Press and right to privacy of public figures:The law revisited

Whether those holding public offices can enjoy the same level of privacy as guaranteed to the other citizens by the Constitution, is a question perpetually doing the rounds among law circles. In a recent decision the Madras High Court revisited the issue in an allegation of invasion of right to privacy of the State Minister by the press having published his photograph on a daily basis along with the photograph of his wife and child. While the High Court declared the bar with respect to invasion of privacy of public figures was higher than the ordinary citizens, given the public offices they held, the invasion nonetheless could be alleged with respect to wife and the child. 


The High Court inter alia observed as under;

13. The Apex Court has held in a decision reported in (1994) 6 SCC 632 (R.RAJAGOPAL ALIAS R.R.GOPAL AND ANOTHER V. STATE OF TAMIL NADU AND OTHERS) as follows:

"26.We may now summarise the broad principles flowing from the above discussion:

(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, childbearing 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 interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised 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 or 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 defence 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 Act, 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."

14. This Court had an occasion to follow the above decision in a case reported in (2006) 2 M.L.J. 689 (R.RAJAGOPAL @ R.R.GOPAL @ NAKKHEERAN GOPAL AND ANOTHER V. MS.J.JAYALALITHA AND ANOTHER) and has held as follows:

"29. The fundamental right of freedom of speech is involved in these proceedings and not merely the right of liberty of the press. If this action can be maintained against  newspaper, it can be maintained against every private citizen who ventures to criticise the ministers who are temporarily conducting the affairs of the Government. In a free democratic society those who hold office in Government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. As observed in Kartar Singh's case (supra) the persons holding public offices must not be thin-skinned with 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 criticisms and abuses hurled against them and they must restrain themselves from giving importance to the same by prosecuting the person responsible for the same. In the instant case, the respondents have already chosen to claim damages and their claim is yet to be adjudicated upon. They will have remedy if the statements are held to be defamatory or false and actuated by malice or personal animosity. 

30. As observed in R.Rajagopal's case (supra) the right to privacy has two aspects which are but two faces of the same coin. First the general law of privacy which offers a tort action for damages resulting from an unlawful invasion of privacy and secondly, the constitutional recognition given to the right to privacy which protects personal privacy against unlawful Government invasion. Though the right to privacy can be characterised as a fundamental right, as held in R.Rajagopal's case (supra) it is not an absolute right. In Time, Inc v. Hill 385 US 374 it was pointed out that in the case of public officials, insofar as their official function is involved, they are substantially without a right to privacy and factual error and content defamatory of official reputation or both, are insufficient for the award of damages for false statements unless actual malice knowledge that the statements are false or reckless disregard of the truth is alleged and proved. In a democratic set up a close and microscopic examination of private lives of public men is the 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. What a person holding public office does within the four walls of his house does  not totally remain a private matter. We agree with Mr.Jothi 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 and they must be permitted to live and lead their life in peace. But the public gaze cannot be avoided which is a necessary corollary of their holding public offices.

31. We are also unable to accept the submission advanced by Mr.Jothi that the appellants should be asked to seek prior verification from the respondents before publishing any articles and publish the denial, if any, of the respondents. According to Mr.Jothi rule of prior verification is laid down in R.Rajagopal's case (supra). We are afraid that the submission of the learned counsel is based on total mis-interpretation of the observations of the Supreme Court. The Supreme Court has not laid down that the prior verification of the facts is must in all such cases. All that the Supreme Court indicated is that the proof that the member of the press or media acted after a reasonable verification of the facts would be sufficient. However, at the same time, it must be noted that the Supreme Court in R.Rajagopal's case (supra) has clearly held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education, among other matters and none can publish anything in reference to the above matters without his/her consent whether laudatory or critical."

15. It would be quite clear that there is no law empowering the State or its officials to prohibit or to impose a prior restraint upon the press or media and when a person is holding a public office, the comments and criticisms cannot be avoided since it is a necessary corollary. If such criticisms are attempted to be avoided, it would amount to political censorship. The acts done by a person in public life could be categorized as private and public. The acts and conduct of a person who holds office in Government and responsible for public administration are always open to criticism. When a publication is made in the press commenting or criticising the acts and conduct of a person which is connected to his public office and life, it cannot be made a condition that a prior verification of the facts should be done. But it would suffice if the media or the press has acted after a reasonable verification. But, at the same time, it should not be forgotten that the Apex Court in the case reported in (1994) 6 SCC 632 had made it clear that every citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters and no one can publish anything in reference to the above matters without his or her consent whether laudatory or critical.

