When the Supreme Court while hearing challenges to the compulsory Aadhaar scheme held that the ‘right to privacy’ is a facet of the right to liberty enshrined in the Constitution, many expressed surprise. After all, the Fundamental Rights chapter contains no specific mention of privacy. Yet, long before this judicial recognition, and well before legislation sought to codify the concept in personal law or criminal proceedings, the principle was already quietly at work.
When the Hindu Marriage Act, 1955, was enacted, it contained a specific provision under Section 22 mandating that the proceedings in matrimonial disputes will be held in camera by the court. Section 22 reads: “(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the court. (2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with a fine which may extend to one thousand rupees.”
The judgments under this Act, when published in law journals with the description of parties, will hide the names of the couples and merely say Mr X vs Mrs Y, even though there was no prohibition on publishing the names. The idea was that matrimonial matters are largely in the private sphere, and it is unnecessary to give publicity to such proceedings.
In metropolitan cities, due to the increase in the number of cases regarding matrimonial affairs, and to create an umbrella forum, Parliament enacted the Family Courts Act. Since the Act was enacted only for procedural convenience, it did not contain any specific provision for in-camera proceedings, even though courts exercising jurisdiction under the various matrimonial laws do, as a matter of routine, hear those cases in camera.
Curiously, the Family Courts Act does not allow lawyers to appear as a matter of right as per Section 13, and such a denial was also upheld by the Supreme Court even recently. It is now claimed that there are as many as 40,000 matrimonial disputes pending in the various Family Courts in the city of Chennai. However, as far as the media is concerned, there is very little interest unless the personages who appear are also from the silver screen or from the political arena.
When Sukanya, the film artist, filed a petition for divorce in the Family Court, it became big news as she was one of the prominent stars of the 90s. Her coming to the court and going out of the court, and the contents of her petition for divorce, all became subject matter of publication in the media. She decided to file a petition for preventing the media from covering her case, citing Section 22 of the Hindu Marriage Act, under which the matrimonial proceedings will have to be held in camera and hence not reportable. Initially, the Family Court declined to grant relief on the basis that the Family Courts Act, 1984, did not have any provision and therefore there is no legal bar on reporting.
Undaunted by the decline, Sukanya moved the High Court and sought a gag order against all the media. The High Court came to her rescue. Justice Ashok Kumar held that the Family Courts Act is only a procedural law, and the substantive law being the Hindu Marriage Act, Section 22 of the Act makes the bar on the printing and publishing of any matter relating to the proceedings.
Quoting Gobind’s case, it held: “Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive, as it does not give an analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as a unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty.” The Court restrained the publication of her matrimonial proceedings (2004).
The media took the restraint order as applying only to Sukanya’s case and were freely publishing every case relating to other film personalities and VIPs as if there was no restraint on publishing those stories. In the long list of such publications, there is now a double bonus in publishing the matrimonial discord involving actor-turned politician Vijay and his wife, who has moved a petition before the Family Court at Chengalpattu under the Special Marriage Act, 1954.
It is not as if the SMA did not have any bar on the publication of such proceedings. In fact, the said Act, enacted a year before the HM Act, contains a similar provision under Section 33, which reads: “(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court. (2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with a fine which may extend to one thousand rupees.”
It is not clear how every media house, including newspapers, carries top stories on the petition and the attendant issues, unmindful of the legal bar made by parliamentary law. Is it their stand that in the absence of a specific order, they are at liberty to publish matrimonial matters, or that the fine amount is low and, if confronted, they could pay it rather than give up a juicy story?
I do not think the press should invite another stay order from the Family Court, Chengalpattu, made at the instance of Vijay or his spouse. Or at least, will the Press Council of India, which monitors the ethical code of the press, initiate suo motu action?
More than the news, what is at stake is the right to privacy in such matters, and I do not think it is anyone’s business to peep into the same, notwithstanding the parliamentary injunction against such publication. There are issues and issues to be discussed, and when the law specifically bars it, I think it is high time the media also undertakes some introspection and imposes self-restraint.
— The writer is a retired judge of the Madras High Court