Khushwant Singh And Anr.

vs Maneka Gandhi on 18 September, 2001

Equivalent citations: AIR 2002 Delhi 58
Author: S K Kaul
Bench: D Gupta, S K Kaul

ORDER Sanjay Kishan Kaul, J.

1. "He that publishes a book runs a very great hazard, since nothing can be more impossible
than to compose one that may secure that approbation of every reader" - rightly observed
Miguel De Cervantes.

2. Two competing interests of a well-known author to publish his autobiography where

references have been made to personal lives of a public figure and the public figure's claim
for protection against such publication under her rights of privacy has given rise to interesting
questions of law in the present appeal.

3. Mr. Khushwant Singh, appellant No.1 is a well-known author. He was desirous of

publishing his autobiography and the same was proposed to be published in a book titled
"Truth, Love and a Little Malice". The book was to be published and distributed by appellant
No.2. The book is stated to contain a chapter under heading "Gandhis and Anands".
Respondent, a public figure, is aggrieved by the contents of this chapter. The broad contents
of this chapter are claimed to be known to the respondent in view of certain advance
promotion/publication in magazines in respect of this autobiography though the full contents
are not known. "India Today" magazine, in its issue of October 31, 1995, published an
authorised and exclusive extract of they said autobiography. The said extracts purported to
give an account of respondent's relationship with the Gandhi family and relationship inter se
other members of the family.

4. Respondent filed a suit for injunction and damages against the appellants in their capacity
as the author, publisher and the distributor respectively. In the plaint the respondent stated
that she is the widow of late Mr. Sanjay Gandhi and daughter-in-law of late Mrs. Indira
Gandhi, former Prime Minister of India. The respondent claimed that she was filing the suit
in order to protect the fair name and respect of her family. It was also stated in the plaint that
appellant no.1 is a well-known and widely read journalist and has authored several books.
Respondent no.1 has been Editor in several newspapers and magazines and it was further
stated that appellant no.1 herein had allegedly written his autobiography and intended to
publish it under the titled 'Truth, Love and a Little Malice'.

6. Respondent in the plaint stated that she was aggrieved by the recital in the said
autobiography by appellant no.1 relating to the family of the respondent, imputed actions and
planted words and sentences to the members of the respondents family and stated that
derogatory comments about the appellant and other members of the family were made in the
said autobiography as was borne from the article published in India Today.

7. In para 5 of the plaint respondent has quoted certain extracts reported in India Today,
which are stated to be part of the autobiography of appellant no.1, as derogatory and
defamatory besides being incorrect material. It would be relevant to reproduce the said
portions stated in the plaint by which the respondent is aggrieved.
8. 5. The defendant No.1, besides other incorrect, derogatory and defamatory words in the
said extract, has written about the plaintiff as under:-

i) "All this is significant as later Mrs. Gandhi maintained that Maneka did not fit into her
family because she was not of the same class as the Nehru-Gandhis and did not behave in a
manner becoming an Indian Woman."

ii) "She told me that Maneka had been rude to people who came to condole with them."

iii) "She was told that she was a distraction and had no table manners"

iv) "....Everyone hates you you murdered your father...your mother is a bitch."

v) "Mrs. Gandhi also accused Maneka of having accepted a bribe of one and a half lack for
getting someone called Khosla a contract for shipping slabs of marble from Rajasthan."

vi) "Maneka decided that this time she would determine the terms and time of her departure.
She told me several weeks ahead of the exact day on which she would be "thrown out"

vii) "Maneka and 'her mother' made full use of the opportunity to remove whatever
documents they needed from the house...."

viii) "You dirty little liar. You cheat, you... She screamed, wagging her finger at Maneka"

ix) "....there was wild speculation about that relationship between Maneka and Sanjay's friend
Akbar Ahmed (Dumpy)"

x) "I also described her as the biggest liar in the world barring two people, her mother and
mother in law."

9. It was further stated in para 6 of the plaint that the aforesaid quoted lines as well as entire
tenor of the said extract is such that it tends to hold the respondent up to hatred, contempt and
ridicule and lowers the reputation of the respondent as well as the family in the eyes of the
right thinking members of the society and injure her. It is further stated that such allegations
tend to injure the reputation of the respondent and diminish the esteem, respect, goodwill and
confidence in which the respondent is held. Such statements are stated to excite adverse,
derogatory and unpleasant feelings and opinions against the respondent causing anguish and
pain to her.

10. The respondent in paras 9 to 10 of the plaint invoked her right to privacy and claimed that
the right to privacy is implicit in the right to life and liberty guaranteed to a citizen of the
country by Article 21 of the Constitution of India. It was categorically stated that no one
could publish anything concerning the matters stated in the plaint without the consent of the
respondent-whether controversial or otherwise and whether laudatory or critical. It was
further averred that neither the respondent nor any other member of her family had ever given
a consent to the appellants to write and publish about her and her family.

11. A reference is also made by the respondent in her plaint to certain facts alleged by
respondent no.1 in respect of late Pandit Jawahar Lal Nehru by his late Secretary M.O.
Mathai in the book published by Mr. Mathai. It is further alleged in the plaint that the
publication of appellant is not based upon any public records nor does it relate to the acts or
conduct relevant to the discharge of any official duties.

12. The respondent prayed in the suit for a restraint order against the defendant form
publishing, circulating or selling the said autobiography or any extract pertaining to
respondent and her family, in any manner, as reproduced in the article in India Today and
further claimed damages against appellant no.1 for publishing the defamatory statements in
India Today. The claim for damages has been quantified at Rs. 5 lacs on which ad-valorem
court fee has been affixed but in para 12 of the plaint the respondent has stated that the court
may determine the final quantum of damages and the respondent would pay court fee of such
amount of damages as may be awarded by the court. Along with the plaint an application for
interim relief (IA NO. 12567/95) under Order XXXIX Rules 1 and 2 read with section 151
CPC was also filed. The respondent was granted an ad-interim ex parte order by the learned
Single Judge on 16th December, 1995 against the publication of the autobiography. Appellant
no.1 filed an application (IA No. 646/96) for vacation of the order dated 16th December,
1995 under Order XXXIX Rule 4 read with section 151 CPC. Appellant no.2 also filed an
application (IA No.647/96) on the same terms supporting the case of appellant no.1. In the
said application appellant no.1 has denied that there are any defamatory or libellous
statements against the respondent. Appellant no.1 further owed up to the statement and
asserted them as correct and truthful. In para 2 of the application it is stated "the defendant
no.1 submits that what is stated in his autobiography relating to Maneka Gandhi is correct
and the truth of the statement will be justified at the trial." Thus appellant no.1 has stood up
to what he has stated in the autobiography. Appellant no.1 has further stated that he regarded
the respondent as a younger member of his family and from time to time advised her as such,
supported her and defended her against false accusations and unjust attacks. In fact it is stated
by appellant no.1 that he had complimented the respondent in laudatory terms on various
occasions. Appellant no.1 has referred to his association with the Magazine Surya when the
respondent was a journalist in-charge of the same.

13. Appellant no.1 in his application for vacation of stay further stated that the statements in
question are matter of public and historical interest and significance and have been made in
exercise of appellant no.1's fundamental right of freedom of speech and expression
guaranteed under Article 19(1)(a) of the Constitution of India. It is averred that the public has
a right to know and receive information about these matters and the attempt of the respondent
to suppress the publication and dissemination of true facts and information about her by
means of an injunction from the court would tantamount to pre-censorship which has been
held by the Supreme Court to be totally impermissible under our constitutional scheme. It is
further averred that criticism and comments upon the lives and actions of International and
National leaders and eminent public personalities is the life-breach of a free democracy and
no historical works or memoirs or autobiography would be possible if same were to be
suppressed and prevented from seeing the light of the day because the comments and
criticism are adverse and unfavorable. Appellant no.1 has stated in para 3 of his application
(IA No.646/96) in Suit No. 2899/95 as under:-

"Freedom of expression constitutes one of the essential foundations of a free democratic

society and guarantees not only dissemination of information and expression of ideas and
beliefs "that are favorably received or regarded as inoffensive or as a matter of indifference,
but also to those that offend shock or disturb the State or any sector of the population. Such
are the demands of that pluralism, tolerance and broad mindedness without which there is no
democratic society."
14. Appellant no.1 has further claimed that public interest outweighs any claim of the
respondent towards her reputation or rights of privacy and has contended that the right of
privacy, under Article 21 of the Constitution of India, is enforceable qua the State and not
against private individuals. It is further averred that the statements in question are matters of
public knowledge and have been in public domain for several years. Another material aspect
which is averred by appellant no.1 is that act that the matters by which the respondent is now
aggrieved were published in April, 1992 issue of India Today which had wide circulation. No
only this the subject matter has also been discussed in Mrs. Pupul Jaykar's book "Indira
Gandhi' and the book 'Rajiv Gandhi' by Mr. Ved Mehta. It is stated that at no stage had the
respondent raised any objections or initiated any proceedings when such publications were
brought out and by her silence had acquiesced and accepted the same. It is further stated that
the respondent had never made any grievance about the extracts of the autobiography
published in India today on 31st October, 1995 nor did she speak to appellant no.1 about the
same. Though only averment has been made about certain statements of Mathai in relation to
late Pandit jawahar Lal Nehru and late Smt. Indira Gandhi, appellant no.1 contends that he
had not only not endorsed the statements but had even denounced Mathai for making such
statements. This is stated to have been done in his column in Hindustan Times in the
following terms:

"It was after Mathai had been stripped of the Nehru feathers that he revealed his truly mean
nature and dishonoured the confidence that the Nehru family had reposed in him. Nehru,
being a generous man, was willing to forgive and take him back. When this was suggested to
Mathai he snarled: "Only a dog returns to his vomit."

