RIGHT TO PRIVACY IN THE WORLD OF PRESS.

-JANANI.N1

ABSTRACT
“All human beings have three lives: Public, private and secret”

-Gabriel Garcia Marquez.

Freedom of press is prerogative to the citizen of India, which is incorporated under Article.19 (1)
(a) of Indian constitution. Press freedom must be protected in democratic country like India. It is
an unknown truth that media i.e. press has acquired the fourth position in organs of government
apart from legislature, executive and judiciary. Press is a collective term used to indicate print-
based media. Meanwhile, privacy being a way of seclusion is being protected under Article.21 of
Indian constitution. If any infringement or violation exists in relation of freedom of press and
privacy, people are at liberty to institute action against it through courts. Not being expressly
declared but being a fundamental right, “right to privacy” places a vital role in our Indian
constitution. The concept of freedom of press covers the same laws as of freedom of speech, and
given same treatment to the expression for speech and for publishing. Article.19 (1) (a) has some
limitations which are mentioned under Article.19 (2). Numbers of rights exist in freedom of
press; one such is freedom to publication. Publication is a way of announcement. It could be also
said as proclamation. But during the act of dissemination, it should not affect one’s privacy. It is
the duty of courts to see whether the given freedom is abused or not. Even Universal Declaration
of Human Rights deals with freedom of opinion and expression under media. Article.12 of
UDHR, speaks about right to privacy. International treaties like UN Declaration of Human
Rights, International Covenant on Civil and Political Rights and others, say that privacy is a
fundamental Human Right. When one’s privacy is violated by the act of press, it is implied in
some aspect that human right is also violated. In Romesh Thappar v. State of Madras, it was held

1
JANANI.N-BCA, LLB (HONS), 3RD YEAR, SCHOOL OF EXCELLENCE IN LAW (THE TAMIL NADU
DR.AMBEDKAR LAW UNIVERSITY), CHENNAI.
that the freedom of press was an essential part in freedom of speech and expression. Still the
courts are being liberal with the concept of press, in order to develop the information system in
India. Press laws are concern with licensing of books and the freedom of expression in all
printing-press products, especially newspapers. The “power of the concept press” is to bring
social, emotional and political change for development. Majorly, defamation plays a great role
by the way of either libel or slander. Even Press council Act, Official secret Act, Contempt of
court, copyrights are a part of press laws and media ethics. Powerful legislation is necessary for
bridging press freedom and privacy. This paper aims to learn about the bridge that links
Article.19 (1) (a) and Article.21 of Indian constitution.

Keywords: Freedom, Human rights, Indian constitution, Press, Privacy.

INTRODUCTION:

Rationale and aim of the study:

It’s still being a debatable topic between freedom of press and privacy, where there still exists a
towering rise of competition in media. Some media, in order to gain the attraction of people, use
the freedom given to them, in particular the freedom of press and also invaded the privacy of
fellow human being. Privacy being the fundamental right, it should be enjoyed by the every
person and majorly the citizen of India. There should be no act of intrusion into one’s personal
affairs by any mode of media, for instance like publishing the information of an individual
without their consent or without their knowledge. By doing so, it becomes a way of illegally
interfering into another’s private issue. When it comes to Media, freedom of expression plays a
vast role, in particular democratic country like India. There should be a correct balance not only
in case of privacy and freedom of expression but also to the term “freedom of press”. But still it
should be an accepted fact that, due to press and media, we could access all worldwide
information. There was an amendment made which grants the right to press to provide
information to the society. But also provided restriction, that the freedom of press should not
abuse the public rights. It is not actually necessary for public to know about one’s private issues
or affairs unless and until it is for public interest at large. It is a common saying that, freedom of
press is not a free entry or pass for the media to print or telecast whatever they need in order to
turn public towards them. Privacy being an indispensible right that is inherited impliedly in
Article.21 of Indian constitution, needed to be cautiously used. On the other hand freedom of
press which is said to be a subset of the freedom of speech and expression which is also
incorporated under Article.19 (1) (a)2 and the freedom which is inherited in it should not be
abused. In Romesh Thappar v. State of Madras,3 it was held that, ‘freedom of speech and the
press lay at the foundation of all democratic organizations, for without free political discussion
no public education, so essential for the proper functioning of the processes of the popular

2
Constitution of India.
3
1950 AIR 124, 1950 SCR 594.
government is possible.’ Press is also said as a way to propagate one’s idea by means of
circulation. Sometimes, the work of press may also lead to defaming a person, which is
punishable under both Torts and Indian penal code. Press also falls under the contempt of court
Act, 1971 and also 200th law commission report comes under the purview when its freedom of
press. Hence the main aim of the paper is to learn about the bridge that links right to privacy and
freedom of press, which needed to be balance and this, is to be done by courts depending upon
the facts and circumstances of the case.

