In a recent case, the Kerala High Court has directed Indian Kanoon, a law search engine to anonymise the name and address of the petitioner Chartered Accountant (CA) and reprimanded Indian Express, an Indian news media publishing company, which published news and court order relating to an allegation of rape against the petitioner CA, in essence violating his fundamental right to privacy.
The petitioner is a chartered accountant by profession. He claims that he has more than twenty years of experience in the field and adorned various coveted positions, including that of CFO and CEO in different reputed companies in India and abroad, and that he was conferred with many awards and recognitions both in the US and India for his contributions in his field.
During the investigation, respondent No.3 (The New Indian Express) published an online write-up about the case of the petitioner titled “Man in Jail for ‘rape’ after Friends’ Reunion”.
The write-up, which identifies the petitioner by his name, provides the details of the alleged act, including the version of the police, victim, and defence, and the fact that the Sessions Court dismissed the bail application with its reasons.
It was alleged that Ext. P2 is a prejudicial publication containing sensitising, distorted and misleading facts which implicitly pronounce that the petitioner is guilty of rape, with a view to grab the attention of the people and Ext. P4 publication (Indian Kanoon Report) which exhibits his name, father’s name and address is highly prejudicial to him especially since the case is in its preliminary investigation stage.
It was further alleged that those publications violate the principles of presumption of innocence inasmuch as they tantamount to the pre-trial pronouncement of guilt of the petitioner that makes him and his family identifiable and thereby vulnerable.
It was also alleged that apart from hampering the right to fair trial, Exts.P2 and P4 have also impacted his dignity, reputation, and privacy. According to the petitioner, as a direct result of the publishing of Exts. P2 and P4 online, he was terminated from his employment and is now jobless, and his wife, two minor daughters and aged parents are severely affected in various manners due to the publications.
The matter was argued by D Prem Kamath, the counsel for the Chartered Accountant, Suvin R.Menon, the Central Government Counsel, Sri.Prabhakaran, the learned Public Prosecutor and Sri.V.Krishna Menon, the counsel for the respondent No.3, (The New Indian Express). There was no appearance for the respondent No.4, Indian Kanoon.
The CA’s case is that narrative in Ext. P2 (online write-up published in The New Indian Express) is prejudicial to him as it negatively impacts his image in the minds of the reader by projecting him conclusively as a rapist, at a stage when investigation was going on and the charge had not been filed and thus threatens his right to a fair trial and violates the fundamental rights guaranteed under Articles 14 and 21 of the Constitution.
The learned counsel for the petitioner submitted that in a conflict between freedom of speech and expression and the right to privacy, the latter must prevail. What would be the position if these two rights were in conflict?
The bench noted that, “In People’s Union for Civil Liberties (PUCL) v. Union of India [(2003) 4 SCC 399], the right to privacy of the spouse of the candidate contesting the election was declared as subordinate to the citizen’s right to know under Article 19(1)(a). In Sahara India (supra), a balance was struck between the right of the media under Article 19(1)(a) and the right to fair trial under Article 21. The right to fair trial of the accused was balanced with the right to fair trial of the victim in Asha Ranjan v. State of Bihar [(2017) 4 SCC 397]. In Puttaswamy (supra), it was held that the Court should strike a balance wherever a conflict between two sets of fundamental rights is projected. In R. Rajagopal (supra), the rights pitted against one another were the freedom of expression under Article 19(1)(a) and the right to privacy of the officers of the Government under Article 21.”
It was further observed that, “After adverting to the series of decisions on the point including those discussed above, the Apex Court recently in Kaushal Kishor v. State of U.P. and Others [(2023) 4 SCC 1], while answering the question whether additional restrictions on the right to free speech can be imposed on grounds not found in Article 19(2) by invoking other fundamental rights, categorically held that under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2), cannot be imposed on the exercise of the right conferred by Article 19(1)(a) upon any individual.”
It was held, in favour of the accused Chartered Accountant, that “Hence, the law as it stands now clearly provides that it shall not be lawful for a person to print and publish any matter in relation to the inquiry or trial of rape or an offence under Sections 376, 376A, 376B, 376C, 376D or 376E of IPC except with the previous permission of the Court, that too subject to maintaining confidentiality of name and address of the parties, both the victim and the accused.”
It was observed that, “As per the oral direction of this court, respondent No.3 has already removed the news content in Ext.P2 from their website”
“However, they shall not hereafter publish any matter in relation to the above crime except with the previous permission of the court, that too maintaining the confidentiality of the parties”, the bench added.
For the order of the Court published in Indiankanoon.org, it was noted that, “Ext.P4 published by respondent No.4 is nothing but an online copy of Ext.P1 bail order indexed on online search engines.”
The bench observed that, “In open court proceedings, nobody, much less the petitioner, can have a grievance in uploading and publishing the judgments online. The grievance of the petitioner is against allowing his personal information to remain permanently in the digital public place, invading his right to privacy.”
It was further noted that, “In the light of the declaration of the right to privacy as a fundamental right by the Apex Court in Puttaswamy (supra), a Division Bench of the High Court of Kerala recently in Vysakh (supra) examined the right to privacy in the context of data made available by the parties to the litigation before the court.”
The bench further observed that, “It was also held that reporting and publishing judgments are part of freedom of speech and expression protected under Article 19(1) (a) of our Constitution, and that cannot be taken away lightly without the aid of law. Ultimately, it was concluded that the right to be forgotten (a facet of the right to privacy) cannot be claimed in pending or concluded court proceedings. The Bench, however, permitted the masking of personal identities in matrimonial cases and in cases where the law does not recognize the open court system on the High Court website.”
It was further observed, from the decision of the Apex Court that, “In Vysakh (supra), the said protection is extended to all the parties of the litigation, making it clear that in cases where the law recognize the open court system, any form of publication containing the identity of the parties on the website or any other informative system maintained by the court shall not be allowed. Ext.P4 discloses the petitioner’s name, address, and personal details.”
“Hence, I am of the view that respondent No.4 is not at all justified in publishing Ext.P4 on their website disclosing the name and personal details of the petitioner. They should be directed to mask the name and address of the petitioner in Ext.P4”, the Kerala High Court Single bench held.
The following directions were thus issued by the Single Bench of Justice Kauser Edappagath, “i)The respondent No.3 is directed not to publish any matter in relation to Crime No.(REDACTED TO PROTECT PRIVACY)/2021 of Maradu Police Station, Ernakulam District, hereafter except with the previous permission of the Court and subject to maintaining confidentiality of the name and address of the parties in terms of Section 327(3) of Cr.P.C.
ii) The respondent No.4 is directed to anonymise the name and address of the petitioner in Ext.P4.”
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