For eighteen years after his dismissal Mathai chewed the cud of bitterness. After Nehru was
dead and Indira Gandhi out of power, Mathai felt safe enough to spew out venom against the
family whose salt he had eaten."

15. The application of respondent no.2 is on similar terms. Further the extracts of earlier
publication in respect of the subject matter in India Today, Mrs. Pupul Jaykar's and Mr. Ved
Mehta's books was brought on record to substantiate the allegations made in the application
for vacation of ex parte order of injunction.

16. The learned Single Judge after hearing learned counsel for the parties allowed the
application of the respondent and dismissed the applications of the appellants and thus
confirmed the ex parte ad-interim injunction order already granted in terms of the impugned
order dated 29th April, 1997.

17. The learned Single Judge was of the view that freedom of speech would not give an
unbridled license to a citizen of India to write about private lives of others. The learned
Single Judge further records that the facts that the subject matter was earlier written by other
persons, would not give right to appellant no.1 to write about the same. Learned Single Judge
observed:

"Generally, people would expect from great writers like the first defendant, high thinking,
higher living and high learning. The law in India does not permit scrawly writings by
individuals just for the purpose of satisfying their impulses arising out of personal
animosities."
18. The learned Single Judge by the impugned order proceeded to pass an injunction order
restraining the appellants from publishing, circulating or selling the autobiography "Truth
Love and a Little Malice" or any extract pertaining to the respondent and her family in the
manner as reproduced in the issue of October 31, 1995 of India Today magazine.

19. The appellants aggrieved by the said order have preferred the present appeal.

20. We have heard Mr. C A Sundaram, learned senior counsel for the appellant and Mr. Raj
Panjwani, learned counsel for respondent at length and have perused the records of the case.

21. Mr. Sundaram, learned senior counsel for the appellant, has contended before us that
there cannot be a pre-publication injunction as the book has not even been published. Mr.
Sundaram has forcefully contended that appellant no.1 has categorically affirmed and has
stood by what he has written by making such an averment in his application for vacation of
injunction. In such a situation, Mr. Sundaram contends, that there could have been no action
at all for any injunction and the relief, if any, is by way of damages. Mr. Sundaram has drawn
our attention to the relief claimed in the pliant where damages have in fact been claimed. He
has further contended that there is no defamation if the statements are analysed as set out in
the plaint and in any case once appellant nol.1 stands by the same truth would be available as
a defense to defamation.

22. Mr. Sundaram, learned senior counsel for the appellant further submitted that the
statements of which the respondent is aggrieved are primarily in nature of public domain as
they have been published or commented upon earlier on numerous occasions including by the
India Today, Pupul Jaykar's book and in Ved Mehta's book. Not only this the respondent is
stated to be instrumental in some of the comments which have arisen at the behest of the
respondent at the relevant stage of time. There is further no allegation of malice in the plaint.

23. Mr. Sundaram further referred to the earlier publications in respect of the same subject
matter by producing a chart giving a comparison of the passage complained of, the reference,
if any, in India Today of April 15, 1982, India Today of April 30, 1982, Pupul Jaykar's book
and Ved Mehta's book. Mr. Sundaram further referred to the press statements of the
respondent herself and her inviting media's attention to the same subject matter by reference
to the prior publications as aforesaid. It would thus be useful to reproduce this chart as the
same has found basis of comparison both on behalf of the appellant and subsequently by
learned counsel for the respondent.

REFERENCES TO REPORTS ALREADY IN THE PUBLIC DOMAIN PRIOR TO THE

IMPUGNED WRITINGS

PASSAGE COMPLA- INDIA TODAY INDIA TODAY PUPUL JAY- VED

MEHTA'S
NED OF Apr. 15, 1982 Apr. 30, 1982 KAR's BOOK BOOK

(1) "All this is Reference to Reference to -Ref to Mrs. Ref. No.

"Deff-
significant as "different "different Gandhi's erence in
later Mrs. Gandhi background" background" letter to character
maintained that at page 91 at page 100 Maneka personality"
Maneka Gandhi did (col.1 para1) Col. 3 para 2 making an page 120,
not fit into her -Reference to "unfortunate Col.2 para 2
family because she Maneka being reference to Ref to ordi-
was not of the same "cut to size" difference nary pass-
class as the Nehru- & being in background" port like
Gandhis and did "thrown out" Pg.117, Col.2 that of the
not behave in a at Pg.105, -Ref to ayah-Pg.121
manner becoming para 1 maneka's Col.1 para-
an Indian women -Reference to letter to Mrs. graph) also
shabby treat- Gandhi at Pg. -Ref to
ment by Mrs. 118 Col.1 "different
Gandhi to "called my family back-
Maneka made family names" ground" at
by M.V. Kamath Pg.125,
in the India Co.1 para 1
Express(Pg 107
Col.1 last
para)
(ii) "She told me Reference to Ref to Mrs. Ref to
"Vibe
that Maneka had "rude manner" Gandhi's abuse"
been rude to people at Pg.104 letter to pg 125
col.2
who came to condole Col.3 para 1 Maneka
with them. accusing her
of rudeness
at Pg 117
Col.2 para 2

(iii) "She was told Ref to "I

was
that she was a dis- told not
to
traction and had no eat at the
table manners" family
Dining
table
Pg.126
Col.1 para
1

(iv) "Everyone hates Reference Ref to Maneka's Ref. to

you-you murdered to viru- letter-insulted Maneka's
your father.. Your lent Ex- me/abused me in "dear
your mother is a changes public" at pg Mummy"
bitch." between 118 col 1 Ref letter at
Mrs. Gandhi to "a particular- pg.124,
Maneka & larly unseemly Col1
Maneka's episode reported which
sister at to have taken was publi-
pg.104 Col2 place between shed in
Col.Ist para Maneka's sis- the Indian
also at ter, Ambika & Express:
Col.3, para 1 Indira Gandhi 31.3.82
at Pg.118 Co. Ref. to
1 para 2. "Vile
abuse at
pg 125 col
para 2

(v) Mrs. Gandhi also

accused Maneka of
having accepted a
bribe of one a half
lakh for getting
someone called
Khosla a contract
for shipping slabs
of marbles from
Rajasthan."

(vi) "Maneka deci- Ref to "look- Ref to: -Ref to: "She -Ref
to
ded that this time ing pallied "as one of heard, she "Mrs.
Gandhi
she would determine but composed the two said that same
preemptori-
the terms & time maneka chief talk had started ly told
her
of her departure claimed that antagonists of Maneka leav- that she
she told me she had been herself put ing the house" quite the
several weeks told to get it two Days at Pg.112,Col.1 house imm-
ahead of the out by Mrs. after her para 4.-Ref to: diately"
at
exact day on Gandhi" & dramatic "If she wanted pg 119,
Col
which she would "She had departure to leave the 2 para 1-
be thrown out been given from 1 house it was Ref to if
her "marching Safdarjung for her to she atten-
Orders" at Road." at decide." Pg.115 ded it the
page 90, Col 3 Pg.100 Col Col.1 p.1 doors to
3 para 1 the prime
Ref to: "The -Ref to "Maneka ministers
real signi- Gandhi"s pre- house
would
ficance lies parations to be forever
in its timing" leave the House" closed to
Pg.91, Col.1, at pg.117 Co. her at pg.
Para3). 1 para 5 -Ref 123, Col1
to Maneka's para 2-Ref
"dear Mummy" to "Mrs.
letter at pg Gandhi
118 ordered
-Ref to "My Maneka to
mother-in-law quite the
gave me the PM's
house"
marching orders" at pg.123,
at pg 101, Col.1 Col 2 last
para 1. -Ref to para. -
Also
Opinion Poll at pg 124,
Col2"
pg 105 -Ref to para 2.
"the day she was
thrown out" at Pg
104, Col.2 para 1
& col. 3 para 3
(last line)

(vii) "Maneka and her mother

made full use of the
opportunity to remove
whatever documents
they needed from the
house".

(viii) "You dirty little Ref to "insulted" Ref to

liar. You cheat. You... & "abused" at pg Maneka's
She screamed, wagging 118, Maneka's "dear"
Her finger a Maneka letter. Ref to Mummy"
"a particularly letter at
un-seemly episode pg 124,
was reported to Col.1
have taken place
between Maneka's
sister, Ambika,
and Indira Gandhi"
at Pg. 118 para 1

(ix) "..There was a wild Pg.122,

speculation about the Col.2
relationship between
Maneka and Sanjay's friend
Akbar Ahmed (Dumpy)

(x) "A also described her as

the biggest liar in the world
barring two people, her
mother & mother-in-law.