16. In the case on hand, the following features are noticed by the Court. Admittedly, the first appellant is a Cabinet Minister of the Union Government. The documents placed by the appellants would clearly indicate that the respondents were constantly publishing the  photographs of the Minister with write-ups on different dates as mentioned above in the front cover page of their magazine. No doubt, the respondents had justification in levelling comments and criticisms as it would fall under the Freedom of Speech so long it is connected to or concerning with his official position as a Union Minister. But the instances are noticed which did not relate to his public life. The respondents have published the family photograph of the appellants. That apart, there was no necessity for publishing the photograph of the minor child. The UN Convention on the rights of the child 1989 has clearly adumbrated the rights of the child namely the right to preserve the identity, nationality and the family relations. The respondents had no explanation to offer why and under what circumstances, they published the photograph of the minor child. It is recorded in the impugned order that they gave an oral undertaking not to publish the photograph of the child in future. But, it is a matter of surprise to note that even without a written undertaking, the trial Court has closed the application in that regard. No doubt, it is an act of infringement of the right of the child by exposing the identity and the family relationship of the first appellant and thus, inserting the photograph cannot but be termed as an abuse.

17. The respondents have published the photograph of the second appellant, who is the wife of the first appellant. Apart from that, the news items published by the respondents would disclose the allegations made against her. It is not the case of the respondents that she is a public figure or she is in a public domain, and hence it has got to be termed that the publications made against the second appellant were infringement of her right to privacy which is guaranteed by the Constitution in her favour.

18. A scrutiny of the magazines would also indicate that there were instances in which the privacy of the first appellant was also invaded. For example two photographs of the Hon'ble Chief Minister and the first appellant were printed in the front cover page of the magazine dated 24.12.2008. A comparison of both the photographs and in particular, the second one, would no doubt seriously damage the image of the first appellant in the minds of the readers of the magazine. At no stretch of imagination, the respondents can be allowed to say that it was connected to or concerning with his public life. It is not the case of the respondents anywhere in the course of the entire counter that they made any verification with the appellants before making such publications.

19. When a citizen contests in an election and is voted to power and he enjoys the position in view of the confidence originally reposed on him by the people, he becomes more accountable to them. Higher the post and position more should be the degree of accountability. In a democratic society like ours, the accountability and transparency have a vital role to play. When a person is elected and reaches a high position and when he satisfies the test of accountability and transparency, naturally the confidence reposed on him by public would all the more increase than what was reposed on him before his coming to the position. Hence the contention put forth by the learned Senior Counsel for the appellants that in view of the official position of the first appellant as a Union Cabinet Minister, he is in a better position than a common citizen and hence the respondents should not give him the equal treatment cannot be countenanced.

20. Equally the contention put forth by the learned Senior Counsel for the respondents that they enjoy freedom of press and hence they could publish anything and everything cannot be countenanced. The respondents cannot be allowed to take shelter under the Doctrine of Freedom of Press, and the same cannot also be extended to publishing exclusively private affairs of the appellants calling it as connected to or concerned with public life.

Have a look at the decision.

Phone-tapping invasion to right of privacy? The law revisited

Respect for the privacy of individual is now of the essential traits of a democratic right-based society. In as much as society events, interaction with fellow-beings and the right to take decisions by itself and with fear of reward or favor from the government as essential traits or rather concomitant traits of the right to privacy, it is also required to be ensured that the citizen lives without having had to consider that his/her actions are being observed and recorded. Telephonic conversations, in as much as they flow along with the freedom of speech and expression and also as a part of the natural rights, are thus liable to receive the same protection against invasive sources. The same is now recognized the world-over and the Indian Supreme Court has also done its part in as much as protection of this invaluable right in concerned.


Dealing with a public interest litigation filed by an NGO, People's Union for Civil Liberties (PUCL) drawing the attention of the Court to the rampant phone-tapping being undertaken by the Government, the Supreme Court not only declared right to privacy as an invaluable right of an individual and that phone-tapping was a violation of this right, the Court went on to lay down the guidelines required to be observed by the Government before going ahead with tapping any telephonic conversation. 

The Court made inter alia the following observations on the nature and extent of these rights;

Telephone - Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to sold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of subrosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by she authorities of the day. xxx

We have, therefore, no hesitation in holding that right to privacy is a part of the right to "life" and "personal liberty" enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy; Article 21 is attracted. The said right cannot be curtailed "except according to procedure established by law".

