Human Rights Supreme Court of India

Has the Union made contradictory arguments on the right to privacy in the Aadhar and criminal defamation cases?

NoticeAndStayAdityaVerma_SupremeCourtcolumnTwo cases that the Supreme Court has been hearing during the last few weeks do not have anything to do with each other at first glance – the legality of the Aadhaar card scheme (“the Aadhaar case” – including Writ Petition (C) No 494 of 2012) and the constitutionality of the law of criminal defamation (the “criminal defamation case” – including Writ Petition (Crl) No 184 of 2014). Both are complex cases but my focus is on the contradiction about the right to privacy arising from the arguments made on behalf of the Union in both these cases.

The Aadhaar case

In the Aadhaar case, the Union has argued that the right to privacy in India is not a fundamental right. On August 11, 2015, a three-judge bench has directed the registry to place the Aadhaar case before the Chief Justice of India so that a larger bench (of at least five judges) can hear it. The order of the three-judge bench records the submission on behalf of the Union as follows:


…in view of the judgments of this Court in M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300 and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, (decided by Eight and Six Judges respectively) the legal position regarding the existence of the fundamental right to privacy is doubtful. Further… in a catena of decisions of this Court rendered subsequently, this Court referred to “right to privacy”, contrary to the judgments in the abovementioned cases which resulted in a jurisprudentially impermissible divergence of judicial opinions.

While we are not concerned here with whether the right to privacy is a fundamental right in India, it is fair to say that if it were to be held not to be a fundamental right, it would be difficult to justify the existence of a right to privacy in any sense in Indian law, unless Parliament enacted legislation to create such a right by statute. The right to privacy is not a right at common law, which goes also to suggest that there is no common law tort that arises out of a violation of privacy per se.

We will not analyse the various judgments of the Supreme Court on this issue here, but it is safe to assume that even the ‘tortious’ right to privacy in India has found life essentially as a corollary of the argument that the right to privacy is a fundamental right. If it is found not to be a fundamental right, there would be no legal basis for the ‘tortious’ right to privacy to survive.

The criminal defamation case

In the criminal defamation case, it has been argued on behalf of the Union that one of the justifications for the law of criminal defamation (Sections 499 and 500 of the Indian Penal Code, 1860) is that it deters undesirable intrusion into a person’s private life. As this report indicates:

The Supreme Court of India

The Supreme Court of India

The Centre on Thursday told the Supreme Court that live-in relationships should be seen as an “acceptable norm,” and pointed to how reputations of public personalities are often sullied in public because someone pried into their private life… What a public figure does in the evening at his home, I don’t think it would serve any public good even if it is the truth. Public figure is known for discharge of public functions, actions and transaction of business. This [live-in relationship] is matter of private life. There is distinction between conduct in private and public life.

Again, while we are not concerned here with whether the law of criminal defamation is constitutionally valid, it is fair to say that this particular justification for it strongly hints at protecting a person’s privacy. The Supreme Court may decide that there are other justifications for the law of criminal defamation, but it would be difficult to argue that one of those justifications is the protection of a person’s privacy, unless it also accepted that that person has a right to privacy in the first place.

The contradiction

So, is there, or isn’t there a right to privacy in India? In the Aadhaar case, the Union’s argument is that there isn’t. However, in the criminal defamation case, the Union’s argument assumes that there is. It will be interesting to see how the Supreme Court eventually resolves this question, which arises independently in each case.

Bear in mind that it is theoretically possible for it to be decided, without inconsistency, that the right to privacy is not a fundamental right in India – indeed, it is not a right at all – and at the same time, to uphold the constitutional validity of the law of criminal defamation in India, as long as the protection of a person’s privacy is not one of the justifications for that law. Equally, it can be said without inconsistency that the right to privacy is a fundamental right in India, but the law of criminal defamation is constitutionally unsound, despite one of its purposes being the protection of a person’s privacy.