24. It is thus the contention of the learned senior counsel for the appellant that other than the
statement at Serial No. (v), (xi) and (x) all other extracts have been reported in the press more
or less in the same terms. He further submitted that a reading of the passages complained of
by the respondent would show that they can hardly fall within the category of defamation.
Insofar as the three matters which were not previously reported, the counsel for the appellant
stated that appellant no.1 stood by them. Further the reference in (ix) is itself stated by the
appellant no.1 as a wild speculation.

25. The learned senior counsel also submitted that the respondent herself had been issuing
press statements and inviting media when it suited her. The respondent is a public figure and
it was contended that such public figures are subject to public gaze including in respect of
their private lives at times. This, it was contended, was to be adjudged in view of the
publicity which was sought by the respondent herself from time to time. In view of this it was
contended that the respondent having herself sought the publicity she could not complain
about the same. It was further contended that persons in public life often are in public gaze
and have to have a thick skin when they are exposed to comments and criticisms including in
respect of their private life. Public persons, thus, were contended to be different from a
private citizen and the rules and law of privacy, the protection of which would be available to
private citizen would not be the same for public figures who cannot brush their private life
under the carpet. In any case, it was contended, that appellant no.1 was standing by the
statements and was thus willing to get his statements decided in the courts of law and suffer
the consequences, if any, of the same. The details of the statements attributed to the
respondent were all separately submitted before us based on the records.
26. The learned counsel for the appellant then proceeded to substantiate his submissions by
referring to the case law and commentaries dealing with the matter in issue. The first case
referred by the learned senior counsel for the appellant was the judgment of the Supreme
Court in the case of Auto Shankar reported as R Rajgopal & Anr vs. State of T.N. & others .
The said case dealt with the rights of privacy of the citizens of this country and the
parameters of the right of press to criticise and comment on acts and conduct of public
officials. The case related to the alleged autobiography of Auto Shankar, who was convicted
and sentenced to death for 6 murders. The issue arose because in the alleged autobiography
Auto Shankar had commented on the conduct and relationship with various police officials. It
was the stand of the police officials hat the autobiography was not a true one and was not
authored by Auto Shankar. It may be stated that Auto Shankar or his wife were not made
parties to the petition filed in the Supreme Court under Article 32 of the Constitution of India.
The right of privacy was explained by the Supreme Court in para 9 of the judgment in the
following terms.

"The right to privacy as an independent and distinctive concept originated in the filed of tort
law, under which a new cause of action for damages resulting form unlawful invasion of
privacy was recognised. This right has two aspects which are but two faces of the same coin -
(1) the general law of privacy which affords as tort action for damages resulting from an
unlawful invasion of privacy and (2) the constitutional recognisation given to the right to
privacy which protects personal privacy against unlawful governmental invasion. The first
aspect of this right must be said to have been violated where, for example, a person's name or
likeness is used, without his consent, for advertising- or non-advertising- purposes or for that
matter, his life story is written- whether laudatory or otherwise- and published without his
consent as explained hereinafter. In recent times, however, this right has acquired a
constitutional status. We shall proceed to explain how? Right to privacy is not enumerated as
a fundamental right in our Constitution but has been inferred from Article 21."

(emphasis supplied)

27. The Supreme Court thereafter proceeded to refer to various decisions of the India courts
starting with the first decision of the Supreme Court in Kharak Singh vs. State of U.P. & ors
which was subsequently elaborated in Gobind Vs. State of M.P. and another, . The right to
privacy as enunciated by the courts of United States and England were discussed in great
depth.

28. The Supreme Court was of the view that principles enunciated in the various judgments
were applicable to public figures as well as they often played an influential role in orderly
society and the citizens had a legitimate and substantial interest in the conduct of such
persons. Thus the Supreme Court was of the view that freedom of the press extends to
engaging in uninhibited debate about the involvement of public figures in public issues and
events. The Supreme Court felt that a proper balancing of the freedom of press as well as the
rights or privacy and defamation had to be done in terms of the democratic way of life laid by
our constitution. The Supreme Court concluded that the State or its officials have no authority
in law to impose a prior restraint upon publication of material defamatory of the State or of
the officials. The Supreme Court quoted with approval the observations in New York Times
vs. United States (1971) 403 US 713, popularly known as the Pentagon papers case to the
effect that "any system of prior restraints of (freedom of) expression comes to this court
bearing a heavy presumption against its constitutional validity" and that in such cases, the
Government "carriers a heavy burden of showing justification for the imposition of such a
restraint". The Supreme Court thus held that the remedy of the public officials/public figure
would arise only after the publication and would be governed by the principles indicated in
the judgment and there was no law under which they could prevent the publishing of a
material on the ground of such material being likely to be defamatory to them. The remedy
was only after publication. In para 26 of the report in R. Rajgopal's case (supra) the broad
principles were summarised by the Supreme Court as under:-

(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of
this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child-bearing and
education among other matters. None can publish anything concerning the above matters
without his consent-whether truthful or otherwise and whether laudatory or critical. If he does
so, he would be violating the right to privacy of the person concerned and would be liable in
an action for damages. Position may, however, be different, if a person voluntarily thrusts
himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception, that any publication concerning the
aforesaid aspects becomes unobjectionable if such publication is based upon public records
including court records. This is for the reason that once a matter becomes a matter of public
record, the right to privacy no longer subsists and it becomes a legitimate subject for
comment by press and media among others. We are, however, of the opinion that in the
interest of decency (Article 19(2) an exception must be carved out to this rule, viz., a female
who is the victim of sexual assault, kidnap, abduction or a like offence should not further be
subject to the indignity of her name and the incident being published 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 of media) to prove that he acted
after a reasonable verification of the facts; it is not necessary for him to prove that what he
has written is true. Of course, where the publication is proved to be false and actuated by
malice or personal animosity, the defendant would have no defense and would be liable for
damages. it is equally obvious that in matters not relevant to the discharge of his duties, the
public official enjoys the same protection as any other citizen, as explained in (1) and (2)
above. It needs no reiteration that judiciary, which is protected by the power to punish for
contempt of court and Parliament and legislatures protected as their privileges are by Articles
105 and 104 respectively of the Constitution of India, represent exceptions to this rule.

(4) So far as the Government, local authority and other organs and institutions exercising
governmental power are concerned, they cannot maintain a suit for damages for defaming
them.

(5) Rules 3 and 4 do not, however, mean that Official Secrets At, 1923, or any similar
enactment or provision having the force of law does not bind the press or media.

(6) There is no law empowering the State or its officials to prohibit, or to impose a prior
restraint upon the press/media.
(emphasis supplied)

29. Mr. Sundaram, learned senior counsel for the appellant referred to the judgment of Kartar
Singh and Ors. Vs. State of Punjab to advance his submission that persons who fill a public
position must not be too thin skinned in reference to comments made upon them. The learned
senior counsel sought to draw strength from the observations of Bhagwati, J.(as he then was)
in the said judgment in para 12 which is as under:-

"Those slogans were certainly defamatory of the Transport Minister and the Chief Minister of
the Punjab Government but the redress of that grievance was personal to these individuals
and the State authorities could not take the cudgels on their behalf by having recourse to
section 9 of the Act unless and until the defamation to the security of the State or the
maintenance of public order.

So far as these individuals were concerned, they did not take any notice of these vulgar
abuses and appeared to have considered the whole thing as beneath their notice. Their
conduct in this behalf was consistent with the best traditions of democracy. "Those who fill a
public position must not be too thin skinned in reference to comments made upon them. It
would often happen that observations would be made upon public men which they know
from the bottom of their hearts were undeserved and unjust; yet they must bear with them and
submit to be misunderstood for a time". (Per Cockburn C.J. in 'Seymour v. Butterworth'
(1862) 3 F&F 372(376, 377(a) and see the dicta of the Judges in R. v. Sir Carden (1879)
5QBD).

(B) "Whoever fills a public position renders himself open thereto. He must accept appendage
to his office "(Per Bramwell B., in Kelly v. Sherlock (1866) 1 Q.B. 686(689).

(C) Public men in such positions may as well think it worth their while to ignore such vulgar
criticisms and abuses hurled against them rather than give an importance to the same by
prosecuting the persons responsible for the same.

30. The learned senior counsel for the appellant referred to the judgment of Bombay High
Court in Indian Express Newspapers (Bombay) Pvt. Limited & Another vs. Dr. Jagmohan
Mundhara & another to advance his submission that it is a well settled principle of law that
although the court is satisfied that the words complained of are prima facie libellous and
untrue, it will refuse interlocutory injunction where the plaintiff has been dilatory in making
his application or has by his conduct disentitled himself to such relief e.g., has expressly or
impliedly encouraged, acquiesced in or assented to the publication of which he complains.
Mr. Sundaram, thus contended that the subject matter had been previously commented upon
in publications and in fact the respondent had encouraged the media to comment on her
disputes with late Smt. Indira Gandhi at the relevant stage and thus could not object to
appellant no. 1 now writing about the same.