Term- Right to privacy:

 Black’s law dictionary: The right that determines the non-intervention of secret
surveillance and the protection of an individual’s information. Right to privacy - the right
of a person to go his own way and live his own life that is free from interference and
annoyances.
 General definition: Right to privacy means, the right of a person to be free from
intrusion into or publicity concerning matters of a personal nature. (Merriam Webster)
 Oxford dictionary: Privacy is a state in which one is not observed or disturbed by other
people.

CONSTITUTIONAL VALIDITY ON THE CONCEPT- FREEDOM OF PRESS IN

RELATION WITH RIGHT TO PRIVACY IN INDIA:

“The media is the most powerful entity on earth. They have the power to make the innocent guilty
and to make the guilty innocent, and that’s power. Because they control the minds of the masses”

-Malcom X.

The question still arises of whether the press can link the bridge between the government and
people, particularly in democratic country like India. Being the fourth organ of government,
there is still issues arise in privacy. Where right to privacy is recognized under Indian
constitution as fundamental right under Article.21, which says “No person shall be deprived of
his life or personal liberty except according to procedure established by law.” and it was also
held that right to privacy is an essential element of right to life, in the case R.Rajagopalan v.
State of Tamil Nadu. The phrase ‘procedure established by law’ was interpreted by the court in
many means; Even Maneka Gandhi v. Union of India held that the procedure so established must
be fair, just and reasonable.4 It would be difficult for democratic country like India to survive
without the right of press. Press i.e., Media being watchdog, it notices and investigates all the
behavior that happens throughout the world. Due to this work, the illegal or misbehavior of
officials or any other person, which affects the public interest at large, would be also telecasted
or published. In Sakal papers v. Union of India, it was held that, ‘freedom of press is regarded as
a species of which freedom of expression is a genus.’5 Press freedom is a communication
medium that links people and government. In people governing country like India, should be
aware of what’s happening even after the election of representatives. Press is a medium that
consist of both the publishing materials like newspapers and electronic media like television etc.
freedom of press is a freedom of speech and expression which is incorporated in Article. 19 (1)
(a) of Indian constitution and also being the fundamental right provides the liberty for the people
to know the misbehavior of some officials or other people whose behavior affects the public and
their interest at large. This provision is applicable to the citizen of India and non- citizen cannot
seek remedy through this provision. Before independence of India, there was absence of this
provision like freedom of press. But in common law system this press freedom could be claimed
which was observed by Privy Council in the case law Channing Arnold v. king emperor. Being a
democratic country, it found the necessity of press, the framers of constitution found that there
would be a need for such a provision for country like India too. Where, Article. 19 (1) (a) read
as follows,

Article.19 -protection of certain rights regarding freedom of speech, etc.

(1) All citizen shall have the right-

(a) To freedom of speech and expression;

4
1995 AIR 264 1994 SCC(6) 632
JT 1994 (6) 514 1994 SCALE (4) 494.
5
1962 AIR 305 1962 SCR (3) 842.
And certain restrictions are provided in Article.19 (2) like, for the interest of the sovereignty and
integrity of India, The security of the state, Friendly relations with foreign states, for public
order, Decency or morality or in relation to contempt of court, and Defamation. 6

The three essential elements for the press freedom are: freedom of circulation, freedom of
publication and freedom to access to all sources of information. When these essentials are
considered it should be keenly noted that the act should not cause sedition 7or one would be held
liable under Indian penal code. The section of sedition runs as follows:

Section 124A8—Whoever, by words, either spoken or written, or by signs, or by visible

representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or
attempts to excite disaffection towards, 2 [***] the Government established by law in 3 [India],
4[***] shall be punished with 5 [imprisonment for life], to which fine may be added, or with
imprisonment which may extend to three years, to which fine may be added, or with fine.9