Of course, there is no fear of contradiction in the law as far as the right to privacy is concerned if it is held that:

– the right to privacy is not a fundamental right, and the law of criminal defamation is constitutionally invalid, or

– conversely, the right to privacy is a fundamental right, and the law of criminal defamation is found to be constitutionally valid

Some readers must be thinking, “What about privacy and the restriction on access to internet pornography?” All of this is for the Supreme Court to iron out. Rather ironically, privacy seems to be everywhere these days!

(Aditya Verma is an advocate based in New Delhi.)  

History Litigation

Robed and privileged – how advocates are protected against defamation proceedings for statements made by them in court

vijayaraghavannarasimhamMukul Rohatgi, the Attorney General for India, reportedly said during proceedings before the Supreme Court that the collegium had appointed many undeserving and inefficient judges to the apex court and high courts who went on to “create havoc” in the country. To argue that it was a myth that only judges could appoint good judges, he submitted in a closed envelope, a list of eight cases of what he called “bad appointments and selection” and referred to the questionable conduct of many judges.

Can proceedings be initiated against the Attorney General for these statements bordering on defamation? Do the affected lot have a remedy?

In many settings, if we called someone a liar, cheat or incompetent or worse, we might be on the receiving end of a defamation claim. If we need to say that during litigation, we’re generally protected by the litigation privilege. The litigation privilege confers absolute immunity from defamation claims for statements made during both judicial and quasi-judicial administrative proceedings. The privilege applies to attorneys, parties, judges and witnesses. To qualify for such privilege, the statement must meet two general tests. First, it must have some reference to the subject matter of the litigation. Second, it must be made in connection with a judicial proceeding.

This is the statement of law from American Jurisprudence. The privilege is traceable to the “public policy of securing to attorneys as officers of the court, the utmost freedom in their efforts to secure justice for their clients”. The privilege therefore, is absolute.

But for a subtle change made by the House of Lords recently in Arthur J.S Hall and Co. v. Simons, the British precedent would have been identical. Attorneys continue to enjoy absolute immunity in addressing courts during the proceedings from being sued either in civil law or under the criminal dispensation, but this case removed the immunity enjoyed by advocates from being sued for ‘negligence’.

Defended against a civil claim – many Madras High Court decisions

Closer home, on January 1, 1800, the legendary Eardley Norton was sued by Sullivan, a member of Madras Civil Service for defamatory conduct in addressing the members of the jury in a criminal trial. A full bench of five judges of the Madras High Court ruled that Norton enjoyed

The legendary Eardley Norton

The legendary Eardley Norton

absolute privilege from being sued in civil law for damages. In the absence of proof that Norton was actuated by malice and because the allegedly defamatory utterance was not alien or irrelevant to the matter in inquiry, the High Court accepted Norton’s defence, “I acted under my instructions: all I said and did was within the four corners of those instructions and my duty to my client compelled me to say what I said”.

On December 2, 1926, the Madras High Court relied on Sullivan v. Norton and decisions from the Bombay and Calcutta High Courts in Thiruvengada Mudali v. Thirupura Sundari Ammal and ruled that when the statement imputed with defamatory content was made in the course of a necessary line of submission to aid the cause of a client, then even the presence of malice will not override the presumption of good faith. Advocates who have been accused of defamatory conduct are also protected by the Bombay High Court’s decision in Navin Parekh v. Madhubala Shridhar Sharma, which in fact relied on the ninth exception to Section 499 of the Indian Penal Code, 1860.

When “imputation was made in good faith (which is always presumed) for the protection of interest of the person making it, or of any other person, or for the public good”, then such utterance would not amount to defamation. In February 2008, the Madurai Bench of the Madras High Court again rescued an advocate from facing criminal prosecution for allegedly making defamatory statements in the course of pleadings in a suit for partition.

A thinner defence against criminal defamation

All may not be lost for persons affected by such submissions. In its decision in Sanjay Mishra in March 2012, the Delhi High Court drew a subtle distinction between English and Indian law.
While in England, there is total immunity for a counsel for such conduct from being proceeded against either for damages in a civil action or under criminal law, that level of protection os confined to a civil action alone in India. Under the criminal law of defamation, the ninth exception to Section 499 actually enables parties to sue a counsel if they can demonstrate malice or a lack of good faith in the utterance or conduct. That, however, is too thin a line, especially in a case of the kind that the Attorney General was arguing – a one-off case, where the submissions were not too alien either.