31. Mr. Sundaram, learned senior counsel for the appellant also referred to a Single Bench
judgment of this court in Sardar Charanjit Singh vs. Arun Purie & others to contend that once
appellant no. 1 stood by his statements, there could not be any interlocutory relief granted
against publication as held in the said judgment. The observation in the said judgment were
made in respect of the proposition that the court would not restrain defamatory when the
defendants said that they are intending to plead justification or fair comments. The learned
Single Judge of this court referred to the commentary of Gatley on Libel and Slander, 8th
Edition para 884 page 387 as under:-

"Those who fill public positions must not be too thin-skined in reference to comments made
upon them."

"One who undertakes to fill a public office offered himself to public attack and criticism; and
it is now admitted and recognised that the public interest requires that a man's public conduct
shall be open to the most searching criticism."

32. The next decision cited at the bar was of Silkin v. Beaverbrook Newspapers Ltd. and
another (1958) 2 All ER 516, of the Queens Bench Division. The following observations of
Diplock J were relied upon by the learned senior counsel which are at page 518 of the report
as under:-

"I have been referring, and counsel in their speeches to you have been referring, to fair
comment, because that is the technical name which is given to this defense, or, as I should
prefer to say, which is given to the right of every citizen to comment on matters of public
interest. The expression "fair comment" is a little misleading. It may give the impression that
you, the jury, have to decide whether you agree with the comment, whether you think that it
is fair. If that were the question which you had to decide, you realise that the limits of
freedom which the law allows would be greatly curtailed. People are entitled to hold and to
express freely on matters of public interest strong views, views which some of you, or indeed
all of you, may think are exaggerated, obstinate, or prejudiced, provided- and this is the
important thing-they are views which they honestly hold. The basis of our public life is that
the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man
or woman who sits on a jury, and it would be a sad day for freedom of speech in this country
if a jury were to apply the test of whether it agrees with the comment instead of applying the
true test: was this an opinion, however exaggerated, obstinate or prejudiced, which was
honestly held by the writer?"

33. Reference was made by learned senior counsel for the appellant to the judgment of Court
of Appeal in Fraser vs. Evans & others (1969) 1 All ER 8 to advance his submissions that an
injunction should not be granted where a defendant is pleading fair justification and fair
comments. The said case bears some similarity to the case in hand before us because in that
case two journalists from newspaper had interviewed the plaintiff and the plaintiff was
apprehensive about the matter to be published in the next issue. The similarity is in respect of
the fact that what is to be finally published was not fully known. Lord Denning expressed as
under:

"The Sunday Times have told us quite frankly that the article will be defamatory of the
plaintiff. They propose to print extracts from the report, to give some of the answers that he
made at the interview, and to say what they think of them. In other words, to comment on
what he has written and said.: But they say that, although it will be defamatory of him,
nevertheless, if he should sue them for libel, their defense will be that the facts are true that
the comments which they make on those facts will be fair comment made honestly on a
matter of public interest. If the facts are not true, they say that the plaintiff cannot complain
because they are only giving the facts as he told them. One of the principal difficulties in
dealing with this case is that we do not know what the article when published will contain.
We do not know what the extracts will be. We do not know what facts will be stated or what
comments will be made. Despite this ignorance, we have to deal with the case as best we can.
I will take the various points in order.

First, Libel. Insofar as the article will be defamatory of the plaintiff, it is clear he cannot get
an injunction. The court will not restrain the publication of an article, even though it is
defamatory, when the defendant says that he intends to justify it or to make fair comment on
a matter of public interest. That has been established for many years ever since Bonnard v.
Perryman (1). The reason sometimes given is that the defense of justification and fair
comment are for the jury, which is the constitutional tribunal, and not for a judge; but a better
reason is the importance in the public interest that the truth should out. As the court said in
that case (2):

"The right of free speech is one which it is for the public interest that individuals should
possess, and, indeed, that they should exercise without impediment, so long as no wrongful
act is done."

There is no wrong done if it is true, or if it is fair comment on a matter of public interest. The
court will not prejudice the issue by granting an injunction in advance of publication."

34. The learned counsel also referred to the observations of Lord Denning in Woodword and
others Vs. Hutchins and others (1977) 2 All ER 751. The judgment was referred for
advancing two propositions. Firstly the contention that where a plaintiff has himself sought
publicity there should not be any question of interlocutory injunction and secondly that
balance of convenience in such a situation is in favor of the publication leaving the plaintiff
to pursue the case for damages, if so advised. Lord Denning observed:

"So far as libel is concerned, the Daily Mirror and Mr Hutchins intimate that they are going
to plead justification. They are going to say that the words in the article are true in substance
and in fact. In these circumstances it is clear that no injunction would be granted to restrain
the publication. These courts rarely, if ever, grant an injunction when a defendant says he is
going to justify. The reason is because the interest of the public in knowing the truth
outweighs the interest of a plaintiff in maintaining his reputation."

"There is a parallel to be drawn with libel cases. Just as in libel, the courts do not grant an
interlocutory injunction to restrain publication of the truth or of fair comment. So also with
confidential information. If there is a legitimate ground for supposing that it is in the public
interest for it to be disclosed, the courts should not restrain it by an interlocutory injunction,
but should leave the complainant to his remedy in damages. Such that this case were tried out
and the plaintiffs failed in their claim for libel on the ground that all that was said was true. It
would seem unlikely that there would be much damages awarded for breach of
confidentiality. I cannot help feeling that the plaintiff's real complaint here is that the words
are defamatory; and as they cannot get an interlocutory injunction on that ground, nor should
they on confidential information.

Finally, there is the balance of convenience. At this late hour, when the paper is just about to
go to press, the balance of convenience requires that there should be no injunction. Any
remedy for Mr Tom Jones and his associates should be in damages and damages only."

35. The judgment of the Bonnard vs. Perryman (1891) 2 Ch. 269 was cited to advance the
submission that the subject matter of an action of defamation is so special as to require
exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of
an action to prevent an anticipated wrong.

36. The learned counsel also referred to Carter-Ruck on Libel & Slander, 4th Edition at page
178 to fortify his submission that the law relating to grant of interlocutory injunctions in
defamation actions is significantly different from that relating to injunctions in general. To
the same effect is the commentary on "defamation" by Colin Duncan QC & Brian Neill QC
1978 Edition at page 146 and 147 paras 19.0 to 19.03, 19.04 and 19.05. The authors have
referred to observations of various courts and propounded the general rule that an
interlocutory injunction will not be granted if there is any doubt as to whether the words are
defamatory or if the defendant swears that he will be able to justify the words complained of.
The learned counsel also drew strength from the commentary of Gatley on Libel and Slander,
8th Edition at pages 640 and 641 to the same effect.

37. In view of the aforesaid elaborate submissions and judgments cited at the bar Mr.
Sundaram, leaned senior counsel assailed the judgment of the learned senior counsel assailed
the judgment of the learned Single Judge and submitted that the same was contrary to the
settled position in law. It was contended that the observation of the learned Single Judge that
prior publication of the same material would not be a factor to be considered was not the
correct view in law. Similarly, the observations of the learned Single Judge about the
expectations from an author like appellant no. 1 to have "high thinking and high learning"
was stated to be a moralistic view and not the legal view apart from the fact that the same was
not the correct approach to take in the facts and circumstances of the case. The fact that
appellant no. 1 was ready to face any consequences arising from the publication of the
autobiography was contended as sufficient grounds not to obstruct the publication at this
stage where considerable damage had already been caused to the appellant by non-
publication of the autobiography due to the time period having passed.

38. Mr. Raj Panjwani, learned counsel for the respondent, on the other hand made
submissions for sustaining the impugned order of the learned Single Judge and contended
that the reputation of an individual and his/her right to privacy are both protected and it was
apparent from the extracts of the proposed autobiography that such rights of the respondent
were sought to be violated by the appellants. In such a situation, Mr. Panjwani contended the
remedy was available both by way of damages and by way of injunction. Such injunction
could be either after publication or even before that on the basis of a threat of such
publication. It was also contended by learned counsel that an autobiography by its very nature
deals with a person and his life who is writing about the same and there was no reason in the
autobiography of appellant no. 1 for him to comment on the Gandhis or Anands and to have a
complete chapter on the same.

39. Mr. Panjwani submitted that there were two competing interests which had to be balanced
- right of the author to write and publish and right of an individual against invasion of privacy
and the threat of defamation. It was contended on behalf of the respondent that even though
appellant no. 1 was standing by what he had written, the truth and veracity of the same were
yet to be established. On the other hand, the right of the individual of privacy was far from
sacrosant.

40. Mr. Panjwani sought to support his arguments by referring to the judgment of R.
Rajagopal's case (supra) and referred to para 26(1) of the judgment to contend that the
Supreme Court itself had laid down certain parameters to safeguard the rights of a citizen.
Mr. Panjwani submitted that the Supreme Court had categorically stated that "none can
publish anything concerning the above matters without his consent - whether truthful or
otherwise and whether laudatory or critical." Mr. Panjawani thus contended that since
admittedly no consent of the respondent had been taken by appellant No. 1 to write about her
private life, this was a clear case of invasion of the privacy of the respondent and in such a
situation it is not necessary that one must wait for the publication and then claim damages,
but a preventive action can be taken so that the respondents right to privacy is not violated.

