2. 23-01-2013
PRIVACY???
The term "privacy" has been described as "the
rightful claim of the individual to determine the
extent to which he wishes to share of himself with
others and his control over the time, place and
circumstances to communicate with others. It
means his right to withdraw or to participate as
he sees fit. It also means the individual's right to
control dissemination of information about
himself; it is his own personal possession"
Privacy has also been defined as a Zerorelationship between two or more persons in the
sense that there is no interaction or
communication between them, if they so choose
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3. 23-01-2013
INTERNATIONAL DOCUMENTS ON RIGHT TO
PRIVACY
Universal declaration of Human Rights,1948:
Art.12
Int. Covenant on Civil and Political Rights :
Art 14
Convention on the Rights of the Child,1989:
Art.16
United Nations Convention on Migrant
Workers,1990:Art.14
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4. 23-01-2013
FOUNDATION OF PRIVACY RIGHT
The need for a law to protect privacy was
articulated as early as 1890 when an
article titled The Right to Privacy was
published by Warren and Brandies in
Harvard Law Review
The first higher American court to deal
with the right to privacy was a New York
appellate court in 1902 in Roberson v.
Rochester Folding Box Co ( Chief Justice
Parker)
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5. 23-01-2013
CONTD..
The most well-known American cases on privacy
are Griswold v. Connecticut and Roe v. Wade ,Justice
Douglas held:
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
Striking down the legislation as an unconstitutional
invasion of the right to marital privacy, it was held
that the right of freedom of speech and the press
includes not only the right to utter or to print but also
to distribute, receive and read and that without those
peripheral rights, the specific right would be
endangered.
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6. 23-01-2013
THE RIGHT TO PRIVACY IN INDIA
The right to privacy in India has derived itself from
essentially two sources: the common law of torts and
the constitutional law In common law, a private action
for damages for unlawful invasion of privacy is
maintainable.
The printer and publisher of a journal, magazine or
book are liable in damages if they publish any matter
concerning the private life of the individual without
such person's consent.
There are two exceptions to this rule: first, that the
right to privacy does not survive once the publication
is a matter of public record and, second, when the
publication relates to the discharge of the official
duties of a public servant, an action is not
maintainable unless the publication is proved to be 6
7. 23-01-2013
SC ON RIGHT TO PRIVACY IN INDIA
In India, the Constitution does not expressly
recognize the right to privacy. The concept
of privacy as a fundamental right first
evolved in 1964 in the case of Kharak Singh
v State of Uttar Pradesh. The Supreme
Court, for the first time, recognized that
there is a right of privacy implicit in the
Indian Constitution under Article 21 . The
Court held that the Right to Privacy is an
integral part of the Right to Life, but with out
any clear cut laws, it still remains in the grey
area.
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8. 23-01-2013
CONTD..
Gobind v. State of M.P , a case of
surveillance, the Supreme Court, while
upholding the regulation which authorized
domiciliary visits by security personal, held
that Depending on the character and
antecedents of the person subjected to
surveillance as also the objects and the
limitation under which surveillance is made,
it cannot be said surveillance by domiciliary
visits would always be unreasonable
restriction upon the right of privacy.
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9. 23-01-2013
SC ON RIGHT TO PRIVACY IN INDIA
In R.Rajagopal v State of TN (1994) the
Supreme Court held that the right to
privacy is a right to be let alone. 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.
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10. 23-01-2013
CONTD..
In India, the Supreme Court got a chance for first
time to decide privacy issue in connection with
STD in 1998. Like USA, India too has laws that
protect patient for disclosure of his/her medical
information. Indian Medical Council Act regulates
the professional conduct. The council created
under the Act has power to make regulation and
code of ethics regarding it. One of the ethics is
not to disclose the secrets of a patient to
anybody without orders of courts.
In Mr. v. Hospital Z, (1998) 8 SCC 296 the Supreme
Court of India concluded that right of privacy is
not absolute.
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the European Convention on Human
Rights said that "As one of the basic
Human Rights, the right of privacy is not
treated as absolute and is subject to such
action as may be lawfully taken for the
prevention of crime or disorder or
protection of health or morals or
protections of rights and freedoms of
others"
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12. 23-01-2013
PEOPLE'S UNION FOR CIVIL LIBERTIES VS. THE
UNION OF INDIA AND OTHERS AIR 1997
Right to freedom of speech and expression is
guaranteed under Article 19(1) (a) of the
Constitution. This freedom means the right to
express ones convictions and opinions freely by
word of mouth, writing, printing, picture, or in
any other manner. When a person is talking on
telephone, he is exercising his right to freedom
of speech and expression. Telephone-tapping
unless it comes within the grounds of
restrictions under Article 19(2) would infract
Article 19(1)(a) of the Constitution.
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13. 23-01-2013
ANIRUDDHA BAHAL V. STATE ( 2010 172 DLT
269)
Delhi High Court held that “it is built-in duties
that every citizen must strive for a corruption
free society and must expose the corruption
whenever it comes to his or her knowledge
and try to remove corruption at all levels
more so at higher levels of management of
the State”. Thus, it said that conducting a
sting operation is a legitimate exercise by
any citizen.
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OBITER DICTA
The HC derived the right to conduct sting
operation to expose corruption under Article
51A (b) of the Constitution of India. The
Article provides that it is the duty of every
citizen to cherish and follow the noble ideals
that inspired the national struggle for
freedom. The Court opined that for fulfilment
of this duty there has to be corruption free
India and if any sting operation is carried out
exposing any corruption then it is allowed.
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OBSERVATIONS
As there is no law on the Sting Operation
there is no legal protection available to the
journalist who conducts a sting operation.
