Free Speech and Breach of Privacy

By Monica Sakhrani

The furore over the publication of the FIR in the TISS rape case has led to the raising of the issues as to the limits of free speech and press freedom. The other issue that has come up is whether the press has the right to publish a “public document”, the presumption being that all public documents are in the public domain. This piece seeks to answer as to why is not so.

First of all, the term public document in the Indian Evidence Act (Section 74) includes documents of the State and state records of private documents. Private documents are documents other than public documents. The rationale for the distinction in the law of evidence is mainly relating to proof of the documents. While private documents have to be proved through the production of the original, certified copies and other secondary evidence of a public document is permitted by the law. The reasons for this are obvious. However it doesn’t mean that all public or state documents are in the public domain just as it is a fact that even private documents can be in the public domain. The examples of official secrets and mass media are good examples of this. Fundamentally it has been agreed upon in all jurisdictions including the USA where the First Amendment right to free speech is held to be paramount that there are limits to free speech. State Security, reputation of private persons (defamation), contempt of the judiciary, hate speech and   blasphemy are recognized limits of free speech. In India our constitutional guarantee of free speech under Article 19 (1 (a) also recognizes right to privacy as one of its components and further this right can been reasonably restricted by Article 19 (2) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

An FIR is the First Information of the commission of a cognizable offence which is disclosed to the police. Under Section 154 of the CrPC, the police have to reduce the statement of the witness who reports the disclosure of the offence in writing, which report then becomes the basis of the beginning of the investigation of the case including the arrest of the accused. The copy of the FIR has to be given to the First Informant free of cost and also a copy of the same is sent to the Magistrate who has jurisdiction over the concerned police station. The FIR is included in the chargesheet. The courts have held that FIR is a public document in cases wherein the accused has demanded a copy of the FIR before the filing of the chargesheet. In these cases, it has been held that the accused can obtain a copy of the FIR from the court by applying to the concerned Magistrate and he cannot be refused the same as the same is needed in order to help him exercise his right to fair trial and bail Once the judicial trial begins, information regarding the proceedings including the FIR and the evidence of the witnesses comes within the public domain as the judicial proceeding is open to the public and publication of the same is permitted. However this is not the case in rape cases, where the trial is in camera and both the disclosure of the judicial proceedings and the identity of the rape victim is proscribed by law under Section 228A of the Indian Penal Code. One of the exceptions to this is if the same was disclosed by the victim herself.

Now we come to the question as to whether the media has the right to obtain copy of the FIR and publish the same. The entire campaign for the right to information was based on the premise that transparency and accountability is one of the necessary ingredients of democracy and good governance. this is why the Right to Information Act, 2005 states that its objective is to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority However it is recognized that withholding of information by the state in certain circumstances are permitted under Section 8 which includes under sub section (1(i) information “which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information”.  Section 11 further states that when any information sought is disclosed by a third party, it cannot in any case (meaning that it is not prohibited under Section 8 (1(i) ) be disclosed without giving the concerned third party the right to be heard.

In the present case, the publication of the alleged FIR and the disclosure of material particulars of the woman which led to her identification were obviously not done in accordance with procedure established by law, i.e. either through making an application for the certified copy to the magistrate or by making an RTI Application. Neither was disclosure done by the victim. In any case, the application whether to the magistrate or the Public Information Officer would be rejected as not only is it against public interest to disclose the same but disclosure is proscribed by Section 228A as it would lead to disclosure of identity of the victim. It is also violative of the victim’s fundamental right to privacy. Apart from the legal reasons prohibiting publication and identification, it would lead to less and less women coming forward to register cases of sexual assault where in any case, women have to bear the blame of at best being stupid and at worst being promiscuous liars. It takes tremendous courage and strength to take recourse to law by a woman in a case of sexual assault where she stands to lose as much as the accused. One must also not lose sight of the fact that the legal discourse is fundamentally a patriarchal discourse with its value loaded binary of chastity versus promiscuity, shame versus brazenness. The very fact that the woman has ‘come out in the open’ by filing the case, condemns her and justifies a vilification campaign through use of arguments of public interest which are invasive of privacy. In effect the site of challenge of patriarchy is itself patriarchy. The press coverage and the publication of the FIR in this case is a case to point.

Monica Sakhrani has been a human rights activist and lawyer for many years. She is currently Assistant Professor at the Centre for Criminology and Justice, School of Social Work, Tata Institute of Social Sciences.