Vijayaraghavan Narasimhan is an advocate practicing at the Madras High Court.


Human Rights

Censors between the book-ends: A tragic age for book censorship

AparGupta_freedomofspeechThere was a sense of prophecy when D.H. Lawrence penned the first line to Lady Chatterley’s Lover, his novel about how, impervious to how it often ends in loss, we continue to seek romance. The words, “[o]urs is essentially a tragic age, so we refuse to take it tragically”, had a wider prescription. Little did Lawrence know that his book would inspire in India, the nebulous legal standards for obscenity that would become catastrophic for the liberty of authors, publishers, and readers.

In 1964, acting on the prosecution of a bookseller for obscenity under Section 292 of the Indian Penal Code, 1860 (“IPC”) for the sale of this book, a three-judge bench of the Supreme Court of India adopted the “Hicklin test”. The Court stated in Ranjit Udeshi v. State of Maharashtra that, “the tendency of the matter charged as obscene must be to deprave and corrupt those, whose minds are open to such immoral influences and into whose hands a publication of the sort may fall, so far followed in India, is the right test.” Even today, FIRs are filed against authors while courts continue to deliberate the fuzzy standards for obscenity. Moreover, for each word they write, authors have to negotiate several other content-based offences.

The process of banning a book

LadyChatterleysLoverEven though individual prosecutions for obscenity and other offences occur regularly, they do not, by themselves, result in the prohibition of the sale or distribution of a book. This power of forfeiture comes from Section 95 of the Code of Criminal Procedure, 1973 (“CrPC”), which allows a state government to prohibit a publication by a notification in the official gazette. In its the recent decision in State of Maharashtra v. S. Damodar, the Supreme Court, while overturning a ban on James Laine’s book on Shivaji, stated the ingredients of a valid notification prohibiting a publication.

The state government must first form an opinion that the matter constitutes an offence under one of Sections 124A (sedition), 153A (communalism), 153B (insults to religions), 292 (obscenity), or 295A (outraging religious feelings) of the IPC. Secondly, such an opinion should be published in the official gazette. Importantly, a police officer’s power under this process is not limited to the territorial limits of any state in which the ban has been issued. With the power to confiscate and prosecute publications made available throughout India therefore, even when a book banning notification is issued in Maharashtra, it is often pulled from sale from online bookstores and bookstores in other states.

A statutory opportunity to contest such a ban is provided in Section 96 of the CrPC itself. It allows appeals to the High Court of the state in which the notification for banning has been issued. Further, this right of appeal is not limited to the author or the publisher. Any other person may sue as well. Section 96 therefore, is one of the few provisions of law, which expressly recognises the right to read and the public injury from a ban. It is interesting to note that this provision in its original form can be traced to the Code of Criminal Procedure, 1889 and so ideologically, does not sprout from our constitutional jurisprudence.

TheSatanicVerses_SalmanRushdieSince such a power to ban a publication is available only to the state government, the Union Government has made inventive use of the Customs Act, 1952 (“Customs Act”), most glaringly to prohibit the import of Salman Rushdie’s The Satanic Verses through a notification dated October 5, 1988 under Section 11 of the Customs Act. Rushdie is not alone. Many books on Kashmir and critical accounts of the assassination of Mahatma Gandhi and the Sino-Indian War remain banned by customs authorities.

Private censorship

Though censorship of books by the state in the manner described above has decreased in frequency over the past few years, a worrying trend has emerged in which private persons have successfully caused the censorship of many books. Such censorship, either through a private compromise with the publisher or through a court injunction that is issued before the case is heard on evidence, is mostly a result of allegations of defamation. Defamation exists independently as a criminal offence and as a civil wrong.

Section 499 of the IPC defines the offence of defamation. People found guilty can be sentenced to imprisonment for up to two years. The civil wrong is based on common law and is derived from the judgments of courts and plaintiffs usually seek damages and a perpetual injunction against the defendant from publishing or distributing the work. In practice however, due to delays, criminal trials are itself a process in harassment for authors and publishers and civil suits are compromised after interim injunctions are liberally issued.

