Delhi HC Division Bench Upholds Rs 5 Lakh Privacy Damages Against TV Today Network

Division Bench dismisses TV Today's appeal against a Single Judge order awarding Rs 5 lakh for broadcasting details identifying a child sexual abuse complainant.

The Delhi High Court has dismissed an appeal by TV Today Network Limited against a Single Judge order that awarded Rs 5 lakh in damages to a mother, ABC, for the disclosure of details identifying her daughter, X, a complainant in a case of alleged child sexual abuse. A Division Bench of Justice C. Hari Shankar and Justice Om Prakash Shukla, deciding LPA 264/2013, held that the writ petition against the broadcaster was maintainable and that the appellant's Aaj Tak telecast on 7 August 2005 had violated X's right to privacy under Article 21. The Bench rejected the appellant's argument that a private media company could not be subjected to writ jurisdiction and that the dispute involved facts too complicated for a writ court to decide.

The Appeal Before the Division Bench

The case traces back to an FIR lodged in PS Vasant Kunj on 2 August 2005 by X against her father P under Sections 354 and 506 of the erstwhile Indian Penal Code, alleging sexual assault. The FIR itself disclosed the residential address and identifying details of X, ABC and P.

On 3 August 2005, a Star TV crew interviewed ABC at her residence and recorded X's identity, though ABC subsequently issued a notice preventing the telecast, which never aired. On 7 August 2005, a team from TV Today's office visited ABC's residence seeking an interview. ABC refused entry and told the crew that neither she nor X would speak to them. The crew left, but TV Today telecast footage the same day on its Aaj Tak channel. According to the writ petition, the broadcast disclosed P's identity, designation and official address, the fact that X was his daughter, and the street and block where the family lived.

ABC approached the High Court by way of WP(C) 12730/2005, initially impleading the Commissioner of Police, Hindustan Times House and Star TV. After Star TV assured the Single Judge on 8 August 2005 that it would not air the recorded interview, ABC deleted Star News from the array of respondents and impleaded TV Today as Respondent 3.

The Single Judge's judgment dated 5 February 2013 held the writ petition maintainable, found TV Today liable for violating X's privacy, and awarded Rs 5 lakh in damages. TV Today carried the matter in appeal.

Whether a Private Broadcaster Answers to Writ Jurisdiction

The central legal question was whether a private television channel, not a State instrumentality under Article 12, could be compelled to answer a writ petition under Article 226. TV Today's counsel, Mr Sushil Salwan, Senior Advocate, argued that the appellant was a purely private entity performing no public function, that fundamental rights cannot be enforced against private parties, and that the dispute raised disputed questions of fact unsuited to writ adjudication. He relied on G. Bassi Reddy v. International Crops Research Institute, Ramakrishna Mission v. Kago Kunya and S. Shobha v. Muthoot Finance Limited to submit that a public function must be closely related to functions the State performs in its sovereign capacity.

Ms Jayshree Satpute, appearing for ABC, argued that monetary compensation is a recognised public law remedy for Article 21 violations, relying on Rudul Sah v. State of Bihar and Nilabati Behera v. State of Orissa. She did not press reliance on Section 228A of the IPC, pegging her case instead on Articles 19 and 21 and the Norms of Journalistic Conduct framed by the Press Council of India.

How the Bench Reasoned on Public Function and Privacy

The Division Bench traced the line of Supreme Court authority on writ maintainability against private bodies, beginning with Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V. Rudani, through VST Industries v. Workers' Union, Federal Bank Ltd. v. Sagar Thomas, Zee Telefilms v. Union of India, Binny Ltd. v. V. Sadasivan, Ramesh Ahluwalia v. State of Punjab, Ramakrishna Mission v. Kago Kunya and S. Shobha v. Muthoot Finance Limited. From this survey, the Bench drew the settled position that a writ under Article 226 lies against a private body if it is performing a public function or discharging a positive obligation of public nature, and that the form of the body is less relevant than the nature of the duty it owes.

Applying this to the press and broadcast media, the Bench endorsed the Single Judge's finding that news channels perform a public function by disseminating information and holding public debate, and that this carries a corresponding duty to maintain confidentiality regarding victims of sexual offences. The Single Judge had recorded that the press and media are subject to writ scrutiny under Article 226 where their conduct is alleged to infringe fundamental rights, particularly given their reach and their position of public trust.

On the merits, the Bench affirmed the Single Judge's reliance on R. Rajagopal v. State of Tamil Nadu for the proposition that the right to privacy, though defeasible once a matter enters the public record, does not lose force in cases of sexual assault, kidnap or abduction. The Single Judge had found, on viewing the telecast and its transcript, that it disclosed P's name and place of work, his designation, X's age, visual shots of the colony signage showing the sector and pocket where the family lived, shots of the staircase and doorstep of the house, and ABC's recorded voice—details the Single Judge held were “patently sufficient” to identify X within her community. The Single Judge had recorded that ABC and X were compelled to leave their home and were traced by counsel only much later.

The Bench rejected TV Today's contention that ABC's own disclosure to Star TV foreclosed any privacy claim against the appellant. It held that even assuming ABC had, at some stage, disclosed X's identity, that would not licence the rest of the world to do likewise, since the extent to which a person wishes to enforce her privacy remains her own prerogative. Referring to the broadcaster's crew continuing to film after ABC's refusal, the Bench observed, “No means no.”

The Bench also rejected the argument that privacy is a fundamental right enforceable only against the State, citing the Supreme Court's holding in Kaushal Kishor that a fundamental right under Articles 19 or 21 can be enforced even against persons other than the State or its instrumentalities. It held that the right to privacy is simultaneously a common law right and a fundamental right, enforceable either through judicial review under Article 226 or through a civil suit, with these remedies available in the alternative rather than one excluding the other.

Disputed Facts and the Alternate Remedy Argument

TV Today's counsel had identified four matters he described as disputed questions of fact unsuited to writ adjudication: whether a right to privacy exists, whether ABC's own conduct foreclosed such a right, what remedy would follow a violation, and whether such violation could be compens