Grey areas in right to privacy issue

BY s r ramanujan| IN Law and Policy | 10/12/2005

S R Ramanujan 

Though there is nothing in common between ailing Big B and hirsute Mathrani, both of them raised a point on the violation of their right to privacy and both of them seem to be on a slippery wicket on this fundamental right which was not explicitly guaranteed by our Constitution.

Aneil Mathrani, former Ambassador to Croatia (courtesy: Natwar Singh) is aggrieved that his right to privacy has been violated by India Today when the magazine published an interview with him which was supposed to be "off-the-record". Because he spoke to the reporter in private and the magazine in turn put the conversation in public domain, he complains (1) that it was professional breach of trust and (2) it was violation of right to privacy.

Is Mathrani right? Yes and No. Yes, to the extent that he was not taken into confidence by the reporter that the conversation was meant for publication and that he was recording the same. There is another angle to this point of view. If this professional norm has to be followed strictly, we have to put a stop to all the sting operations. NDTV cannot expose bribes being taken by petty cops nor can Tehelka parade itself as a pioneer in the usage of hidden cameras. Hidden cameras have to be hidden away permanently by the investigative reporters. The Hindustan Times cannot use Salman Khan¿s taped conversation (that it was not Khan¿s voice is a different story) and India TV cannot malign Govinda either.

Mathrani is not right for the simple reason that what was exposed, by way of publication in India Today, was in public interest. This would mean that right to privacy must yield to public interest. Also, Mathrani¿s protest does not seem to be genuine. Mathrani is a key witness to the murky episode. Natwar Singh was primarily responsible for his elevation from a hotel executive to a diplomat. He knew what he was talking to a media person and what he spoke was a smooth flow of the sequence of events which would put his mentor in a tight spot. He is a very  naïve diplomat if he could not guess what a professional reporter would do with such a hot stuff. If he still spilled the beans, he might have wanted it that way. After all he is a politician and not a career diplomat and he knew he could always issue a denial and like his boss also threaten legal action. However, the issue here is, like in the case of New York Times reporter Judith Miller in Plame episode, whether the right to privacy of a citizen is paramount or the public interest that prompts a reporter to violate such a right.

The second case was that of Amitabh Bachchan¿s right to privacy. Though he did not complain, his family friend and Samajwadi Party leader Amar Singh was quite upset that Sab se Tej "Aaj Tak", in order to validate its punchline did a "fast" job. Its reporter embedded herself into the ICU where the Big B was undergoing treatment, posing as a doctor. Since the family completely gagged the press, she wanted to prove a point. Neither she caught the ailing Bachchan on camera nor did she record the brief conversation. She only came out and did a piece to the camera just to demonstrate that she could do it! The security guards were sacked as a result and there was a threat of legal action against the reporter for violating the right to privacy.

There was no need for  Amar Singh and the Bachchan family to be so secretive about the actor¿s health which only fuelled wild rumours. Also, let us not forget the fact that Amitabh Bachchan is not just an individual who can claim a right to privacy especially when it concerns his health, but an institution on whom depends the fortunes of hundreds and thousands of people including producers, technicians, artistes, advertisers who have signed contracts with him for crores of rupees and TV channels. Besides, millions of fans were dying to know about his health. How can Amar Singh or the family black out the news and at the same time charge the public broadcaster Doordarshan for blacking out the news of his health? These are the words of Amar Singh: "At a time when millions of Indians and even Pakistanis are praying for the speedy recovery of Bachchan, the Congress, led by Sonia Gandhi, has directed Doordarshan officials not to carry any news about him". Singh was also angry that the IFFI also ignored Bachchan because of his proximity to the leaders of the SP. But his offence over the right to privacy of Bachchan was definitely misplaced.

Well, what is the Constitutional position? The Indian Constitution does not recognize right to privacy as a fundamental right. However, according to the Supreme Court, this right is inherent under Art 21 which says "No person shall be deprived of his life or personal liberty except according to procedure established by law." The right to privacy can be exercised only if the violator is the State and not a private individual or institution. When Maneka Gandhi sued Khushwant Singh over certain references to her in his autobiography "Truth, Love and a Little Malice" saying that it was a violation of her privacy, she lost the case. The Delhi High Court observed that right to privacy that flows from Art 21 couldn¿t be invoked against private entities.

This constitutional position was upheld by the Supreme Court in a different case. The People¿s Union for Civil Liberties filed a case against the Central government stating that the telephone tapping of certain individuals violated the privacy. The observation of the Apex court was like this. "The right to privacy by itself has not been identified under the Constitution. As a concept it may be too wide and moralistic to define it judicially." Though the violator in this case was the government, and not private entities, the Court did not agree with the petitioners and grant relief.

Does this mean that media can violate individual right to privacy with impunity? Well, this is again a moral question and as the Supreme Court felt in the PUCL case, "whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case". 

Contact:  s_ramanujan9@yahoo.co.in