Rajul Jain, Legal Research Officer, Shakti Vahini
ABC vs. Commissioner of Police & Ors.
W.P. (C.) No. 12730/2005 and C.M. Nos. 9505/2005, 13315/2005 & 12222/2007 (in the High Court of Delhi)
After eight years of the beginning of the case the Delhi High Court in its landmark judgment given on 5th February 2013 has broadened the prospects of the right to life and liberty of an individual in holding these fundamental rights enforceable against two media agencies.
Facts of the case: the petitioner’s daughter (who was a juvenile at the time of filing of the case) had filed an FIR alleging sexual abuse by her own father. It was alleged that the Respondent No. 1 had violated his duties in leaking the information of the said FIR, directly or indirectly, to the media persons who later publicised the matter in a matter that invaded the juvenile’s right to privacy and confidentiality. It was also alleged that the matter was reported in a manner which could lead to identification of the child victim and hence lead to victimisation and ostracism. The petitioner and her daughter for the fear of identification had to relocate to another place.
In view of the facts of the case a writ petition was preferred under Article 226 of the Constitution of India by the petitioner on behalf of her daughter (minor at the time of filing of the petition) as her mother and next friend, alleging violation of the right to privacy and confidentiality of her daughter under Article 21 of the Constitution of India, and other legal rights and seeking appropriate relief in respect thereof.
Discussion by the Court:
- On maintainability of writs against private persons, the court after discussing the article 226 of the Constitution, has held thus,
“27. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. Under Article 226 writs can be issued to “any person or authority”. Further, it can be issued for the enforcement of any of the fundamental rights and for any other purpose.
28. The jurisdiction conferred on the High Court is thus very wide. However, it is a public law remedy and it is available even against a private body or person performing a public function or discharging a public duty, that is to say that, there must exist a public element in the act of such body or person. Thus, in respect of a cause of action arising out of such public functions or duties, writ jurisdiction can be exercised in appropriate cases.”
Further the court observed,
“ … the Supreme Court in Zee Telefilms Ltd. (supra), in Para 33, observed that when a private body exercises public functions, even if it is not a state, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226.”
After citing various other judgments and authorities on the subject the court reached the following conclusion,
“35. The position that emerges from the aforementioned observations is that, an activity/function of a body can be said to be a public function, for the purposes of scrutiny by a writ court, when the same is performed under a duty to act in public interest. Such duty may be cast upon the body: by virtue of the nature of the function it is performing; by the fact that it is seeking to achieve some collective benefit for the public or section of the public or which is accepted by the public or the concerned section thereof as having authority to do so. What is relevant is that such a body should participate, as a part of its functions, in social or economic affairs in the public interest.
36. Respondent No. 2 while functioning as a widely read newspaper, disseminating news & views to the public at large, and respondent No.3 while functioning as a news channel, perform the important public function of disseminating information & views and holding public debates & discussion in the society. The press and the media, in a democracy where freedom of speech & expression is preserved, have an extremely vital role to perform in the larger public interest. The press & the media are instrumentalities through which the right to freedom of speech and expression of the citizens is exercised and they are also the repository of public trust and faith. Consequently, they owe a duty to the public at large to report news & views which ought to be reported, correctly and wherever necessary, with restrain and caution.”
49. The controversy in the present case, as aforementioned, relates to the alleged disclosure of the identity of the petitioner‟s daughter, who had reported a case of alleged child sexual abuse against her own father, by the respondents herein. The duty of the respondents herein to maintain utmost secrecy and confidence in the matter of identity of the petitioner‟s daughter has not been disputed. Such a duty of the press & media stems from the need to prevent social obliteration and humiliation of the victim. The potential of the press and media to cause such harm is immense because the press and the media enjoy a position of trust in the society and also because of their reach. Any function/activity, alleged to be in violation of such duty, would fall within the ambit of scrutiny of this court exercising jurisdiction under Article 226, especially when the same is alleged to have infringed the fundamental rights of the victim. Therefore, the respondent nos. 2 and 3 are subject to the writ jurisdiction of this court in respect of the public function and public duty performed by them. “
The court on the liability of each of the Respondent’s held thus,
“69. As per respondent no. 1‟s own circular, as quoted above, no official except the concerned DCP or the Joint C.P. Ranges/CAW Cell could have briefed the press about the incident complained of. With no such briefing having been referred to, or having been brought to the notice of this court by respondent no. 1 herein, I cannot but reject the submission of respondent no.1 and, accordingly, hold them liable for the disclosure of the FIR. Such conduct of the officials of respondent no. 1 herein is nothing short of gross negligence and dereliction of duty which has, consequently, resulted in breach of the very basic right of privacy and confidentiality of the petitioner’s daughter.”