The right privacy - by itself - has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of ones home or office without interference can certainly be claimed as "right to privacy". Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. 

Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law. 

Right to freedom of speech and expression is guaranteed under Article 19(1) (a) of the Constitution. This freedom means the right to express ones convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression.

Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution. xxx

We agree with Mr. Sibal that in the absence of any provision in the statute, it is not possible to provide for prior judicial scrutiny as a procedural safeguard. It is for the Central Government to make rules under Section 7 of the Act. Rule 7(2)(b) specifically provides that the Central Government may make rules laying down the precautions to be taken for preventing the improper interception or disclosure of messages. The Act was enacted in the year 1885. The power to make rules under Section 7 of the Act has been there for over a century but the Central Government has not thought it proper to frame the necessary rules despite severe criticism of the manner in which the power under Section 5(2) has been exercised. It is entirely for the Central Government to make rules on the subject but till the time it is done the right to privacy of an individual has to be safeguarded. In order to rule-out arbitrariness in the exercise of power under Section 5(2) of the Act and till the time the Central Government lays down just, fair and reasonable procedure under Section 7(2)(b) of the Act, it is necessary to lay down procedural safeguards for the exercise of power under Section 5(9) of the Act so that the right to privacy of a person is protected.

The Bench, accordingly passed the following directions, seeking to ensure that privacy of citizens is not violated by uncontrolled tapping of their telephone conversations;

We, therefore, order and direct as under:

1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned with one week of the passing of the order-.

2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.

3. The matters to be taken into account in considering whether an order is necessary under Section list of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.

4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses specified in the order belong an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises described in the order.

5. The order under Section 5(9) of the Act shall, unless renewed, case to have effect at the end of the period of two month from the date of issue. The authority which issued the order may, at any time before the end of two month period renew the order if it by the State Government.

(a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act.

(b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.

(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.

6. The authority which issued the order shall maintain the following records:

(a) the intercepted communications, 

(b) the extent to which the material is disclosed,

(c) the number of persons and their identity to whom any of the material is disclosed. 

(d) the extent to which the material is copied and

(e) the number of copies made of any of the material.

7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.

8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.

9. There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed 5(2) of the Act, it shall record the finding to that effect.

Have a look at the decision.

GPS tracking: An invasion of right to privacy?

Human rights activitists cry hoarse for invasions of privacy but what actually privacy is, is indeterminate; is it the human space as we call it or it is an unwarranted invasion in the private life of a person? The debate is, nonetheless, subjective. Such is the nature of these privacy rights that the courts are content to declare specific instances as to ascertain whether such instances invade privacy. A general enunciation, however, eludes both the law-makers and the law-interpreters. 

Despite such odds, there is no doubt that the ambit of privacy rights is wide and can be extended to enumerate a vast variety of aspect of human life requiring a forbearing from others. A similar attempt has been made by a Law Profession in his paper recently published on SSRN entitled Privacy Revisited – GPS Tracking as Search and Seizure wherein he has sought to argue that even tracking a person through a GPS device is invasion of privacy. Even though the article is based in the context of the American legal system, the author passionately argues to conclude that the "degree and magnitude of GPS surveillance involves such a massive invasion of privacy that a judicial warrant is required for its use". The author also relies upon a a recent decision of the US Court of Appeal in support of his stand and calls for for a declaration of law to such end. In all, the paper provides an interesting insight into the meaning and extent of the right to privacy assigned by the US courts. 

Information on criminal complaints can be sought under RTI: Delhi High Court

In a recent decision, Justice Sanjiv Khanna of the Delhi High Court has dismissed the writ petition filed by a person against the order of the Central Information Commission. In its order the Commission had directed the Police to provide the information relating to all criminal complaints and pending matters against the person. It was argued that the Commission by allowing such information had made an unwarranted invasion in his right of privacy. The High Court, however, was not impressed and the petition was dismissed.

Relying upon a decision of Supreme Court, the High Court observed that the right to privacy was not an absolute right and that the right to information was a part of Right to Freedom of Speech and Expression. In reference to Section 8(1)(j) of the Right to Information Act, which recognises the exception of privacy to the grant of information, the High Court observed that the said provision "recognizes that both rights are important and require protection and in case of conflict between the two rights, the test of over-riding public interest is applied to decide whether information should be withheld or disclosed."

