative from your channel, Ms……….,
approached our client without revealing her identity and tried
to get information from her, at about 12:30 pm today.
4. That inspite of protests from our client and her family
members your representative persisted with her attempts to
gain information regarding the FIR lodged.
5. We have been informed that your representative by
tricking our client and managed to gain information through
sheer persistence and emotional blackmail.
6. Kindly note that the use of any information gained by
you/your representative in the said matter could reveal the
identity of the victim which is totally illegal and unethical for
which you would be liable to pay damages and suffer other
criminal and civil consequences.
x x x x x x x x x x”
77. Pertinently even before the said interview could be publicised or
telecast, the petitioner took immediate steps to restrain Star TV from
telecasting the same by the above notice sent on the same day, i.e.,
04.08.2005. Therefore, the giving of the interview to the representative of
Star TV cannot be said to be a deliberate and conscious decision on the part
of the petitioner or her daughter to publicise the alleged incidents or the FIR.
As regards the filing of the present petition in the name of the petitioner, it is
to be appreciated that the petition was filed on 04.08.2005, i.e., the same day
on which the representative of the Star TV had taken the interview. It was
filed in evident urgency. Obviously, the petitioner could not have intended
to publicise either her or her daughter‟s identity and the disclosure of the
name of the petitioner in the petition clearly appears to be on account of the
petitioner‟s innocence/ignorance and the counsel‟s possible lack of
experience and thoughtlessness on account of paucity of time.
78. The submission of respondent no. 3 – that the telecast only mentioned
that a complaint had been filed by the child to the police; that respondent
no.3 took all precautions of not disclosing the address or block where the
petitioner resided; that the office address of the petitioner‟s husband was not
disclosed, and; that the telecast did not contain any information pertaining to
the petitioner which could directly establish her identity – appear to be in
teeth of the material on record, which is self-explanatory.
79. A perusal of the video recording of the said telecast along with its
transcript reveals blatant violation and disregard of the petitioner‟s
daughter‟s right to privacy and confidentiality as also the duty of respondent
no. 3 herein to maintain utmost secrecy and confidentiality in the matter of
the identity of the victim of alleged child sexual abuse. The said telecast
discloses: the name of the accused father & his place of work along with his
designation – which would not only identify him but also the victim as it is
disclosed that the victim is his own daughter; the age of the victim; visual
shots of the display board of the colony containing particulars regarding the
Sector and Pocket, wherein the petitioner resides with her daughter; visual
shots of the staircase leading to the house along with the side shot of the
doorstep of the house and; the voice of the petitioner. Revelation of
particulars of such nature and to such an extent, are patently sufficient for
the disclosure of the identity of the petitioner‟s daughter in the petitioner‟s
community and society. The fact that the petitioner and her daughter came to
be identified by their acquaintances and neighbours is also indicated by the
fact that they had to leave their home and go into hiding and have been
located by their counsel only recently Respondent no. 3 by its conduct, has
acted in utter disregard and disrespect of the right of the victim of sexual
abuse to privacy, recognised not only as inherent to the fundamental right to
life under Article 21 of the Constitution, but also enumerated in the norms of
journalistic conduct by which respondent no. 3 is governed.
80. The submission of the respondent no. 3 that the recording mike and
the camera, which were put into motion when the correspondent initiated
talks with the petitioner, were made fully visible and of which the petitioner
was duly informed about and no attempt had been made to hide or conceal
the same, is also entirely meritless. There is not an iota of suggestion, from a
perusal of the telecast, of any such information having being passed onto the
petitioner by the crew members of respondent no. 3. The crew members on
the other hand, chose to remain silent as regards the factum of such
recording. Even if this submission of respondent no. 3 were to be accepted,
the same is no excuse to justify their conduct. Once the petitioner had
expressed her reluctance to speak to the correspondents of respondent no. 3,
they should have left without making any further recording and could not
have utilised and aired any part of the recording made by them. They cannot
now turn around and say that they did not conceal the recording and that the
same was within the knowledge of the petitioner who, admittedly, was still
inside her house while the cameraman of respondent no. 3 was recording
from the side down below the staircase leading to the petitioner‟s house.
