Indu Jain vs Forbes Incorporated

Gita Mittal, J.—The plaintiff has raised interesting questions of law and facts relating to entitlement to injunction on a claim of breach of her right to privacy in the present application under Order 39 Rule 1 and 2 of the CPC praying for grant of an ad interim injunction prohibiting the defendants from effecting publications relating to the plaintiff in their publication or posting information about her on their website.

The suit has been filed against Forbes Incorporated, a company registered in the U.S.A. M/s Forbes Asia has been arrayed as defendant No. 2 which is also a company having its registered office at Singapore. The defendant Nos. 3 to 6 are the President and Publisher, Editor, Contributing Editor and the Wealth List Editor respectively of the defendant No. 2. It has been pointed out that defendant No. 5 Ms. Naazneen Karmali, the Contributing Editor of defendant No. 2 and Ms. Luisa Kroll, Wealth List Editor of defendant No. 2 have been in touch via e-mails with the plaintiff''s representatives who had been repeatedly instructed not to carry any news article pertaining to the plaintiff. The defendant Nos. 7 to 11 are the President and Editor in-chief; Director; Chief Operating Officer; President and Publisher; and the Publisher respectively of the defendant No. 1.

In order to appreciate the issues raised, it would be appropriate to set out the facts on record leading upto the filing of the present application. The plaintiff is the widow of Late Shri Ashok Kumar Jain who was the erstwhile Chairman of Bennett Coleman & Co. Ltd. (hereinafter referred to as ''BCCL''). After his death in February, 1999, the plaintiff was appointed as the Chairman of the company. Apart from such appointment, the plaintiff is stated to be engaged in various spiritual, social and philanthropic causes for a number of years.

It is necessary to notice a preliminary objection raised by the defendant to the territorial jurisdiction of this Court to entertain and adjudicate upon the subject matter of the suit. This objection is principally based on the fact that none of the defendants are residing in or work for gain within the territorial jurisdiction of this Court and consequently, it has been urged that this Court would not have jurisdiction on the subject matter of the suit.

I find that the plaint states that the publication of the defendants which has been complained against in the suit has been circulated in Delhi and also that the offending website is accessible in Delhi. u/s 20(c) of the Code of Civil Procedure, the jurisdiction of the court extends to where the cause of action, wholly or in part, arises. Prima facie, it is not possible to return findings on this issue which shall be decided with the suit.

The plaintiff has urged that she learnt from certain members of BCCL''s corporate team that the defendant No. 2 was planning to publish an issue on Indian Billionaires and that the defendant was proposing to include the plaintiff in such issue.

Mr. Gopal Mohan, General Manager (Corporate) of the Times of India Group sent an E-mail dated 5th December, 2005 to the defendant Nos. 4 and 8 dated 5th December, 2005 raising an objection to the promoters and shareholders of BCCL being featured in the defendant''s issue of the Indian billionaires.

It was objected that the information would be speculative in nature; that it would disturb the shareholders'' right to privacy; that the promoters of BCCL are not interested in being featured; that BCCL is a family run business and the control of the business rests with the head of the family; that the promoters of BCCL have never undertaken valuation of their assets or share holdings and consequently, valuation of the wealth of the company or its promoters would be fraught with inaccuracies verging on wealth speculation and gossip; that there were security risks involved in assessing the wealth of promoters and putting them in the public domain; and lastly the promoters are particular about protecting their individual privacy and treat themselves as ordinary Indian citizens.

Despite these objections, Mr. Gopal Mohan also wrote to the defendants that the magazine could go ahead and feature the promotors of BCCL on any rich list. However, they reserved their rights to defend themselves and seek damages.

The defendants replied to this e-mail through Ms. Lynn Oberlander, Editor Counsel by an e-mail of the same date i.e. 6th December, 2005. This communication informed Mr. Gopal Mohan of an ''upcoming issue of Forbes Asia'' wherein individuals worth more than 1 billion dollars would be included in the March 27, 2006 issue. It also informed the addressee that the basis of the defendant''s wealth estimate was extensive research, interviews with experts and public filings. In case of private companies, valuations were derived in part, from the value of comparable public companies''. The defendants denied that the estimates were speculative or only in the nature of idle gossip. It was also intimated that in order to preserve the legitimacy of the reporting, individuals who deserve to be on the list could not opt out. The defendant invited Mr. Gopal Mohan to review any information which he would like to share to better refine the defendants'' analysis as also to discuss the BCCL valuation. The deadline for further information was also indicated inasmuch as the e-mail informed Mr. Mohan that the issue was going to the printers on the thursday of that week.

This e-mail elicited a prompt reply from Mr. Gopal Mohan on the 6th December, 2005 itself, to Ms. Luisa Kroll, defendant No. 6 and Ms. Oberlander reiterating that BCCL was a closely held company which had never been listed in any study, survey or ranking of rich list and that any attempt to value the company based on comparable media business would be unfounded and unfair, and that the BCCL or its promoters cannot be reduced to a statistical compilation based on market estimates. Despite these objections, information with regard to the BCCL and the plaintiff was thus disclosed:

...With regard to the individual driving the company, BCCL being a family run business, Mrs. Indu Jain, who is the head of the joint family, is the Chairman of the company. Her two sons, Messrs. Samir and Vineet Jain run the business in their respective areas of interest and expertise, jointly working towards the goals and objectives set by Mrs. Indu Jain. All public honours and felicitation has been always bestowed on Mrs. Indu Jain, in business and in society. This is in keeping with Indian social customs, where while the younger members carry the business forward, it is the heads of families that are in command. Ownership of the business vests in Mrs. Indu Jain apart from the stake held by a number of investor companies, who are promoters within Indian regulation.

I find here that Mr. Gopal Mohan has noticed the methodology adopted by the defendant without at all disputing the defendant''s version or method of valuation of individual wealth and confined the plaintiffs'' objection to issues of public safety, individual security and privacy of the families in India. An emphasis was laid on threat to individual security.

A specific request was made to the defendant to desist from featuring the company and its share holders in the forthcoming rich list. At the same time, Mr. Gopal Mohan wrote that in case the defendant was going ahead to publish its findings, then "it should list only the name of our Chairman, Mrs. Indu Jain, names of junior members of her family should please not be listed as owners or co-owners. This, however, is without prejudice to our right to privacy and the right to verify the authenticity of your model and approach to valuation."

It is important that despite this communication, neither BCCL nor the plaintiff at this stage approached this Court for seeking any prohibitory relief of injunction against the publication of such list featuring the promotors.

It has become necessary to closely examine the contents of the communications from the plaintiff in view of the vehement objection taken on behalf of the plaintiff to the effect that she is not a share holder of the BCCL and hence has no connection with it. This was the graveman of the plaintiff''s case before the court and long arguments have been addressed on this issue. As a corollary it is essential to also examine as to whether these communications which have been placed on record and relied upon as pre-publication objections by her to the defendants, can be so treated and their impact on the present case.

All the communications which have been relied upon by the plaintiff have been addressed by the General Manager (Corporate) and other senior and responsible executives in the Times of India Group which is owned and managed by BCCL of which the plaintiff is the Chairman. The communications and the e-mails just noted hereinabove, clearly indicate to the defendant that in case it was featuring a BCCL ownership in its rich list, it should not feature the "company and its shareholders" and that it should list only the name of the Chairman, Mrs. Indu Jain. The `right to privacy'' which was urged, was on behalf of Times of India Group. Ms. Luisa Kroll, defendant No. 6 by the e-mail of 7th December, 2005 provided the information in respect of the plaintiff which the defendant was going to include in their publication which was going to press on 8th December, 2005. On behalf of the defendant, Ms. Lynn Oberlander, Editorial Counsel confirmed to Mr. Gopal Mohan that the defendants were planning on including the Jains in the list of wealthiest people in India and that they would list Ms. Indu Jain as the head of the family and the owner of the business.

In answer to these communications, on 8th December, 2005, Mr. Gopal Mohan addressed yet another extended e-mail to Ms. Lyan Oberlander; Mr. Tim Ferguson, defendant No. 4; Mr. Stewart Pinkerton, defendant No. 8; and Ms. Naazneen Karmali, defendant No. 5, giving additional information on the Times Group which he felt may be more relevant to the defendant''s report. This e-mail runs into several pages wherein Mr. Mohan extensively described the growth of BCCL, its constituents, its interest as well as its international associates. It was also indicated that as part of corporate social responsibility of the group, the Times group supports and organizes training and development programmes through its spiritual and social arm, The Times Foundation etc. Several graphs and charts were enclosed setting out the business interests of the group and their development, its publications and its activities. While concluding, Mr. Gopal Mohan again informed the defendant thus:

...Once again we request you to desist from featuring us. However if you still go ahead and publish your findings in recognition of your lawful right to write on us, you should list only the name of Mrs. Indu Jain. Names of junior members of the family should not be listed as owners/co-owners.

On our part we will continue to co-operate with you so that there are no inaccuracies, factual or otherwise, in the best interest of your publication as well as in the interest of your readers.

In fact, the correspondence from the officers of the Times of India Group cited the growing circulation figures of its various publications and activities and the growing profits from the various activities undertaken by the BCCL group.

In yet another e-mail of 8th December, 2005, Mr. Gopal Mohan clarified a few points to Ms. Luisa Kroll on the factual aspects communicated by her. Other than a correction in the plaintiff''s birth date, no details with regard to the valuation or the wealth assessment of the plaintiff were given.

Mr. Mohan wanted the plaintiff to be described not as a widow but as a family matriarch and that the names of her sons should not be mentioned. The plaintiff at this point had clear knowledge that the defendants were going to feature a rich list in which they planned to list the plaintiff.

Mr. Gopal Mohan even advanced best wishes for the coming issue of the defendants while exchanging pleasantries with the defendant. Mr. Sorabjee, learned senior counsel has pointed out that the comfort level of the plaintiff and Mr. Mohan with the publication is apparent from the mode of address and the tenor of the correspondence.

Despite these communications, exercising care and caution, Ms. Luisa Kroll addressed yet another e-mail on the 8th of December, 2005 to Mr. Gopal Mohan notifying the short bio-data of the plaintiff available with the defendants so that he may have a chance to correct errors, if any.

Based on the information received in the above e-mails and the method of calculation intimated by the defendants, the defendant effected publication of an article on 26th December, 2005 in the Forbes Asia publication which was titled as ''India''s Forty Richest''. This article mentioned that it was Forbes Asia''s second annual list of the 40 richest Indians. The methodology which was adopted by the defendant in arriving at the net worth of the persons who featured in this list was disclosed in the article in a block in capitals which reads thus:

Methodology: Unlike Forbes millionaires list, this ranking has been broadened to include family fortunes for people with fortunes in publicly traded companies, net worths were calculated using recent market prices and exchange rates privately held companies are valued by coupling estimates of revenues or profits (or in some cases, company provided numbers) to prevailing ratios for similar publicly traded companies.

In this list, the plaintiff featured at Sr. No. 17 and the following information was disclosed about her:

Indu Jain - $ 1.7 billion

Matriarch of privately owned Bennett, Coleman & Co., India''s largest and most powerful media house, run by sons Samir and Vineet. The family''s flagship holding, The Times of India, is the world''s largest circulated English daily newspaper, selling more than 3.1 million copies a day. The company also has joint ventures with the BBC and Reuters.

The plaintiff did not seek any injunctive relief against the defendants publishing this list even though the defendants had clearly indicated their intention to do so in the afore-noticed pre-publication communications. Even after the publication had been effected, the plaintiff did not raise any kind of objection to either her name being featured or the information which was published by the defendants. Nor infringement of right of privacy on grounds of private information or peril to security was urged. No damages claim was either made.

There is no objection or complaint against this publication even in the plaint which has been filed before this Court.

Long after this publication, Ms. Naazneen Karmali, defendant No. 5 addressed an e-mail on the 6th of February, 2006 to Mr. Gopal Mohan informing him that the defendants were now working on the up-coming `Global List of Billionaires'' feature in which the plaintiff would be featured as well. The defendant No. 5 disclosed certain information and sought confirmation of the figures. Further, information with regard to the key developments in the Group since November, 2005 as also bio-graphical details of the plaintiff were sought.

This e-mail received a reply dated 17th February, 2006 expressing reluctance of "Our Group or Ms. Indu Jain" to be covered. Yet Mr. Gopal Mohan emphasised that respecting the journalistic independence and privileges of the defendants, he was giving the information which had been sought. He confirmed the figures which had been indicated by the defendant and details of the key development and the bio-graphical details of the plaintiff.

Interestingly, there is no complaint to any part of the publication effected on 26th December, 2005 by the defendants. A classic instance of blowing hot and cold in the same breath, on the one hand Mr. Gopal Mohan informs the defendants that they may adopt the figures mentioned by the defendant; discloses further information including facts relating to the training of the plaintiff in the management of the family run large business empire, yet conveys reluctance to be covered in the proposed publication.

The plaint is replete with the contentions of the plaintiff that the e-mails which have been filed on record were sent ''on her instructions''. The e-mails which have been addressed to Mr. Gopal Mohan are stated to have been received by the plaintiff. It therefore has to be presumed and held that the plaintiff was clearly in the know of things and fully aware of the entire correspondence being exchanged by the senior executives of the BCCL with the defendants.

The defendants thereafter effectuated a second publication in the Forbes Asia on the 27th March, 2006 titled Billionairs - Asia Pacific. In this issue, it has published a list of billionaires in the Asia Pacific region which includes Australia, India, New Zealand, China etc. The plaintiff, Ms. Indu Jain, featured at Sr. No. 317 and her net worth (SBIL) was reflected as 2.4 billion dollars.

Noteworthy is the fact that this list also provoked no objection or protest from the plaintiff. No lis for either injunction or damages was brought.

On the 9th November, 2006, Ms. Naazneen Karmali, defendant No. 5 addressed an e-mail to Mr. Gopal Mohan informing him that the defendant''s fact checker had been trying to reach Mr. Mohan for the last week and was awaiting a response to e-mails sent by him. It was also pointed out that though the facts relating to the plaintiff''s bio-data were checked when the previous list was published, yet since the defendants were going to press that day, an early reply was solicited. In this communication, information regarding the plaintiff as available with the defendants was also disclosed.

Mr. Gopal Mohan''s reply of 12th November, 2006 was repetitive. For the first time it was however, stated that in the earlier issue the information attributing her net worth of 2.4 billion dollars and her fortune was incorrect, that this figure does not bear resemblance to the actual facts and that Ms. Indu Jain''s security was breached. Mr. Gopal Mohan called upon the defendant not to publish anything about "Our Group or Ms. Indu Jain" since neither plaintiff nor Mr. Gopal Mohan would like to such information or statement to be covered in any publication. Asserting breach of privacy by such publication, right was reserved by the plaintiff to defend and seek damages in case publication of the information was effected.

Taking note of the fact that Mr. Gopal Mohan did not respond or give any information as to what according to the plaintiff or him was her net worth, Ms. Luisa Kroll, defendant No. 6 addressed another clarificatory e-mail dated 13th November, 2006. It was explained as to why information about her net worth was given as inherited as the defendants were under the impression that she had inherited her fortune and the defendants sought a feedback on their valuations of the plaintiff''s net worth. The defendant No. 6 informed Mr. Gopal Mohan that the defendants had spoken with experts so as to effectuate valuation of the media business and were feeling comfortable with the figures and their assessment. Specific comments were asked from him.

After exchanging this correspondence with the plaintiff''s representatives, the defendants effected a third publication titled ''India''s Forty Richest'' in the 27th November, 2006 issue of the Forbes Asia. This publication stated that India''s rising fortunes were underscored by the increasing prosperity of its wealthiest citizens.

The defendants disclosed the methodology adopted for assessing the fortune and had stated that ranking had been broadened to include family fortunes. It was also indicated that the privately held companies are valued by coupling estimates of revenues or profits (or in some cases, company provided numbers) to prevailing ratios for similar publicly traded companies.

Based on the method so disclosed in the publication and to the plaintiff''s representatives, the plaintiff Ms. Indu Jain featured at serial No. 15 in the list. The plaintiff has not objected to any aspect of this publication other than the fact that her fortune was indicated at 3 billion dollars. Besides, the printed information, the defendants also printed a picture of the plaintiff.

Against this publication, on or about 22nd November, 2006 the plaintiff filed the present suit seeking a relief of permanent prohibitory injunction against the defendants from including/featuring the name of the plaintiff in any issue of their magazine or on their website as the part of any survey conducted by the defendants or as a next article or otherwise. The plaintiff also sought a decree of permanent injunction restraining the defendants from using or publishing in any manner whatsoever any information/data/document in their power and possession in relation to the plaintiff and a direction to the defendants to withdraw the name, details and photographs of the plaintiff from their website and to withdraw the unsold copies of the 27th November, 2006 edition of the magazine which included the name and details of the plaintiff. A decree for mandatory injunction commanding the defendants to deliver up to the plaintiff all information/data/documents that was with them regarding the plaintiff was also prayed. So far as damages were concerned, the plaintiff has prayed for a decree of token damages in favour of the plaintiff and against the defendants jointly and/or severally in the sum of Rs. 21 lakhs with pendente lite future interest at the rate of 18%.

Alongwith plaint, the plaintiff also made the present application under Order 39 Rule 1 & 2 of the CPC praying for grant of interim injunction against the defendants. On hearing counsel for the plaintiff and based on such material as was placed before the court, by an order passed on 23rd November, 2006 an exparte injunction restraining the defendants, their agents, assignees, representatives from displaying the photographs and particulars of the plaintiff on their website was passed. The defendants were further directed that they would desist from publishing the name of the plaintiff in any further issue of any publication effected by them or on their website. The defendants have opposed grant and continuation of this injunction. Both side have been heard at length on this application.

Mr. Rajiv Nayyar, learned senior counsel and Mr. Krishnendu Datta, counsel for the plaintiff have placed the entitlement of the plaintiff to the relief of injunction on the following submissions:

(i) The defendants have infringed the plaintiff''s right to privacy, which is implicit in the right to life and liberty guaranteed to the citizens of this country by virtue of Article 21 of the Constitution of India.

(ii) The defendants have published matters relating to the plaintiff''s finances which fall within the realm of private matters without her consent entitling her to an injunction.

(iii) The publications effected by the defendants attributing the net worth to the plaintiff is false, fictitious and published in reckless disregard of the truth hence reply to be injuncted against.

(iv) The defendant No. 1 being a foreign company is not entitled to claim a fundamental right of freedom of press as enshrined under Article 19 (1)(a) of the Constitution of India which is available to citizens of India alone.