The High Court also agreed to the 'test of public interest' applied by the Commission 'to determine and decide whether the information sought should be disclosed or disclosure will amount to unwarranted invasion of right to privacy.' Also noting the fact that the information sought being related "to criminal complaints filed against the petitioner, FIRs registered against him, their current status and whether warrants were issued against some persons, police reports on execution of warrants and their current status", it was already "part of public records including court records". 

The decision of the Supreme Court in Raj Gopal v. State of Andhra Pradesh (1994) 6 SCC 632 was also relied upon where it was held as under;

(1) A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters.

(2) 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. But a publication concerning the above aspects becomes unobjectionable, if such publication is based upon public records including court records. Once something becomes a matter of public record, the right of privacy no longer exists. The only exception to this could be in the interest of decency.

(3) In the case of public officials, it is obvious that right of privacy or for that matter, remedy of action for damages is simply not available with respect to their acts and conducts relevant to the discharge of their official duties. This is so even where the publication is based upon the acts and statements that are not true unless the official establishes that the publication was made with reckless disregard for truth.

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

Have a look at the decision.

Right of School to strip-search students: US Supreme Court responds

In a recent decision having ramifications manifold on the 'right of privacy', the United States Supreme Court has declared that while schools have a right to search the students on the suspicion of carrying condrabands/prohibited substances, they indeed can be violative of the right to privacy of the student (as protected by the Fourth Amendment) if it extends to strip-search on person. Examining the issue, the Supreme Court in Safford Unified School District No. 1 v. Redding ruled;

The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected toa search of her bra and underpants by school officials acting on reasonable suspicion that she had brought for-bidden prescription and over-the-counter drugs to school. Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution, but because there is reason to question the clarity with which the right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability.

Thus while the Court declared that the search was violative of the constitutional right of the student, given the prevailing position of law, the school-administration could not be held liable and they were immune from liability. For having dealt with the issue but (in a opinion of some) not completely fixing the liability, the decision have been criticized as not being a trend-setter. For instance Lewis R. Katz & Carl J. Mazzone in their paper conclude that "the Court was not clear enough to forestall future questions about what actually constitutes a strip search: is it a search down to underwear or does it require exposure of breasts or genitals? The court failed in its mission to provide guidance and prevent future litigation by not providing a clearer definition." The authors also suggest that the definition of a strip search necessarily differs for a boy and a girl wherein they specify different standards to argue that "the Court’s failure to firmly establish the minimum threshold of a strip search will undoubtedly lead to future litigation, and that possibility again raises sufficient uncertainty that will lead to qualified immunity, perhaps even after as egregious incidents as in Redding."

Note: Alternative link to the decision and the arguments made during the hearing of the case can be accessed from here.

WADA 'whereabouts' clause: Exploring the controversy !!!

The plan of International Cricket Council (ICC) of imposing the World Anti Doping Authority (WADA) rules on doping in international cricket seems not only to have backfired but also having generated much controversy as cricket itself. Be that as it may be, in our quest for examining the legal perspectives of things, we herein undertake to analyze the genesis, reasons for controversy and the legal barriers which face the effective implementation of the WADA rules. 


Even though 'doping' is not new to sports and athletes, WADA as an organisation is fairly one and its history can be traced back to the last decade which is explained by the WADA website in the following terms;

After the events that shook the world of cycling in the summer of 1998, the IOC decided to convene a World Conference on Doping, bringing together all parties involved in the fight against doping. The World Conference on Doping in Sport held in Lausanne on 2-4 February 1999 produced the Lausanne Declaration on Doping in Sport. This document provided for the creation of an independent international anti-doping agency to be fully operational for the Games of the XXVII Olympiad in Sydney in 2000.Pursuant to the terms of the Lausanne Declaration, the World Anti-Doping Agency was established on 10 November 1999 in Lausanne to promote and coordinate the fight against doping in sport internationally. WADA was set up as a foundation under the initiative of the IOC with the support and participation of intergovernmental organizations, governments, public authorities, and other public and private bodies fighting against doping in sport. The agency consists of equal representatives from the Olympic Movement and public authorities.

It was in this perspective that WADA formulated detailed rules and regulations towards its two fold objectives; (i) "To protect the Athletes' fundamental right to participate in doping-free sport and thus promote health, fairness and equality for Athletes worldwide, and (ii) To ensure harmonized, coordinated and effective anti-doping programs at the international and national level with regard to detection, deterrence and prevention of doping." The Code, first of its kind, was promulgated in 2003 and the version which operates toward is of 2009 effective from first of January this year. 