41. Mr. Panjwani, learned counsel for the respondent referred to the judgment of the Single
Judge of this court in Phoolan Devi vs. Shekar Kapur and others . It was contended that the
plaintiff in that case also contended that in the event of the portrayal of the plaintiff in scenes
where the plaintiff was being raped would offend her rights to privacy and R. Rajagopal's
case (supra) was relied upon to support the said proposition. On the other hand, defendant in
that matter had sought to argue that there was no right or privacy so far as public figures were
concerned and further the scenes were based on public records available in inumerable
number of press cuttings, press interviews etc. In examining the rival contentions the learned
Single Judge had framed the question as one to be decided was whether the defendants have a
right to show a woman being raped and gang-raped if the concerned woman was alive and
did not want this to be made public. The learned Single Judge held in favor of the plaintiff
and granted the injunction. The learned Single Judge in Phoolan Devi's case (supra) dealt
with the right of privacy in para 34 as under:-

"34. As a matter of fact, Edward Shils maintains that privacy is a zero-relationship between
two persons or two groups or between a group and a person. It is a "zero-relationship" in the
sense that it is constituted by the absence of interaction or communication or perception
within contexts in which such interaction, communication or perception is practicable such as
a family, a working group and ultimately a whole society. Privacy may be the privacy of a
single individual, it may be the privacy of two individuals, or it may be the privacy of three or
numerous individuals. But it is always the privacy of those persons, single or plural, vis-a-vis
other persons. (Edward Shils, Privacy: Its Constitution and Vicissitudes" 31 Law and
Contemporary Problems (1966) 282. It is implicit in the right to privacy as to what extent her
thoughts, sentiments, emotions shall be communicated to others in India. Explicit display,
graphic detail of being paraded nude, rape and gang rape does not only hurt the feelings,
mutilate the soul, denigrate the person but reduce the victim to a situation of emotional
abandonment which is very essence of personal freedom and dignity."

42. The learned Single Judge also examined the question of public records to reject the
contention of the counsel for the defendant and held that newspapers, periodicals, magazines
are not public records as contemplated by the Supreme Court in R. Rajagopal's case (supra).

43. The learned counsel for the respondent then referred to the judgment of Supreme Court in
S.M.D. Kiran Pasha vs. Government of Andhra Pradesh & ors. . The said case dealt with an
individuals right against alleged harassment at the hands of public authorities. Apprehending
certain orders from different authorities, the petitioner therein approached the court and it was
held that where a right of a person is threatened to be violated or its violation is imminent and
the affected person resorts to Article 226 of the Constitution of India the court can protect
observance of his right by restraining those who threaten to violate it. The protection of the
right was held to be distinguished from its restoration or remedy after violation. Mr. Panjwani
contended that this would be equally true where it was an inter se dispute between two
individuals and the ratio decidendi of this case would apply even to the case of respondent to
prevent any harm by the action of appellant No. 1 publishing the autobiography.

44. The learned counsel for the respondent then referred to the judgment in Unnikrishnan J P
& Ors vs. State of Andhra Pradesh & Ors which was a case dealing with the running of
private unaided and aided educational institutions. It was contended that the rights envisaged
under Article 19 and 21 of the Constitution of India fully protect rights of the respondent
against invasion of her privacy and her right to live her life with dignity without being
defamed.

45. Mr. Panjwani also referred to Article 51A of the Constitution of India dealing with the
fundamental duties and relied upon sub-clause 'J' of Article 51A which states that it is the
duty of every citizen to strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher level of endeavor and achievement.
Though the fundamental duties cannot be enforced by writs, they can be used for interpreting
ambiguous statutes. Mr. Panjwani contended that the respondent has a duty towards
excellence and her duty cannot be prevented by conduct of the appellant by defaming her.
The learned counsel for the respondent then referred to the case of Shelfer vs. City of London
Electric Lighting Company 1895 (1) Ch. Division 287 to contend that in case of an actionable
nuisance the respondent is entitled to an injunction as a matter of course to prevent recurrence
of the violation of her rights by such actionable nuisance. Drawing strength from the said
judgment Mr. Panjwani contended that once her right of privacy is established, she was
entitled to injunction and submitted that "the court has always protested against the notion
that it ought to allow a wrong to continue simply because the wrongdoer is able and willing
to pay for injury he may inflict."

46. The learned counsel for the respondent then referred to judgment of King's Bench
Division in Chapman vs. Lord Ellesmere & Ors. 1932 (2) KB 431 and drew support form the
observation "If it were, the power of the press to libel public men with impunity would in the
absence of malice be almost unlimited."

47. Learned counsel for the respondent referred to a judgment of the Single Judge in Hari
Shankar vs. Kailash Narayan & Ors. to contend that an injunction cannot be refused on the
ground that repetition can be compensated by paying damages where false and defamatory
news is published in the newspaper. The Madhya Pradesh High Court was of the view that if
the reputation of a respectable citizen can be measured in terms of money then it would
amount to issue of a license against a citizen and asking him to take money as compensation
for injury. It was thus contended that the freedom of speech under Article 19(1) of the
Constitution of India cannot be taken to mean absolute freedom to say or write whatever a
person chooses recklessly and without regard to any persons honour and reputation. In this
behalf the judgment of Andhra Pradesh High Court in K.V. Ramaniah, Accused vs. Special
Public Prosecutor was referred to by the Madhya Pradesh High Court to hold that the right
guaranteed by the Constitution of India was to all citizens alike and such rights had
corresponding duties. The relevant para 5 and 6 are reproduced as under:-

"I may here refer to K.V. Ramaniah V Special Public Prosecutor in which the position of law
has been succinctly described. It is observed in that judgment as under:

"It is therefore impossible to accept the argument of the learned counsel for the revision
petitioners that freedom of speech in Art. 19(1) must be taken to mean absolute freedom to
say or write whatever a person chooses recklessly and without regard to any person's honour
and reputation. The right guaranteed by the Constitution, it must be borne in mind, is to all
the citizens alike. The right in one certainly has a corresponding duty to the other and judged
in that manner also the right guaranteed cannot but be a qualified one. Indeed the right has its
own natural limitation Reasonably limited alone, it is an inestimable privilege. Without such
limitations it is bound to be a scourge to the Republic.

The American Jurists and Judges as already discussed, have long understood the natural
limitations and the evils of absolute unabridged freedom of speech and expression. Though
the 1st and 14th amendments declare in clear terms that no law shall abridge the freedom of
speech or of the press, this right having regard to its natural limitations, has invariably been
construed to mean a qualified right and for this purpose the doctrines such as doctrine of
danger present and clear, or of substantial evil sufficient to justify impairment of the right,
have been invoked to place that right within limits. Our Constitution framers taking benefit of
the experience in America have in terms provided the necessary qualifications to this right.
Art. 19(2) in this behalf contains safeguards of reasonable restrictions on the exercise of the
right and it reads thus:

"19(2). Nothing in sub-clause (a) of clause (1) shall affect the operation of any exiting law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub-clause in the interests of 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."

The same matter is discussed on page 1028 in Row's Law of Injunction - Vol. 2 - 1976
edition, under the heading 'Newspapers' as under:

"Newspapers are subject to the same rule as other critics and have no special right or
privilege, and in spite of the latitude allowed to them, it does not mean that they have any
special right to make unfair comments or to make imputations upon or in respect of a person's
profession or calling. The range of a journalist's criticism or comment is as wide as and no
wider than that of any subject. Though it may be said to be true in one sense that newspapers
owe a duty to their readers to publish any and every item of news that may interest the, that is
not, however, such a duty as makes every communication in the paper relating to a matter of
public interest a privileged one. The defendant has to show that what he communicated was
relevant or pertinent to the privileged occasion."

48. Reference was made by learned counsel for the respondent to the judgment of the
Allahabad High Court reported as Raghunath Singh Parmar vs. Mukandi Lal to contend that
merely because there have been comments in the press on the same subject matter, though not
in the same language, it would not give a license to the appellants since if a person is guilty of
slander another persons repeating it cannot escape responsibility because he merely repeats
the slanderous statement made by another.

49. Mr. Panjwani then proceeded to deal with the plea of justification advanced on behalf of
the appellant to contend that the same would not be available to the appellant where the rights
of privacy of the respondent are violated. The learned counsel referred to the decision of the
Queen's Bench in Watkin vs. Hall 1868 (3) QB 396 to support the aforesaid contention that a
person repeating slander gives greater weight to it. It was contended that the observations in
the said judgment to the effect that "a great injury may accrue from the wrongful repetition as
from the first publication of slander; the first utterer may have been a person insane or of bad
character" would squarely apply to the facts of the present case and would repeal the
argument of the appellants that they were only commenting on the matter already discussed
in publication.

50. Mr. Panjwani referred to the judgment of learned Single Judge of Karnataka High Court
in Smt. Sonakka Gopalagowda Shanthaveri & Ors vs. U R Anantha Murthy & Ors to contend
that there could be restraint against republication of defamatory material.

51. Learned counsel for the respondent contended that the plea of justification would be
available where truth was pleaded and it was in public interest. In case of a public figure,
learned counsel for the respondent contended, it could apply to the performance of public
duties by the public figure but it cannot be a ground to go into the private lives of such public
figures. he sought to draw strength from the commentary of Dr. D D Basu on Law of Press,
3rd Edition at page 42 where matters which would constitute public interest were sought to
be defined as under:

(a) The exercise of governmental functions, statutory powers and duties.