(v) A person or a public figure is entitled to seek publicity about some aspects of his/her life while restricting the same about personal information. In the instant case information about wealth of the plaintiff was personal to her and could not be imparted to the general public.

(vi) The plaintiff is not the same as Bennett Coleman & Co. Limited being a paid employee in her position as chairman and she has no connection with the company even as a shareholder and as such she cannot be identified with the Bennett Coleman & Co. Limited.

(vii) The publication of such private information by the defendants impacts the security concerns of the plaintiff.

On the other hand Mr. Soli Sorabjee, learned senior counsel appearing for the defendant has urged that the entire suit claim is based on a bald allegation that the defendants have breached the right to privacy of the plaintiff. According to Mr. Sorabjee, such a right is not an absolute right even to a private individual. In the case of the plaintiff, it has been urged that the plaintiff is not a private person and from the status and reputation enjoyed by her, she is certainly a public person who has never shunned publicity. It is urged that she is even widely photographed which photographs are freely available in publications, on websites and the Times of India photo gallery.

It has been urged at great length by Mr. Sorabjee, learned senior counsel appearing for the defendants, that in view of the pronouncement of the Apex Court in R. Rajagopal alias R.R. Gopal and Another Vs. State of Tamil Nadu and Others, the right to privacy though not expressly guaranteed, has been judicially deduced from Article 21 as a fundamental right which right is enforceable only against the State. Thus, the plaintiff cannot enforce a fundamental right to privacy against the defendants who are private individuals.

It was next submitted that right to privacy is not absolute and is necessarily to yield to the right of the public to know with regard to persons who are newsworthy or public figures. The plaintiff being a public personage, has in any case to that extent, waived her right to privacy, if any. In any event, it has been submitted that mentioning of a persons'' wealth or income is not invasion of privacy and hence, in any case, will not entitle a person to protection thereof.

Mr. Sorabjee, learned senior counsel submits that infraction of right to privacy has to be tested on the touchstone of sensitivity of an ordinary or reasonable person and does not extend to super-sensitivity or agoraphobia. The plaintiff has enjoyed extensive publicity and is a Chairperson of the largest media conglomerate in the country and hence cannot claim entitlement to seclusion in respect of the matters on which the defendants have reported.

The plaintiff through her agents and by her conduct, has consented to the publications which have been effected by the defendants and hence cannot seek prohibition in the nature of injunction against further publication. Learned senior counsel has contended that in any case, the conduct of the plaintiff in concealing from this Court the publication of the article by the defendants in December, 2005 and its posting on the website of the Times of India by itself would disentitle the plaintiff to any relief. A strong objection has been raised also to the failure to disclose the mileage drawn by the plaintiff from the defendants'' publication in the articles in the Times of India dated 16th November, 2006 as well as its analysis in the Economic Times dated 18th November, 2006 which were also effected by the plaintiff''s business house.

It is urged that in any case, it is not the plaintiff''s case that the publication has been effected maliciously or contains falsehood and the only grievance is that the same is an inaccurate assessment of the plaintiff''s wealth. The defendants point out that their assessment is based on material in the public domain on a formula which was notified to the plaintiff through her agents and the plaintiff failed to point out any inaccuracy or any other estimation and for this reason, would be disentitled to any ad interim injunction. For all these reasons, it is submitted that the plaintiff is disentitled to the imperative relief of injunction.

In order to clearly set out the law and the principles on the issues raised, the same are discussed in the following manner:

I. Whether right to privacy is part of the fundamental freedoms guaranteed under Article 21;

II. Whether infringement of the fundamental right to privacy can be enforced against a private citizen or body;

III. Right to privacy: whether its infringement or invasion is recognised as a tort;

IV. Freedom of Press vis a vis right of an individual against invasion of privacy ;

V. Whether publication can be prohibited; and principles governing grant of injunction.

I. Whether right to privacy is part of the fundamental freedoms guaranteed under Article 21.

There is no express provision in the Constitution of India recognising this right in explicit terms. However an expanded meaning has been judicially given to personal liberty recognising right to privacy. Such right to privacy finds initially asserted in India against governmental invasion in two eventualities. The issue is no longer res integra and has been clearly settled by the Apex Court. In amongst the first cases on the subject Kharak Singh Vs. The State of U.P. and Others, the petitioner was put under surveillance under Regulation 236 of the U.P. Police Regulation which involved secret picketing of the house or approaches to his house; domiciliary visits at night, periodical inquiries by police officers into the repute, habits association, income or occupation; reporting by police constables on the movement of the person etc. This regulation was challenged as violative of the fundamental rights guaranteed to the petitioner. A Seven Judge Bench of Apex Court considered the matter and by majority; held that the regulation was unobjectionable except to the extent that it authorises domiciliary visits by police officers. This decision turned on the meaning and content of `personal liberty'' and `life'' in Article 21. So far as right to privacy is concerned, the Court held thus:

We shall now proceed with the examination of the width, scope and content of the expression "personal liberty" in Article 21. Having regard to the terms of Article 19(1)(d), we must take it that that expression is used as not to include the right to move about or rather of locomotion. The right to move about being excluded its narrowest interpretation would be that it comprehends nothing more than freedom from physical restraint or freedom from confinement within the bounds of a person; in other words, freedom from arrest and detention, from false imprisonment or wrongful confinement. We feel unable to hold that the term was intended to bear only this narrow interpretation but on the other hand consider that "personal liberty" is used in the Article as a compendious term to include within itself all the varieties of rights which go to make up the "Personal liberties" of man other than those dealt with in the several clauses of Article 19(1). In other words, while Article 21 takes in and comprises the residue. We have already extracted a passage from the judgment of Field, J. in Munn v. Illinois 94 US 113 at p. 142 where the learned Judge pointed out that "life" in the 5th and 14th Amendments of the U.S. Constitution corresponding to Article 21, means not merely the right to the continuance of a person''s animal existence, but a right to the possession of each of his organs - his arms and legs etc. We do not entertain any doubt that the word "life" in Article 21 bears the same signification. Is then the word "personal liberty" to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man''s home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed up "assure the dignity of the individual" and therefore of those cherished human values as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concepts underlying the constitution which would point to such vital words as "personal liberty" having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objections and by no means to stretch the meaning of the phrase to square with any pre-conceived notions or doctrinaire constitution theories.

...We have no hesitation to saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guarantee of the Fourteenth Amendment.

Murphy, J. considered that such invasion was against "the very essence of a scheme of ordered liberty.

Following the judgment rendered in this case, in Gobind Vs. State of Madhya Pradesh and Another, which was also a case of surveillance under the M.P. Police Regulation, the Court elaborated the right to privacy and held thus :

We may now consider whether the State or its officials have the authority in law to impose a prior restraint upon publication of material defamatory of the State or of the officials, as the case may be? We think not. No law empowering them to do so is brought to our notice. As observed in New York Times v. United States, popularly known as the Pentagon papers case, "any system of prior restraints of (freedom of) expression comes to this being a heavy presumption against its constitutional validity" and that in such cases, the Government "carries a heavy burden of showing justification for the imposition of such a restraint". We must accordingly hold that no such prior restraint or prohibition of publication can be imposed by the respondents upon the proposed publication of the alleged autobiography of "Auto Shankar" by the petitioners. This cannot be done either by the State or by its officials. In other words, neither the Government nor the officials who apprehend that they may be defamed, have the right to impose a prior restraint upon the publication of the alleged autobiography of Auto Shankar. The remedy of public officials/public figures, if any, will arise only after the publication and will be governed by the principles indicated herein. ling 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. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.

Rights and freedoms of citizens are set forth in the constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. "Liberty against government" a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.

As Ely says : "There is nothing to prevent one from using the word ''privacy'' to mean the freedom to live one''s life without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case": See "The Wages of Crying Wolf : A comment on Roe v. Wade 82 Y L.J. (920) 932.

There are two possible theories for protecting privacy of home. The first is that activities in the home harm others only to the extent that they cause offence resulting from the mere thought that individuals might be engaging in such activities and that such ''harm'' is not constitutionally protectable by the state. The second is that individuals need a place of sanctuary where they can be free from societal control. The importance of such a sanctuary is that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their natures.

The right to privacy in any event will necessarily have to go through a process of case by case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute.

Right to privacy has been held by the Apex Court an essential part of the fundamental freedoms under Article 21. The plaintiff has placed extensive reliance on the pronouncement of the Apex Court reported at People''s Union of Civil Liberties (PUCL) Vs. Union of India (UOI) and Another, which was filed on allegations that the respondent had violated the privacy of individuals by telephone tapping and the right was sought to be enforced against the state. The court had held that privacy was a human right and had made a reference to Article 17 of the International Covenant on Civil and Political Rights, 1966 and Article 12 of the Universal Declaration of Human Rights, 1948.

It was held that Article 17 of the International Covenant does not go contrary to any part of a Municipal Law. Article 21 of the Constitution of India has, therefore, to be interpreted in confirmity with the International Law. The court also held that international law was not confined to regulating relations between the state and that today matters of social concern, such as health, education and the economics apart from human rights fall within the ambit of international regulations. In this context, it was held that freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India means the right to express one''s convictions and opinions freely by word of mouth, writing, printing, picture or in any other manner. A person talking on a telephone is exercising his right to such freedom of speech and expression and consequently, telephone tapping, unless it comes within the ground of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution of India. The court also held that the right to privacy would certainly include telephone conversation in the privacy of one''s home or office and consequently, telephone tapping, unless it is permitted under the procedure established by law, would infract Article 21 of the Constitution of India.

In this case also, the right which was claimed and enforced was a right to privacy claimed under Article 21 of the Constitution of India against its infringement by the State or agency of the State. The petitioner was not seeking infringement of such right against private individuals and for this reason, would not apply to the facts and circumstances of the instant case.

So far as publication of information about a person is concerned, the nature and extent of this right have been stated by the Apex Court in R. Rajagopal alias R.R. Gopal and Another Vs. State of Tamil Nadu and Others, thus:

We may now summarise the broad principles flowing from the above discussion:

(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family marriage, procreation, motherhood, child-bearing and education among other matters. 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. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency (Article 19(2)) an exception must be carved out to this ru8le, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media.

(3) There is yet another exception to the rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it is not necessary for him to provide that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public officials enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Article 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.

(4) So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.

(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.

(6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.

It is noteworthy that a third exception has been noticed in para 18 of the judgment so far as public figures are concerned. In para 17, commenting on decisions of the United States Supreme Court in New York Times v. Sullivan referred to and followed in Time Inc. v. Hill, it was noticed that there a prohibition on States'' power to award damages to public officials against critics of their official conducts. In para 18, the Apex Court observed that:

The principle of the said decision has been held applicable to "public figures" as well. This is for the reason that public figures like public officials often play an influential role in ordering society. It has been held that as a class the public figures have, as the public officials have, access to mass media communication both to influence the policy and to counter-criticism of their views and activities. On this basis, it has been held that the citizen has a legitimate and substantial interest in the conduct of such persons and that the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events.

Thus it is well settled that right to privacy is not expressly guaranteed under the constitution. Article 21 has been judicially interpreted to include the same. These principles would guide adjudication in the present case.

II. Whether infringement of the fundamental right to privacy can be enforced against a private citizen or body.

There is yet another aspect to the matter of a fundamental rights'' infringement. The plaintiff has asserted such right against the defendants who are private citizens. The issue remains as to whether the privacy rights as a fundamental right can be enforced against private citizens and bodies. This question was succinctly answered by the Apex Court in a five bench judgment reported at P.D. Shamdasani Vs. Central Bank of India Ltd., wherein the court held thus:

We are of the opinion that the petitioner has misconceived his remedy and the petition must fail on a preliminary ground. Neither Article 19(1)(f) nor Article 31(1) on its true construction was intended to prevent wrongful individual acts or to provide protection against merely private conduct. Article 19 deals with the "right to freedom" and by Clause (1) assures to the citizen certain fundamental freedoms including the freedom "to acquire, hold and dispose of property" subject to the power of the State to impose restrictions on the exercise of such rights to the extent and on the grounds mentioned in Clauses (2) to (6). The language and structure of Article 19 and its setting in Part III of the Constitution clearly show that the article was intended to protect those freedoms against State action other than in the legitimate exercise of its power to regulate private rights in the public interest. Violation of rights of property by individuals is not within the purview of the article.

5...Even assuming that Clause (1) has to be read and construed apart from Clause (2), it is clear that it is a declaration of the fundamental right of private property in the same negative form in which Article 21 declares the fundamental right to life and liberty. There is no express reference to the State in Article 21. But could it be suggested on that account that, that article was intended to afford protection to life and personal liberty against violation by private individuals? The words "except by procedure established by law" plainly exclude such a suggestion.

xxx xxx 7. Nor does the legislative history of the article lend any support to the petitioner''s contention. Section 299(1) of the Government of India Act, 1935, was never interpreted as prohibiting deprivation of property by private individuals. Its restoration, therefore, in the same form in Article 31, after omission in the original draft Article 19, could lead to no inference in support of the petitioner''s contention, which indeed proceeds on the fundamental misconception that Article 19(1)(f) and Article 31(1), which are great constitutional safeguards against State aggression on private property, are directed against infringements by private individuals for which remedies should be sought in the ordinary law.

In a subsequent judgment reported at Shrimati Vidya Verma, through next Friend R.V.S. Mani Vs. Dr. Shiv Narain Verma, the Apex Court reiterated the principles laid down in Shamdasini''s case and held thus:

As the question that arises here has been discussed at length in two earlier decisions of this Court we need not examine the matter in any detail. The fundamental right that is said to be infringed is the one conferred by Article 21: the right to personal liberty. In A.K. Gopalan Vs. The State of Madras, (A) four of the six learned Judges who were in that case held that the word "law" in Article 21 referred to State-made law and not to law in the abstract. They rejected the contention that this was the same as the due process clause in the American Constitution. One learned Judge dissented and one expressed no opinion on this point. Patanjali Sastri, J. (as he then was) said at p. 74 that as a rule-conditional safeguards are directed against the State and its organs and that protection against violation of rights by individuals must be sought in the ordinary law; and S.R. Das, J. dealing with the question of preventive detention said at pp. 120-121 that Article 21 protects a person against preventive detention by the executive without the sanction of a law made by the legislature.

This principle was applied to articles 19(1)(f) and 31(1) by a Bench of five Judges in P.D. Shamdasani Vs. Central Bank of India Ltd., who held that violation of rights of property by a private individual is not within the purview of these articles, therefore a person whose rights of property are infringed by a private individual must seek his remedy under the ordinary law and not under Article 32.

The Apex Court noticed that though Article 21 was not directly involved in Shamsadasani''s case (supra), however, it was placing reliance on the afore noticed observations in para 5 of the earlier judgment and the Court further stated thus:

They held that the language of Article 31(1) was similar and decided that Article 31(1) did not apply to invasions of a right by a private individual and consequently no writ under Article 32 would lie in such a case. For the same reasons we hold that the present petition which is founded on Article 21 does not lie under Article 32. It is accordingly dismissed.

Fundamental rights guaranteed by the Constitution would, in the absence of specific constitutional provisions, be mainly enforceable against the State.

This view was reiterated by the Supreme Court in Additional District Magistrate, Jabalpur Vs. Shivakant Shukla, wherein placing reliance on other previous judgments, the Court had held thus:

21 In view of the above, it has to be held that Article 21 cannot be enforced against a private person. The fact that qua some of the Articles like 17, 23 and 24 it has been held that they can be enforced against private individuals also see Sukhdev Singh, Oil and Natural Gas Commission, Life Insurance Corporation, Industrial Finance Corporation Employees Associations Vs. Bhagat Ram, Association of Clause II. Officers, Shyam Lal, Industrial Finance Corporation, ; People''s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, ; and Sanjit Roy Vs. State of Rajasthan, , is not sufficient in view of the clear decision in Vidya Verma''s case to hold that Article 21 can also be enforced against a private person.

Thus, the fundamental rights in Part III of the Constitution of India are normally enforced against State action or action by other authorities who may come within the purview of Article 12 of the Constitution. This principle was also reiterated by the Apex Court in its pronouncement reported at Zoroastrian Co-operative Housing Society Limited and Another Vs. District Registrar Co-operative Societies (Urban) and Others,

However, the Constitutional scheme does provide certain rights under Articles 17, 23 and 24 which are enforceable against private individuals.

My attention has been drawn to the pronouncement of the Apex Court in People''s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, wherein the court has succinctly laid down the applicable principles .

In this case, the court was concerned with the issue of violation of Article 23 of the Constitution of India. It was observed by the court that the sweep of Article 23 was wide and unlimited and it strikes at trafficking in human beings wherever they are found and begar and other similar forms of forced labour wherever they are found. The reason for encoraching this provision in the Chapter on fundamental right is to be found in the social economic condition of the people at the time when the Constitution was enacted and that Article 23 was not limited in its application against the State but prohibited such trafficking by anyone else as well. Therefore, while holding that many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State, but there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24.

In the light of the foregoing discussion, there can be no manner of doubt that fundamental rights guaranteed by the Constitution, in the absence of specific constitutional provisions would be enforceable only against the State.

So far as the fundamental rights guaranteed under Article 19 to an Indian citizen is concerned, Article 19(2) confers a limited powers on the State to limit these fundamental freedoms. This issue arose for consideration in a case before the Bombay High Court wherein in the judgment reported at Shree Maheshwar Hydel Power Corporation Ltd. Vs. Chitroopa Palit and Another, the Court examined the limits of exercise of power under Article 19(2). In this case the appellants had sought prohibitory relief against certain publications by the respondents who set up a plea of their rights under Article 19 of the Constitution. In this context, the court held thus:

Article 19 is basically an article which guarantees various freedoms to the Indian citizens and those freedoms cannot be infringed upon by the State or such authority, except as contemplated under Clause (2) of Article 19. That is to say, it is a kind of fetter on the States power to limit those freedoms. The State cannot limit those freedoms except to the limited extent as contemplated under Article 19(2). The above Article has nothing to do with regard to the two private parties, in the sense, the respondents cannot claim such an unfettered right of freedom of speech and expression against the Appellant Company. In this context, as has rightly been pointed out by Mr. Vahanvati, the Hon''ble Supreme Court in the case of P.D. Shamdasani Vs. Central Bank of India Ltd., has clearly held that the scope of freedom under Article 19 of the Constitution of India, is basically the protection against the States action, whereby the right should not be curtailed. Even if the State were to curtail that right, they can do so only on those limited grounds as specified in Article 19(2) of the Constitution of India. In any event even under Article 19(1)(a) citizen does not have a right to make a defamation statement.