Such gross misconduct on the part of respondent no. 3 calls for the strongest
condemnation. Their act was a display of a prurient or morbid curiosity as
proscribed in the ‘Norms of Journalistic Conduct’ laid down by the PCI.
81. I therefore, hold respondent no. 3 herein liable for gross negligence
and, consequent, breach of fundamental right of the petitioner‟s daughter in
telecasting the said programme containing particulars, sufficient for the
disclosure of the identity of the petitioner‟s daughter.
82. Though the exact amount of compensation to which the petitioner and
her daughter are entitled to on account of the conduct of respondent nos.1 &
3 cannot be determined with certainty in these proceedings, this Court can
certainly grant compensation as a palliative measure, leaving it to the
petitioner‟s daughter to seek further damages from the said respondents in
appropriate civil proceedings. I am of the view that the petitioner would be
entitled to damages of at least Rupees One Lakh from respondent No.1 and
of at least of Rupees Five Lakhs from respondent No.3.
83. While arriving at the aforesaid figures of damages awarded against
respondent no. 1 & 3, this Court has taken into account the extent of
negligent role played by each of them in the serious infraction of the
fundamental right to life of the petitioner‟s daughter. The main wrongdoer is
respondent no. 3 who was obliged not to so explicitly display the details
regarding the petitioner‟s residence etc. as already discussed above, even if
respondent no. 1 provided to it the copy of the FIR in question. Respondent
no. 1 should have been discreet in its disclosure of the details to respondent
no. 2 & 3, which it was not.
84. The award of damages in such cases, of necessity, has to be on the
basis of some guess work. The embarrassment caused to the petitioner and
her daughter by the telecast of the programme by respondent no. 3 in the
manner that they did was so great that they had to relocate themselves and
go into hiding for several years. The purpose of award of damages in such
cases is also to set an example for others, so that it acts as a deterrent against
such similar misadventures at the cost of victims of alleged sexual abuse. I
have taken all these considerations into account while computing the
damages which, in my view, are a conservative side.
Decision
85. Accordingly, I direct as under:
(i) The Commissioner of Police shall immediately set up an inquiry into
the disclosure of the FIR and its details by the representatives of
respondent no.1 to the other respondents herein. The inquiry shall be
headed by an officer not below the rank of a DCP, who shall not be
from the same District with which this case pertains and who should
not have had any connection or dealing with the FIR in question in the
past. While conducting the inquiry, due care shall be taken to
maintain secrecy of the identity of the petitioner and her daughter.
The inquiry shall be conducted within four months from now.
(ii) Respondent no. 1 to 3 are restrained from passing on, in any form
whatsoever, information pertaining to the said incident which could
possibly lead to the further identification of the petitioner‟s daughter
herein.
(iii) Respondent no. 1 and 3, are directed to pay to the petitioner‟s
daughter compensation of Rs.6,00,000/- (Rupees Six Lakhs), out of
which Rs.1,00,000/- (Rupees One Lakh) shall be paid by Respondent
No. 1 and Rs.5,00,000/- (Rupees Five Lakhs) shall be paid by
Respondent No. 3. The same shall be deposited within four weeks
from today with the Registrar General of this Court, who shall
thereafter release the same to the petitioner‟s daughter, in her name.
The petitioner and her daughter shall be entitled to claim further
damages from the persons/entities concerned, if they are so advised,
by approaching the Civil Court concerned. The fact that this Court has
computed the damages as above shall not prejudice the further claim
that the petitioner or her daughter may have. However, the damages
awarded by this Court shall be taken into account by the Civil Court
while awarding damages, if any.
(iv) Respondent nos. 1 and 3 shall pay Rs.25,000/- (Rupees Twenty Five
Thousand), as litigation costs each in favour of the petitioner herein.
(v) The Registry is directed to preserve the record of the case in a sealed
cover. If any one, other than the parties to the case seek inspection or
copies of any part of the record (excluding the judgment), the same
shall be provided only after satisfying the identity of the applicant and
the purpose for which the same is sought.
86. With the aforesaid directions, the present petition along with the
pending applications stand disposed of.
(VIPIN SANGHI)
JUDGE
FEBRUARY 05, 2013
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