Over the last few decades, press and electronic media have emerged as major factors in our nation’s life. They are still expanding and in the process becoming more inquisitive. Our system of Government demands as do the systems of Government of the United States of America and United Kingdom constant vigilance over exercise of governmental power by the press and the media among others. It is essential for a good Government.

At the same time, we must remember that our society may not share the degree of public awareness obtaining in United Kingdom or United States. The sweep of the First Amendment to the United States Constitution and the freedom of speech and expression under our Constitution is not identical though similar in their major premises. All this may call for some modification of the principles emerging from the English and United States decisions in their application to our legal system.

Indian Supreme court, while deciding the cases related to ‘Right to Privacy’ kept in mind the observation made by learned judges of Supreme court of the United states in below mentioned cases.

Right to privacy in United states

The right to privacy was first referred to as a right and elaborated in the celebrated article of Warren and Brandies (later Mr Justice Brandies) entitled “The right to privacy” published in Harvard Law Review 193, in the year 1890.

Time, Inc. v. Hill

Though the expression “right to privacy” was first referred to in Olmstead v. United States[1], it came to be fully discussed in Time, Inc. v. Hill[2]. The facts of the case are these:

On a particular day in the year 1952, three escaped convicts intruded into the house of James Hill and held him and members of his family hostage for nineteen hours, whereafter they released them unharmed. The police immediately went after the culprits, two of whom were shot dead. The incident became prime news in the local newspapers and the members of the press started swarming the Hill’s home for an account of what happened during the hold- up.

The case of the family was that they were not ill-treated by the intruders but the members of the press were not impressed. Unable to stop the siege of the press correspondents, the family shifted to a far-away place. Life magazine sent its men to the former home of Hill family where they re-enacted the entire incident, and photographed it, showing inter alia that the members of the family were ill-treated by the intruders.

When Life published the story, Hill brought a suit against Time Inc., publishers of Life magazine, for invasion of his privacy. The New York Supreme Court found that the whole story was “a piece of commercial fiction” and not a true depiction of the event and accordingly confirmed the award of damages.

However, when the matter was taken to United States Supreme Court, it applied the rule evolved by it in New York Times Co. v. Sullivan[3] (mentioned below) and set aside the award of damages holding that the jury was not properly instructed in law. It directed a retrial. Brennan, J. held:

“We hold that the constitutional protections for speech and press preclude the application of the New York statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with the knowledge of its falsity or in reckless.”

“We create grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in press news articles with a person’s name, picture or portrait, particularly as related to non-defamatory matter.

* * * Those guarantees are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society.

* * * That books, newspapers and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded……

Cox Broadcasting Corpn. v. Cohn

The next relevant decision is in Cox Broadcasting Corpn. v. Cohn,[4]

A Georgia law prohibited and punished the publication of the name of a rape victim. The appellant, a reporter of a newspaper obtained the name of the rape victim from the records of the court and published it. The father of the victim sued for damages.

White, J. recognised that “in this sphere of collision between claims of privacy and those of the free press, the interests on both sides are plainly rooted in the traditions and significant concerns of our society”

but chose to decide the case on the narrow question whether the press can be said to have violated the said statute or the right to privacy of the victim by publishing her name, having obtained it from public records. The learned Judge held that the press cannot be said to have violated the Georgia law or the right to privacy if it obtains the name of the rape victim from the public records and publishes it.

The learned Judge held that the freedom of press to publish the information contained in the public records is of critical importance to the system of Government prevailing in that country and that, may be, in such matters “citizenry is the final judge of the proper conduct of public business”

Griswold v. Connecticut

Griswold[5] was concerned with a law made by the State of Connecticut which provided a punishment to “any person who uses any drug, medicinal article or instrument for the purpose of preventing conception…..”

The appellant was running a centre at which information, instruction and medical advice was given to married persons as to the means of preventing conception. They prescribed contraceptives for the purpose. The appellant was prosecuted under the aforesaid law, which led the appellant to challenge the constitutional validity of the law on the grounds of First and Fourteenth Amendments.

Douglas, J., who delivered the main opinion, examined the earlier cases of that court and observed:

“… specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help to give them life and substance…. Various guarantees create zones of privacy.

The present case, then concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon the relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms”. N

Would we allow the police to search the sacred precincts of marital bedrooms of tell-tale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights older than our political parties, older than our schools system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

Roe v. Wade

Roe v. Wade[6] concerned the right of an unmarried pregnant woman to terminate her pregnancy by abortion. The relevant Texas law prohibited abortions except with respect to those procured or admitted by medical advice for the purpose of saving the life of the mother. The constitutionality of, the said law was questioned on the ground that the said law improperly invaded the right and the choice of a pregnant woman to terminate her pregnancy and therefore violative of ‘liberty’ guaranteed under Fourteenth Amendment and the right to privacy recognised in Griswold (supra).

Blackmun, J. who delivered the majority opinion, upheld the right to privacy in the following words:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however… the Court has recognised that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.

In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment,… in the penumbras of the Bill of Rights,… in the Ninth Amendment…. or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment….. These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’.

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon State action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Development of Right to privacy in India

Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21. The first decision of this Court dealing with this aspect is Kharak Singh v. State of U.P[7].

A more elaborate appraisal of this right took place in a later decision in Gobind v. State of M.P[8] wherein Mathew, J. speaking for himself, Krishna Iyer and Goswami, JJ. traced the origins of this right and also pointed out how the said right has been dealt with by the United States Supreme Court in two of its well-known decisions in Griswold v. Conneticut(supra) and Roe v. Wade(supra).

After referring to Kharak Singh, and the said American decisions, the learned Judge stated the law in the following words: “… privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. * * *

privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values. Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child-rearing.”

These above mentioned Indian and United states’ decision also referred by Indian Supreme Court in ‘Rajgopal v. State of Tamil Nadu[9].

[1] 8 277 US 438 72 L Ed 944 (1927)

[2] 385 US 374 17 L Ed 2d 456 (1967)

[3] 376 US 254: 11 L Ed 2d 686 (1964)

[4] 420 US 469: 43 L Ed 2d 328 (1975)

[5] 381 US 479 14 L Ed 2d 510 (1965)

[6] 410 U.S. 113 (1973)

[7] (1964) 1 SCR 332

[8] 1975 AIR 1378

[9] 1995 AIR 264