In this behalf, the Supreme Court had negatived the attempt to enforce the fundamental right against a private person, in its pronouncement reported at Qadir Khan and Others Vs. New Kashmir All City Transport, Drivers Sgr., thus:

Again, in order to attract Article 19(1) the dispute must not be between private individual but it must be between an individual and the state. The state must have infringed the right of an individual guaranteed under Article 19(1). Right under this article cannot be claimed against an individual. Thus where the dispute is between two private persons regarding their respective right to hold property there can be no question of invasion of right under Article 19(1). In this view of the mine, I am fortified by a decision of the Supreme Court in P.D. Shamdasani Vs. Central Bank of India Ltd., .

From the constitutional scheme and a reading of the foregoing pronouncements, it is apparent that in order to seek enforcement of a fundamental right, the dispute must not be between two private individuals but must be between an individual and the State. Even enforcement of the fundamental right of freedom of expression under Article 19(1) has to be enforced against the State. It is well settled that other than violation of Articles 17, 23 and 24 by private parties other, disputes between two private parties cannot be urged to be an invasion of a fundamental right.

III. Right to privacy: whether its infringement or invasion is recognised as a tort.

The law of torts was developed in England. Followers find its application in India due to applicability of the English Common Law that was followed before the commencement of the Constitution of India. Even after the commencement of the Constitution, the law of torts as developed by the English Common Law continued to be applicable by virtue of Article 372 of the Constitution of India. India thus still applies the British Common Law System of Tort, unless it has been expressly repealed or there is a statutory provision dealing on that aspect of law.

Violation of privacy of an individual has not so far under such explicit name, received clear recognition as a tort by the courts in the United Kingdom. John G. Fleming in the Law of Torts points out that the closest affinity to some aspect of the right of privacy is to be found in the law of defamation. In Wainwright v. Home Office (2001) ECWA CIV 2081 (EASE) it has been noticed that the English Common Law has not given and, strictly speaking, still does not give any direct action for the invasion of privacy and rather in such cases, the Court tends to provide a remedy for other causes of action such as defamation, nuisance, breach of confidence and copyright violation.

So far as India is concerned, the right to privacy in relation to the privacy of a house of apartments and easementary rights acquired thereto has been the subject matter of consideration long before the issues were noticed even in the United State of America. In ILR 10 All. 358 (at 388) Golak Prasad v. Radho, Sir John Edge Kt, Chief Justice of the Allahabad High Court thus observed:

In my opinion the fact that there is no such custom of privacy known to the law of England can have no bearing on the question whether there can be in India an usage or custom of privacy valid in law. The condition of domestic life in the 2 countries have from remote times been essentially different and in my opinion, it is owing to that difference in the conditions of domestic life alone that a custom which appears to me to be a perfectly reasonable one in India should be unknown in England.

The right to privacy so far as easmentary rights were concerned had been recognised and upheld by various high courts across the country.

This customary right, however, has received expansive and liberal interpretation as a concomitant of `personal liberty'' and has been read into Article 21 of the Constitution of India.

In People''s Union of Civil Liberties (PUCL) Vs. Union of India (UOI) and Another, the Apex Court held that the right to privacy was a part of the right to `life'' and `personal liberty'' enshrined under Article 63. It was further clarified that once the facts in a given case constitute the right to privacy, Article 21 becomes applicable and the right cannot be curtailed except according to procedure established by law.

In the meantime, in England, by virtue of the European Convention on Human Rights, 1998, even the limited recognition under the common law ceased to exist inasmuch as the right was incorporated as a fundamental freedom under Article 8 of this Convention.

From a reading of the several decisions on the subject, it remains a moot issue as to whether infringement of a fundamental right or any other right conferred by the Constitution is a tort on the analogy of breach of statutory duty or a wrong under public law which is sui generis, that is to say is a class in itself.

The applicability of the right of privacy as a tort not being applicable in England, would not be saved for application by virtue of Article 372 of the Constitution of India even in the common law. There is no dispute that there is no tort of privacy by statute at present in India. Such a view has finds support in a single Bench judgment of the Bombay High Court reported at Manisha Koirala Vs. Shashilal Nair and Others, .

However such a view fails to take into consideration the law laid down by the Apex Court reported at R. Rajagopal alias R.R. Gopal and Another Vs. State of Tamil Nadu and Others, In this behalf, the binding principles laid down by the court in para 9 of the judgment deserves to be considered and read thus:

The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognised. This right has two aspects which are but two faces of the same coin---(1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been violated where, for example, a person''s name or likeness is used, without his consent, for advertising - or non-advertising --purposes or for that matter, his life story is written -- whether laudatory or otherwise -- and published without his consent as explained hereinafter. In recent times, however, this right has acquired a constitutional status.

IV. Freedom of Press vis a vis right of an individual against invasion of privacy

The freedom of speech and expression is enshrined in the first amendment to the American Constitution. Article 19 of the Universal Declaration of Human Rights, 1948 declares the freedom of press as also Article 19 of the International Covenant on Civil and Political Right, 1966. Article 10 of the European Convention on Human Rights 1998 which has been noticed herein also recognises the right of freedom of expression. However, this right under Article 19 of the Constitution of India is not absolute and may be subject to reasonable limitations as envisaged under Article 19 (2) of the Constitution of India.

The importance of freedom of Press in a democratic society has been emphasised in several pronouncements of the Apex Court including Express Newspapers (Private) Ltd. and Another Vs. The Union of India (UOI) and Others, and Indian Express Newspapers (Pvt.) Ltd. v. Union of India. In Express Newspapers (Private) Ltd. and Another Vs. The Union of India (UOI) and Others, , placing reliance on the judgment reported at Brij Bhushan and Another Vs. The State of Delhi, , the court held that the liberty of press consists in allowing no previous restraint upon publication. In State of Travancore, Cochin v. Bombay Co. Ltd. AIR 1952 SC 366 ; and The State of Bombay Vs. R.M.D. Chamarbaugwala, , the court has administered a caution against reliance on American and other cases.

In the Express Newspapers (Private) Ltd. and Another Vs. The Union of India (UOI) and Others, , Bhagwati J. observed that the fundamental right to freedom of speech and expression enshrined in our Constitution was based on the provisions of first amendment to the American Constitution and hence, it would be legitimate and proper to refer to the decisions of the Supreme Court of U.S.A. in order to appreciate the true nature, scope and extent of the right.

So far as principles in United States of America are concerned, the United States Supreme Court has laid down the law that the defence of suit is constitutionally required where the subject matter of the publication is a public official or public figure. It is further required that the detained public official or public figure must prove not only that the publication is false, but that it was knowingly sold or was circulated with reckless disregard for its falsity. It has been similarly laid down that where the interest at issue is privacy rather than reputation and the right claimed is to be free from the publication of false or misleading information about one''s affairs, the target of the publication must prove knowing or reckless falsehood where the materials published, although assertedly private, are "matters of public interest" Ref. New York Times Co. v. Sullivan 376 US 254; Garrison v. Lousiana 379 US 64; Curtis Publishing Co. v. Butts 388 US 130; Time, Inc. v. Hill 385 US 374

A prayer for a prior injunction against a publication has to be considered in the background of the impact of what is being prohibited. In this behalf, it would be apposite to refer to the observations of Justice Brennan in Time Inc. v. Hill, 385 US 374 wherein the learned Judge observed thus:

...The guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to pubic view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilised community. The risk of this exposure is an essential incident of life in a society which places a preliminary value on freedom of speech and of press. "Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.

As James Madison said, "Some degree of abuse is inseparable from the proper use of everything; and in no instance is this more true than in that of the press" 4 Elliot''s Debates on the Federal Constitution 571 (1876 ed.). We create a 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 news articles with a person''s name, picture or portrait, particularly as related to non-defamatory matter. Even negligence would be a most elusive standard, especially when the content of the speech itself affords no warning of prospective harm to another through falsity. A negligence test would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait.

These principles remain binding and are applied by the courts in testing the balance of convenience and equity in granting injunction even on date. In United Kingdom, the House of Lords has also held that it was of the highest public importance that a governmental body should be open to uninhibited public criticism, and a right to sue for defamation would place an undesirable fetter on freedom of speech. Relying upon the public interest considerations laid down by the US Supreme Court in New York Times Co. v. Sullivan (supra), in its pronouncement reported at 1993 (1) All ER 1011 Derbyshire County Council v. Times Newspaper Ltd., it was held by the House of Lords in the United Kingdom, that the "Chilling Effect" induced by the threat of civil action for libel is very important and that there was no public interest favouring the right of government organs to sue for libel. It was therefore held that under common law, the local authority did not have the right to maintain an action for damages for defamation.

Mr. Soli J.Sorabjee, learned senior counsel for the defendant has extensively relief upon the law on the subject in the United States of America. Right to privacy undoubtedly finds its origin in American Jurisprudence. As back as in 1980, Samuel D.Warren and Louis D.Brandeis proposed a new tort formally recognising the invasion of privacy in his article "The Right to Privacy'' 4 H. L.REV. 193 (1890). In 1960, Dean William Prosser in ''Privacy'' (1960) 48 Cal.L.Rev.383, expanded the tort of privacy under four distinct causes of action. The preponderance of judicial authority supports the view that independently of the common right of property, contract, reputation and physical integrity, there is a legal right or the right of privacy, the invasion of which is a tort and gives rise to cause of action (Ref.(62) AM American Jur.2D page 679(para3).

The general tort law in the United States of America has been detailed in a document called "The Restatement of Torts" issued by the prestigious American Law Institute. The Judges and States recognise this Restatement as an influential guide to the law. In 1962, this organisation began a second round of the restatement and the Second Restatement of Torts remains authoritative even today. This Restatement has adopted four categories as the basis of tort of invasion of privacy which include the follow:

Section 652B-Intrusion Upon Seclusion

Section 652C-Appropriation of Name or Likeness

Section 652D-Publicity given to Private Life

Section 652E-Publicity Placing Person in False Light

This restatement has been adopted and further expanded by the various courts in the United States, wherein it has been recognised that it is possible for privacy to be invaded bythe same act or by a series of acts in two or more of the ways stated in Sections 652B to 652E. When this occurs, the plaintiff may maintain an action for invasion of privacy upon any or all of the grounds available to him. However, the right to privacy is a personal right and plaintiff must show an invasion of this right before he/she can recover. It has been created to protect the feelings and sensibilities of humans and not to safeguard pecuniary interests.

Some courts have taken the view that the right is predicated upon the constitutuional guarantees of life, liberty and pursuit of happiness. It has been said that the right to life embraces the right to acquire existence, out of public gaze, that the right to liberty includes the right choose between a public and a private career and that the right to happiness entitles a person to freedom from the annoyances of unwarranted publicity.(Ref.Kacedan, 12 Boston UL Rev.353).

According to this view, the constitutional guarantees of life and liberty secures a right to live in seclusion or in the public gaze, as one chooses. So long as one does not interfere with the rights of others, a person can be no more compelled against his wishes to emerge from his chosen life of privacy than he could be forced to retire into privacy; and the immunity which one possesses against having one''s person exhibited in public also prohibits unwarranted publicity concerning one''s private affairs.

The Second Restatement of Torts also sets out an important distinction between an action for defamation and an action for invasion of privacy. It states that an action for invasion of privacy differs from a libel action in that, in the former, truth is not a defence and it is not necessary to the cause of action to allege or prove special damages. Unlike libel and slander, the gist of the cause in privacy cases is not injury to the character or reputation, but direct wrongs of a personal character resulting in injury to the feelings, without regard to any effect which the publication may have on the standing of the individual in the community. In ''right of privacy'' cases the primary damage is the mental distress from having been exposed to public view, although injury to reputation may be an element bearing upon such damage; the published matter need not be defamatory on its face or otherwise, and might even be laudatory and still warrant recovery. However, although an action for invasion of privacy is distinguishable from an action for libel, the same publication may involve both libel and the invasion of the right of privacy, and causes for both may be joined in the plaintiff''s complaint, subject to the qualification that the plaintiff is not entitled to recover twice for the same elements of damage arising out of the same publication.

An important issue which would be required to be determined in every action asserting breach of the right of privacy is the standard by which the right is to be measured. The Second Restatement of Torts in this behalf has noticed and several judicial pronouncements in the United States of America have also stated, that the right of privacy is relative to the customs of the time and place and it is determined by the norm of the ordinary man. The protection which has to be afforded has to be restricted to ordinary or reasonable sensibilities and does not extend to supersensitiveness or agoraphobia. Thus, in weighing of interests, the oversensitive must give way. (Dean Pound, 28 Harvard L. Rev.343, . There are some shocks, inconveniences, and annoyances which members of society must absorb without right of redress, Davis v. General Finance & Thrift Corporation. 80 G A 708, 57 SE2d 225 and right of privacy is not a guarantee of hermitic seclusion Bradley v. Cowles Magazines Inc. 26 3 App 2d 331: 168 NE2d 64. It has been held that some intrusion into one''s private sphere are inevitable concomitants of life in an industrial and densely populated society, which the law does not seek to proscribe even if it were possible to do so.

The Second Restatement of Torts thus states these principles as follows:

...liability for unreasonably and seriously interfering with another''s interest in not having his affairs known to others exists only if the defendant''s conduct was such that he should have realised that it would be offensive to persons of ordinary sensibilities, and it is only where the intrusion has gone beyond the limits of decency that liability accrues, which limits are exceeded where intimate details of the life of one who has never manifested a desire to have publicity are exposed to the public.

Therefore, in order to constitute an invasion of the right of privacy, the act must be of such a nature as a reasonable man can see, might and probably would cause mental distress and injury to anyone possessed of ordinary feelings and intelligence, situated in like circumstances as the complainant; and this may present the question which is to be decided for the trier of fact.

The American Jurisprudence has recognized that the right of privacy is not absolute. The first limitation on this right was laid down by Warren and Brandies in their afore noticed article when they noted that the right to privacy does not prohibit any publication of matter which is of public and general interest. This is more so where the plaintiff has become a public personage and has, to that extent, waived the right, or in the ordinary dissemination of the news, or in connection with the life of any person in whom the public has a rightful interest or whether information would be of public benefit.

The principle thus is that the individual''s right to privacy, must in some instances, yield to certain paramount rights of the public and, at some point, the public interest in obtaining information becomes dominant over the individual''s desire for privacy. (62 Am. Jur. 2D page 700 para 16). It is further noted that a proper delimitation of the right to privacy consists in balancing the conflicting interests that is the interest of the individual in privacy on the one hand against the interests of the public in news and information on the other.

The phrase ''public or general interest'' in this connection, has been noted as not meaning mere curiosity.

It has also been stated that equally so, the right to privacy like other rights that rest in an individual may be waived by him and consent to the invasion of one''s right of privacy is a bar to a claim for damages for such invasion. Such waiver maybe by express or implied consent, or lost by a course of conduct which estops its assertion. A waiver or relinquishment of this right or of some aspect thereof, maybe implied from the conduct of the parties and the surrounding circumstances. (Ref: 62 Am Jur 2nd page 703 para 18)

It has been noticed that the courts recognize that an exception to the right of privacy must exist in the form of a privilege to publish articles about matters of public interest, at least where the report is not published with knowledge of its falsity and is not so outrageous as to offend public notions of decency. As a publisher is free to publish, broadcast or film newsworthy events and persons even though such action impinges on an individual''s desire to be let alone. A person who commits some act of great notoriety, or who, whether willingly or not, becomes an actor in an occurrence of public or general interest thereby relinquishes his privacy to the extent that his name and picture may be published in connection with an account of an event.

In para 21 of 62 Am Jur 2d page 709, it has been stated that a person who by his accomplishments, fame, or mode of life, or by adopting a profession or calling which gives the pubic a legitimate interest in his doings, affairs and character maybe said to have become a public personage and he thereby relinquishes at least a part of his right of privacy.

It would be instructive to notice the description rendered to the expression as to what would be newsworthy in this text which states thus:

...It would be extending the right of privacy too far to say that the general public can be prohibited from knowing the public appearance of great public characters. Such characters may be said, of their own volition, to have dedicated to the public the right of any fair portrature of themselves. One who engages in public affairs and public life to an extent which draws the public interest upon him may be deemed to have consented to the publication of his picture. There may be a limited scrutiny of the ''private'' life of any person who has achieved, or has had thrust upon him, the status of a ''public figure''. The right of privacy does not protect one from having his name or likeness appear in a newspaper when there is legitimate public interest in his existence, experiences, words, or acts, since in this respect such use of the name or picture of a person is deemed privileged.

So far as to who would be the ''public'' or ''newsworthy personage'', the American Jurisprudence notes that any person who engages in a pursuit or occupation which calls for the approval or patronage of the public submits his private life to examination to whom he addresses his call, to the extent that may be necessary to determine whether it is wise and proper to accord him the approval or patronage which he seeks. (para 22 of 62 Amer.Jur. At page 711).

There are also limits to the extent to which a public or a newsworthy personage relinquishes or waives the right to privacy. Even American Jurisprudence which has advocated the importance of a free press much beyond the jurisprudence in other countries has noticed in para 23 at page 713 thus:

Although one who becomes a public or newsworthy personage relinquishes in par the right of privacy which would be his under other circumstances the existence of such a waiver carries with it the right to invade the privacy of the individual only to the extent legitimately necessary and proper in dealing with the matter which give rise to the waiver. That is to say, the waiver is limited to those matters which maybe legitimately necessary or appropriate for the information of the public. Even in the case of a public officer or candidate for public office the waiver of the right of privacy does not extend to those matters and transactions of private life which are wholly foreign to and can throw no light upon the question of his competency for the office or the propriety of having it bestowed upon him.

The fact that a person is a public character or legitimate subject of news comment does not justify misleading publicity or misrepresentation. The publication of court records may give rise to an action for invasion of privacy where such publication conveys the erroneous impression that plaintiff had been committed for narcotic addiction whereas she had voluntarily submitted to treatment. It has generally been held that one who has become a public figure does not thereby waive the right not to have his name or picture used without his consent for the purposes of advertising or commercial exploitation. The fact that a person is a public or newsworthy figure does not justify fictionalisation of the news concerning such person nor a lurid or indecent treatment of the facts. Revelations may be so intimate and unwarranted even concerning a public figure as to outrage the community''s notion of decency, and may thus constitute an invasion of privacy, although when focused upon such public characters, truthful comments upon dress, speech,habits, and the ordinary aspects of personality, will not ordinarily transgress the line delimiting the right of privacy.

So far as India is concerned, these principles have been succinctly stated by the Apex Court in R. Rajagopal v. State of Tamil Nadu (Supra).