WendyDoninger_TheHindu_TheDescentofAirIndia_BhargavaThe most visible instance of a criminal trial resulting in a compromise for pulping a book is the case of Wendy Doniger’s The Hindus. The book was withdrawn pursuant to a compromise between its publisher Penguin and Dinanath Batra, a former general secretary of the education wing of the Rashtriya Swayamsevak Sangh, who had instituted a complaint case under various offences against them. The author’s public statement to quell the criticism faced by the publisher blamed substantive offences in Indian law, specifically Section 295A of the IPC. Another recent instance is that of Bloomsbury withdrawing Jitender Bhargava’s The Descent of Air India under the terms of the settlement of the criminal defamation case instituted in a Mumbai court by Praful Patel, the former Union Minister for Civil Aviation.

The position with respect to civil suits is not much better. It took five years for Kushwant Singh to have an interim inunction lifted from the Delhi High Court for a chapter he wrote about Maneka Gandhi which she alleged, was defamatory. Setting aside the interim injunction, the High Court rebuked the Single Judge’s order stating that its observations about the “high thinking, higher living and high learning of the author are TheBeautifulAndTheDamned_Deb_SaharaTheUntoldStory_Tamalsubjective moralistic observations.” Other recent court injunctions include ones issued by a district court in Silchar against a chapter in Siddharth Deb’s, The Beautiful and the Damned and against Tamal Bandyopadhyay’s Sahara: The Untold Story. One senses a pattern where it is easier to get an interim injunction and then coerce the author to drop a passage than for the author to appeal the injunction, persevere, and then publish the book in its entirety.

More often, one finds that even before a case is filed through the device of a legal notice to the publisher quoting exaggerated and anticipated damages, private parties successfully prevent publications. A recent attempt at this was made by Reliance Industries who sent a legal notice claiming a hundred crore rupees as damages from the author of Gas Wars, Paranjoy Thakurta. Distressingly, such bullying often finds success. Quite recently, Orient Blackswan withdrew Megha Kumar’s Communalism and Sexual Violence: CommunalismSexualViolence_GasWars_PrananjoyGuhaThakurtaAhmedabad Since 1969 following a legal notice sent by Dinanath Batra against another book in its catalogue! Following the receipt of the notice, the publisher commenced a review of its entire catalog, resulting in the withdrawal. Many blame the publishers, but most blame the laws which allow such offence. Though experienced litigators often term such actions as an abuse of law, many would ask, if the law permits such abuse, isn’t the law by itself abusive?

Liberalism through judgments?

In this raging debate, a popular opinion is that the higher judiciary has imparted a liberal reading of the law in favor of authors. This impression is only grounded in rhetoric for several reasons. Quite obviously, most authors and publishers have to wait for years and exhaust the process of appeals before they can approach the higher courts. Any such remedy therefore is an illusory one. Even when writ remedies or an accelerated appeals process is availed of, the approach of the High Courts and the Supreme Court has generally been conservative.

Most often, the higher judiciary examines irregularities either in the criminal procedure or in the banning notification alone. It helps that complainants do not reason the ingredients of the offence complained of and that banning notifications are passed without stating any grounds for the opinion. The examination does not go deeper and the higher courts generally prefer to remand the case for a trial by evidence or defer to the opinion of the state government. Even when such a process-based scrutiny is applied, courts do not hesitate to become censors by themselves.

Legal Research AdvertisementTwo of the latest book banning cases from the Supreme Court illustrates this point. In State of Maharashtra v. S. Damodar, the Court only looked at the ingredients of the banning notification issued by the state government, which made reference to a FIR registered under Section 153A. Since the Court had previously quashed the FIR, it set aside the banning notification. Prior to doing this, in an oral hearing, the Court made a suggestion to delete the alleged offensive passages to enable the state government to lift the ban on the book.