Even though the term press is not expressly declared, it has the same restriction of freedom of
speech and expression. Certain Acts like POTA10 and Official Secrets Act provides certain limits
to freedom of press. Press is considered to be a limb of democratic country like India. The
objective of press is to provide vital information which happens throughout the country and
world. Newspaper, articles provides an update of current scenario and also provides suggestions
and raise opinions, which also showcases the government activities, so that we’ll know whether
the government is powerful or weak in nature. Even in Ramesh Thappar case, Pantanjali Sastri,
C.J., observed that freedom of speech and expression include propagation of ideas, and the
freedom was ensured by the freedom of circulation. 11
A journal known as ‘Cross Road’ which
was published in Bombay but was simultaneously banned in Madras and was held that, there was
violation of Article. 19 (1) (a) since with the absence of liberty for circulation and publication
there would be only less value or could be said as little scope.12 Even in A.K.Gopalan
v.Noordeen case, it was held that, ‘publication made after arresting a person could be considered
6
Dr.J.N.Pandey, Constitution of India, 53rd edition, 2016.

7
K.D.Gaur, textbook on Indian Penal Code, 5 th edition.
8
Indian penal code, 1860.
9
http://indiankanoon.org
10
Prevention Of Terrorist Act, 2000.
11
V.N.Sukla, Constitution of India, 10th edition
12
P.M.Bakshi, commentary on Constitution of India, 2 nd edition.
as contempt, if it is prejudicial to the suspect or accused.13 In particular the right to privacy was
recognized more in Kharak Singh v. State of U.P & others, which was observed that right to
privacy lies under the purview of Article.21 even though it is not expressively declared.14 In case
regarding Khushwant Singh’s book “Truth, Love and a little Malice” Ms. Maneka Gandhi
submitted a petition stating certain content in the book violated her right to privacy, but the High
Court it was held in favor of the right of publication and there wasn’t any question in regard to
irreparable loss or injury since the respondent claimed the damages which is said to be the
remedy in this case, as she is able to establish the demotion occurred and the appellant is unable
to defend themselves by law.

Press plays a very significant role in democratic machineries, which was held in the case law
Indian Express Newspaper v. Union of India. 15The press and employees of press have the same
laws of industrial relation and laws which regulates the industrial employment. Even, Wajahat
Habibullah, who then was the former chief information commissioner of India has also
demanded a law on privacy is a complimentary to the law on right to information, which is the
utmost duty of the press i.e., media. Hence the constitutional provision in India provides utmost
protection in order to protect once privacy and makes sure that the freedom imposed or given to
the people are not misused by providing certain restrictions.

INTERNATIONAL OBLIGATION ON RIGHT TO PRIVACY IN THE WORLD OF PRESS:

India is the signatory member of International Covenant on Civil and Political rights; and
Universal Declaration of Human Rights plays a great role in regard to privacy and freedom of
press. Privacy is dealt under Article.12 of UDHR16 and Article.17 of ICCPR.17

 Article.12 of UDHR:

13
1970 AIR 1694, 1970 SCR (2) 410, 1970 SCC (2) 734.
14
1963 AIR 1295, 1964 SCR(1) 332.
15
1989 SC 190 (14).
16
Universal Declaration of Human Rights.
17
International Covenant on Civil and Political Rights.
 No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to
the protection of the law against such interference or attacks.18

 Article 17 OF ICCPR:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or
attacks.19

Whereas, right to freedom of speech and expression is dealt under Article.19 of UDHR
simultaneously Article.19 (1) (a) of Indian constitution as we have dealt above. Even right to life
is dealt under Article.21 of Indian constitution simultaneously the Right to life, liberty and
security of person is explained under Article.3 of Universal Declaration of Human Rights.