However, the extents and limits within which the right to privacy operates require consideration of the principles evolved in England. The Common law, that is the courts of equity, have long afforded protection against the wrongful use of private information by means of the cause of action which became known as breach of confidence. Such breach was restrained as a form unconscionable conduct, akin to a breach of trust. The essentials of this cause of action was that information given in confidence has been disclosed by one person to another in circumstances ''importing an obligation of confidence'' even though no contract of non-disclosure existed. Ref: Coco v. AN Clark (Engineers) Ltd. 1969 RPC 4147-48. Thus, initially, ''breach of confidence'' was confidence arising out of a confidential relationship.

However, the law developed so as to impose a ''duty of confidence'' whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Ref: (1988) 3 All ER 545 at page 658 A-G v. Guardian Newspapers Ltd.

Today, the essence of such a tort has been encapsulated as misuse of private information, that is information about an individual''s private life.

It is equally well settled and widely recognised that the importance of such a privacy lies at the heart of liberty in a modern state.

The European Convention for the Protection of Human Rights and Fundamental Freedom 1950 (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) had a significant influence in this area of common law. The provisions of Article 8, concerning respect for private and family life, and Article 10, concerning freedom of expression and the interaction of these two Articles, have led to identification of different factors involving such issues. The common law which has developed, has been in harmony with these Articles of the convention. Ref: (1999) 4 All ER 609 Reynolds v. Times Newspapers Ltd. (2001) 2 AC 127

The European Convention for the Protection of Human Rights and Fundamental Freedom 1950 incorporated Article 8 concerning respect for private and family life and Article 10 concerning freedom of expression. These Articles read as follows:

Article 8.

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 10.

1, Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In United Kingdom, the Human Rights Act, 1998 encapsulated in Section 6, a statutory mandate that the court is to act in a way not incompatible with the convention. In A v. B. (A company) (2002) 2 All ER 545, it was held that Articles 8 and 10 of the Convention had provided new parameters within which the court would decide, in an action for breach of confidence whether a person is entitled to have its privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified. The court''s approach to the issues and the applications raised had been modified because u/s 6 of this enactment of 1998, the court, as a public authority, was required not to act in a way which is incompatible with the convention right. It was held by the court that the courts were able to achieve this by absorbing "the rights which Articles 8 and 10 protect into the long established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirement of those Articles."

In this judgment, it had further been laid down that the values embodied in Articles 8 and 10 are as much applicable in disputes between individual or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority.

The development of the law in England has accelerated by the enactment of the Human Rights Act, 1998.

The courts have recognised that the values enshrined in Articles 8 and 10 are now part of the cause of action for breach of confidence and that they are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between the individuals and a public authority.

The question then arises as to what would constitute invasion of privacy or more specifically breach of confidence. The Second Restatement of Torts in the United States (1977) page 394 Article 652D, uses the formulation of disclosure of matter which would be highly offensive to a reasonable person.

In Australian Broadcasting Corp. v. Lenah Game Meats Pty Ltd. (2001) 185 ALR 1 at 13 (para 42), Gleeson CJ has used the widely quoted words having the same meaning when it was stated that :

This particular formulation should be used with care, for two reasons. First, the ''highly offensive'' phrase is suggestive of a stricter test of private information than a reasonable expectation of privacy. Second, the ''highly offensive'' formulation can all too easily bring into account, when deciding whether the disclosed information was private, considerations which go more properly to issues to proportionality, for instance, the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern. This could be a recipe for confusion.

In a question where involvement of an individual''s right to privacy vis a vis the rights claimed by the press are concerned, a difficult issue of proportionality would arise which would involve consideration of the degree of intrusion into private life and the extent to which the publication was a matter of public interest and concern.

Before this Court, both sides have placed reliance on observations of the five judges of the House of Lords in 2004 (2) All ER 995 Campbell v. MGN. In this case, the defendant''s newspaper had published a number of articles about the claimant who was a celebrated fashion model revealing that she was a drug addict; that she was receiving treatment for her addiction; that she was attending Narcotic Anonymous, a deaddiction centre; details of the treatment and visual portrayal by means of photograph, covertly taken, of the claimant leaving the meeting with this organisation.

The claimant accepted that the newspaper had been entitled in public interest to disclose the information that she was a drug addict and was receiving treatment for her addiction, for the reason that she had earlier falsely and publicly stated that, unlike many others in the fashion business, she was not a drug addict.

The claimant made a claim for breach of confidence and breach of the Data Protection Act, 1998 and sought compensation with regard to the additional information and photographs which had been published relating to her attendance at the centre. The trial court had upheld the plaintiff''s claim while the Court of Appeal allowed the newspaper''s appeal.

The House of Lords allowed the appeal of the plaintiff against the appellate order while two learned Judges Lord Nicholl and Lord Hoffmann dissented. The court laid down the clear parameters which would facilitate hearing and guide adjudication on such claim made on breach of confidence.

It was ultimately held that the details of the plaintiff''s treatment and therapy were private and no distinction could be drawn between them and the details of a medical condition or its treatment. Such private information imported a duty of confidence. The public disclosure by the newspaper of these intimate details of treatment would impact the assurance of privacy given to all participants as an essential part of the de-addiction therapy and exercise. Such disclosure would endanger the very therapy if the duty of confidence which the participants owed each other was permitted to be breached by making details thereof public. Disclosure of such details, when examined by the test of a reasonable person who was in need of such therapy would impact even other drug addicts who were trying to benefit from the therapy on the assurance of anonymity who would also find disclosure of the details distressing and highly offensive. The court applied the test of proportionality to the conflicting interest of the plaintiff''s right to privacy, which was at the centre of the action for breach of confidence, vis-a-vis the right of the media to impart information to the public. The right of the media to impart information to the public had also to be balanced in its turn against the respect that had to be given to personal and private life and intimate details thereof. The court had to apply the test as to whether publication of the material pursued a legitimate aim and whether the benefits that would be achieved by publication were proportionate to the harm that might be done by the interference with the right to privacy. In the facts of the case, it was held that there were no political or democratic values at stake, nor was there pressing any social need identified for the publication of the details of the therapy. Guided by the potential for disclosure of the information to cause harm, it was held that there had been an infringement of the plaintiff''s right to privacy which could not be justified and that publication of the details of the treatment as well as the photographs was an invasion of that right for which she was held entitled to damages.

This judicial pronouncement contains an all en-compassing consideration of every aspect for breach of confidence and the balancing of an individual''s right to privacy as against media''s right of freedom of press.

In Wainwright v. Home Office 2003 (4) All ER 969 the House of Lords has held that there was no general tort of invasion of privacy in England. However, the right to privacy in the general sense was one of the most important values, which underlines a number of more specific causes of action, both at common law and under various statutes. Specific causes of action available to a person at common law include the equitable action for breach of confidence which has long been recognised as capable of being used to protect privacy.

The traditional action for breach of confidence could be used to protect privacy in the sense of preserving the confidentiality of personal information. It was not founded on the notion that such information was by itself entitled to protection and related to the equitable duty which arose out of the relationship of the parties with the other. In para 46 of the pronouncement in Campbell v. MGN (supra), Lord Hoffman has observed that there have been two developments of the law of confidence, which were typical of the capacity of the common law to adapt itself to the needs of contemporary lives. The first development is generally associated with the speech of Lord Goff of Chieviley in A-G v. Guardian Newspapers Ltd. (No. 2) (1988) 3 All ER 545 at page 658-659, wherein the following principle was formulated:

a duty of confidence arises when confidential information comes to the knowledge of a person...in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others.

This principle omitted the requirement of the prior confidential relationship which was applied by the Court of Appeal in A v. B. (a company) (2002) 2 All ER 545.

The second development of the law of confidence relates to the acceptance of the privacy of personal information as something worthy of protection in its own right which has been accepted also as under the influence of domestic English Law and International Human Rights Instrument.

Undoubtedly, the English Courts recognised that no pre-existing relationship was required in order to establish a cause of action for breach of confidentiality and that, an obligation of confidence may arise from the nature of the material or may be inferred from the circumstances in which it is obtained.

Thus, the artificiality of distinguishing between confidential information obtained through the violation of a confidential relationship and similar information obtained in some other way has been recognised in privacy of personal information as something worthy of protection in its own right has also been thereby recognised and was applied by the Court of Appeal in A v. B. (A company) (2002) 2 All ER 545.

It has also been stated by Sedley L.J., in his judgment in Douglas v. Hello! Ltd. (2001) 2 All ER 289 at page 320 wherein he stated the new approach of the underlying values which the law protects. Sedley L.J. has stated that instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of the human autonomy and dignity - the right to control the dissemination of information about one''s private life and the right to the esteem and respect of other people.

The Judges in Campbell v. MGN (supra), recognised the fact that the freedom of press and the common law right of the individual to protect personal information reflect important civilised values. However, neither can be given effect in full measure without restricting the other. The right to privacy which would lie at the epicentre of an action for breach of confidence has to be balanced against the right of media to impart information to the public. As against this, the right of the media to impart information to the public has to be balanced against the respect that must be given to private life.

While the importance of free media of communication in a democracy cannot be sufficiently import emphasis, however, unlike the United States of America, the courts in England and in this country do not give the presumptive priority which is given to the same in the United States of America.

The European Court of Human Rights in Jersild v. Denmark (1995) 19 EHRR 1 (para 31 at page 25) held thus:

Whilst the press must not overstep the bounds set, inter alia, in the interest of ''the protection of the reputation and rights of others'', it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ''public watchdog''.

The importance of free press having been emphasised and recognised, the question which has been repeatedly raised before the court is extent of the freedom available to the press to exercise its discretion in the presentation of journalistic material. In the Jersild case (supra), the applicant had urged that their freedom of expression under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedom 1950 was infringed as they were charged and convicted of committing offences resulting from the choice of material that had been published. It was their contention that they had a right to impart information and ideas of public interest and it was the right of the public to receive such ideas. In this context, the court had in para 31 at page 26 cautioned thus:

At the same time, the methods of objective and balanced reporting may vary considerably, depending among other things on the media in question. It is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. In this context the court recalls that Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed.

In this case, the court was required to strike a balance between the conflicting rights of the press and the rights of the individual inasmuch as any prohibition would interfere with the freedom to disclose the information which had to be balanced against the claim of the individual for confidentiality. The court had observed on the scope of Article 10 of the Convention and had held that the same left to the journalist to decide whether or not it was necessary to reproduce the material to ensure credibility to the reporting. It was observed that Article 10 protected the journalist''s right to divulge information on issues of general interest provided that they are acting in good faith and on accurate basis and provide ''reliable and precise'' information in accordance with the ethics of journalism.

It is well settled by judicial pronouncements that the press must not over-step certain limits especially those relating to the reputation and rights of others and their need to prevent disclosure of confidential information. At the same time, it is the duty of the press to impart information and ideas on all matters of public interest and serious public concern. Ref: (1999) 6 BHRC 599 Bladet Tromso v. Norway

In Douglas v. Hello! Ltd. (2001) 2 All ER 289 at page 322, the court had an occasion to consider right of free expression under Article 10 which would be qualified by the rights of the individual under Article 8. In the event of the conflict the balance between these two Articles is determined and resolved primarily on consideration of the proportionality principle.

It is equally well settled that the matter of presentation of material which was legitimate to convey to the public without breach of duty of confidence, is for the journalist to decide. Choice of language to convey information and ideas as to whether the printed word is to be accompanied by photographs are editorial matters with which courts do not normally interfere and recognising journalist''s requirement of the degree of free play and a reasonable margin of appreciation in deciding as to what details are required to be included in the article for reasons of credibility and legitimacy of the publication would also be a pre-part of journalistic exercise. However, the critical area is decision-making with regard to the publication of material that is private to the individual which goes beyond merely presentation of information and editing.

The potential for harm to result from the disclosure of the information is an important factor which is to be taken into account in assessment of the extent of restriction needed to protect an individual''s right to privacy. Lord Hoffmann in his judgment in Campbell v. MGN (supra) held that it was not sufficient to deprive even a celebrity of his/her right to privacy. Undoubtedly, a celebrity''s right to privacy may be limited by the public interest in knowing about certain traits of his/her personality and certain aspects of his/her private life and the importance of the necessity to keep certain details private could not be under valued. For this reason, it was observed that there was no compelling need for the public to know the name of the organisation that the claimant was attending for her therapy or its details. It was noticed that being photographed in a public street is taken to be one of the ordinary incidents of living in a free community, the real issue was whether publicising the content of the photograph would be offensive. The balance in such a case has to be arrived at between the public right to information and whether it would justify dissemination or publication of photograph taken covertly and without authorisation. It was held that the text of the publication could not be separated from the photographs and their publication was effected to publish a story that would attract interest rather than the wish to maintain credibility of the story. Furthermore, the photograph was not self-explanatory and the additional element in the publication was more than enough to outweigh the right to freedom of expression which the defendants were asserting. Such publication of the details of the treatment and also the photograph were held to be an interference with the plaintiff''s right to live a private life. Baroness Hale of Richmond in a separate judgment noted the fact that the agent of the plaintiff had refused to participate with the newspaper about the publication.

So far as the information in respect of which right to privacy could be asserted is concerned, the court has held that it could be claimed in respect of information a person receiving knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential A v. B. (a company) (2002) 2 All ER 545.

In Campbell v. MGN supra, the House of Lords thus noticed that the test refers to the sensibility of a reasonable person placed in the situation of the subject of the disclosure than to its recipients. Once the information is identified as ''private'', the courts are required to balance the claimant''s interest in keeping the information private against the countervailing interest of the recipient in publishing it.

Baroness Hale expressed the view that when the two convention rights as contained in Articles 8 and 10 are in play, the proportionality of interfering with one has to be balanced against the proportionality of restricting the other. On a consideration of the facts of the case, it was held that neither the political and social life of the community nor the intellectual, artistic or personal developments of the individual are assisted by exposure to the intimate details of a fashion model''s private life. So far as the details of the treatment was concerned, it was not necessary. Furthermore, the potential harm by the publication of the photograph and the text may have impaired the treatment and the therapy which was being taken by the plaintiff and the others in the group required weight to be attached to these considerations.

Lord Carswell had agreed with the reasons given by Lord Hoffman and Baroness Hale and observed that the disclosure of the treatment went beyond what could be considered peripheral to the publication of the information that the plaintiff was a drug addict who was receiving treatment and consequently, was capable of Constituting breach of confidence. The defence and the motives of the defendants in publishing the information which they claim to have done in order to give a sympathetic treatment to the subject, was held not to constitute a defence so far as the material relating to the details of the treatment and the photograph was concerned. In balancing the extent of distress to the plaintiff and the potential effect on the drug therapy as against the freedom of press of the respondent, it was held that the publication of the details about the therapy highlighted by the photographs printed constituted an intrusion into the private affairs of the plaintiff.

As against these views, Lord Nicholls of Birkenhead held that on publication of the information would have robbed the legitimate and sympathetic newspapers story of attendant detail which added colour and conviction and that this information was published in order to demonstrate the plaintiff''s commitment to tackling her drug problem. Lord Nicholls further held that the pictorial information in the photograph also had nothing of an essentially private nature, showed nothing untoward and conveyed no private information beyond that discussed in the article. Consequently, according to him the claimant must fail in the challenge.

Lord Hoffmann also held that the plaintiff was a public figure who had made very public false statement about the matter in respect of which even a public figure would ordinarily be entitled to privacy, namely, her use of drugs. It was observed that a person may attract or even seek publicity of some aspect of his/her life without creating any public interest in the publication of public information about the others. In the light of her falsehood, sufficient public interest in the correction of the impression she had previously given. For this reason, applying the test of necessity or proportionality, it was held that it would be harsh to criticise the editor for "painting a somewhat fuller picture in order to show her in a sympathetic light". For this reason, in the light of the fact that the main substance of the story was conceded to have been justified, the details which were published could not be said to be discreditable or embarrassing and that the plaintiff could not insist upon too great a nicety of judgment in the circumstantial detail with which the story is presented.

So far as the photograph was concerned, upon a consideration of various judgments, Lord Hoffmann arrived at a conclusion that a picture carried the message more strongly than anything in the text alone, that the defendant''s story was true and therefore, the decision to publish the picture was within the margin of editorial judgment and was something for which appropriate latitude should be allowed. For this reason, Lord Hoffmann was of the view that the appeal deserves to be rejected.

So far as truth of the essentials of a public story are concerned, it is well settled that it is unreasonable to expect that in matters of judgment any more than accuracy of reporting, newspapers will always get it absolutely right. In Reynolds v. Times Newspapers Ltd. (1999) 4 All ER 609, it was held that to require the newspaper to do so would tend to inhibit the publication of facts which should, in the public interest, be made known.

Law on the issues raised in not as developed in this country as in some other jurisdiction. Both sides have extensively relied on the law as has evolved in USA and England. It may be noteworthy that an extreme posture has been taken on both sides. While the plaintiff has conceded that she is a public figure, however, an absolute position has been taken that information relating to her income and her financial standing is confidential and the respondents have no right whatsoever to publish the same.

On the other hand, the defendants have taken up an absolute position that the plaintiff is a public or a newsworthy figure and consequently her right to privacy would get curtailed by the larger right of the public with regard to information relating to her. It has been contended that in any case, the information relating to finances does not come within the domain of such information as would be covered under any right to privacy of the plaintiff.

It has further been urged that looked at from any angle, independent of the constitutionally recognised freedom of expression as contained in Article 19 (1)(a) of the Constitution of India, the defendants are required in the larger public interest to publish such information about newsworthy persons which would be in consonance with internationally well recognised principles that a free press has to be encouraged. Therefore, even if the defendants, not being Indian citizens, cannot assert a fundamental right to freedom of speech, however a duty to inform the public has been urged. It is also contended that the public has a right to knowledge which cannot be curtailed by the plaintiff.

In this behalf, the defendants have placed the judgments of the Court of Appeal in A v. B (a company) and Anr. reported at 2002 (EWCA Sciv) 337: (2002) 2 All ER 545. Strictly applied, this judgment would be of little application to the case being considered under the laws as applicable in this country inasmuch as this case was concerned with the protection of the fundamental freedoms under Articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedom 1950 which are protected by the courts in England by virtue of Section 12 and the Schedule 1 to the Human Rights Act, 1998. However, the court had laid down certain guidelines for the facilitation of courts while considering claims of breach of right to privacy vis-a-vis the right of freedom of press.