(b) Any transaction which is carried on by a person or persons for the public benefit, as
distinguished from private profit, e.g. charitable institutions.

(c) Discharge of public functions, e.g. transport, hospital, health services or the official
conduct of a public official.

(d) Judicial proceedings, excepting those which the Court would be entitled to hear in camera
because they relate to private affairs or the countervailing public interests of decency,
morality or safety of the State, matters which require secrecy, e.g., trade secrets.

(e) Detection or investigation of crimes, so long as it does not come to Court, and does not
constitute an interference with the ordinary course of justice.

(f) Purity of food, drugs.

(g) Financial affairs of companies in which the public have interest."

52. In the said commentary it was further observed that in India constitution has avoided
speculation as to what grounds of restriction upon the freedom of press should be held in
public interest by enumerating those grounds in clause (2) of Article 19 and any extension of
those grounds can be legitimate only by way of interpreting constitutionally specified
grounds. Article 19(2) of the Constitution of India reads as under:

"19(2). Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law,
or prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub-clause in the interests of 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."

53. It was thus contended that decency or morality is specifically provided for in the said
Article and in fact morality was a much wider term than decency. Similarly defamation was
also provided for in the said Article and there could be no public interest in making
defamatory statements. Balance between the protection of personal information and the
competing right to free speech must be made. Such personal information, according to the
learned counsel for the respondent, would include those facts, communications or opinions
that relate to the individual and which are of such a nature that it would be reasonable to
accept and regard them as intimate or sensitive and, therefore, to want to withhold or at least
to restrict their collection, use or circulation. The learned counsel stated that words used in
the extract such as "amorous" have a very negative meaning and referred to the commentary
of Webster's New Dictionary and Thesaurus where "amorous" is defined "fond of making
love; Full of love; of sexual life". Similarly in the shorter Oxford English Dictionary, 3rd
Edition volume 1 "amorous" has been defined as "habitually inclined to love; and have or
pertaining to (sexual) life."

54. The learned counsel contended that right of privacy have been guaranteed under Article
21 of the Constitution of India and it imposed an obligation on the society and the press to
protect such rights and other than the exceptions provided for under Article 19(2) of the
Constitution of India, the rights to such privacy cannot be violated. In such a situation, it was
contended, that damages in lieu of injunction is not a remedy. it is only when grant of an
injunction would be oppressive a substitute of damages can be a valid substitute. Damages
would thus be only remedy if it was capable of being estimated in money which can be
adequately compensated by small amount of money and thus it was stated that no amount of
money can compensate in cases of repeated defamatory statements. It was contended that
such an injunction would arrest the mischief and protect the appellants from possibly
avoidable damages. It was thus contended that in such a situation even if justification was
pleaded, the same was not available as a defense when the rights of the plaintiff were based
on privacy. Justification was, as observed before, entitled only if it was a true, a fair comment
and was in public interest. The plea of prior publication was also sought to be repelled on the
basis that the same were not public documents within the meaning of section 74 of the
Evidence Act and one had to look to the Indian Constitution which was different from the
first amendment to the U.S. Constitution. (S Rangarajan vs. P Jagjivan Ram & Ors ).

55. Mr. Sundaram, learned counsel for the appellant in his rejoinder sought to repel the
contention of Mr. Panjwani in so far as the right of privacy was concerned as he contended
that the same was available only against the State and all the cases in that behalf were in
respect to the protection provided from action by the State. It was contended that justification
or claim of truth was an absolute defense and there was no right of privacy available to
individual in such a situation.

56. Mr. Sundaram further contended that even a reference to the case of S. Rajgopal's would
show that the Supreme Court had clearly stated that the position would be very different if a
person voluntarily thrusts himself into controversy or voluntarily invites or raises a
controversy. in this case, it was contended, the respondent herself had been responsible for
the publicity in the press at an earlier stage and it was not open for people to unveil the cloak
of privacy to later cloak themselves when it so suited them. Mr. Sundaram, learned senior
counsel for the appellant contended that Supreme Court in R Rajgopal's case (supra) had
observed that in case of violation of right of privacy the remedy is - "liable in action for
damages". The remedy would not be of preventive injunction which would amount to pre-
censorship. In support of his contention that the matters have been widely commented upon
Mr. Sundaram referred to the material placed by the appellant on record including India
Today's 30th April, 1982 edition where the results of opinion poll were reproduced and
almost 80% people were found to be aware of the problem relating to the disputes between
the respondent and her mother-in-law late Smt. Indira Gandhi. Mr. Sundaram also referred to Commented [C1]: Opinion poll!
But we have to undertand that at this time, it was a huge deal: New
the observations in the said magazine to the effect that "overnight the respondents had York Times had talked about it, the People had talked about it, and
converted Surya magazine into a broadsheet of the most outrageously scurrilous variety with obviously the Indian Press had talked about it too.
salacious exposure of Janata politicians jostling with loud public relations for the Gandhis. As
a scandal-buster of spurious effect, Surya despite its dwindling income, became synonymous
with Maneka's private brand of mud-raking. It exposed her aggressive hard-bitten capacity Commented [C2]: Maneka Gandhi was the editor of the
magazine. It was famous/infamous for already breaking India’s first
for survival in tough times-another characteristic picked up from her husband and mother-in- sex scandal, publishing photos of Deputy PM’s son (around 50) with
law's political re-silence. a 21 year old Delhi University student.in 1978, the magazine was
quite important for Congress after 1977 (post emergency) defeat.

57. It was contended that the respondent had herself got into a slanging match through
publications with late Smt. Indira Gandhi to put her point of view across. Thus the claim of
the respondent was false and at best subject to any civil action for damages.

58. Mr. Sundram contended that the criteria would be different for a normal individual and
public figures like the respondent and in this behalf drew strength from the observations of
the Supreme Court in para 18 of R. Rajgopala's case (supra) where it was observed that
public figures as a class have access to mass media communications both to influence the
policy and to counter-criticism of their views and activities and thus citizens have legitimate
and substantial interest in the conduct of such persons and that the freedom of press extends
to engaging in uninhibited debate about the involvement of public figures issues and events.
Not only this in para 29 of the same judgment it had bene held that "remedy of the affected
public officials/public figures, if any, is after the publication, as explained hereinabove."

59. The learned counsel referred to the judgment of the Supreme Court in S. Rangarajan's
case (supra) to contend that it was no simply a case of balancing of two interests as if they are
of equal weight. The freedom of speech and expression could not be suppressed unless the
situation created by allowing the freedom are pressing and the community interest is
endangered. It was thus contended that there could not be any such apprehension in the
present case. Such rights of freedom of speech were guaranteed under Article 19(1)(a) of the
Constitution of India. A specific reference was made to paras 41 to 45 of the said judgment
which are reproduced hereinunder:-

"41. "When men differ in opinion, both sides ought equally to have the advantage of being
heard by the public". (Benjamin Franklin). If one is allowed to say that policy of the
government is good, another is with equal freedom entitled to say that it is bad. If one is
allowed to support the governmental scheme, the other could as well say, that he will not
support it. The different views are allowed to be expressed by proponents and opponents not
because they are correct, or valid but because there is freedom in this country fro expressing
even differing views on any issue.

42. Alexander Meiklejohn perhaps the foremost American philosopher of freedom of

expression, in his wise little study neatly explains:

"When men govern themselves, it is they - and no one else - who must pass judgment upon
unwisdom and unfairness and danger. And that means that unwise ideas must have a hearing
as well as wise ones, unfair as well as fair, dangerous as well as safe, unAmerican as well...
American..... If then, on any occasion in the United States it is allowable, in that situation, to
say that the Constitution is a good document it is equally allowable, in that situation, to say
that the Constitution is a bad document. If a public building may be used in which to say, in
time of war, that the war is justified, then the same building may be used in which to say that
it is not justified. If it be publicly argued that conscription for armed service is moral and
necessary, it may likewise be publicly argued that it is immoral and unnecessary. If it may be
said that American political institution are superior to those of England or Russia or
Germany, it may with equal freedom, be said that those of England or Russia or Germany are
superior to ours. These conflicting views may be expressed, must be expressed, not because
they are valid, but because they are relevant...To be afraid of ideas, any idea, is to be unfit for
self-government."

He argued, if we may say so correctly, that the guarantees of freedom of speech and of the
press are measures adopted by the people as the ultimate rulers in order to retain control over
the government, the people's legislative and executive agents.

43. Brandies, J., in Whitney v. California propounded probably the most attractive free
speech theory:

.....That the greatest menace to freedom is an inert people; that public discussion is a political
duty;...It is hazardous to discourage thought, hope and imagination; that the path of safety lies
in the opportunity to discuss freely supposed grievances and proposed remedies; and that the
fitting remedy for evil counsels is good ones.

