Report No. 179

Chapter IV

Freedom of Speech, Right to Know and Right to Privacy:

Before discussing the proposals for a Bill enabling public servants to provide information about corruption or mal-administration in their department, it is necessary to refer to the Constitutional provisions relating to Freedom of Speech, Right to Know and the Right to Privacy.

Freedom of speech and expression is guaranteed by sub clause (a) of Article 19(1) of the Constitution of India. This right is, however, subject to Article 19(2) which permits law to be made for the purpose of imposing reasonable restrictions in the interests of the sovereignty and integrity of India, the security of State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

In this context, we may point out that Article 19 (a) of the Universal Declaration of Human Rights and Article 19 (2) of the Covenant on Civil and Political Rights and Article 10 of the European Convention on Human Rights and Fundamental Freedoms expressly refer to the: "freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice" 39 and this right is, however, subject to restrictions that may be imposed by law, (a) for respecting the rights or reputations of others or (b) for the protection of national security or of public order or of public health and morals.

The First Amendment to the American Constitution also refers to the Right of Free Speech. The American Supreme Court has held in one of the most celebrated judgments in New York Times v. Sullivan, (1964) 376 US 254 that the 'central meaning' of the First Amendment was the:

"profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public servants" .

The above case involved the right of the public official to seek damages for libel and the court held:

"The constitutional guarantees require ..... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice.- that is, with knowledge that it was false or with reckless regard of whether it was false or not".

The word 'Public official' would include an elected representative, an appointed official and all governmental employees, even those located near the bottom of any organization provided they are government officials 'who have or appear to have substantial responsibility or control over the conduct of governmental affairs'. (Rosenblatt v. Baer, (1966), 383 US 75). In principle, not every person in government is a 'public official'. His position must be one which could invite the public scrutiny and discussion occasioned by the particular charges in controversy.

Again, in relation to what is 'official conduct' of the public servant, the law has been laid down expansively. In Garrison v. Louisiana (1964) 379 US 64, the Supreme Court held that allegations of 'laziness, inefficiency and obstruction directed against local criminal court judges were relevant to official conduct of such judges'. Allegations could be 'anything which might touch on an official's fitness for office' and they would be relevant.

Our Supreme Court had occasion to deal with the exposure of the conduct of government through the media or otherwise. In one of the earliest cases in S. Rangarajan v. P. Jagjivan Ram, 1989 (2) SCC 574, the Supreme Court held that criticism of government policies was not prohibited though there should be a proper balance between freedom of expression and social interests. But courts cannot simply balance the two interests as if they are of equal weight.

The court's commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest will be endangered. The anticipated damage should not be remote, or conjectural or farfetched. It should have proximate and have a direct nexus with the expression.

In Life Insurance Corporation v. Manubhai D. Shah, (1992) 3 SCC 637, the Supreme Court held that there is nothing wrong in requesting the publication of the respondent's rejoinder in the Life Insurance Corporation's (LIC's) in house journal though the rejoinder referred to the discriminatory practices of the Corporation which were adversely affecting the interests of a large of number of policy holders. This was because; the statute required the Corporation to function in the best interests of the community.

The Court observed that the 'community is, therefore, entitled to know whether or not this requirement of the statute is being satisfied in the functioning of the LIC. The LIC was bound to publish the rejoinder of the organization be it, in its inhouse journal, so that the readers who read the magazine obtained a complete picture of the corporation and not a one sided one. The LIC's refusal to publish the rejoinder was therefore violative of the right of the community to know the internal functioning of the Corporation.'

The legal foundation for exposure of corruption , misconduct or maladministration by public servant was laid down by the Supreme Court in R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632. The case involved the publication of serious misconduct of public servants by a convict who was serial-killer. The case squarely deals with the right to know and the limits of privacy of public servants. The Supreme Court referred to the judgments of the American Court in New York Times v. Sullivan, already referred to and another judgment of the House of Lords in England reported in Derbyshire v. Times Newspaper Ltd., 1993(2) WLR 449.

The Supreme Court held that while decency and defamation were two of the grounds referred to in Clause (2) of Article 19, still any publication against any person will not be objectionable if such publication was based on 'public record'. In addition, in the case of 'public official', the 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 public official establishes that the publication was made with reckless disregard for truth. In such a case, it would, however, be enough for the person who published the news to prove that he reacted after a reasonable verification of the facts. It is not necessary for 43 him to prove that what he has published is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, damages can be awarded.

No doubt, in matters not relevant to his official duties, the public official enjoys the same protection in respect of his privacy as any other citizen (The judiciary and Parliament and legislatures are not subject to these principles and enjoy greater immunity). The above principle does not, however, mean that the press is not bound by the Official Secrets Act, 1923 or any similar enactment.

The above declaration of law by the Supreme Court is of fundamental importance on the subject of exposure of corrupt officials. If the law permits furnishing of information regarding corruption, past present or impending and gives protection to the informants from reprisals, unless the disclosure is proved to be malicious, such a law can play a very useful role.

Recently, the Supreme Court has traced the origins of the community's 'right to know' from his right to freedom of speech and expression. The Court observed in Dinesh Trivedi v. Union of India, 1997 (4) SCC 306 that in modern constitutional democracies, citizens have a right to know about the affairs of the government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare. To ensure that the continued 44 participation of the people in the democratic process, they must be kept informed of the vital decisions taken by the government and the basis thereof.

The Court was dealing with the Vohra Committee Report and stated that though it was not advisable to make public the basis on which certain conclusions were arrived at in that Report, the conclusion reached in that Report should be examined by a new body or institution or a special committee to be appointed by the President of India on the advice of the Prime Minister and after consideration with the Speaker of the Lok Sabha.

It is therefore clear that the Supreme Court has accepted that the right to know is part of the fundamental right of freedom of speech and expression guaranteed under Article 19 (1) (a). Of course, it will be subject to the reasonable restrictions, as may be imposed by law under article 19 (2).

It is now recognized that while a public servant may be subject to a duty of confidentiality, this duty does not extend to remaining silent regarding corruption of other public servants. Society is entitled to know and public interest is better served more if corruption or maladministration is exposed. The Whistle blower laws are based upon this principle.

In the light of the above judgment of the American and English Courts and our Supreme Court, on the question as to the scope of 'free speech', the Commission is of the view that a statute enabling complaints to be made by 45 public servants, or persons or NGOs against other public servants and the grant of protection to such complainants is perfectly valid and will not offend the right to privacy emanating from sub-clause (a) of clause (1) of Article 19. The right to privacy has to be adequately balanced against the right to know. Both these rights emanate from same sub-clause in Article 19.