The journalist can be sued later on for
defamation or any other offence.
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THE PRESS COUNCIL OF INDIA: GUIDELINES FOR
REPORTING OF A STING OPERATION
It provides that a newspaper proposing to report a sting
operation shall obtain a certificate from the person who
recorded or produced the same certifying that the
operation is genuine and bonafide.
The decision to report the sting operation should be taken
by the editor after satisfying himself of the public interest
of the matter and ensuring that report complies with all
legal requirements.
Great care and sensitivity should be exercised to avoid
shocking or offending the reader when the sting operation
is reported through a print media as well as to ensure that
the sting operation itself is not completely outside the
bounds of criminal law.
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LEGAL OR ILLEGAL ENTRAPMENT
A sting operation can constitute legal as well
as illegal entrapment. Legal entrapment is
where the offence is already in course. On
the other hand, an illegitimate trap is one
where the offence has not yet been born and
a temptation is offered to see whether an
offence would be committed, succumbing to
it, or not. (re M.S. Mohiddin AIR 1952 Madras
561.)
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CONTD..
In Aniruddha Bahal v. State ( 2010 172 DLT
269) the Delhi High Court held that it is not
necessary to inform the public authority before a
sting operation is carried out.
It is not essential to inform a public authority
before the journalist carries out a sting
operation. If the journalist informs the authorities
before the sting operation is carried out it may
defeat the very purpose of the sting operation.
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19. 23-01-2013
THE TIMES OF INDIA REPORTS(ONLINE
VERSION)
The Supreme Court’s dismissal of the Delhi
police’s appeal to prosecute two journalists for
conducting a sting operation against members
of Parliament in 2005 in the cash-for-questions
scam has wide ramifications.
In its judgment, a bench headed by Justice
Aftab Alam quashed the special leave petition
filed by the police against an earlier Delhi High
Court verdict junking their charge-sheet against
journalists Aniruddha Bahal and Suhasini Raj
of Cobrapost.com.
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20. 23-01-2013
SAJIDBEG ASIFBEG MIRZA VS. STATE OF
GUJARAT (2007)
A Bench comprising Justices Arijit Pasayat
and SH Kapadia dismissed Mirza's petition
saying, "There is no merit in it. However, it
said, "It goes without saying that the
relevance and admissibility of the statement,
if any, given by the accused before the media
persons shall be considered at the
appropriate state in the trial." Once the
"shall" word is used in the direction, then the
trial court will definitely consider the
admissibility.
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21. 23-01-2013
SHARAD YADAV AND ORS. VS. UNION OF INDIA
(UOI) AND ANR.
Video recorded interviews of Shri Sharad
Yadav do not amount to confessions and
cannot, therefore, be used to complete the
offence, with which Shri Sharad Yadav was
charged. Eliminating the aforesaid interviews
of Shri Sharad Yadav, there remains nothing
on record to connect him with the alleged
crime.
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22. 23-01-2013
MOHD. AFZAL VS. STATE OR THE PALIAMENT
ATTACK CASE
The talk which Afzal had with the TV and
press reporters admittedly in the immediate
presence of the police and while he was in
police custody, should not be relied upon
irrespective of the fact whether the statement
was made to a police officer within the
meaning of Section 162 CrPC or not.
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23. 23-01-2013
CONTD…
SC judgment in the Parliament attack case, which
narrated that Ram Jethmalani, appearing for SAR
Geelani, had cited a TV interview given by
Mohammed Afzal to a TV channel purportedly
confessing to his guilt but absolving Geelani.
The apex court, in the Parliament attack case, had
rejected the admissibility of Afzal's statement to the
TV channel as it became apparent that the interview
was arranged by the police and recorded in their
presence.
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ANALYSIS
Television interviews are admissible as evidence in the court, but we will
have to see how evidence has been defined in the Indian Evidence Act
(hereinafter referred to as the act) in section 3 says:
Evidence-"Evidence"
means
and
includes-(1) All statements, which the Court permits or requires to be made before
such
statements
are
called
oral
evidence;
(2) [All documents including electronic records produced for the inspection
of the Court]; such documents are called documentary evidence.
Now the question before us is whether the evidence in the form of an
interview is oral evidence or a documentary evidence. Can the statement
given in the interview be kept in the category of oral evidence and be
admitted as an evidence. If it is so then are the interviews given with the
permission of the courts. And if it is only documentary evidence then such
evidence has been accepted earlier also so there is nothing new. Above all
electronic records are now accepted as documentary evidence by
amendment to the Evidence Act. So it can be taken that we are referring to
the Oral evidence in the form of interviews given to the Television Channels.
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Now even if such interviews are admitted as oral evidence what will be the relevance of such
interviews? The Act defines relevant as
"Relevant" -One fact is said to be relevant to another when the one is connected with the other in
any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
The chapter on relevance of facts lays the circumstances in which a fact can be relevant. Under
this chapter what is said in an interview can be relevant only under section 8 of the Act, which
talks about the previous and subsequent conduct as an interview can only be a conduct
previous, the section provides that,
Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or
relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to
such suit or proceeding, or in reference to a fact in issue therein or relevant thereto, and the
conduct of any person an offence against whom is the subject of any proceeding, is relevant, if
such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was
previous or subsequent thereto.
Explanation 1. the word "conduct" in this section does not include statements, unless those
statements accompany and explain acts other than statements, but this explanation is not to
affect the relevancy of statements under any other section of this Act.
Explanation 2. when the conduct of any person is relevant, any statement made to him or in his
presence and hearing, which affects such conduct, is relevant.
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