The second instance is where the Supreme Court, in Sri Baragur Ramachandrappa v. State of Karnataka, upheld the notification banning Dharmakaarana, a Kannada novel by P.V. Narayana. In reaching its decision to uphold the banning notification, the Supreme Court cited additional “offensive” passages that were not cited in the banning notification. In a sense, it seemed that the Supreme Court was substituting its own reasons for the ban, going beyond the ones given by the state government. As with Damodar’s Case, the Court again asked the author to delete the offending passages.

Even otherwise, it remains beyond dispute that the underlying substantive law, in spite of attempts to limit its application by precedent, remains subjective. During such a subjective assessment, the content by itself is often examined, and the subjectivity in the law allows for tremendous discretion and inconsistency. A good illustration of this is the recent Supreme Court decision in Aveek Sarkar v. State of West Bengal, where a two-judge bench of the Supreme Court expressly stated that the Hicklin test is outdated and moved towards the more liberal “community standards test” as laid down by the United States Supreme Court in Miller v. California.

Though many would celebrate this shift in precedent, it should be greeted with cautious optimism. Since, the judgment in the Ranjit Udeshi Case was pronounced by a three-judge bench, the observations in Aveek Sarkar by a two-judge bench appear to be per incuriam. Secondly, there exists a vast gap between doctrinal liberalism and its practical application. For years at end, district courts will continue to apply the time honed Hicklin test. Finally, even substantively, the application in Aveek Sarkar is by a panel of judges who sit in the place of the jury and apply “community standards”. While this may often lead to outcomes that favour expression over censorship, it again inheres subjectivity in application. The purported high thresholds set by Aveek Sarkar, remain only in theory.

These cases demonstrate that the Supreme Court is often clumsy and lacks ideological consistency its free speech jurisprudence. In his personal essays explaining the motivations for the themes and styles that would offend many, D.H. Lawrence stated that he had set out to conquer taboos. In this, he failed in India. Sections of our society remain conservative and puritanical to the extent of being exclusionary against views that do not conform to their beliefs. Worse, the law allows their annoyance as an offence and their morality as legality. Close to a century since Lady Chatterley’s Lover was first written, we still remained tethered to Victorian virtues trapped in legal codes. It comes as some comfort that authors rarely care about law when they write, for they have “got to live, no matter how many skies have fallen”.

Apar Gupta is a partner at Advani & Co., and was recently named by Forbes India in its list of thirty Indians under thirty years of age for his work in media and technology law.


Forward Defence

When the Fake IPL Player became a household subject in April of 2009, few were aware that the blogger who emerged a few weeks ago from behind the name, Anupam Mukerji – a Bangalore-based marketing consultant, was preoccupied with protecting himself legally. In fact, the surge in attention after the first few posts even prompted a temporary hiatus from blogging while he thought about how to protect himself from the powerful feathers he may have ruffled.

Even before he started blogging on, Google’s blogging platform, while the concept was just a knot of ideas, the word “Fake” found its way into the name to replace “Faceless” because of advice from friend and Rainmaker co-founder Bhavin Patel. In fact, it was Bhavin who also advised him to get a disclaimer for the blog and to stick to nicknames and descriptions of the teams, players and owners that were the subject of his acidic humour.

Another Rainmaker co-founder, Sachin Malhan, was not as enthusiastic, and almost convinced Anupam to kill the blog. Later, seeing that the Fake IPL Player was not about to roll over meekly, Sachin introduced Anupam to Sajan Poovayya, the Managing Partner at Poovayya & Co. in Bangalore, and took him over for a meeting.

At the Poovayya office, Sajan and his team of lawyers pointed out that some of the nicknames could be construed as defamatory. “Paedophile Priest” was one. “Appam Chutiya” was another. Anupam agreed to stop using the former, but said he would have to continue using the latter, as it had become key to the blog’s popularity.

Sajan’s other major concern was the “one per cent chance” of someone filing a police case. According to Anupam, Sajan said that if someone were to file a police case, Google would be forced into revealing the IP address of the owner of the blog and he would be arrested. Sajan said he would then have to file a bail application and get him out, but also cautioned him. “If you’re lucky, you will be out of jail in one day, if you’re unlucky, three days”. Anupam felt that three days was a reasonable risk for the fun that he was having, and continued blogging to a breathless audience!

Aju John is part of the faculty on