Content Regulation / Censorship, Defamation / Reputation, Political Expression
The Case of Sarawak Report and Malaysia Insider
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The Supreme Court of India ruled that a magazine had a right to publish an autobiography written by a prisoner, even without his consent or authorization. Prison officials attempted to prevent the magazine from publishing the autobiography, by forcing the prisoner to request that the auto-biography was not published. The Court explained that it was important to strike a balance between the freedom of the press and the right to privacy, and found that the state and its officials do not have the right to impose prior restraints on the publication of materials that may be defame the State.
Petitioners include the editor, associate editor, printer and publisher of a Tamil magazine, Nakkheeran. The respondents include the State of Tamil Nadu, the Inspector General of Prisons, and the Superintendent of Prisons. The petitioners sought to prohibit the respondents from interfering with the publication of an autobiography of a prisoner, Auto Shanker, in Nakkheeran. Shanker was convicted of six murders and sentenced to death. While in jail, Shanker wrote his auto-biography and expressed his wish that this be published in the petitioners’ magazine. Before publishing the autobiography, Nakkheeran announced the publication. Prison officials then forced Shanker to write to the magazine requesting that the auto-biography not be published. Petitioners then brought this action to prevent the respondents from violating the magazine’s and the prisoner’s Freedom of Expression.
The Court noted the tort of right to privacy which protects, “(1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (2) the constitutional recognition given to the right to prvacy which protects personal property against unlawful governmental invasion.” The Court recognized this as a fundamental right, but noted it was not absolute.
The Court noted several decisions across the globe and raised the question of how relevant these decisions were under the constitution of India. The Court explained that it was important to strike a balance between the freedom of the press and the right to privacy. The Court found that the state and its officials do not have the right to impose prior restraints on the publication of materials that may be defamatory of the state. Therefore, “no such prior restraint or prohibition of publication can be imposed by the respondents upon the proposed publication of the alleged autobiography.” The Court noted that this ruling does not mean that the state cannot sue for defamation after the article is published, only that they cannot place a prior restraint on the publication of the article.
“Applying the above principles, it must be held that the petitioners have a right to publish, what they allege to be the life story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorisation. But if they go beyond that and publish his life story, they may be invading his right to privacy and will be liable for the consequences in accordance with law. Similarly, the State or its officials cannot prevent or restrain the said publication. The remedy of the affected public officials/public figures, if any, is after the publication, as explained hereinabove.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by prohibiting the state from engaging in a prior restraint on speech. The state cannot prevent the publication of potentially defamatory articles; it can only sue after such articles are published.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
India is a common law country. The decision of India’s Supreme Court is binding on India’s lower courts.
Let us know if you notice errors or if the case analysis needs revision.