About the Code, WADA professes that "the Code is the fundamental and universal document upon which the World Anti-Doping Program in sport is based. The purpose of the Code is to advance the anti-doping effort through universal harmonization of core anti-doping elements. It is intended to be specific enough to achieve complete harmonization on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed-upon anti-doping principles are implemented."

One may have a look at the complete code to find that its the edifice on the basis of which doping in international sports is sought to be regulated, rather eliminated. However we are concerned with the root of controversy: the so-called 'whereabouts clause' of the anti-doping rules. The relevant clause stipulates that;

ARTICLE 2: ANTI-DOPING RULE VIOLATIONS

Athletes or other Persons shall be responsible for knowing what constitutes an anti-doping rule violation and the substances and methods which have been included on the Prohibited List. 

The following constitute anti-doping rule violations:

2.4 Violation of applicable requirements regarding Athlete availability for Out-of-competition Testing, including failure to file required whereabouts information and missed tests which are declared based on rules which comply with the International Standard for Testing. Any combination of three missed tests and/or filing failures within an eighteen-month period as determined by Anti-Doping Organizations with jurisdiction over the Athlete shall constitute an anti-doping rule violation.

Therefore, failure to provide the required whereabouts information regarding the availability of the sportsperson during the out-of-competition period is considered to be a violation of the anti-doping rules. The same Code further prescribes the whereabouts information requirement as under;

14.3 Athlete Whereabouts Information: As further provided in the International Standard for Testing, Athletes who have been identified by their International Federation or National Anti-Doping Organization for inclusion in a Registered Testing Pool shall provide accurate, current location information. The International Federations and National Anti-Doping Organizations shall coordinate the identification of Athletes and the collecting of current location information and shall submit these to WADA. This information will be accessible, through ADAMS where reasonably feasible, to other Anti-Doping Organizations having jurisdiction to test the Athlete as provided in Article 15. This information shall be maintained in strict confidence at all times; shall be used exclusively for purposes of planning, coordinating or conducting Testing; and shall be destroyed after it is no longer relevant for these purposes.

Therefore the sportspersons are required to inform their accurate current location information to the WADA authorities even out-of-competition such that the tests which are scheduled during those periods can be carried out. By when then WADA code applies to Olympics etc., why this fuss in cricket. Because Article 20.3 of the Code makes it peremptory on the part of International Federations (and ICC is one such) "to require all Athletes and each Athlete Support Personnel who participates as coach, trainer, manager, team staff, official, medical or paramedical personnel in a Competition or activity authorized or organized by the International Federation or one of its member organizations to agree to be bound by anti-doping rules in conformity with the Code as a condition of such participation." Therefore the ICC is obliged to ensure that the players taking part in its competitions abide by the WADA Anti-Doping Code. This is why the ICC required the member national cricket associations to sign up their players for WADA and start following its Code.

Things however took a different turn when the players of the Indian Cricket team refused to agree to the Code alleging it was in violation of their right to privacy guaranteed under the Indian Constitution and could compromise on their security. While the issue of player-safety is one subjective factor to the player and the Board, the issue that the so-called whereabouts clause is a violation of their right to privacy is a bit hard to digest given the law on this issued declared by the Supreme Court of India and also despite the fact that WADA takes full note the right to privacy of the athletes under their respective jurisdictions and to this effect provides in its Code as under;

14.6 Data Privacy: When performing obligations under the Code, Anti-Doping Organizations may collect, store, process or disclose personal information relating to Athletes and third parties. Each Anti-Doping Organization shall ensure that it complies with applicable data protection and privacy laws with respect to their handling of such information, as well as the International Standard for the protection of privacy that WADA shall adopt to ensure Athletes and non-athletes are fully informed of and, where necessary, agree to the handling of their personal information in connection with anti-doping activities arising under the Code.

Thus the objection raised by the Indian cricket team must have been on a rationale much higher than what WADA provides for otherwise there was hardly any scope of contest. Let us examine the merit in this allegation.

