Tehelka: what next?

By Rajeev Dhavan

TEHELKA'S INVESTIGATIONS open up important questions relating to the media. Tehelka-I uncovered incipient corruption in defence deals through covert uses of pin-hole cameras. Tehelka-II showed the vulnerability of army officers to Royal Stag whisky, parties and women, supplied by the portal whilst secretly video-taping the entire exercise. Does all this violate norms of transparency, privacy rights and conventional journalistic ethics? Tehelka may be a stranger to convention, but is it entitled to special privileges simply because it uncovers big truths?

Is the media entitled to special and exceptional privileges? Article 19(1)(a) of our Constitution guarantees ``freedom of speech and expression'', but omits the words ``and, of the press''. In the Burma Critic case (1914), a reactionary Privy Council decreed that the rights of the press were no greater than those of an ordinary person. Despite constitutional guarantees of free speech, the Privy Council's view was repeated by the Supreme Court in 1959 in the Searchlight case. But, if the press is to do its job, surely it is entitled to special privileges to discharge its duties to Indian democracy? That the media has special needs was recognised in the Price and Page case (1962), the Newsprint cases of 1973 and 1985 and the Broadcasting case of 1995. But, special needs are not the same thing as exceptional privileges. Unlike American law, Indian law was somewhat muddled on this issue. In the famous New York Times case (1961), the American Supreme Court re-wrote the law of defamation to permit greater leeway to investigate and comment on public persons. It will be recalled that Morarji Desai lost his CIA links case against Seymour Hersch precisely because, even if untrue, Hersch's story showed due investigative diligence. This kind of leeway protects the press from civil (but not criminal) actions, including, perforce, privacy violations.

But, does the media in India have special privileges? In the otherwise not so well known but important ruling in the Printers' Sales Tax case of 1994, Mr. Justice Jeewan Reddy gave priority and special consideration to media needs and rights. This was reiterated strongly by him in the Auto Shankar case (1994) in which he felt that both the public and the media interest would be adequately reconciled if the media acted bonafide and reasonably diligently in its exposure of public officials.

But, matters remained somewhat fuzzy. This is self-evident from Ms. Maneka Gandhi's case against Mr. Khushwant Singh based on the former's privacy rights. Two incongruities have emerged in Indian law. First, injunctive relief against publication of free speech is freely considered and granted by courts. The Delhi High Court did this in the Campa Cola case, and, the Kuldip Nayar case (later compromised) concerning his, book `India House'. In the `Beef-Eating in Ancient India' book case (2001), a munsif in Andhra Pradesh injuncted a published book from distribution without reading it. The film `Lajja' has been stopped in the context of a commercial debt. Of what value is free speech as a preferred freedom if strict scrutiny is not applied; and free speech is injuncted when damages are the correct remedy. Censorship by courts - as evinced also in the Reliance case of 1989 - militates against the constitutional privileges attached to the role of the media in a democracy. Despite Mr. Justice Jeewan Reddy's laudable efforts, Indian courts have failed to recognise that free speech including media rights are preferred freedoms crucial to Indian democracy.

But, this by itself, would not dispose of the issues raised by Tehelka I and II. There is little doubt that Indian democracy is starved of information about its own working. Indian governance is enmeshed with corrupt secret deals; and, as the Vohra Committee pointed out in 1995, run at various levels by hoodlums. Indian democracy has lost the capacity to uncover these deals. Government information is unreliable. Joint Committees - such as those on Bofors of 1987 - distort the real truth. Commissions of Inquiry, Lokayuktas and CAGs take too long to uncover incomplete facts and are, in any event, ignored. Parliamentary questions reveal little. Mr. Ram Jethmalani's `open governance' scheme of 1998 was shot down by a wily Cabinet Secretariat. Powerful Lokpals will never be created despite cosmetic attempts since 1967. The Freedom of Information Bill 2000 is mal-designed and frozen.

Without information, no democracy can function. In India, the media and social groups fight the struggle for information against impossible odds.

Tehelka raises important issues. First, the constitutional premium according special privileges for the media includes special investigative rights and empowerment. But, this is not an open-ended licence to ignore or override the law or ride roughshod over the rights of ordinary people unless special legislation accords them this right or such investigative privileges are read into the law, including the law of defamation and privacy which are uncodified judicially created rights. This is where the principles in Auto Shankar's case need elaboration.

Second, special investigative privileges for the media do not immunise Tehelka or the media from civil suits, including those of violation of privacy. Controversies locate around whether the media can invoke the `public interest', `public person' or `due diligence' defences. Tehelka - and, indeed, the media - can argue that given the nature of the persons and the issues involved, a public interest defence should be taken into account along the logic of the New York Times and Auto Shanker cases. It is unlikely that the public interest defence will even be entertained where there is a transgression of the law or where the acts reveal a crime that can be investigated. Such a defence is not available for assaults, coercion, kidnapping or blackmail. The use of women and sexual inducement to extract stories is arguably inimical to a gender-based public policy even if the women consent to such without pecuniary recompense.

Third, the media cannot circumvent indictment for a crime. There is no criminal law protection for privacy. India's criminal law on defamation does have a `public interest' exception which has not been imaginatively interpreted by the courts - including the Supreme Court's split decision in the Blitz case of 1981. But, criminal law has a wide sweep. Criminal coercions are impermissible. In the case of Tehelka-II, it is a moot question whether Tehelka can be indicted for (a) running a brothel (widely defined to include a vehicle) for `gain for another', (ii) procurement for commercial gain (iii) or detention in a place of prostitution, whether with or without consent. Although the term `prostitution' has been used, we do not know whether commercial gain for money was involved. There is a case for at least investigation to determine if the facts reveal a prosecutable case.

Finally, is the public policy issue of journalistic ethics. The Press Council has no jurisdiction over Tehelka and the electronic media. But, the media should evolve principles. A universalised test has to be to applied: can we permit the entire media at all levels in India to use Tehelka's methods of peephole cameras and inducement through booze, women and parties resulting in possible embarrassment and blackmail? If permitted, every local newspaper and new found investigative journalist will use these methods freely. There would be chaos if this kind of investigative journalism was permissible to all.

One last point. Irrespective of how they were obtained, Tehelka's truths go to the rotten roots of Indian governance and have still to be answered. Nor can it be argued that Tehelka's revelations are necessarily inadmissible in law if proved to untampered and authentic. India does not follow the American poisoned tree principle of 1961 that the fruits of illegally obtained evidence must be excluded. The real controversies uncovered by Tehelka cannot be dismissed lightly.

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