“72. Respondent no. 2 published an article in relation to the incident complained of by the petitioner’s daughter, which came to be registered by respondent no. 1. In the said article, respondent no. 2 has revealed the age, the district in which she resides and the class in which she studies. Apart from this, the article also mentions- the particulars of the incident reported and registered by the respondent no. 1 both in quotes and also otherwise; and the figures of the incidents of police cases in the year 2004, wherein the rapist was a relative of the victim.
73. A perusal of the aforesaid article shows that particulars which would identify the victim of alleged child sexual abuse, have not been disclosed. Mere reference to the age, academic standard and residential district of the victim cannot be considered as revealing her identity. These particulars are too general for anyone to identify the petitioner or her daughter as the locality is very large and there could be hundreds of children in the locality who could meet the description given by respondent no.2. The particulars pertaining to the complaint made by the petitioner’s daughter, which have been referred to in the said article, are not such which could lead to the inference of the possibility of the identity of the victim being revealed. The same only cites the instances of alleged sexual advances/abuse by the father of complainant victim, without any further particulars which could lead to the identification of the victim. I also find merit in the submissions of Mr.Bhambani that respondent no.2 has exercised discretion and restraint in lifting the details and particulars from the FIR lodged by the petitioner’s daughter. The article also displays a journalistic trait in as much, as, it raises the issue of prevalence of such crimes in the society. The focus of the article is not the particular incident of the petitioner’s daughter, but the occurrence of such crimes in our society.
78. The submission of respondent no. 3 – that the telecast only mentioned that a complaint had been filed by the child to the police; that respondent no.3 took all precautions of not disclosing the address or block where the petitioner resided; that the office address of the petitioner’s husband was not disclosed, and; that the telecast did not contain any information pertaining to the petitioner which could directly establish her identity – appear to be in teeth of the material on record, which is self-explanatory.
79. A perusal of the video recording of the said telecast along with its transcript reveals blatant violation and disregard of the petitioner’s daughter’s right to privacy and confidentiality as also the duty of respondent no. 3 herein to maintain utmost secrecy and confidentiality in the matter of the identity of the victim of alleged child sexual abuse. The said telecast discloses: the name of the accused father & his place of work along with his designation – which would not only identify him but also the victim as it is disclosed that the victim is his own daughter; the age of the victim; visual shots of the display board of the colony containing particulars regarding the Sector and Pocket, wherein the petitioner resides with her daughter; visual shots of the staircase leading to the house along with the side shot of the doorstep of the house and; the voice of the petitioner. Revelation of particulars of such nature and to such an extent, are patently sufficient for the disclosure of the identity of the petitioner’s daughter in the petitioner’s community and society. The fact that the petitioner and her daughter came to be identified by their acquaintances and neighbours is also indicated by the fact that they had to leave their home and go into hiding and have been located by their counsel only recently Respondent no. 3 by its conduct, has acted in utter disregard and disrespect of the right of the victim of sexual abuse to privacy, recognised not only as inherent to the fundamental right to life under Article 21 of the Constitution, but also enumerated in the norms of journalistic conduct by which respondent no. 3 is governed.”
The Court gave the following specific directions:
(i) The Commissioner of Police shall immediately set up an inquiry into the disclosure of the FIR and its details by the representatives of respondent no.1 to the other respondents herein. The inquiry shall be headed by an officer not below the rank of a DCP, who shall not be from the same District with which this case pertains and who should not have had any connection or dealing with the FIR in question in the past. While conducting the inquiry, due care shall be taken to maintain secrecy of the identity of the petitioner and her daughter. The inquiry shall be conducted within four months from now.
(ii) Respondent no. 1 to 3 are restrained from passing on, in any form whatsoever, information pertaining to the said incident which could possibly lead to the further identification of the petitioner’s daughter herein.
(iii) Respondent no. 1 and 3, are directed to pay to the petitioner’s daughter compensation of Rs.6,00,000/- (Rupees Six Lakhs), out of which Rs.1,00,000/- (Rupees One Lakh) shall be paid by Respondent No. 1 and Rs.5,00,000/- (Rupees Five Lakhs) shall be paid by Respondent No. 3. The same shall be deposited within four weeks from today with the Registrar General of this Court, who shall thereafter release the same to the petitioner’s daughter, in her name.
The petitioner and her daughter shall be entitled to claim further damages from the persons/entities concerned, if they are so advised, by approaching the Civil Court concerned. The fact that this Court has computed the damages as above shall not prejudice the further claim that the petitioner or her daughter may have. However, the damages awarded by this Court shall be taken into account by the Civil Court while awarding damages, if any.
(iv) Respondent nos. 1 and 3 shall pay Rs.25,000/- (Rupees Twenty Five Thousand), as litigation costs each in favour of the petitioner herein.
(v) The Registry is directed to preserve the record of the case in a sealed cover. If anyone, other than the parties to the case seek inspection or copies of any part of the record (excluding the judgment), the same shall be provided only after satisfying the identity of the applicant and the purpose for which the same is sought.”