44. What Archibald Cox said in his article though on First Amendment is equally relevant
here:

"Some propositions seem true or false beyond rational debate. Some false and harmful,
political and religious doctrine gain wide public acceptance. Adolf Hitler's brutal theory of a
'master race' is sufficient example. We tolerate such foolish and sometime dangerous appeals
not because they may prove true but because freedom of speech is indivisible. The liberty
cannot be denied to some ideas and saved for others. The reason is plain enough: no man, no
committee, and surely no government, has the infinite wisdom and disinterestedness
accurately and unselfishly to separate what is true from what is debatable, and both from
what is false. To license one to impose his truth upon dissenters is to give the same license to
all others who have, but fear to lose, power. The judgment that the risks of suppression are
greater than the harm done by bad ideas rests upon faith in the ultimate good sense and
decency of free people.

45. The problem of defining the area of freedom of expression when it appears to conflict
with the various social interests enumerated under Article 19(2) may briefly to touched upon
here. There does indeed have to be a compromise between the interest of freedom of
expression and special interests. But we cannot simply balance the two interests as if they are
of equal weight. Our commitment of freedom of expression demands that it cannot be
suppressed unless the situations created by allowing the freedom are pressing and the
community interest is endangered. The anticipated danger should not be remote, conjectural Commented [C3]: When there is a compromise, we should lean
towards freedom of speech and expression.
or far-fetched. It should have proximate and direct nexus with the expression. The expression
of thought should be intrinsically dangerous to the public interest. In other words, the
expression should be inseparably locked up with the action contemplated like the equivalent
of a "spark in a power keg".

60. Mr. Sundaram, learned counsel lastly contended that the concept of public interest in
deciding such an issue is not the concept of public interest in say a public interest petition.
The expression should be" of interest to public". A matter may not be of public interest but
may of interest to public and that would suffice. It was contended that there could be no
doubt about the fact that Gandhis were the first family of the country at that point of time and
everything which happened within or outside the household was of interest to public and thus
the appellant had a right to comment and write about the same. It was contended that insofar
as public figures and politicians are concerned their lives are day in and day out brought
under a microscope and commented upon. There cannot be the segregation of the private life
of such public figures from their public life as both are intertwined. It was thus contended
that by the very nature of being a public figure, such persons' life is entitled to be scrutinised
whether in respect of their public functions or their private life. It was thus contended that the
interim order granted by learned Single Judge was not sustainable in law as enunciated by
various courts including Supreme Court of India.

61. We have duly considered the elaborate submissions and the large number of decisions
cited at the bar by both the learned senior counsel for the appellant and learned counsel for
the respondent. The matter was required to be dealt with in depth as the development of law
of privacy is at a nascent stage and the decision of this case would have wider ramifications
for the claim of right of privacy by public figures as against the right of the press to publish
and write about such public figures.

62. We may also add here at this stage that a copy of the manuscript of the 12th chapter under
the heading "With the Gandhis and Anands" of the proposed autobiography was handed over
to us in sealed covers for our perusal and we had the benefit of going through the said
chapter.

63. It would be appropriate to first consider the portions which have been extracted by the
respondent in her plaint as derogatory and defamatory. It is not seriously disputed before us
on behalf of learned counsel for the respondent that as mentioned in the chart, other than the
three passages complained of, the others had already been commented upon and published in
previous magazines and books. We have considered the submissions of learned counsel for
the respondent that the language for expressing the subject matter gives a different
connotation than what was published earlier. We are unable to agree with the said submission
advanced on behalf of counsel for the respondent. The words may not be exact but the
concept the meaning sought to be conveyed are more or less same, if s comparison is made of
the passages complained of and the publications in India Today of April 15, 1982, April 30,
1982, Pupul Jaykar's and Ved Mehta's book. In so far other three passages are concerned the
author has owned up to the statements on the basis of either the information which he has or
as his own views and comments. The question thus to be considered is the effect of such prior
publications on the claim made by the respondent in respect of these publications. There is
force in the submissions of the learned counsel for the appellants that not only was there wide
publicity about these aspects in view of the same relating to the then first family of the nation
but the respondent possibly drew strength from the media to put forth her point of view
against what she claimed was the injustice meted out to her by her late mother-in-law. Thus
the controversy in question which is being commented upon did not really remain in the four
walls of the house but drew wide publicity and comments even to the extent of poll surveys
being carried out in respect of the controversy in question. No grievance was made at that
stage of time. It is not a case of prevention of repeated defamatory statements as is sought to
be made out be learned counsel for the respondent. The reliance placed by learned counsel for
the respondent on the judgment of the Madhya Pradesh High Court in Harishankar's case
(supra) and of the Andhra Pradesh High Court in K V Ramanaiah's case (supra) is thus
misplaced. The controversy in question related to the dispute between the respondent and her
late mother-in-law, the then Prime Minister Mrs. Indira Gandhi. The respondent did not make
grievance about the reporting of their disputes in the press. The nature of controversy was
more or less the same as is now sought to be published by appellant No.1 in his
autobiography and thus the respondent cannot make a grievance of the same matter now
being published so as to seek prevention of the publication itself. The silence of the
respondent and her not making a grievance against the prior publication prima facie amounts
to her acquiescence or at least lack of grievance in respect of publication of the material.
Needless to add that the remedy of damages against the appellant is still not precluded in so
far the respondent is concerned.

64. The right to publish and the freedom of press, as enshrined in Article 19(1)(a) of the
Constitution of India is sacrosanct. This right cannot be violated by an individual or the State.
The only parameters of restriction are provided in Article 19(2) of the Constitution of India.
The total matter of the book is yet to be published including the chapter in question. The
interim order granted by the learned Single Judge is a pre-publication injunction. The
contents of subject matter had been reported before and the author stands by the same. In
view of this we are of the considered view that the respondent cannot make a grievance so as
to prevent the publication itself when the remedy is available to her by way of damages. We
are not examining the statements attributed to appellant no.1 on the touchstone of defamation.
It would not be appropriate to do so for us at this stage but what we do observe is that the
statements are not of such a nature as to grant injunction even from publication of the
material when the appellants are willing to face the consequences in a trial in case the same
are held to be defamatory and the pleas of the appellants of truth are analysed by the trial
court.

65. It is no doubt true that the reporting of the matter in controversy in the prior publication
does not make them public documents as held by the learned Single Judge of this court in
Phoolan Devi's case (supra) . However, he question is not of the documents being public
documents but the subject matter being in the ambit of public domain in terms of there being
prior reporting of the matter is controversy and the comments on the same. It may be useful at
this stage to consider the judgment in Phoolan Devi's case(supra) rendered by learned Single
Judge of this court. On a careful reading of the judgment it is apparent that the matter in
question was peculiar as it related to the rights being claimed to show a woman being raped
and gangraped if the concerned woman was alive and did not want this to be made public. It
was in those circumstances that the order was passed though we may add that subsequently
on an apparent settlement the same was made public and the plaintiff therein was
compensated in terms of the mutual settlement. In fact the learned Single Judge specifically
dealt with this aspect and observed that the display and the graphic details of being paraded
nude, raped and gang raped does not only hurt the feelings, mutilate the soul, denigrate the
person but reduce the victim to a situation of emotional abandonment.

66. An important aspect to be examined is the claim of right of privacy advanced by the
learned counsel for the respondent to seek the preventive injunction. This aspect was
exhaustively dealt with in the case of Auto Shankar reported as R.Rajagopal's case (supra) .
The Supreme Court while considering these aspects clearly opined that there were two
aspects of the right of privacy. The first aspect was the general law of privacy which afforded
tortuous action for damages from unlawful invasion of privacy. In the present case we are not
concerned with the same as the suit for damages is yet to be tried. The second aspect, as per
the Supreme Court, was the constitutional recognition given to the right or privacy which
protects personal privacy against unlawful governmental action. This also is not the situation
in the present case as we are concerned with the inter se rights of the two citizens and not a
governmental action. It was in the context of the first aspect that the Supreme Court had
given the illustration of the life story written - whether laudatory or otherwise and published
without the consent of the person concerned. The learned counsel for the respondent Mr. Raj
Panjwani, sought to draw strength from this aspect i.e., the lack of consent of the respondent
to publish her life story in the autobiography written by appellant no.1. However, this will
give rise to tortuous action for damages as per the Supreme Court since this is the aspect
which is concerned with the first aspect dealt with by the Supreme Court in respect of the
invasion of privacy.

67. The Supreme Court while considering the right of privacy in the aforesaid judgment was
clearly of the view that the freedom of press extended to engaging any inhibited debate about
the involvement of public figures in public issues and comments. There is force in the
contention of Mr. Sundaram, learned counsel for the appellant, that a close and microscopic
examination of the private lives of public men is a natural consequence of holding of public
offices. What is good for a private citizen who does not come within the public gaze may not
be true of a person holding public office. We have seen various examples of rights of public
men being closely scrutinised by the press not only in our country but all over the world
including of the President of the United States of America. What a person holding public
office does within the four walls of his house does not totally remain a private matter. It may
however, be added that the scrutiny of public figures by media should not also reach a stage
where it amounts to harassment to the public figures and their family members. They must be
permitted to live and lead their life in peace. But the public gaze cannot be avoided which is
necessary corollary of their holding public offices. Commented [C4]: So anything short of harassment is fine?
If you are a public man, then the public has the right to know what
kind of person you are.
68. It is also relevant to state that the Supreme Court in R. Rajagopal's case (supra) was That kind of makes sense. But it is definitely because you give a lot
concerned with the preventive action sought for by governmental authorities. Even there the of importance to freedom of speech, as opposed to the privacy
right.
Supreme Court did not rule in their favor. The observation in New York Times' case (supra) But after all the argument is usually made from deliberative
popularly known as Pentagon's case succinctly laid down the correct view in this behalf i.e., democracy, speech and public discussion itself being the basis for
our whole system and so on.
that there is a heavy burden on governmental authorities to show justification for imposition Think of it this way, would it not matter that a public figure, even if
of a prior restraint. The remedy would thus be by way of damages and not an order of he is not involved with the government was abusive towards his
restraint. wife? Or his/her children? Wouldn’t people have a right to know?