 Article.3 of UDHR: Everyone has the right to life, liberty and security of person.20

 Article.19 of UDHR: Everyone has the right to freedom of opinion and expression; this
right includes freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers.21

It was observed by the High court, the existence of privacy from the customs and tradition of
India, which was held in the case Nihal Chand v. Bhagwan Dei. But the framers of Indian
constitution have failed to make distinct and separate provision for both privacy and freedom of
press expressively. Since India is the member of UNO it is bound to it. Subsequently India had
ratified ICCPR; hence they are at mere obligation to adhere to them. Press plays a huge role in
protection of human rights and it helps for social, economical and political progress of a country.
Sometimes, the journalist needs to walk into the prohibited area in order to search the truth. And,
they should act sensitively too, this is because they are at mere obligation to publish something

18
www.un.org
19
www.ohchr.org
20
www.un.org
21
Ibid.
very vital about something, since it’s for public interest. From this we come to know that even
international obligations try to bridge the gap between the freedom of press and privacy.

GIST OF OTHER PROVISIONS OF LAW IN INDIA THAT BALANCES THE BRIDGE

BETWEEN PRIVACY AND PRESS FREEDOM:

 Tortious perspective for protection of privacy: India has adopted the precedent system of
adjudication after the common law system. It is a general saying that every person has a
right to be protected and respected. Defamation is an offence which not only comes under
IPC22 but also under law of Torts. The reputation of a person is protected by means of
constitution of India and they also have defended the press at the same time. Not in all
case of defamation the truth can be taken as defence. It is said to be an action for libel or
slander. The good faith needed to be proved by the publication and a true comment is
necessary for the defence against the defamation.
 Contempt of Court: Contempt of Court Act, 1971 was first initiated in order to provide
justice and it shall be free from external forces while rendering the justice. Courts have
appreciated the press by saying it as a fourth pillar of government. Contempt of court
Act, 2006- truth was made as a defence for contempt proceedings. It would be taken into
consideration only if the truth is public interest at large. The first Contempt of Court Act
was introduced in the year 1926 and later amended in 1937, then in 1952 and in 1971 was
modified. Section.4 says that there would be no contempt of court when the press
publishes information which is fair and accurate. The punishment would be of simple
imprisonment which may extend to 6 months or with a fine which may extend to 2000
rupees or both.
 Law commission Report: 200th report was brought in 2006 elaborated upon the changes
from print media to electronic media and prejudice case. Even 42nd report are
recommended to insert a new chapter known as ‘offences against privacy’ to substitute
chapter XIX. In 200th report M.Jagannadha Rao J., says section.3 (2) of Contempt of
Court Act read along with explanations will give immunity to the publication even for

22
Section.499 and 500 of Indian Penal Code, 1860.
 criminal cases if the charge sheet or challan or date of publication is not filled or summon
isn’t issued.
 Press Council of India: This was constituted in 1966 under PCI Act23. This was laid
down to provide independence to press world. Section.14 of PCI powers to warm,
admonish and censure the press. While reading through the provision one can know that
the chairman doesn’t have much discretion. PCI is a self regulatory system and it has no
intention to control the world of press. Section.15 (3) states every enquiry held by this
council is deemed to be judicial proceeding. Code of ethics plays a role in PCI in order to
maintain the public interest.

All these tries to bridge the gap between not only the government and press but also tries to
achieve the protection of once privacy with regard to press freedom at large. Even Official secret
Act, copyrights are a part of press laws and media ethics. But still, country like India need to
balance between right to privacy and freedom of press in order to develop not only the country
but also the privacy of an individual.

CONCLUSION:

Privacy being a way of seclusion is being protected under Article.21 of Indian constitution.
Meanwhile, press freedom is implicitly identified under Article.19 (1) (a). Media is one which
decides what information people should know and read. Government would become feeble
without the help of press, i.e. media. There are still a lot of questions that arise when it comes to
press and media, some like, is it necessary to report information and publish or telecast
something which isn’t important for the public interest. Like there are many rapes, murders,
corruption taking place in country, but are all of these are published in article or newspaper or
telecasted. It has become like, we people are wasting our time looking into the information
which aren’t important in media. Still the press and media have a lot of provisions to protect
them, but the unwanted news that are provided like, which cricketer marries whom, which
actress is getting divorce, does these contribute anything for the welfare of the democratic
country. But still, the constitution provisions, international obligations and other laws provide the

23
Press Council of India Act, 1965.
protection of an individual privacy and also for press world. The laws in India still try to bridge
the gap between the freedom of press and privacy issues and provided utmost care to protect
one’s privacy in regard to press at large.