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TMI Blog2006 (11) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... of the borrower and the surety in Tamil and English Newspapers. 3. Contending that the publication of his photograph and the photograph of the surety would be violative of article 21 of the Constitution, the petitioner has filed the above Writ Petition, seeking a Writ of Mandamus, directing the respondents to forbear from publishing the photographs in any Newspapers or Magazines. The Writ Petition was admitted on 15-6-2006 and an interim direction was issued to the respondents not to publish the photographs in any Newspapers or Magazines. The Bank had come up with a Petition to vacate the said interim direction and by consent of parties, the Writ Petition itself was taken for final disposal. 4. I have heard Mr. Amalaraj S. Penikilapatti, learned counsel appearing for the petitioner and Mr. K. Sankaran, learned counsel appearing for the respondents. 5. In the background of an increasing trend among borrowers to avail loans and commit default and later bargain with the Banks and Financial Institutions for the waiver of a portion of the interest and a portion of the principal if possible, the Banks and Financial Institutions were compelled to device innovative methods t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rights, 1948 asserted in its preamble that "recognition of the human dignity and of the equal and in alienable rights of all members of the human family is the foundation of freedom, justice and peace in the World". Article 17 of the International Covenant on Civil and Political Rights, 1966, ratified by India reads as follows : "(1) No one shall be subject to arbitrary or unlawful interference with his privacy, family, human or correspondence, nor to lawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks." 9. Though International Human Rights norms or International Conventions cannot be effectuated by Courts, the principles contained therein have been imported into the Fundamental Rights guaranteed under the Constitution, whenever they fell for interpretation. Drawing inspiration from Article 11 of International Covenant on Civil and Political Rights, 1966, the Supreme Court held in Jolly George Varghese v. Bank of Cochin AIR 1980 SC 470 that "the march of civilisation has been a story of progressive subordination of property rights to personal freedom". Though in the earliest decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance on a right that is not explicit in the Constitution . Of course, 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". (p. 156) 11. After holding that the right to privacy must encompass and protect the personal intimacies of the home, family, marriage, motherhood, procreation and child rearing, the Supreme Court went on to hold in the same judgment that a claimed right must be a Fundamental Right implicit in the concept of ordered liberty. In paragraphs 25 and 27, the Supreme Court expounded the theory further, on the following lines : "25. 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 forcef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights." (p. 752) 14. R. Rajagopal v. State of Tamil Nadu 1994 (6) SCC 632 is a turning point in the history of the development of the law of privacy in India. The question concerning the freedom of the press vis-a-vis the right to privacy was examined by the Supreme Court at length in the said case. Dealing with the origin of the said right, the Supreme Court held in paragraph 9 as follows : "9. The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, 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 would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he was written is true. Of course, where the publication is proved to be false and actuated by malice or persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmercial, matrimonial, or even political. As already discussed above, doctor-patient relationship, though basically commercial, is, professionally, a matter of confidence and, therefore, doctors are morally and ethically bound to maintain confidentiality. In such a situation, the public disclosure of even true private facts may amount to an invasion of the right of privacy which may sometimes lead to the clash of one person s "right to be let alone" with another person s "right to be informed ". 28. Disclosure of even true private facts has the tendency to disturb a person s tranquility. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the right of privacy is an essential component of the right to life envisaged by article 21." Though certain observations made in the said judgment, were later held to be uncalled for by a Three Member Bench of the Supreme Court in X v. Hospital Z 2003 (1) SCC 500, the law laid down on the right to privacy was not upset. 18. Thus, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic record, that a candidate was involved in various criminal cases, there is no question of infringement of any right of privacy". Even with regard to the declaration of assets by candidates, the Supreme Court held that a person having assets or income is normally required to disclose the same under the Income-tax Act or such similar Fiscal Legislation. The Supreme Court in the said case placed primacy on "the right to information" first adverted to in State of U.P. v. Raj Narain 1975 (4) SCC 428 and followed in S.P. Gupta v. Union of India 1981 (Supp.) SCC 87 and amplified in Union of India v. Association for Democratic Reforms 2002 (5) SCC 294. 23. Dealing with the right to privacy and personal liberty, in the context of proceedings for divorce in which one of the parties to the litigation was alleged to be of unsound mind and was required to undergo a medical examination, the Supreme Court held in Sharda v. Dharmpal 2003 (4) SCC 493, as follows : "The right to privacy in terms of article 21 of the Constitution is not an absolute right. If there were a conflict between the Fundamental Rights of two parties that right which advances public morality would p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty of the agent to his principal". A simple instance of the third class is where a bank issues a writ claiming payment of an overdraft stating on the face of the writ the amount of the overdraft. The familiar instance of the last class is where the customer authorises a reference to his banker." (p. 33) 26. Thus even the English law recognized that the "duty of the Bank to disclose information to the public" or the "interest of the Bank requiring closure" supersedes the duty of secrecy. 27. The extent of liability of a Bank to maintain secrecy towards its customers, fell for consideration in Kattabomman Transport Corporation Ltd. v. State Bank of Travancore AIR 1992 Ker. 351, which arose out of the dismissal of an employee of a public sector undertaking, set aside by the High Court. The High Court directed reinstatement with back wages subject to the condition that the employee was not gainfully employed anywhere. The employer came to know that the employee was actually employed in a foreign country and was making remittances to the Bank. Therefore the employer requested the Bank to provide details of the remittances made by the employee but the same was resisted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... privacy and the power of the State to "search and seize" have been the subject of debate in almost every democratic country where fundamental freedoms are guaranteed. History takes us back to Semayne s case decided in 1603 where it was laid down that every man s house is his castle . One of the most forceful expressions of the above maximum was that of William Pitt in the British Parliament in 1763. He said : The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter, the rain may enter - but the King of England cannot enter - all his force dare not cross the threshold of the ruined tenement ." (p. 511) Listing out the circumstances under which such right could be curtailed, the Supreme Court held in para 34 as follows : "34. Intrusion into privacy may be by - (1) legislative provisions, (2) administrative/executive orders, and (3) judicial orders. The legislative intrusions must be tested on the touchstone of reasonableness as guaranteed by the Constitution and for that purpose the Court can go into the proportionality of the intrusion vis-a-vis the purpose s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reby cautioned not to deal with the property and any dealings with the property will be subject to the charge of the .......... (name of the Institution) for an amount Rs. ...... and interest thereon." Thus the Statutory rules themselves provide for a notice not merely to the defaulting borrower, but also to the public in general. Therefore the threat held out by the Bank to publish the photograph of the borrower and the surety, is also authorized by the statutory rules. 31. Lastly, with the advent of the Right to Information Act, 2005, the Bank has become obliged to disclose information to the public. Section 3 of the said Act entitles all citizens to a right to information. Section 4(2) of the said Act provides as follows : "(2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause ( b ) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information." Public Authority is defined under section 2( h ) of the Act to include "any body ..... X X X X Extracts X X X X X X X X Extracts X X X X
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