So far as the rights of a public figure was concerned, the court noticed that:

a public figure was entitled to have his privacy respected in appropriate circumstances, but should recognise that because of his public position he had to expect and accept that his or her actions would be more closely scrutinised by the media. Conduct which, in the case of a private individual, would not be the appropriate subject of comment, could be the proper subject of comment in the case of a public figure. Such a person might be a legitimate subject of public attention whether or not he had quoted publicity.

In this case, the court noticed that even though the claimant had not courted publicity, someone in his position was inevitably a figure in whom a section of the public and the media would be interested. Furthermore, the relationship of the sort that the claimant had with others, disclosure whereof he was seeking an injunction against, were not the categories of relationship which the court should be astute to protect when the other parties to the relationship did not want them to remain confidential.

In order to facilitate adjudication of the injunction application by a claimant in cases relating to protection of the right to privacy, the court had suggested certain guidelines.

(i) The fact that the injunction is being sought to protect privacy of a claimant and if the injunction is not granted, the claimant may be deprived of the only remedy which is of any value is a relevant consideration. This has to be weighed against the defendant''s right of freedom of expression.

(ii) The injunction granted will interfere with the freedom of expression of others in particular the freedom of the press is of particular importance as the existence of a free press is in itself desirable and so any interference with it has to be justified. This well established common law principle is underlined by Section 12(4) of the Human Rights Act, 1998 in England.

The justification is imperative inasmuch as the interference with the press inevitably has some effect on the ability of the press to perform its role in society. This position is irrespective of whether a particular publication is desirable in the public interest.

The court also reiterated the principle that while the court is required to have regard as to whether it would be in the public interest for the material to be published, it does not mean that the court would be justified in interfering with the freedom of press where there is no identifiable special public interest in any particular material being published. Regardless of the quality of the material which it is intended to publish, prima facie the court should not interfere with its publication. Any such interference with publication must be justified.

So far as the question of whether there is an interest capable of being the subject of a claim of privacy, it should not be allowed to be the subject of detailed arguments. There must be some interest of private nature which the claimant wishes to protect but usually the answer to such question would be obvious and where it is not so, an answer would be unnecessary. In such cases, the weaker the claim for privacy, the more likely that the claim for privacy will be outweighed by the claim based on freedom of expression.

The guidelines as to acts which are public and those which are private in a difficult case is made clear by the observations of Gleeson, CJ in Australian Broadcasting Corp. v. Lenah Game Meats Pty Ltd. (2001) 185 ALR 1 when such difficulty was explained by him thus:-

There is no bright line which can be drawn between what is private and what is not. Use of the term ''public'' is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.

The fact that information has been obtained as a result of unlawful activities does not mean that its publication should necessarily be restrained by injunction on the grounds of breach of confidence Ref: Australian Broadcasting Corp. v. Lenah Game Meats Pty Ltd. (2001) 185 ALR 1. Dependent on the nature of the unlawful activity, there may be other remedies. On the other hand, the fact that unlawful means have been used to obtain the information could well be a compelling factor when it comes to exercising discretion.

An important guideline laid down by the court in A v. B (a company) (supra) as to the limitation on the right of privacy of a public figure is to be found in guideline No. (xii) which reads thus:

(xii). Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest. The same is true in relation to other parts of the media.

So far as the Courts in England are concerned, useful guidance is provided by the Council of Europe Resolution 1165 of 1998 wherein the expression public figure has been defined as the persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.

So far as balancing of the respective interests of the parties are concerned, guideline (xiii) laid down by the court in A v. B. (A company) (Supra) should be read in extenso which reads thus:

(xiii). In drawing up a balance sheet between the respective interests of the parties courts should not act as censors or arbiters of taste. This is the task of others. If there is not a sufficient case for restraining publication the fact that a more lurid approach will be adopted by the publication than the court would regard as acceptable is not relevant. If the contents of the publication are untrue the law of defamation provides prohibition. Whether the publication will be attractive or unattractive should not affect the result of an application if the information is otherwise not the proper subject of restraint.

In this case, the court had emphasised the importance of a free press and had also emphasised the necessity to exercise restraint so far as grant of injunction is concerned. The court endorsed the approach of Hoffmann LJ, in R v. Central Independent Television plc (1994) 3 All ER 641 wherein he had stated thus:

...publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ''right-thinking people'' regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.... The principle that the press is free from both government and judicial control is more important than the particular case.

So far as the balancing of conflicting rights is concerned, the courts have repeatedly emphasised that where the balance may not point clearly in either direction, interim relief to a claimant or plaintiff seeking interim injunction in the nature of a prohibition of a publication should be refused. There have also been instances where the nature of information alone gave rise to the duty of confidence regardless of the circumstances in which the information might come to the knowledge of the person who might wish to publish it. It has been repeatedly noticed in several pronouncements of the House of Lords that the most dramatic use of the law of confidence to protect privacy was in Venables v. News Group Newspapers Ltd.; Tomson v. News Group Newspapers Ltd. (2001) 1 All ER 908. In this case Dame Elizebett Butler - Sloss P granted injunction against the whole world restraining the disclosure of the new identities and whereabouts of the boys convicted of killing James Bulger, after they were released from prison. The President held that, taking into account the European Convention, the law of confidence could extend to cover the injunction sought and that the disclosure of information in question might lead to grave, and possibly fatal consequences for the claimant. This factor not merely rendered the information confidential but outweighed the freedom of expression that would otherwise have under-opined the right of the press to publish the information.

The plaintiff has placed strong reliance on the pronouncement of the Court of Appeal in Douglas and Ors. v. Hello! Ltd. and Ors. (2005) 4 All ER 128. These proceedings arose out of the publication in England and Wales by Hello! magazine of unauthorised photographs of Mr. Michael Douglas and Catherine Zeta-Jones of the wedding reception in New York. Undoubtedly, as soon as their engagement was announced in early 2000, there had been interest in their marriage from the press. The Douglases decided to grant rights to one publisher to publish photographs of their wedding. They accordingly granted such right by a contract to the OK! magazine. The contract between the parties contained several clauses whereby the Douglases retained the right to scrutinise the photographs which could be published. One member of the press infiltrated the reception which was closely protected and surreptitiously took photographs for which he approached the Hello! magazine. Information with regard to the intention of Hello! magazine to publish these unauthorisedly acquired photographs was received by the Douglases through the OK! magazine who consequently filed an action seeking interlocutory injunction against the publication of such photographs by the Hello! magazine.

In this case, though initially only injunctive relief had been sought, however, as the interlocutory injunction was discharged, the plaintiffs also sought damages. The court took the view that as per the reasoning of the House of Lords in the Campbell case and the reasoning of the European Court of Human Rights in Hanover v. Germany, the conclusion which the Court of Appeal would have reached would have been that the Douglases had virtually an unanswerable case for contending that publication of the unauthorised photographs would infringe their privacy. The Hello! magazine had inter alia urged that the rights to the photographs having been sold to OK! magazine, the information and the photographs were in the public domain and that it was no longer possible for the Douglases to assert a claim that the event at their wedding was private or confidential. After a detailed consideration of the various issues raised by the parties, the court inter alia held thus:

In general, however, once information is in the public domain, it will no longer be confidential or entitled to the protection of the law of confidence, though this may not always be true: see Gilbert v. Star Newspaper Co. Ltd. (1894) 51 TLR 4 and Creation Records Ltd. v. News Group Newspapers Ltd. (1997) EMLR 444 at 456. The same may generally be true of private information of a personal nature. Once intimate personal information about a celebrity''s private lift has been widely published it may serve no useful purpose to prohibit further publication. The same will not necessarily be true of photographs. In so far as a photograph does more than convey information and intrudes on privacy by enabling the viewer to focus on intimate personal detail, there will be a fresh intrusion of privacy when each additional viewer sees the photograph and even when once who has seen a previous publication of the photograph, is confronted by a fresh publication of it. To take an example, if a film star were photographed, with the aid of a telephoto lens, lying naked by her private swimming pool, we question whether widespread publication of the photograph by a popular newspaper would provide a defence to a legal challenge to repeated publication on the ground that the information was in the public domain. There is thus a further important potential distinction between the law relating to private information and that relating to other types of confidential information."

Of course, even where a claimant has a very strong case indeed for contending that publication of information would infringe his privacy, there may be good reasons for refusing an interlocutory injunction. In the present case, however, we find it difficult to see how it could be contended that the public interest (as opposed to public curiosity) could be involved over and above the general public interest in a free press. Particularly so, as it was clearly the intention of the Douglases and OK to publish a large number of (much clearer) photographs of the same event. The fact that the Douglases can be fairly said to have ''traded'' their privacy to a substantial extent as a result of their contract with OK! does not undermine the point that publication of the unauthorised photographs would infringe their privacy.

xx xx xx xx 258. Of course, as recently emphasised by the House of Lords in Cream Holdings Ltd. v. Banerjee (2004) UKHL 44 : (2004) 4 All ER 617 : (2004) 3 WLR 918 a claimant seeking an interlocutory injunction restraining publication has to satisfy a particularly high threshold test, in light of Section 12(3) of the Human Rights Act, 1998. However, with the benefit of the reasoning in Campbell''s case and Von Hannover v. Germany, we consider that this threshold test was in fact satisfied by the Douglases when they sought the interlocutory injunction in this case.

The Douglases had a very strong claim; indeed, in the light of the two recent authorities to which we have referred, we would have thought that it was one which may well have been clear enough to justify summary judgment in their favour. The award of damages eventually made to the Douglases, although unassailable in principle, was not at a level which, when measured against the effect of refusing them an interlocutory injunction, can fairly be characterised as adequate or satisfactory. Only by the grant of an interlocutory injunction could the Douglases'' rights have been satisfactorily protected. Further, the interests of Hello! at the interlocutory stage, which were essentially only financial, could have been protected by an appropriate undertaking in damages by the Douglases.

It is noteworthy that this case is truly not a case of invasion of privacy. Here the plaintiff and his wife had sold the rights in their wedding to the O.K. Magazine and Hello! was seeking to use some unauthorized photographs thereof to derive mileage out of the same. Issues of contract arose for consideration before the court.

The boundaries of public interest render it difficult to define the scope of legitimate private area of the life of a public figure. However, some guidance is to be found from the judicial pronouncements noticed hereinabove.

Mr. Rajiv Nayyar, learned senior counsel appearing for the plaintiff has urged that matters relating to finances would be covered under the expression ''among other matters'', noticed by the Apex Court in R. Rajagopal v. State of Tamil Nadu and Ors. On the other hand, Mr. Soli Sorabjee, learned senior counsel for the defendants has urged that ''among other matters'' would include such matters which are of a like nature to the personal matters specifically noted by the Apex Court and that the finances of a Corporation or a corporate group would not fall within the ambit of such matters.

Newsworthiness has been defined broadly to include not only the matters of public policy, but any matter of public concern, including the accomplishments, everyday lives and humanity involvements of famous people. However, if the publicity is so offensive as to constitute a sensational prying into private lives for its own sake, it serves no legitimate public interest and is not deserving of protection. Ref: Lexsee 5F Supp. 2d 823 Bret Michaels v. Internet Entertainment Group Inc. and Ors.

The economic wealth accumulated by the corporate group and its financial placement in society is certainly an accomplishment.

Mr. Soli Sorabjee, learned senior counsel for the defendants has relied in this regard on 17 L Ed 2d page 456 Times Inc. v. James J. Hill in support of his contention that the constitutional protection of freedom speech and press precludes false reports of matters of public interest in the absence of proof that the defendants published the report with knowledge of its falsity or in reckless disregard of the truth. The guarantees for speech and press are not the preserve of political expression or comment on public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and press.

However, false statements made with reckless disregard of the truth do not enjoy the constitutional protection to freedom of speech and press.

So far issues relating to finance are concerned, the judgment rendered by the European Court of Human Rights on 21st January, 1999 in Application No. 29183/1995 Fressoz & Roire v. France make interesting reading.

In this case, at the time of a trade unrest in the Peugeot Motor Company, the Fressoz and Roire published an article giving details of increase in the remuneration of the Company''s Chairman and M.D. and also reproduced the photocopies of his notices of assessment to tax. The Chairman Mr. Calvet lodged a complaint claiming damages complaining against the unlawful removal and possession of confidential documents.

Mr. Fressoz and Mr. Roire were found guilty of handling photocopies of Mr. Calvet''s tax returns obtained through a breach of professional confidence by an unidentified tax officials and were sentenced to fines and damages. They appealed to the Court of Cassation on point of law and maintained that the tax assessment was not covered by duty to preserve confidentiality but contained information which was available to the public. It was held by the Court of Cassation that the article was published during an industrial dispute which was widely reported by the press at one of the major French car manufacturers. The workers were seeking a pay rise which the management was refusing and the article showed that the company''s Chairman had received large pay increases during the period under consideration while at the same time opposing his employees'' claim for a rise. Thus, by making such a comparison against that background, the article contributed to a public debate on a matter of general interest. It was not intended to damage Mr. Calvet''s reputation but to contribute to the more general debate on a topic that interested the public. The court specifically held that questions relating to the finances of public figures, such as heads of major companies, do not concern their private life.

In this case, the issue related to disclosure of information which was confidential as it was contained in the taxpayer''s tax file. It was held that it was lawful to disclose information about the taxpayer''s income. The question which was raised before the court was whether publication of the document in which that information was to be found could be justified under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedom 1950. The issue which was raised before the court was whether the objective of preserving fiscal confidentiality constituted a relevant and sufficient justification for interference with the freedom of press under Article 10.

The court was thus required to strike a balance between the conflicting rights of the press and the rights of the individual inasmuch as any prohibition would interfere with the freedom to disclose the information which had to be balanced against the claim of the individual for confidentiality. The court had observed on the scope of Article 10 of the Convention and had held that the same left to the journalist to decide whether or not it was necessary to reproduce the material to ensure credibility to the reporting. It was observed that Article 10 protected the journalist''s right to divulge information on issues of general interest provided that they are acting in good faith and on accurate basis and provide ''reliable and precise'' information in accordance with the ethics of journalism.

In a judgment of the United States Court of Appeals for the Sixth Circuit reported at 305 F. 3d 566 Philip D. Overstreet v. Lexington Fayette UR-Ban County Government, the appellant had filed a suit complaining of infringement of infraction of his right to privacy by the office employer requiring the employee to list the addresses of the owners on record for all real estate in the county in which the employee or a member of his immediate family has an interest and connected information. The appellant complained that the information which was demanded amounted to violation of the appellant''s right to privacy. It was held that the privacy interest one may have in one''s personal finances and real estate holdings is far afield from the intimate concerns involving fundamental interest or an interest that is implicit in the concept of ordered liberty.

It was held that even if the facts did implicate a fundamental interest of Mr. Overstreet, the mandatory disclosure was justified by a substantial, possibly compelling state interest which was the Government''s interest in deterring corruption and conflicts of interest among the city officers and employees and enhancing public confidence in the integrity of the Government. It was thus held that even if the facts did implicate a fundamental interest of the plaintiff, the plaintiff''s right to privacy claim would fail because the same would be outweighed by the public interest in the disclosure of his personal information.

Mr. Rajiv Nayar, learned senior counsel has relied on the observations in Australian Boradcasting Corp. v. Lenah Game Meats Pty. Ltd. wherein a reference to information relating to finance falling in the private domain has been made. It is noteworthy that other than such reference, there is no discussion of the same. There was even no issue on this aspect in this case. Consequently such obiter would have no binding force.

V. Whether publication can be prohibited and principles governing grant of injunction.

The Supreme Court had an occasion to consider a petition wherein it was observed that a substantial question of law and public importance on the fundamental right of the citizens regarding the freedom of speech and expression under Article 19(1)(a) of the Constitution of India and the scope of freedom of press was involved. In the judgment reported at Ajay Goswami Vs. Union of India (UOI) and Others, a petition under Article 32 of the Constitution of India was filed asserting that the freedom of speech and expression enjoyed by the newspaper industry is not keeping balance with the protection of children from harmful and disturbing material; and that Article 19(1)(a) guarantees freedom of speech and expression of the individual as well as the Press. The submission was that while Article 19(1)(a) acknowledges that the press is free to express its ideas, but on the same hand, the individual also has a right to their own space and a right not to be exposed against their will to other''s expression of ideas and action. Several directions were sought on the plea that it was necessary to protect vulnerable minors from indiscriminate exposure to material having sexual content. In this behalf, the court held that the commitment to freedom of expression demands that it cannot be suppressed unless the situation created by allowing the freedom are pressing and community interest is endangered. In order for the State to justify prohibition of a particular expression of opinion, it must be able to show that this action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular view point. It was further observed that the incident of shielding minors should not be that the adult population is restricted to reading and seeing what is fit only for children. There should be no suppression of speech and expression in protecting children from harmful material.

Examining the material complained of, which were pictures published by the respondent with the intent to inform readers of current entertainment news from around the world and India, the court noticed that the respondent''s newspaper seeks to provide a wholesome reading experience offering current affairs, sports, politics as well as entertainment news to keep its readers abreast of all the latest happenings in the world. The pictures that have been published are not be viewed in isolation. Rather they have to be read with the news report next to them. In the event that a particular news item or picture offends any person, they may avail of remedies available to them under the present legal framework. It was held that any steps to ban publishing of such programmes would amount to pre-judging the matter and further that any steps to ban publishing of certain news pieces or pictures would fetter the independence of press, which is one of the hallmarks of a democratic set up.

In this case, the court noticed that circulation of news was not limited to the Times of India and Hindustan Times, the papers objected to who were impleaded as respondents 3 and 4 and that any hyper-sensitive person objecting to the material published by these newspapers can subscribe to any other newspaper(s) of their choice, which might not be against the standards of morality of the person concerned.

Certain very pertinent and relevant observations were made by the court in order to assess the standard which is to be adopted for rendering judgment. It was held that the standard to be adopted for assessing the material should be that of an ordinary man of common sense and prudence and not an "out of ordinary or hyper-sensitive man". In this behalf, the principles laid down by the court are extremely instructive and deserve to be noticed in extenso and read thus:

The test for judging a work should be that of an ordinary man of common sense and prudence and not an "out of the ordinary or hypersensitive man". As Hidayatullah, C.J. Remarked in K.A. Abbas: (SCC p.802, para 49)

If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman''s legs in everything, it cannot be helped.

