A COMMON fallout of public scandals is the eruption in the open of a myriad legal issues affecting the citizen’s rights which had long been ignored.Publication in the press of transcripts of intercepted phone conversations of a corporate lobbyist, Niira Radia, has yielded a rich crop of such issues.
One of them is the right to privacy with hints of enforcement of the Official Secrets Act. She spoke not only to senior journalists like Barkha Dutt, to her acute embarrassment, but also to top industrialists like Ratan Tata and Mukesh Ambani.
Ratan Tata moved the Supreme Court to prevent further publication of the transcripts and for an inquiry as to how the law-enforcement agencies came to divulge the transcripts to the media. He has a point. The case is yet to be decided. But he is wrong when he self-servingly asserts in an interview to the Wall Street Journal that “there should be a law against invading people’s privacy unless it’s for an investigative purpose”.
This shut the door in the face of the media. One hears similar cries from politicians time and again — muzzle the press with a privacy law.
The arm of the law is long enough to reach the purveyors of matters of prurient interest. It is, equally long to protect those in the media who violate privacy in order to expose wrongdoing.
The constitution of Pakistan recognises the right to privacy as a fundamental right in these explicit terms in Article 14 (1): “The dignity of man and, subject to law, the privacy of home, shall be inviolable.” In contrast, the constitution of India contains no express provision.
However, in successive rulings, the Supreme Court of India has ruled that the right to privacy is part of the right to “life or personal liberty” a fundamental right guaranteed by Article 21 which says “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
The court has acknowledged that the right to privacy “as a concept may be too broad and moralistic to define it judicially. Whether the right to privacy can be claimed or has been infringed in a given case would depend on the facts of the case”. In Britain, two committees failed to produce even a set of rules resembling a code.
In 1972 the Committee on Privacy, headed by Kenneth Younger, disapproved of statutory definition of the right citing “the difficulty of definition”. It set out in detail the problems involved in evolving a fair definition. In 1990, another committee, chaired by David Calcutt, QC, fared no better.
In Britain, the right developed through cases decided over the years and as a branch of the common law of breach of confidence.
For instance, the stern Queen Victoria amused herself in the company of her consort Prince Albert and friends by making private etchings and drawings. They were kept securely under lock and key until, one day, the prince sent them to a shop for impressions to be made.
A workman there surreptitiously made copies which were reproduced in a catalogue for exhibition. The court granted an injunction against the catalogue as well as the exhibition. The Prince Albert case, decided in 1848, now figures as the leading case on the right to privacy. In 1967, a newspaper was stopped from publishing the duke of Argyll’s account of his stormy marriage with the duchess.
In recent years, cases mounted enriching the law and lawyers. In 2000, Michael Douglas and Catherine Zeta-Jones sold exclusive photographic rights of their wedding to the magazine OK! Its rival Hello! acquired the photographs unauthorisedly. The couple’s claim to privacy was weakened by the fact that what they sought to protect was not a private affair but a grand occasion from which they were going to make money. In the litigation that followed Hello! won.
In another case in 1995, the co-author of a policeman’s memoirs secretly recorded his remarks on corruption. The judge accepted that the disclosure was in the public interest. “Newspapers had many functions and practices, some more attractive than others; but one function was to provide a means whereby corruption might be exposed. That could rarely be done without informers and often breaches of confidence.”
The courts have, thus, begun slowly but surely to accept the defence of the public interest. The principle admits of no doubt. In 1992, leading members of the British press drafted a 16-point code of conduct for the press complaints commission to enforce. It is set up by the press itself and not by a law enacted by parliament.
Paragraph four of the code reads thus: “Intrusions and inquiries into an individual’s private life without his or her consent are not generally acceptable and publication can only be justified when in the public interest. This would include: (i) Detecting or exposing crime or serious misdemeanour. (ii) Detecting or exposing seriously anti-social conduct. (iii) Protecting public health and safety. (iv) Preventing the public from being misled by some statement or action of that individual.”
In a notable case, the commission ruled: “In the case of politicians, the public has a right to be informed about private behaviour which affects, or may affect, the conduct of public business. The holders of public office must always be subject to public scrutiny, thus judgments about invasions of privacy must balance two sets of rights which may often conflict.”
Anyone who goes into high dudgeon over paragraph four of the code or the commission’s ruling should be reminded of a devastating comment by a noted lawyer in a letter to The Times (London) on June 28, 1990. He wrote: “The law as it now exists is quite enough to punish the excesses of the press — or would be if it was available promptly and irrespective of wealth. But I think it is only right that part at least of the press should be a bit disreputable, should have at least one foot in the gutter where the guilty secrets are. It will be a sad day for democracy when the respectable can boast they have tamed the press.”
The writer is an author and a lawyer.
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