69. This aspect of right of privacy analysed in view of the conclusions of the Supreme Court
as set forth in R. Rajagopal's case (supra) fully support the argument advanced by the learned
counsel for the appellant. Thus the observations strongly relied upon by Mr. Panjwani,
learned counsel for the respondent, on the first point summarised by the Supreme Court
cannot be read out of the context. As explained hereinabove the concept of consent, while
dealing with the private lives of her persons was made in respect of the claim for damages.
Not only this the Supreme Court further went on to observe that the position would be
different if a person voluntarily thrusts himself into a controversy or voluntarily invites or
raises a controversy. Suffice it to say that the respondent in fact at the relevant time draw
strength or at least kept quite when the controversy was reported in the press. Issue of public
record is not material in the present case because the controversy does not relate to the fact
whether prior reporting of a matter becomes public records, which in law it does not, but that
wide publicity and reporting having already been given to the matter in issue at the relevant
stage of time. The task, though difficult it may be, for persons holding public office, cannot Commented [C5]: People say this case expanded public records
to include things in the public domain, but the argument is a bit
be summed up but to say that such persons have to show greater tolerance for comments and more subtle than that. Not really public private distinction, but the
criticisms. One cannot but once again rely on the observations of Cockburn C.J. in 'Seymour element of publicity is also there. It is not a straight departure from
Rajagopal. In my opinion.
v. Butterworth' cited with approval in Kartar Singh's case (supra) to the effect that the persons
holding public offices must not be thin skinned in reference to the comments made on them
and even where they know that the observations are undeserved and unjust they must bear
with them and submit to be misunderstood for a time. At times public figures have to ignore
vulgar criticism and abuses hurled against them and they must restrain themselves from
giving importance to the same by prosecuting the person responsible for the same.

70. Be that as it may the respondent has already chosen to claim damages and her claim is yet
to be adjudicated upon. She will have remedy if the statements are held to be vulgar and
defamatory of her and if the appellants fail to establish the defense of truth.

71. We are unable to accept the contention advanced on behalf of the respondent by Mr. Raj
Panjwani that if the statements relate to private lives of persons, nothing more is to be said
and the material must be injuncted from being published unless it is with the consent of the
person whom the subject matter relates to. Such pre-censorship cannot be countenanced in
the Scheme of our constitutional framework. There is also some force in the submission of
the learned counsel for the appellant that the prior publication having occurred much prior to
the suit being filed, the principle denying the relief for interlocutory injunction where the
plaintiff has been dilatory in making the application, as observed in the Indian Express
Newspaper's case (supra) would also apply to the present case.

72. As stated above, one aspect is very material - a categorical assertion of the author to stand
by his statement and claim to substantiate the same. In such a situation interlocutory
injunction restraining publication should not be granted and we are in agreement with and
duly approve the views of the learned Single Judge of this Court in Sardar Charanjeet Singh's
case(supra).

73. People have a right to hold a particular view and express freely on the matter of public
interest. There is no doubt that even what may be the private lives of public figures become
mattes of public interest. This is the reason that when the controversy had erupted there was
such wide publicity to the same including in the two editions of India Today. As observed in
Silkin vs. Beaverbrook Newspapers Ltd. & another (supra), the test to be applied in respect of
public life is that the crank, the enthusiast, may say what he honestly thinks just as much as
the reasonable man or woman who sits on a jury.

74. It is interesting note that the Fraser's case(supra) while considering the proposed
publication of Sunday Times, Lord Denning had noted that the Sunday Times had been frank
enough to admit that the article would be defamatory of the plaintiff yet Sunday Times
claimed that the defense would be that the facts are true. In the present case the first plea is
that the statement is not defamatory apart from the fact that it has been published and
commented upon in the past. The second plea is that the appellants will prove the truth of the
said statements. Lord Denning had observed that the courts will not restrain the publication of
an article even where they are defamatory. cone the defendants expressed its intention to
justify it or make a fair comment on the matter of public interest.

75. There is no doubt that there are two competing interests to be balanced as submitted by
the learned counsel for the respondent, that of the author to write and publish and the right of
an individual against invasion of privacy and the threat of defamation. However, the
balancing of these rights would be considered at the stage of the claim of damages for
defamation rather than a preventive action for injuncting of against the publication itself.
76. There is also considerable force in submission of Mr. Sundaram, learned senior counsel
for the appellant, that what is sought to be really protected against the invasion of the right of
privacy is the action of government and governmental authorities. It is, thus, this right which
is protected under Article 19(1)(a) of the Constitution of India. We are also, therefore, unable
to appreciate the relevance of Article 51A of the Constitution of India as was sought to be
advanced by Mr. Panjwani, learned counsel for the respondent.

77. We are unable to accept the submission of learned counsel for the respondent that by very
nature an autobiography must relate to the person concerned directly. An autobiography deals
not only with the individual by whom it is written but about the people whom he claim to
have interacted with. This is a matter between the author and the people who want to read
him. Fetters cannot be put on to what an author should or should not write. It is the judgment
of the author.

78. There have to be great dangers to the community if valuable rights of freedom of speech
and expression enshrined under Article 19(1)(a) of the Constitution of India are to be
curtailed. In the observations by the Supreme Court in R.Rangarajan's case (supra) ,
Benjamin Franklin was quoted where the observed "men differ in opinion, both sides ought
equally to have the advantage of being heard by the public".

79. Writings and comments by authors, publishers cannot be restricted to public interest as
defined to include what is good for the public. It must be used in the connotation of what is of
interest to the public as submitted by the learned counsel for the appellant. For the purposes
of publication if it is to the interest to the public,it would suffice. The very fact that so much
has been written about the controversy in question and the relationship between the
respondent and her late mother-in-law Smt. Indira Gandhi shows the interest which the public
had in the happenings though it related to matters of private relationship between the two
individuals. The wide publicity in the two editions of India Today and the incorporation of
the controversies in the books by Ved Mehta and Pupul Jaykar are testimony to the same. It is
difficult to segregate the private life of the public figures from their public life. It is the
burden of holding a public office.

80. The book has not yet been published. The claim for injunction which was granted was
based on the proposed publication. We have now also had the benefit of reading the chapter
in controversy in full. We do not think it is a matter where the author should be restrained
from publishing the same when he is willing to take the consequence of any civil action for
damages and is standing by what he has written.

81. We are unable to agree with the conclusion of the learned Single Judge. The observations
of the learned Single Judge about high thinking, higher living and high learning of the author
are subjective moralistic observations. The author must choose what he writes and he must
take the consequences thereof. To quota Oscar Wilde - "There is no such thing as a moral or
an immoral book. Books are well written, or badly written." And who can decide this but the
reader.

82. The previews of the proposed autobiography stated to be an authorised version were
published in the 31st October, 1995 issued of India Today. The ex-parte injunction was
granted soon thereafter and was subsequently confirmed. Almost six years have passed. The
book could have been published possibly soon after the October edition of India Today in
1995. The appellant has been prevented from writing and publishing his thoughts, views,
personal interaction and his perspective of life in his proposed autobiography for almost six
years at this late stage of his life. In our considered view this cannot be countenanced. The
balance of convenience lies in non grant of injunction. Sufficient damages has already been
caused. The injunction must be vacated forthwith. The three cardinal principle of balance of
convenience, prima facie case and irreparable loss and injury are not satisfied in the facts of
the present case. The balance of convenience is in favor of applicant rather than gag order. As
discussed above well established principles weigh in favor of the right of publication and
there is no question of any irreparable loss or injury since respondent herself has also claimed
damages which will be the remedy in case she is able to establish defamation and the
appellant is unable to defend the same as per well established principles of law.

83. Consequently the appeal is allowed. the impugned order of the learned Single Judge dated
29th April, 1997 is set aside and the injunction application of the respondent (IA 12567/95)
filed under order XXXIX rules 1 and 2 read with section 151 CPC is dismissed. The
applications of the appellants (IA No. 646/96 and 647/96) are allowed leaving the appellants
free to publish the autobiography "Truth, Love and a Little Malice". The truth will be decide
in the claim for damages and the malice whether little or more would also be determined at
the stage of trial as also the consequence thereof. The parties will have the opportunity to
substantiate their averments determining their respective claims in the claim of damages. The
appellants shall also be entitled to costs of Rs.10,000/-

84. Needless to add that any observations made in the judgment are prima facie expression on
the matter of controversy and will not influence fair trail of the suit on merits.