Be that as it may, the respondents are leading newspapers in India and they have to respect the freedom of speech and expression as is guaranteed by our Constitution and in fact reaches out to its readers any responsible and decent manner.... Times of India and Hindustan Times are leading newspapers in Delhi having substantial subscribers from all sections. It has been made clear by learned Counsel appearing for the leading newspapers that it is not their intention to publish photographs which cater to the prurient interest. As already stated, they have an internal regulatory system to ensure no objectionable photographs or matters get published. We are able to see that Respondents 3 & 4 are conscious of their responsibility towards children but at the same time it would be inappropriate to deprive the adult population of the entertainment which is well within the acceptable levels of decency on the ground that it may not be appropriate for the children. An imposition of a blanket ban on the publication of certain photographs and news items, etc. will lead to a situation where the newspaper will be publishing material which caters only to children and adolescents and the adults will be deprived of reading their share of entertainment which can be permissible under the normal norms of decency in any society.

xxx xxx xxx xxx 79. We are also of the view that a culture of "responsible reading" should be inculcated among the readers of any news article. No news item should be viewed or read in isolation. It is necessary that a publication must be judged as a whole and news items, advertisements or passages should not be read without the accompanying message that is purported to be conveyed to the public. Also the members of the public and readers should not look for meanings in a picture or written article, which are not conceived to be conveyed through the public or the news items.

We observe that, as decided by the U.S. Supreme Court in United States v. Playboy Entertainment Group Inc. that,

in order for the State...to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.

Therefore, in our view, in the present matter, the petitioner has failed to establish his case clearly. The petitioner only states that the pictures and the news items that are published by Respondents 3 and 4 "leave much for the thoughts of minors".

Therefore, we believe that fertile imagination of anybody, especially of minors should not be a matter that should be agitated in the court of law. In addition we also hold that news is not limited to Times of India and Hindustan Times. Any hypersensitive person can subscribe to many other newspapers of their choice, which might not be against the standards of morality of the person concerned.

In para 74 of Ajay Goswami''s case (supra), the court has clearly held that "in the event that a particular news item or picture offends any person they may avail of the remedies available to them under the present legal framework. Any steps to impose a blanket ban on publishing of such photographs, in our opinion, would amount to pre-judging the matter as has been held in Fraser v. Evans (1969) 1 All ER 81.

When an action seeking injunction and damages against publication is brought, several defences including truth, justification, fair comment, public interest are available to the defendant.

The effect of such plea has fallen for consideration in courts in United States, UK, Australia etc. as also in a few cases in this country. In this behalf, the observations of Lord Denning in (1969) 1 All ER Fraser v. Evans, are both topical and instructive, wherein the learned Judge has made observations on the effect of a plea of justification taken by the defendant. The court observed thus:

...The Court will not restrain the publication of an article, even though it is defamatory, when the defendant says that he intends to justify it or to make fair comment on a matter of public interest. That has been established for many years since Bonnard v. Perryman (1). The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional Tribunal, and not for a Judge; but a better reason is the importance in the public interest that the truth should be out.

In a later judgment reported at (1982) All ER 701 Harakas v. Baltic Mercantile and Shipping Exchange Ltd., Lord Denning had held that "this Court never grants an injunction in respect of libel when it is said by the defendant that the words are true and that he is going to justify them. So also, when an occasion is protected by qualified privilege, this Court never grants an injunction to restrain a slander or libel, to prevent a person from exercising that privilege, unless it is shown that what the defendant proposes to say is known by him to be untrue so that it is clearly malicious. So long as he proposes to say that he honestly believes to be true, no injunction should be granted against him. That was made clear in Quartz Hill Consolidated Gold Mining Co. v. Beal (1882) 20 ChI 501. Lord Denning has observed that this principle must be observed.

So far as the balance which is to be reached between the freedom of press and the right to privacy of an individual is concerned, when one is placed against the other, the question arises as to what would be of supremacy. While considering the right of freedom of expression and speech under Article 19(1)(a), the Apex Court has held that such right should not be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The court had held that the two interests cannot be balanced as if they are of equal weight. Regard can usefully be made to the observations of the Apex Court in its pronouncement reported at S. Rangarajan Vs. P. Jagjevan Ram and Others, wherein the court has held thus:

''When men differ in opinion, both sides ought equally to have the advantage of being heard by the public.'' (Benjamin Franklin). If one is allowed to say that policy of the Government is good, another is with equal freedom entitled to say that it is bad. If one is allowed to support the governmental scheme, the other could as well say, that he will not support it. The different views are allowed to be expressed by proponents and opponent not because they are correct, or valid but because there is freedom in this county for expressing even differing views on any issue.

xxx xxx xxx xxx 43. Brandies, J., in Whitney v. California propounded probably the most attractive free speech theory:

...that the greatest menace to freedom is an inert people; that public discussion is a political duty;...It is hazardous to discourage thought, hope and imagination; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.

What Archibald Cox said in his article though on "First Amendment" is equally relevant here:

Some propositions seem true or false beyond rational debate. Some false and harmful, political and religious doctrine gain wide public acceptance. Adolf Hitler''s brutal theory of a "master race" is sufficient example. We tolerate such foolish and sometimes dangerous appeals not because they may prove true but because freedom of speech is indivisible. The liberty cannot be denied to some ideas and saved for others. The reason is plain enough: no man, no committee, and surely no Government, has the infinite wisdom and disinterestedness accurately and unselfishly to separate what is true from what is debatable, and both from what is false. To license one to impose his truth upon dissenters is to give the same licence to all others who have, but fear to lose, power. The judgment that the risks of suppression are greater than the harm done by bad ideas rests upon faith in the ultimate good sense and decency of free people.

The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ''spark in a power keg''.

The issue of grant of injunction in a prayer made by a public official against publishing matters without prior permission in a suit for damages and injunction based on a plea of defamatory publication has fallen for consideration before a Division Bench of the Madras High Court. In a judgment reported at R. Rajagopal @ R.R. Gopal @ Nakkheeran Gopal and A. Kamaraj Vs. J. Jayalalitha and Mrs. N. Sassikala, placing reliance on the afore-noticed pronouncements of the Apex Court; the Supreme Court of the United States of America as well as of the House of Lords, U.K., the court held that in a democratic set up, a close and microscopic examination of private lives of public men is the natural consequence of holding of public offices. What is good for a private citizen who does not come within the public gaze may not be true of a person holding a public office. What a person holding public office does within the four walls of his house does not totally remain a private matter. However, the scrutiny of public figures by media should not also reach a stage where it amounts to harassment to the public figures and their family members and they must be permitted to live and lead their life in peace. But the public gaze cannot be avoided which is a necessary corollary of their holding public offices.

So far as the relief sought by the respondents that the appellants should be asked to seek prior verification from the respondents before publishing any articles and publish the denial, if any, of the respondents was concerned, the Division Bench of Madras High Court had observed that the Supreme Court in R. Rajagopal''s case (supra) had only indicated that the proof that the member of the press or media acted after a reasonable verification of the facts was sufficient and that it had also held that the citizen has a right to safeguard the privacy of his own and other matters which were set out therein and none can publish anything in reference to those matters without his/her consent.

So far as a public official is concerned, the Division Bench held that "if an article is purely relating to the personal life of a public official, it would be necessary for the member of the press or media to publish such article only after a reasonable verification of the facts."

It would thus be necessary for the member of the press and media to publish such article only after a reasonable verification of the facts. The position may, however, be, be different if a person voluntarily thrust himself or herself into a controversy or voluntarily invites or raises a controversy.

In this case, the Division Bench quashed an order of injunction passed by the learned Single Judge and gave limited direction to the appellant to the effect that whenever they propose to publish any article purely concerning the personal life of the first or second respondent or both, they shall forward their queries and/or gist of the proposed article to the respondents who may respond to the same by fax. In case of non-receipt of any response within a time frame, the respondents were free to proceed to publish the article. So far as the response of the respondents was concerned, the court observed that it was expected of any reasonable member of the press to also indicate the version of the official concerned.

Thus, so far as law in India is concerned, it is recognised that the right to freedom of press even as recognised by the Constitution is not an absolute and unfettered right. So far as the right to privacy is concerned, the courts have recognised the distinction between a private person and the public official or public figures.

The Division Bench of the High Court of Judicature at Bombay in the case of Dr. Yashwant Trivedi v. Indian Express Newspapers (Bombay) Pvt. Ltd. decided on 29th June, 1989 in Appeal No. 464/1989, had occasion to consider a claim for interlocutory injunction against publication. In this judgment, the Division Bench of High Court of Bombay was called upon to consider a plea of justification raised by a defendant in a prayer for interlocutory injunction against publication in a libel action. In this judgment the Division Bench placed reliance on the pronouncement in Harakas v. Baltic Mercantile & Shipping Exchange (Supra) as also on a publication in the "Treatise on Libel and Slender" by Gaitley, Eighth Edition and held that "the crux of the matter is that when in a libel action at the interlocutory stage, the defendant raises plea of justification and, as in this case, mentions evidence by which he might substantiate his case, the court is unlikely to grant an interlocutory injunction in favour of the plaintiff to restrain further publication of the alleged libel".

In the "Treatise of Libel and Slander" by Gaitley, Eighth Edition, the principles on which a plea of justification for the publication shall be considered, have been laid down thus:

1574. Justification: When the defendant swears that he will be able to justify the words - unless the court is satisfied that he will be able to do so. The validity of a justification, if pleaded, is eminently a matter to be determined by a verdict of a jury. When once a defendant says that he is going to justify the words complained of, there is an end of the case so far as an interim injunction is concerned, although in a proper case it may be that the court will intervene on the ground of breach of confidence.

In decision of the Bombay High Court reported in AIR 2004 Bombay 143 Shree Maheshwar Hydel Power Corporation v. Chitroopa Palit and Anr., the court has noticed the distinction in the principles of law as applicable in England and in India with regard to grant of interlocutory reliefs in civil actions for liable. In this behalf, the court noticed that in England, the principle of law was that in an action for defamation in England, a mere plea of justification of the publication by the defendant would be sufficient to deny the plaintiff any interim relief. In India, a mere plea of justification would not sufficient for denial of the interim relief. The defendants, apart from taking a plea of justification, would have to show that the statements were made bona fide and were in public interest, and, that the defendants had taken reasonable precaution to ascertain truth, and that the statements were based on sufficient material which would be tested for its veracity. Placing reliance on earlier judicial pronouncements, it was held by the court that:

Therefore, In India, the court is very much entitled to scrutinize the material tendered by the defendants so as to test its veracity and to find out whether the said statements were made bona fide and that whether they were in public interest. Therefore, in India, even at the interlocutory stage, the Court is produced by the defendants for the plea of justification, so as to test its veracity with regard to the allegations, alleged to be defamatory.

In this case, the court examined the allegations which had been made and the material placed by the respondent on record and came to a conclusion that all kinds of statements and imputations which were in the nature of wild allegations, had been made and the tenor of the expression in the press note showed that the same did not indicate that the same had been made bona fide and in the larger public interest. It was observed that if the respondents were keen about making a statement in large public interest, there were means and ways by which the same could have been communicated but not by the use of the highly damaging expressions and that the respondent had not taken a reasonable precaution of ascertaining the truth about the publication.

In para 54 of the judgment the court had also held that the kind of fetter on the States power to limit the freedom enshrined under Article 19 as is contemplated under Clause 2 of the same, is limited. However, so far as two private parties as the appellant and the respondents were concerned, the respondents could not claim such an unfettered right of freedom of speech and expression against the appellant company. In these circumstances, the court held that the Bombay City Civil Court had misapplied the principle of law inasmuch as it had denied injunction despite the finding that the defendant had made statements which could not be fully justified and they ought to have refrained from making the same. Consequently, the refusal to grant injunction on the basis of the plea of justification of the defendant was held to be erroneous and the High Court had granted an interim injunction against the respondents restraining them from making defamatory statements against the appellant imputing financial irregularity and or dishonesty etc.

Some of the issues which have arisen before this Court fell for consideration before a Division Bench of this Court. In its pronouncement reported at Khushwant Singh and Another Vs. Maneka Gandhi, the Division Bench was called upon to consider the legality of a pre-publication injunction order passed by the learned Single Judge of this Court. The respondent had filed a suit for damages and injunction against the author, publisher and distributor of the appellant;s biography. She was aggrieved by recitals therein relating to her family, imputing actions and planted words and sentences to the members of the respondents family and stated derogatory comments about them. Invoking her right to privacy, she also prayed for interlocutory restraint order against the appellants from publishing, circulating or selling the said autobiography or any extract thereof. By an order dated 29th April, 1997, learned Single Judge confirmed the ex parte order passed on 16th December, 1995 restraining the appellants from publishing the autobiography. This order was assailed before the Division Bench. The court observed that the subject matter of the injuncted publication was in the ambit of public domain in terms of there having been prior reporting of matter in controversy and the comments on the same. Furthermore, the court was not required to examine the statements attributed to appellant No. 1 on the touchstone of defamation inasmuch as it was not the appropriate stage. What the court was required to observe and which it did was that the statements are not of such a nature as to grant injunction even from publication of the material when the appellants are willing to face the consequences in a trial in case the same are held to be defamatory and the pleas of appellants of truth are analysed by the trial court.

The Division Bench also observed that the scrutiny of public figures by media is a natural consequence of holding of public office. What is good for a private citizen who would not come within the public gaze, may not be true of a person holding public office. However, it was reiterated that such scrutiny by media should not reach the stage of harassment to the public figures and their family members and that such public gaze could not be avoided which was a necessary corollary of their holding public office.

The court also placed reliance on the observations in New York Times v. United States (1971) 403 US 173 popularly known as Pentagon case holding that it succinctly laid down the correct view to the effect that in case of imposition of a prior restraint, there was a heavy burden on the governmental authorities to show justification for such restraint. The remedy was held to be by way of damages and not an order of restraint on publication.

Interlocutory injunction was also denied to the plaintiff by the Division Bench for the reason that prior publication had occurred much prior to the filing of the suit and that the plaintiff had been dilatory.

In this behalf, the court held thus:

This aspect of right of privacy analysed in view of the conclusions of the Supreme Court as set forth in R. Rajagopal''s case (supra)fully support the argument advanced by the learned Counsel for the appellant. Thus the observations strongly relied upon by Mr. Panjwani, learned Counsel for the respondent, on the first point summarised by the Supreme Court cannot be read out of the context. As explained hereinabove the concept of consent, while dealing with the private lives of the persons was made in respect of the claim for damages. Not only this the Supreme Court further went on to observe that the position would be different if a person voluntarily thrusts himself into a controversy or voluntarily invites or raises a controversy. Suffice it to say that the respondent in fact at the relevant time drew strength or at least kept quite when the controversy was reported in the press. Issue of public record is not material in the present case because the controversy does not relate to the fact whether prior reporting of a matter becomes public records, which in law it does not, but that wide publicity and reporting having already been given tot he matter in issue at the relevant stage of time. The task , though difficult it may be, for persons holding public office, cannot be summed up but to say that such persons have to show greater tolerance for comments and criticisms. One cannot but once again rely on the observations of Cockburn C.J. In Seymour v. Butterworth cited with approval in Kartar Singh''s case (supra) to the effect the persons holding public offices must not be thin skinned in reference to the comments made on them and even where they know that the observations are underserved and unjust they must bear with them and submit to be misunderstood for a time. At times public figures have to ignore vulgar criticism and abuses hurled against them and they must restrain themselves from giving importance to the same by prosecuting the person responsible for the same.

Be that as it may the respondent has already chosen to claim damages and her claim is yet to be adjudicated upon. She will have remedy if the statements are held to be vulgar and defamatory of her and if the appellants fail to establish the defence of truth.

The Division Bench rejected the contention of the plaintiff that if the statement relates to private lives of persons, nothing more is to be said and the material must be injuncted from being published unless it is with the consent of such person whom the subject matter relates to, on the ground that such pre-censorship cannot be countenanced in the scheme of our Constitutional framework. The same reads thus:

We are unable to accept the contention advanced on behalf of the respondent by Mr. Raj Panjwar that if the statements relate to private lives of persons, nothing more is to be said and the material must be injuncted from being published unless it is with the consent of the person whom the subject matter relates to. Such pre-censorship cannot be countenanced in the scheme of our constitutional framework. There is also some force in the submission of the learned Counsel for the appellant that the prior publication having occurred much prior to the suit being file,d the principle denying the relief for interlocutory injunction where the plaintiff has been dilatory in making the application, as observed in the Indian Express Newspaper''s case (supra) would also apply to the present case.

Certain findings in the pronouncement which have a bearing on the present case and also clearly laid down the applicable principles which would be binding upon this Court, deserve to be considered in extenso and read thus:

As stated above, one aspect is very material a categorical assertion of the author to stand by his statement and claim to substantiate the same. In such a situation interlocutory injunction restraining publication should not be granted and we are in agreement with and duly approve the views of the learned single Judge of this Court in Sardar Charanjeet Singh''s case(supra)

People have a right to hold a particular view and express freely on the matter of public interest. There is no doubt that even what may be the private lives of public figures become matters of public interest. this is the reason that when the controversy had erupted there was such wide publicity to the same including in the two editions of India Today. As observed in Silkin v. Beaverbrook Newspapers Ltd. (supra), the test to be applied in respect of public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury.

xxx xxx xxx xxx 71. There is no doubt that there are two competing interests to be balanced as submitted by the learned Counsel for the respondent, that of the author to write and public and the right of an individual against invasion of privacy and the threat of defamation. However, the balancing of these rights would be considered at the stage of the claim of damages for defamation rather than a preventive action for injuncting of against the publication itself.

xxx xxx

Writings and comments by authors, publishers cannot be restricted to public interest as defined to include what is good for the public. It must be used in the connotation of what is of interest to the public as submitted by the learned Counsel for the appellant. For the purposes of publication if it is to the interest to the public it would suffice. the very fact that so much has been written about the controversy in question and the relationship between the respondent and her late mother-in-law Smt. Indira Gandhi shows the interest which the public had in the happenings though it related to matters of private relationship between the two individuals. The wide publicity in the two editions of India Today and the incorporation of the controversies in the book by Ved Mehta and Pupul Jaykar are testimony to the same. It is difficult to segregate the private lite of the public figures from their public life. It is the burden of holding a public office.

The book has not yet been published. The claim for injunction which was granted was based on the proposed publication. We have now also had the benefit of reading the chapter in controversy in full. We do not think it is a matter where the author should be restrained from publishing the same when he is willing to take the consequences of any civil action for damages and is standing by what he has written.

On these observations, holding that there was no question of any irreparable loss or injury since the respondent herself has also claimed damages, which will be the remedy in case she is able to establish defamation and the appellant is unable to defend the same as per law, it was held that the well established principles way in favour of the right of publication. The injunction granted by the learned Single Judge was consequently vacated.