To begin with, one would be intrigued to note that there is no such specific 'right of privacy' under the Indian Constitution. The nearest equivalent (and perhaps also the most generic of rights) is Article 21 of the Constitution which only states that "no person shall be deprived of his life or personal liberty except according to the procedure established by law". Though judicial interpretation, it has come to be established that this fundamental right is one of wide magnitude and the 'right to privacy' is only an off-shoot of this provision. It has also been held time and again that 'right to livelihood' is an integral part and facet of the right to life. Therefore to deprive one of his livelihood in a manner which is opposed to a civilized treatment would be violative of this fundamental right.

The right to privacy, if one can say so, can be traced as emanating from a 1975 decision of the Supreme Court in Govind v. State of Madhya Pradesh. Speaking in the context of the challenge made to the validity of the Regulations framed by the State on Surveillance of habitual offenders and having quoted extensively on the position of the law prevailing in other jurisdictions, the Supreme Court observed as under;

Individual  autonomy,  perhaps the central  concern  of  any system of limited government, is protected in part under our Constitution by explicit constitutional guarantees. In the application  of the  Constitution our contemplation cannot only be  of what has  been  but what may be. Time works changes and  brings into existence new condition subtler and far reaching  means of  invading privacy will make it possible to be  heard in the street what is whispered in the closet. Yes too  broad a, definition of privacy raises serious questions about this propriety  of  judicial reliance on a right  that  is not explicit  in the Constitution of course,  privacy  primarily  concerns  the  individuals. It therefore  relates  to  and overlaps  with the concept, of liberty. The  most  serious advocate  of  privacy must confess that there  are serious problems  of  defining the essence and scope of the  right. Privacy interest  in autonomy must also be  placed  in the context of other right and values. 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 analytical picture of that distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as 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. Rights   and freedoms of  citizens are set  forth  in the Constitution in order' to guarantee that the individual, his personality  and those things stamped with his personality shall  be  free from official interference  except  where  a reasonable  basis  for intrusion exists. 'Liberty  against government" a phrase coined by Professor  Corwin  expresses this idea  forcefully. In  this  sense,  many   of the fundamental   rights  of  citizens  can be   described as contributing to the right to privacy. 

However, on a word of caution, the Court also noted that this right could not be viewed in isolation and rather was required to be balanced in the context of other competing interests and therefore if the so-called obstructions to these privacy were well placed, they could indeed override the individual'a right. It was on such account that even though the Court recognized the right to privacy of the so-called habitual offender, according to the Court the concern to protect the society from such people with known antecedents far outweighed the individual's right to privacy and therefore the challenge to the regulations was turned down by the Court. 


There have been a number of other decisions also wherein this right has been found to be worth a mention, especially against journalists seeking access to particular photographs; rights of a patient not to have his medical status disclosed to others; unauthorised tapping of telephones of third parties; etc. However the legal position is arguably clear that there is no blatant and unfettered right of privacy under the existing Indian law. 


Therefore what does one say of the stand adopted by the Indian authorities; is it the correct enunciation of the legal position existing in India? According to the advice meted out by the legal experts advising the BCCI, the answer seems to be in the affirmative. Yet it is only the course of time (and a challenge in the court) that will exactly test the proposition. However the approach yet begs the question that how can the clause be an invasion on privacy if the bigger competing interest is to keep the sports clean of doping menace? If the clause is found to be invasive, let the players not sign and also let they not participate for if that the disclosure be a part of the 'conditions of play', they can't cut the cake and eat it too. Even the Supreme Court recognizes (as quoted above) that the right of privacy is not uncontrolled and unfettered against all other rights which the society has to regulate is own being. In fact even the reliance placed upon Article 21 is not without scrutiny for the jurisprudence in this regard is equally well settled that it only protects against procedural violations and if a substantive law does take away a right, there is no scope of argument against it.


Further, one is compelled to ask that if the clause requiring the sportsperson to provide the whereabouts indeed a violation of the Right of Privacy of the Indian sportsperson, why did the Indian National Anti-Doping Authority (headed by no less than the Sport Minister of Government of India) accept the WADA Code at its very first meeting and still has not considered going back to WADA seeking a review of the conditions?

Nonetheless the current situation is that following its players objections, BCCI  (choosing to disagree with the official stand of the Indian Government) placed its objections to the whereabouts clause to ICC and ICC has now suspended the operation of the whereabouts clause and has sought the involvement of WADA to find an alternative to the so-called constitutional issue facing the Indian Crickets. But yet, as we stated this, one has to really figure out in what context it is claimed that there is an invasion of the privacy of the sportspersons. It might be a case of practical difficulties, clashing egos but to say a constitutional issue, one needs to atleast state the foundational claims thereto.