Guest post by Maneka Khanna, a third year student at NUJS.
Much defense of the Vadra-DLF controversy has been centered around the private nature of the deal, a deal between two private entities, with special focus on the ‘private person’ status of Robert Vadra. There has been speculation about which side of the ‘private-public’ spectrum Vadra falls in, fuelled by his ‘son-in-law’ nexus, the nature of his business transactions, and most recently Facebook categorizing him as a public figure. Those claiming that he is a public figure have also cited the Congress government’s defense of Vadra and his airport security exemptions to support their claims. This post will look at the legal definition of public figures that Courts have expounded while discussing the tensions between freedom of speech and competing claims of public figures.
Legal Definition of Public Figures
The first case dealing with freedom of speech and the right to privacy of public figures in the Supreme Court, R. Rajagopal v. State of Tamil Nadu, provided no conclusive definition of public figures. However, it did emphasize their role in ordering society and influencing policy. Taking this understanding a step further, the Delhi High Court proposed an interesting definition of public figures in the landmark Phoolan Devi case, holding that public figures are those who have arrived at a decision due to which public attention is focused on them. This is apparently a tautological definition because, by the Court’s logic, the public scrutiny that a person receives determines his status as a public figure, rather than the other way around. To put this in context, it appears that Vadra could be termed as a public figure as a result of the controversy centered around him, rather than on some independent criteria of his position. Needless to say, such a definition could be problematic while deciding the legitimacy of media exposés of those whose public status remains undetermined.
A more sophisticated approach of the Delhi High Court can be seen in Indu Jain v. Forbes, where the Court held that persons whose “standing, accomplishment, fame, mode of life or profession” gives the public a legitimate interest in their affairs may be termed public figures. Two important principles emerge from this definition: first, the role of legitimate public interest in the determination of a public figure and second, the emphasis of the court on the voluntary nature of those in the public sphere.
Public Figure by Affiliation
By emphasizing profession, standing and accomplishment as criteria for public figure status, the Court in Indu Jain minimized chances for those involuntarily dragged into the limelight from getting public figure status. Courts in India have had a conservative approach in this aspect, as is evident in the Madras High Court judgment in A. Raja v. P. Sreenivisan, where it held that the family of A. Raja could not be termed public figures merely due to familial political affiliation, despite the large political scandal surrounding A. Raja at the time. Therefore it is unlikely that Courts would find the mere martial affiliation of Vadra suffice to term him public figure.
However, official orders have seen this marital affiliation as sufficient to extend the privileges of public officials to Vadra, namely, the exemption from airport security checks. RTI queries show that Vadra is exempt merely because he is married to a Special Protection Group protectee, as per AVSEC order 06/2009. Such official recognition of Vadra as a ‘special’ citizen dilutes the private person claims made in his defense. Moreover, reports have also cited money laundering regulations and standards to categorize Vadra as a “Politically Exposed Person”. The intergovernmental organization to combat money laundering, the Financial Action Task Force has, in its guidelines, categorized important public officials along with their families as Politically Exposed Persons. Grouping of public officials and their families in the same category gives due recognition to the higher risk of involvement of these individuals in bribery and corruption due to the power and influence they hold. While such guidelines are not binding and have no constitutional significance, it remains interesting to see that officials and their family are being categorized in such a manner, due to the innumerable examples of impropriety that families of high ranking officials have been involved in.
However, despite this, I argue that Courts will be conservative in terming individuals ‘public figures’ merely due to their affiliation, when they have not voluntarily entered the public domain, because of the significantly lower threshold of protection that public figures enjoy in the face of public scrutiny.
The Role of Public Interest
Therefore, the last trump card, not only used in deciding competing claims of free speech and privacy but also in determining the threshold question of who a public figure is, is that of ‘public interest’, as seen in the Indu Jain definition. While the contours of what public interest comprises of remains unsettled both nationally and internationally, what may be concluded is that in cases where the status of public figure remains dubious, the justification for the public scrutiny of the person is decided on the public interest in the subject matter. This undoubtedly has been the case in the present controversy, as few have been able to question the level of public interest in the same.
However, some senior advocates argue that without the state government’s role in the controversy, the matter would not fall into the public domain. This brings us to another question brought up by the controversy; what threshold do private financial transactions have to pass to come within the public domain and open to public scrutiny. At what point can the media be legitimized in exposing details of private business transactions? While public limited companies such as DLF are not bound by the Companies Act or Accounting Standards to disclose details of each business transaction, such dealings have been viewed as corporate governance issues. The investor and larger public interest in dealings of large public companies such as DLF is evident in the slump in DLF stock prices following the controversy.
Similar tensions between transparency and privacy have been the subject of public debate surrounding the RTI and the Prime Minister’s statement and merit consideration in a separate post. Without delving much into these matters, I argue that many of these answers, similar to those related to public figures, lie in the public interest in such information and the level to which the larger public is affected by such information.
Perhaps a more nuanced understanding of the term ‘public figures’ will be helpful in answering the threshold question of which category a person falls in, in order to decide the legal protection that would accrue. Concepts such as ‘voluntary’ and ‘involuntary’ public figures (see e.g. Wolston v. Reader’s Digest Assn., Inc.) and ‘limited purpose public figures’ (see Gertz v. Robert Welch, Inc.), used in the United States defamation case law, can be used to draw more watertight distinctions and concrete standards. I argue that such standards, when used by the media and the Courts, will bring objectivity and reduce reliance on the much contested ‘public interest doctrine’.