Thus, the principle laid down by the Division Bench takes the extreme view that the remedy of a person aggrieved by publication would be by way of damages and not an order of prior restrain against publication.

From the above discussion, the following principles can be culled out:

(I) The right to privacy is not expressly guaranteed by Part III of the Constitution of India but has been judicially deduced from Article 21 of the Constitution. Ref. R. Rajagopal alias R.R. Gopal and Another Vs. State of Tamil Nadu and Others,

(II) Fundamental rights cannot be enforced against private individuals. Fundamental rights can be enforced only against the State and not against the private individuals other than the rights under Articles 17, 23 & 24.

(III) A citizen has a right to privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical.

(IV) The above rule is subject to the exception that any publication concerning the afore-noticed aspects becomes unobjectionable if such publication is based on public records.

(V) Public or general interest in the matter published has to be more than mere idle curiosity.

(VI) Public figures like public officials play an influential role in ordering society. They have access to mass media communication both to influence the policy and to counter-criticism of their views and activities. The citizen has a legitimate and substantial interest in the conduct of such persons and the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events. Ref. R. Rajagopal alias R.R. Gopal and Another Vs. State of Tamil Nadu and Others, Para 18

(VII) Right to privacy that rests in an individual may be waived by him by express or implied consent or lost by a course of conduct which estops its assertions. Such implication may be deduced from the conduct of the parties and the surrounding circumstances.

(VIII) A public person or personage is one who by his standing, accomplishment, fame, mode of life or by adopting a profession or calling which gives the public a legitimate interest in his doings, affairs and character has so become a public figure and thereby relinquishes at least a part of his privacy.

(IX) The standard to be adopted for assessing as to whether the published material infracts the right to privacy of any individual is that of an ordinary man of common sense and prudence and not an out of ordinary or hyper-sensitive man. Ref. Ajay Goswami Vs. Union of India (UOI) and Others, ....

(X) Even though in this country, the freedom of press does not have presumptive priority as in some other jurisdictions including the United States of America, however the importance of a free media of communication to a healthy democracy has to receive sufficient importance and emphasis.

(XI) In evaluating a relief to be granted in respect of a complaint against infraction of the right to privacy, the court has to balance the rights of the persons complaining of infraction of right to privacy against freedom of press and the right of public to disclosure of newsworthy information. Such consideration may entail the interest of the community and the court has to balance the proportionality of interfering with one right against the proportionality of impact by infraction of the other.

(XII) The publication has to be judged as a whole and news items, advertisements and published matter cannot be read without the accompanying message that is purported to be conveyed to public. Pre-publication censorship may not be countenanced in the scheme of the constitutional framework unless it is established that the publication has been made with reckless disregard for truth, publication shall not be normally prohibited. Ref. Ajay Goswami Vs. Union of India (UOI) and Others, R. Rajagopal alias R.R. Gopal and Another Vs. State of Tamil Nadu and Others, and Khushwant Singh and Another Vs. Maneka Gandhi,

(X) So far as the inaccuracy or incorrectness of publication is concerned, in case the same is established, damages are adequate remedy.

The present case requires to be examined against these principles.

The plaint discloses that the plaintiff as the wife of late Shri Ashok Kumar Jain the erstwhile chairman of the Bennett Coleman & Co. Limited. Since his death in February, 1999, the plaintiff has been appointed as the chairman of this company. The plaintiff has portrayed herself as a person engaged in spiritual, social and philanthropic causes in addition to her business engagements.

So far as the activities of the Bennett Coleman & Co. Limited are concerned the plaint discloses that the group publishes two financial papers, one being the Economic Times with a circulation of 639,000 copies with a readership of over 1.1 million and printed from 11 locations. The plaintiff has also claimed that the Economic Times is India''s largest financial daily with more than 95% share of the readership in the financial dailies market. The other financial paper is the Financial Times published from Bangalore and New Delhi. The plaint also states that the Bennett Coleman & Co. Limited is publishing the Times of India which sells over 3.1 million copies a day, has a readership of over 8 million and is printed from 13 locations across the country. The plaintiff has claimed that the Times of India has more than 70% share of the English readership market with a readership of 1.59 million readers.

Mr. Gopal Mohan had informed the defendants that the BBL is in a magazine publishing joint venture with BCCL which publishes titles as Femina, Filmfare, Top Gear that are extremely popular. BCCL has entered into a joint venture with Reuters to pursue a TV broadcasting business, which channel is likely to be launched shortly. Westbridge recently picked up a 2.8% stake in BCCL''s internet arm i.e. Times Internet Ltd. BCCL has pioneered the FM radio business in India. It has also set up the Entertainment Network (India) Ltd. in which the Canadian Pension Fund had picked up a 19.5% stake. It has been claimed that the group manages and marks educational, entertainment and spiritual events and owns the franchise to select India''s contestants for Miss World, Miss Universe and Miss Asia pageants and that the Filmfare Awards which are India''s most prestigious and coveted film awards, have been conducted by the company for decades. It is also stated that as part of its corporate social responsibility, the Times Group supports and organises training and development programs through its spiritual and social arm i.e. The Times Foundation. The Times Group is also involved in educational institutions for the training of journalists and managers (The Times School of Journalism and The Times School of Marketing). Its publications also include Navbharat Times, Mumbai Mirror and Economic Financial Times.

The defendants have pointed out that the public image that the plaintiff has sought to build for herself is one of a spiritualist and a Jain revival activist; an educationalist and a person devoted to the cause of world peace. She projects simplicity and a close involvement with art and culture. At the same time, she is the Chairperson of BCCL and its publications i.e. newspapers, magazine, radio and television enjoy the widest circulation and a dominant presence in their respective areas in the country. The defendants have submitted that Ms. Indu Jain is listed in the Great Women of India List on the website known as India whereincity.com. The information relating to the plaintiff is widely known and freely available from public records like Registrar of Companies, Prospectus of Entertainment Network (India) Ltd. and the website of the plaintiff''s group and publication.

It is an admitted position that the plaintiff is a public and newsworthy person. So far as publicity is concerned, the defendants have placed before this Court copy of extracts from the internet of the ''Parmarth Updates'' which contain photographs of the plaintiff in the company of Swami Chitanand Saraswatiji, Swami Dayanandji and Shri Murli Manohar Joshi. The plaintiff has featured in an article on the Harmony website of August, 2004 with her photographs in an article titled ''I think I am Venus''. The plaintiff has also featured in an article in ''Syncronist and Everyday in One'' in March, 2006. These facts certainly indicate that the plaintiff is a well known public person who is considered newsworthy.

The plaintiff''s photographs are freely available in the web pages of the India Times photo gallery in December, 2006 which include her photographs with the President of India. Photographs of the plaintiff with well known film personalities are also posted on the website. The plaintiff has also listed on the website of Indiawhereincity.com in the list of the Women of India wherein both her photographs and details have been given.

The photograph which have been published by the defendants is the photograph taken at the India Today Conclave stated to be owned by the Eye Press and posted on a Webside the plaintiff has not shunned publicity and her photographs are widely published and accessible on several sites on the internet.

The defendants have placed before this Court the fact that the plaintiff is a widely photographed person and that her photographs are easily available on the Times of India website wherein her photographs with several people including the President of India and several other people of import have been published. In this background, it certainly cannot be contended that the plaintiff is not a public person and that the public would not be interested in getting information about her.

The plaintiff having herself promoted as a philanthropist as well as the Chairperson of BCCL, India''s leading media corporation, there was no dispute that the plaintiff is a public person.

The defendant has claimed that it is a worldwide leader in financial and investment news which periodically publishes various listings including a list of the World''s Richest Persons.

The defendant No. 1 has claimed that it is a ninety year old organisation and is a reputed publisher of a leading publication of worldwide recognition. It has been pointed out that the article which the defendant published was serious and newsworthy journalism which provided a portrait of the growing economic power of India to the world. The publications of the defendant indicated as to where growth was centred in terms of industry as well as its locale and how the economic power and resources were distributed. According to the defendant, its publications make valuable, interesting and newsworthy comparisons to other growing economic powers as those of China. The defendants have also pointed out that they have been regularly reporting on capital accumulation and the wealthiest individuals in the world.

The defendants have explained that they intended to provide a portrait of the growing economic power of India. Their analysis displays centres of growth of industry and distribution of wealth economic power and resources while two of the publications (December, 2005 & November, 2006) are restricted to Indian economic financial heavyweights, the third publication makes a comparison to other growing economies as of China and other countries in the region. The effort which was made by the defendants was to report on capital accumulation, economic power and the persons in whom the wealth is centered. It displays to the readers the nature of business wherein economic wealth is centered. The defendants have referred the plaintiff as a person who was at the helm of affairs of a corporation that manages the largest selling English daily in the world. It is certainly inconceivable with an analysis of the kind undertaken by the defendants would not contain a consideration of the economic wealth of such an important personage.

Before this Court, the defendants have explained the nature of the publication. It effectuates a technical analysis of official or public data which generates economic interest, which in the instant case, is urged to be impacting the economies of different countries. The thrust of the publication is to place before the public, the growing wealth of India''s corporate houses and business tycoons. Not only the defendants but several other Indian publications including the publications effectuated by the plaintiff''s corporation have published similar articles. In fact, the publications of the Benett Coleman group have effectuated an analysis of the articles of the defendants and posted them on their website, even noticing the favourable placement of the plaintiff in the list published by the defendants in the context of other business personalities. The information published also enables the readers to evaluate the location of the economic strength in the country. In the context of the growing interest in the Indian economy, as evidenced by the publications of the plaintiff as well as the defendants, it has to be held that the assessment and the publication of the defendants certainly generated public interest and informed the public at large about the genuine concern relating to the Indian economy.

The publications also disclosed that it has been publishing annual list and a comparison is made with China which is the other growing economy.

The fundamental question which remains to be considered is whether the information relating to the wealth of a public person as plaintiff herein is in the private domain.

The defendants have at length pointed out that the plaintiff had in fact voluntarily provided information and material relied upon by them in their publication and that the publication is based on either material provided by the plaintiff herself or through her agents or as such material as is freely available in the public domain. Information on the plaintiff has been derived from easily accessible sources as newspapers, magazines and the internet and from the prospectus of the Entertainment Network (India) Limited which is the plaintiff''s own company and other public statements. From the documents placed by the parties before this Court, it would appear that the defendant did take steps to verify and corroborate the information via other public sources from the plaintiff''s representatives.

The defendants have submitted that the methodology adopted in arriving at the figures quoted in the articles was not only accurate but fair and transparent about the way in which the listed business leaders wealth was calculated.

Before this Court, the defendants have pointed out that the plaintiff''s company had periodically announced its actual profit figures for the years 2003, 2004 and 2005 at page 95 of the Prospectus of Entertainment Network (India) Ltd. and at Rs. 5298.2 millions for the 2006 fiscal year ending July, 2005. An article on the website of the Financial Times www.news.ft.com dated 28th November, 2002 discloses group revenue and net profits of the Benette Coleman group. Based on the disclosed formula, the defendant simply multiplied this number by the accepted/conservative ratio for similar Indian companies. The defendants merely drew upon such readily and periodically available information about the plaintiff from easily accessible sources as newspapers, magazines and the internet and from the Prospectus of Entertainment Network (India) Ltd, the plaintiff''s own company and other public statements by it.

The defendants have submitted that their simple analysis was based on earnings/information readily available to the public which had pointed out to the fact that the plaintiff was chairing the affairs of the corporation which controlled and managed the largest selling English daily in the world.

In the written statement, the defendant has pointed out that the figures which were disclosed in the prospectus of the plaintiff''s company periodically disclosed by BCCL and the plaintiff''s agents voluntarily have merely been multiplied by the accepted/conservative ratio for similar Indian media companies. The applicable ratio/multiplier was publically available and the method by which the net worth was calculated was disclosed to the readers of the Forbes magazine in all the articles printed by it.

Thus, the reports published by the defendants were really in the nature of economic analysis of public data available by a company and the report published thereon. In this behalf, the defendants had clearly informed the plaintiff about the methodology adopted by it in the e-mail dated 6th December, 2005. No objection was raised by the plaintiff to the valuation and the publication effected based on similar methodology by the defendant in the 26th December, 2005 issue. On the contrary, the plaintiff or her agents have only further advanced information for publication to the defendants who have acted upon the same.

the voluminous exchange of communications by way of e-mails between the parties has been noticed in the beginning of this judgment. The publications also clearly indicated the manner in which family fortunes were being assessed.

The information and details relied upon by the defendants were not private nor were they so shrouded in secrecy as to be unavailable to the defendants or any other person. The same related to information about a person who is at the helm of the publication business.

This aspect of the matter is also requires to be considered against the defendants communications to the plaintiff and representatives that the figures arrived at were based on extensive research, interviews with experts and public findings and in case of private companies, such valuations were derived in part only, from the value of comparable public companies.

It is noteworthy that in none of the communications on behalf of the plaintiff, any correction or clarification was provided.

In the afore noticed facts, it cannot be contended that the defendants did not inform the plaintiff about the information which was being published or the method adopted by them for arriving at their assessment of the net worth.

The plaintiff''s Group admittedly has several publications to its credit including The Times of India, The Navbharat Times, The Economic Times etc. The Times of India has a website http://timesofindia.com/articleshow/1334366.cms. This website carried an article under the heading ''BCCL''s Indu Jain on Forbes Asia Rich List'' dated December, 2005 wherein the plaintiff, Indu Jain is mentioned as one of the forty richest. The news item displayed by the plaintiff''s website even acknowledges that BCCL is run by Ms. Jain''s sons Samir and Vineet.

This feature mentions that the Bennett Coleman''s Chairman Indu Jain is on the 17th position on the Forbes'' Richest Indian List. It specifically mentions that in the Top 20 Richest Indian list, Ms. Indu Jain is ahead of the Videocon group''s, Venugopal Dhoot and of the Ranbaxy groups Malwinder Singh and Shivinder Singh. The website also posted an analysis as to the original break up of the Indians who features in the Article and noticed that the Indian ranking had been broadened to include family fortunes.

This website had continued to display this article at the time of filing of the present suit till such time when it was relied upon by the defendant during the course of hearing in the present application.

In addition thereto, the defendants have pointed out that Times of India Group itself had replicated the Forbes list in its publication circulated as the Economic Times dated 18th November, 2006 under the heading "India has now 36 billion $ babies".

It has been vehemently contended by Mr. Rajiv Nayar learned senior counsel that the plaintiff disclaims knowledge of the article which was posted on the website of the Times of India or those which appeared on the 16th November, 2006 in the Times of India and in that 18th November, 2006 issue of the Economic Times on the ground that she has no concern with the publications.

In the instant case apart from the correspondence noticed in the earlier part of this judgment, certain vital admissions in the plaint also supports the case set up by the defendants. The plaintiff has claimed knowledge of the defendants publications through her corporate staff. The plaintiff in para 8 of the plaint as referred to the e-mails dated 6th December, 2005 sent by the General Manager (Corporate) BCCL on her instructions to the defendant Nos. 5 and 6 communicated that even if she is mentioned in any publication, it must be in a professional capacity and no personal information about her or her family may be mentioned. Again in para 10, the plaintiff as stated that she has permitted the Bennett Coleman & Co. Limited to furnish information relating to its various businesses in a gesture of coordiality and goodwill. Reference is made to the 3 e-mails which are dated 8th December, 2005 sent to defendant Nos. 4, 5 and 6.

The plaintiff through her officers and agents had required the defendant to only publish her name so far as the business of BCCL was concerned. In all the e-mails, the business has been referred to as a family run business; that the plaintiff was the head of the joint family and the Chairman of the company. In the e-mail dated 6th December, 2005, Mr. Gopal Mohan himself clearly wrote that ownership of the business vests in Ms. Indu Jain apart from the estate held by a number of investor companies who are promoters within Indian regulation.

In the same e-mail, Mr. Gopal Mohan had specifically required the defendant that the defendants to publish their findings and list only the name of Ms. Indu Jain while names of her junior members of the family should not be listed as owners or Co-owners.

The entire correspondence on behalf of the plaintiff has been undertaken by Mr. Gopal Mohan who has described himself as General Manager (Corporate) of the Times of India Group giving his address as Times of India''s office.

Both these publications are those of the BCCL. in the plaint the plaintiff has claimed that she gained knowledge of the defendants publication from its corporate team. The plaintiff has used the services of the corporate staff of BCCL and she has used e-mails sent by them as the mode of communication on her behalf. The plaintiff has relied on all the letters written by Mr. Gopal Mohan. In the plaint, it has been stated that these letters have been written on her instructions. The replies of the defendants have been sent to the e-mails addresses wherefrom the letter been sent on behalf of the plaintiff.

There is no dispute that these communications have been received by the plaintiff. The plaintiff has written to the defendant initially even before the publication had been effected by them in December, 2005.

In this background, it is certainly not open to the plaintiff to disassociate herself from the affairs of BCCL merely on the plea of not being a shareholder or having had no concern or connection with the BCCL. In their publication, the defendants have reflected her as the matriarch of the family held business on her specific request.

The willingness initially expressed to publication of her name in the list published by the plaintiff can be presumed from the communications addressed on her behalf. Any person who was strongly objecting to publication would not volunteer information of any kind, recognize the defendant''s "lawful right to write on her" or acknowledge "journalistic independence and privileges" or the "legitimate rights to publish the list" of the publisher or the "interest of the readers".

From the correspondence noticed above, it is also on record that the plaintiff through her representatives had in fact volunteered information and material to the defendant and confirmed the correctness of the figures which the defendants had sought. Certainly, it has to be prima facie held that the plaintiff had acquiesced to the publication and would now be estopped from alleging that the publication of the said information is in any manner violative of her right to privacy.

The plaintiff has also objected to an article on the website of the defendant putting their list of worthy people on the internet. The plaint refers to these publications which have endorsed the articles published by the defendants, substantially extracted them on their website and prominently reproduced or analysed them in its own publication. In this background, certainly, prima facie it cannot be reasonably believed that the article posted on the website of the Times of India''s on 16th December, 2005 or the publications effected by Times of India on 16th November, 2006 or by the Economic Times 18th November, 2006 were not known to her.

It has also been pointed out that the plaintiff''s publications have treated the defendant''s articles as responsible reporting. This prima facie estops the plaintiff from objecting to the defendants publications as irresponsible, private or incorrect information. The plaintiff would thus prima facie be precluded from seeking damages and injunctive relief against the defendants.

Interestingly the list published by the defendants was replicated by the Economic Times admittedly published by the Bennett Coleman & Co. Limited in its issue dated 18th November, 2006 under the heading "India Now Has 36 Billion - Dollar Babies". These postings on the web site and the publication effected by the plaintiff''s own publications are not only an unequivocal admission of the fact that the information is newsworthy but also is an acceptance of the correctness of the publication.

Public interest and newsworthiness of such features is manifested by the publications pointed out by the defendants which include an article published in the Business Standard in the month of December, 2004 and again in the month of January, 2005 entitled as Billionaire Club which features the sons of Mrs. Indu Jain and also mentions her. The plaintiff has admittedly not objected to or taken action against this publication.

The defendants have placed several other publications which manifests the public interest in the economic analysis of the wealth of the powerful. Amongst these publications are copies of the issue dated 26th March, 2006 of the Times of India group and a publication dated 23rd March, 2007 of the Asian Age.

So far as the veracity of the publications is concerned, there would be substance in the defendant''s contention that the defendants exercised reasonable care and even made enquiries from the plaintiff. Furthermore no objection was taken by the plaintiff to the December, 2005 issue or the March, 2006 issue of the defendant''s publication. No suit was filed nor grievance made thereupon. There is also force in the defendant''s submission that the very fact that the articles of the defendants were reported on the website of the plaintiff''s publication itself lends support to the defendant''s contention that the articles were accurate as well as newsworthy.

The extract of the Times News network of March, 2006 and November, 2006 commenting on the Forbes publication have been placed before this Court. The same is also supported by the article published in issue dated 16th November, 2006 of the Times of India and the Economic Times publication dated 18th November, 2006 which also extracts the article of the defendants.

It is well settled that in an action seeking grant of interlocutory relief in a civil action for libel, the defendants, apart from taking a plea of justification would have to show that the statements were bona fide, were in public interest and that the defendants had taken reasonable precaution to ascertain the truth and that the statements were based on sufficient material which could be tested for its veracity.

In Shree Maheshwar Hydel Power Corporation Ltd. Vs. Chitroopa Palit and Another, the court held that in India, the court was very much entitled to scrutinize the material by the defendants so as to test its veracity and to find out whether the statements were made bona fide and whether they were in public interest even at the interlocutory stage.

The present case is not concerned with any allegations of malice or defamation by the defendants. The plaintiff has urged plea simplictor that the publication violates the right to privacy of the plaintiff.

In the light of these disclosures and the correspondence placed before this Court, it cannot be contended or prima facie held that the defendants estimation was based on speculation or published with knowledge of falsity or in reckless disregard of the truth so as to satisfy the test laid down by the Apex Court in T.N. Rajgopal v. State of Tamilnadu and Ors.

Examination of the plaint shows that apart from a bald allegation that the defendants have breached the right of privacy of the plaintiff, the plaint does not disclose such portion of the publication or the personal information about the plaintiff which, according to her, could not have been published. The plaintiff has also not placed the irreparable loss or injury which has resulted to her on account of this publication or could result to her by future publication. Though at the time the application was first taken up for hearing, the entire thrust of the plaintiff''s case was based on security risks to her, however, after the defendants placed before this Court the fact that the first publication was effected more than a year ago in December, 2005 to which the plaintiff had not raised any objection and posted on the website of the Times of India, this argument was not advanced apart from a bare reference thereto.

The plaintiff does not render a word of explanation as to why damages would not be an adequate remedy.

Even if the contention of the plaintiff that information relating to wealth or finances was in the private domain and could not be published were to be accepted, in my view the plaintiff would still not succeed in securing a prohibitory injunction. As discussed above, it is open to a person to waive such right. Consent to publication then may be explicit or tacit.

There is one yet another important fact which would by itself disentitle the plaintiff to any discretionary relief of injunction. The first publication featuring the plaintiff was effectuated in December, 2005. Each time the defendants have effected publication, apart from their claimed research and investigations based on information available in the public domain; the defendants have conducted extensive correspondence with the representatives of the plaintiff. No objection has been raised by the plaintiff to the publication which was effected on 26th December, 2005. This issue having been published and circulated, no objection having been taken, it has to be held that the plaintiff would have waived objections to the publication by the defendants on the ground of breach or invasion of the plaintiff''s right to privacy. This conclusion is fortified by the endorsement of the defendants'' feature by the plaintiff''s publications.

Mr. Rajiv Nayar, learned senior counsel for the plaintiff, has disputed knowledge of the 6th December, 2005 issue of the defendants. In this behalf, I find that it is noteworthy that in the communication addressed by the defendants to the plaintiff as back as on 6th December, 2005, they had referred to both the December, 2005 issue as well as March, 2006 issue. The defendants also told the Times of India Group that in the defendant''s assessment, the plaintiff''s net worth is over one billion dollars. There is no denial to the receipt of this letter which was even replied to by the plaintiff.

There is thus force in the defendants contentions that the objections raised in the plaint are unwarranted and further that the same unequivocally establish the plaintiff''s acceptance that the Forbes'' articles were not only authentic but were clearly newsworthy.

Mr. Soli Sorabjee, learned senior counsel for the defendants has pointed out that the list published by the defendants have included several other persons who are managing corporations in different areas of media. The defendants in their written statement have adverted to Rupert Murdoch of Fox; Michael Bloomberg of Bloomberg; Kalanithi Maran of Sun Television; Subhash Chandra of Zee Telefilms. The defendants have also pointed out the names of several personages who have featured in the list published by the defendants which have included personages as Kiran Shah Wallace and others of status of economic standing. The submission is that none of these persons have taken any objection to their listing or complaint with the information which has been published was in the realm of private affairs. The concerns of security expressed by the plaintiff have also not been expressed or complained against by any other person.

Having regard to the various publications and documents placed by the parties on record, it would appear that the plaintiff has been widely sought after by the media as featured both in photo features as well as textual publications.

Furthermore no complaint was made by the plaintiff when she featured in the publication effected by the defendants in December, 2005 nor has any objection being taken by her against her own publications which have replicated, commented, published and circulated on the defendants features.

In fact, the Economic Times, a publication of the plaintiff''s corporation in November, 2006 has even published an analysis based on the list of the defendants. It is pointed out that the wealth of the businessman was not limited to domestic group only and that the survey result reflects the spate of Indian acquisitions abroad. It refers also to the fact that the latest annual listing of Forty Richest Indians have increased from 27 last year to 36. The article in the Economic Times also reflects the geographical distribution of richest Indians as being led by Mumbai and Pune and notices that nine of the super rich live in Delhi and one in Haryana.

In 29 L Ed 2d page 296 George A. Rosenbloom v. Metromedia Inc., it was stated that if a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense, the individual did not ''voluntarily'' choose to become involved. The public''s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant''s prior anonymity or notoriety.

Thus, the test is as to whether the matter published involves the interest of the community. If it does, then, whether the person involved is a famous large scale magazine distributor or a ''private'' business man running a corner news stand has no relevance in ascertaining whether the public has interest in the issue.

The American Courts have repeatedly emphasised that public figures and public officials may recover for the tort of intentional infliction of emotional distress by reasons of publications only upon showing, in addition that the publication contains a false statement of fact which was made with ''actual malice'' with knowledge, that the statement was false or made with reckless disregard as to whether or not it was true. Ref: 99 L Ed 2d 41 Hustler Magazine and Larry C. Flynt v. Jerry Falwell

In a judgment dated 24th September, 2004 of the European Court of Human Rights in Application No. 59320/2000 in the case of Von Hannover v. Germany, the applicant, who was the eldest daughter of Prince Rainier III of Monaco had complained against publication of photographs in different magazines. As she failed to get relief, the applicant submitted that the German court''s decision had infringed her right to respect for her private and family life guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedom. The court observed that what had to be balanced was protection of private life against freedom of expression, which necessitated an examination of the contribution made by photos or articles in the press to a debate of general interest.

In this case, it was held that the photographs made no such contributions since the applicant exercised no official function and the photographs and articles related exclusively to her private life.

It was also held that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in a private life even if she appears in places that cannot always be described as secluded and that she is well known to the public.

It is the test of such ordinary man which has to be applied to the instant case. Furthermore, no case of either malice or irreparable damage has been made out in the plaint or the application. The plaintiff has stipulated that in case any reference is to be made in the defendant''s publication to her business house, the same must refer to her alone. She has been extensively photographed and her photographs appear in several publications and are freely available on the website maintained by her own publication. The plaintiff has also given extensive interviews and in fact, has been the subject matter of several journalistic features. On her own showing, she is the chairperson of India''s leading media house. The information which has been furnished at the instance of the plaintiff in the several communications placed on record manifests the claims made by the plaintiff herself in this behalf.

A publication has to be judged as a whole. No news item or passage can be read without the accompanying message. Certainly, a financial assessment cannot be read dehors the basis of the same as is indicated by the publisher. In the instant case, the defendants have indicated the manner in which the figures have been arrived at by them. The same methodology has been applied to all other business houses, persons and `family fortunes'' who are featured in the list. The defendants have corresponded extensively with the plaintiff or persons representing her. The plaintiff was fully aware of the lists which were being printed by the defendants. At no point of time, it was ever indicated as to what would according to her was the correct figure which they could publish.

In this background there is certainly force in the contention of the defendants that the relief sought by way of the present application must fail on the ground that the plaintiff fails to meet the test of sensibilities of an ordinary man of common sense and prudence and not an out of ordinary or hypersensitive man as succinctly laid down by the Apex Court in Ajay Goswami v. UOI and Ors. (Supra).

Before this Court, the plaintiff has admitted that she is a public person and her accomplishments widely acknowledged by both, the media and the public at large. Having received such publicity over all these years, it is not open to the plaintiff to claim seclusion from an analysis of the nature undertaken by the defendants.

In this behalf, reference can usefully be made to the pronouncement of the Courts of Appeals of New York reported at 23 NY 2d 341 Estate of Ernest Hemingway et all v. Random House, wherein it was held that once a person has sought publicity to her status by writing articles for the popular magazines dealing with her husand and events in their lives together, she cannot at her whim withdraw the events of his life from public scrutiny.

Suppression of Material facts:

In the letter of the defendants dated 6th December, 2005 which has been placed before this Court, the defendants have referred to both the publications effected in December, 2005 as well as March, 2006. The defendants clearly notified the plaintiff of their assessment of the plaintiff''s wealth.

The plaintiff''s submission to the effect that she was not aware of the publication is clearly and factually incorrect. This is corroborated by the fact that the plaintiff''s publication analysed the articles of the defendants and posted the analysis not only in the newspapers but also on the website of the Times of India.

As noticed hereinabove, the plaintiff has used the services of the corporate staff of the Bennett & Coleman group. She has endorsed the communications sent as e-mails to the defendants by the members of the corporate staff. The plaintiff has dis-claimed knowledge of the defendant''s article posted on the website also. In this background it is not possible to reasonably accept that the plaintiff was unaware of the articles dated 16th November, 2006 published in the Times of India and 18th November, 2006 published in the Economic Times. The plaintiff has complained in respect of the defendants publication which they have averred is not even circulated through regular agents in this country. The plaintiff is also aggrieved by the list which features on the defendants'' website. For the same reason, the plaintiff is reasonably expected to know the fact that the website of the Bennett Coleman group was drawing mileage out of the fact that the plaintiff had featured in the elite list of Forbes and that she was the ahead of several other business tycoons.

In this background, the failure of the plaintiff to even advert to issue of the defendants dated 26th December, 2005 showing India''s Forty Richest; her failure to place before this Court the extract of the website of the Times of India and the Bennett Coleman group; and failture to place the article dated 26th December, 2005 in the defendant''s publication of the World''s billionaire list amounts to a deliberate suppression of a material facts. It was equally necessary for the plaintiff to place before this Court the complete facts, including the analysis of the defendant''s publication and the articles which were published by the newspapers and journals of the Bennett Coleman group and also on its website. The plaintiff has thus, suppressed material facts which, in my view, were necessary for the complete and effective adjudication of the objection of the defendants to the publication in its November, 2006 issue.

It has been repeatedly held that a party concealing the material facts would be required to be non-suited. In the instant case, this Court was persuaded to grant an interim injunction on grounds of the urgency which had been set up on the plea that the defendants were effecting publications which were portraying the plaintiff in a wrong light despite the objections of the plaintiff. It was concealed from this Court that the plaintiff has raised no objection to the defendant''s publication as back as on 26th December, 2005 and the fact that mileage had been drawn by the business Group which she chairs therefrom. Certainly, this Court may have taken a different view in case these facts had been placed before this Court.

So far as the objections of the plaintiff regarding the publications in November, 2006 is concerned, it is apparent that the plaintiff has clearly required the defendants to reflect only her name in any reference to the Bennett Coleman group. No objections were raised when the plaintiff caused to be sent a communication dated 5th December, 2005 to the defendants informing them that the control of the business rests with the head of the family. This was reiterated in the email of 7th December, 2005 wherein it was mentioned that all public honours and felicitations have always been bestowed on Ms. Indu Jain in business and society. Hereby it was also informed that the ownership of business vests in the plaintiff apart from the shares held by some investors. Even here, the defendants were told that if they were publishing their findings then only the name of Ms. Indu Jain should be listed and names of her junior members in the family should not be listed as owners or co-owners. On 26th December, 2005, detailed information is provided by the defendants in recognition of the defendants'' lawful right to write on the Bennett Coleman group. The plaintiff again informed the defendants that they should list the name of Ms. Indu Jain and that the plaintiff would co-operate with the defendants so that there are no inaccuracies factually or otherwise in the best interest of publication.

It is noteworthy that in the e-mail of 8th December, 2005, there is a clear admission of knowledge with regard to the upcoming issue of the defendants when it extended best wishes to the defendants for the same.

The only grievance of the plaintiff so far as infringement of its right to privacy is concerned, is based on the plea that the publication attributes a wrong figure as the wealth of the plaintiff. Apart from the formula of calculation being mentioned on the publications and also to family fortunes, the defendants had carefully informed the plaintiff of the method being adopted by them. No objection of any kind was raised to the methodology adopted by the defendants in the December, 2005 issue. On the contrary, the defendant''s publication was highlighted on the website of the plaintiff''s group as also in the articles published in its national dailies.

In the email of 17th February, 2006, the plaintiff informed the defendants that it may adopt the Benett Coleman''s 2005 revenue and net profit figures as mentioned by the defendants in their mails.

In this background, it certainly cannot be contended or held that the defendants did not exercise due care or have effected publication in reckless disregard of the truth. The plaintiff was fully aware of the nature of the publication of the defendants. Despite repeated specific queries no information was disclosed of what according to the plaintiff would be the correct figure. It is noteworthy that the plaintiffs has made out a case that her net worth has been incorrectly published. On the contrary, the clear representation to the defendants was that in case they were including the Benett Coleman group a family holding, only the name of the plaintiff should be highlighted. The defendants also have carefully indicated that they were including the family fortunes. For all these reasons, the submission that the plaintiff must be treated as an individual and not the same as the Benett Coleman group when examined against the detailed communications and correspondence conducted by the plaintiff or on her behalf is wholly misconceived.

Even otherwise, so far as publication of wrong information is concerned, it is well settled that the plaintiff would have the remedy in damages.

The plaintiff has denied suppression and urged that even if it is to be held that she has suppressed facts, then she could be disentitled to relief only if the suppression was of a material fact whereas the facts relied upon by the defendants are not material for adjudication of the issues raised by the plaintiff. In this behalf, the plaintiff has placed reliance on S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar and Others, In this case, the court was of the view that the writ petition filed by the petitioner was maintainable even if it had filed an earlier suit. Consequently, the suppression of the fact that the suit had been filed earlier would not be a material fact.

In the instant case, the plaintiff has sought an imperative relief of injunction against the defendants on the plea that the defendants are effectuating a publication shortly which would infract upon the right to privacy of the plaintiff.

In this background, the fact that the defendants had earlier published similar articles is certainly a material fact which would impact grant or denial of relief to the plaintiff on its present application.

There is no disclosure of damage or irreparable loss or injury by the plaintiff either in the pleadings or in the submissions made before this Court. The plaint does not make any complaint in respect of the first publication effected by the defendant in December, 2005 which according to the defendants, is the basis for their later computations. In answer to paras 21 and 24 of the written statement wherein the defendants disclosed the basis of their assessment, the plaintiff does not say that the information which was published was false but that it was private. In the facts noticed above, in my view the plaintiff has failed to make out a case that publication effected by the defendants would be covered within the protection which is afforded to a person''s right to privacy. The plaintiff as Chairperson of the largest media house in the country, has been the subject matter of considerable publications. Public interest in financial assessment of persons of standing and repute is evidenced from the several articles and features effected not only by the defendants but also by the plaintiff''s publications and other newspapers and journals in the country. Financial standing of the plaintiff and her media house is certainly of public interest. It is well settled that with consent, even matters which are in the private domain, can be made public. This Court has arrived on prima facie finding that the conduct of the plaintiff tantamounts to consent to the publication. It is pointed out that interest of the public which would override any individual considerations in prohibiting the publication and the same would guide adjudication in the present application.

The principles governing grant of injunctions are well settled. The plaintiff is entitled to make out a prima facie case which requires consideration. Furthermore, a case of irreparable loss and damage in case injunction is not granted, has to be made out. The plaintiff is also required to establish that balance of convenience, interest of justice and equity are in its favour in order to entitle an applicant to exercise of discretion in its favour.

The plaintiff before this Court has failed to indicate the irreparable loss or damage which has resulted or would result from the publications complained of. No equitable considerations have also been placed before this Court. On the other hand, there is adequate material on the record of this Court which would indicate that there is substantial public interest generated in the analysis of the type undertaken by the defendants. The same has been replicated in publications of the plaintiff''s business house as well and portions thereof posted even on its website. The material factor which would have a bearing on the instant case, is the fact that the first publication was effected as back as in December, 2005 in respect of which the plaintiff makes no grievance. Injunctive relief is to be premised on the urgency displayed in the damage which may result to a party from a threatened action. In the given facts, there is nothing to show balance of convenience or interest of equity in favour of the plaintiff. Conduct of a party is another factor which has a material bearing on considerations of equitable relief. Before this Court, there is gross concealment of material facts which would also disentitle the plaintiff to exercise of any discretion in her favour.

In view of the above, I find no merit in the application which is dismissed with costs.

Inasmuch as material facts which have bearing on the issues raised were not placed before the court, I am of the view that the plaintiff deserves to be burdened with punitive costs which are quantified at Rs. 60,000/-. The costs shall be equally apportioned between the defendants, the Delhi High Court Legal Services Committee and the Delhi High Court Bar Association Lawyers Welfare Fund. The costs shall be deposited within a period of two weeks from today.