“POST LIBERALIZATION NUANCES OF

ORGANIC CONSTITUTION”

“MEDIA AND PRIVACY ISSUES ”

“THE SLINKY CLEFT BETWEEN

PRIVACY AND RIGHTS IN MEDIA
TODAY”

MANASA.M

AND

N.NANDITA.DA

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 NAME OF

THE AUTHORS: MANASA M

NANDITA DAS

INSTITUTION : KLE SOCIETY’S LAW COLLEGE,

BENGALURU

COURSE : 2 ND YEAR BBA LL.B

EMAIL ID : manasa.m1997@gmail.com

nanditadas97@gmail.com

PHONE No. : MANASA: - 9449290502

NANDITA: - 9483969301

POSTAL : NO 11, 4 TH CROSS, MARUTHI

ADDRESS EXTENTION, BENGALURU

560021

E1, AIR STAFF QUARTERS,

7 TH CROSS, 5TH MAIN, DOLLARS

COLONY, BENGALURU

560094

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 INDEX

SL.NO PAGE
NO

I INTRODUCTION 4

II MEDIA IN INDIA 5

III PRIVACY IN INDIA 8

IV THE FEUD BETWEEN 10

PRIVACY AND MEDIA RIGHTS
V CONCLUSION 12

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 I INTRODUCTON

Media today has become an irrevocable part of human life. Each and every person is
directly or indirectly hinged on media. It is a social instrument that is powerful enough to
mould a society, to develop or to destroy it. It is a force that could be put to much
constructive use in the right hands. Jim Morrison 1says, “Whoever controls the media
controls the mind”. And “the media is the most powerful entity on earth. They have the
power to make the innocent guilty and the guilty innocent. And that’s power, because
they control the minds of the masses.” says Malcolm 2.

Privacy is a state in which one is not venerated or vexed by other people or the state
of being free from public spotlight. Privacy or solitude is a state of being apart from other
people or concealed from their view or it is just a state of being free from unwanted or
undue intrusion or disturbance in one’s private life or hap. As Roger Clarke says,
“privacy is the interest that individuals have in sustaining a ‘personal space’, free from
interference by other people and organization.” And according to Warren 3 and Brandeis4,
“privacy is the right to be let alone. “But this has been relinquished today by the media.
This abstain has led to perplexity in the society. The Constitution of India renders us a
right to privacy under Article 21, which can be inferred in the context of two fundamental
rights, namely;

1) Right to freedom under Article 19:

This elucidates the right for speech and expressions.
2) Right to life under Article 21.

Conjointly we are also guaranteed with the Right to information and the Right to
communicate the information through media under Article 19(1)a of the Constitution of
India. Fatally the Constitution does not specifically mention the freedom of press. The
1
America based writer.
2
African-American Muslim minister and human rights activist.
3
Samuel Dennis Warren was a Boston attorney.
4
Louis Dembitz Brandeis was an American lawyer and associate justice on the Supreme Court of the
United States.

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freedom of press is implied from the Article 19(1) a. Thus the press is enthralled to
restrictions that are provided under the Article 19(2) of the Constitution.
The Preamble of the Indian Constitution affirms to all its citizens the autarchy of
expression. Freedom of the press has been included as a part of freedom of speech and
expression under the Universal Declaration of Human Rights 5(UDHR). The predominant
part of Article 19 exclaims, “Everyone has the right to freedom of opinion and
expression, this Right includes the freedom to hold opinions without interference and
ideas through any media and regardless of frontiers”.

II MEDIA IN INDIA

The Indian perspective and its system of parliamentary Democracy, it is true that, the
press is free but subject to certain sane restriction imposed by the Constitution of India.
Before the impact of globalization was felt, the mass media was wholly controlled by the
Government, which led the media project only what the Government wanted the public to
see and in a way in which it wanted the public to see it. However, with the onset of
globalization and privatization, the situation has undergone a humongous change. Before
the invention of communication satellites, communication was mainly in the form of
National media, both public and private, in India and abroad. Then came ‘transnational
media’ with the progress of communication technologies like satellite delivery and
integrated service digital network, the outcome local TV, global films and global
information systems. In such an era of media upsurge, it becomes an absolute obligation
to impose certain legal checks and bounds on transmission and communication.

Mass media laws in India have a long history and are deeply rooted in the country’s
colonial experience under British rule. The earliest regulatory measures can be traced
back to 1799 when Lord. Wellesley promulgated the press regulations, which had the
effect of imposing pre censorship on an infant newspaper publishing industry. The onset

5
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations
General Assembly on 10 December 1948 at the Palais de Chaillot, Paris.

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of 1835 saw the promulgation of the press Act, which undid most of, the repressive
features of earlier legislation on the subject.

Thereafter on 18th June 1857, the Government passed ‘The Gagging Act’ 6, which
among various other things, introduced compulsory licensing for the owning or astir of
printing presses, empowered the Government to prohibit the publication or circulation of
any newspaper, book or other printed material and banned the publication or
dissemination of statements or news stories which had a tendency to cause a furor against
the Government, thereby weakening its authority.

Then followed the, “press and regulation of books Act” in 1867 and which lingers to
remain in force till date. The Governor General Lord.Lytton promulgated, “ vernacular
press act” of 1878 allowing the Government to clamp down on the publication of writings
deemed seditious and to impose punitive sanctions on printers and publishers who failed
to fall in line. In 1908, Lord.Minto promulgated the newspapers Act, 1908, which
authorized the local authorities to take action against the editor of any newspaper that
published matter deemed to constitute an incitement to rebellion.

However, the most manifest day in the history of media regulations was the 26 th of
January 1950. The colonial experience of the Indians made them realize the crucial
significance of the, “Freedom of press”. Such freedom was therefore incorporated the
Constitution, to empower the press to disseminate knowledge to the masses and the
constituent assembly thus, decided to safeguard this, “Freedom of Press” as a
fundamental right.

The Indian Constitution while not mentioning the word "press", provides for "the
right to freedom of speech and expression"(Article 19(1) a). Liberalization cites to the
slackening of Government regulations. The economic liberalization in India bespeaks the
persisting financial reforms which began since July24, 1991. The need for media

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A “Gagging Act” had been passed following the Indian Rebellion of 1857 which sought to regulate
the establishment of printing presses and to restrain the mad of printed mater

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autonomy dismantling the Government’s control of AIR 7 and DoorDarshan had been a
key issue in discussions on media reforms since then.

Under the 1st Amendment, the freedom of the press is a fundamental liberty within
the United States. Accordingly, courts and legislative bodies have had to tread lightly
when seeking to regulate radio, television, newspaper and other media outlets.
Historically, media law has been divided into two areas: telecommunications and print
sources (newspapers, periodicals, etc.). Regulation of the media is governed at both the
state and federal levels.
At the federal level, the Federal Communications Commission 8(FCC) regulates
interstate and foreign communications by radio, television, wire, satellite, and cable.
Within the FCC, separate bureaus regulate different components of the media:

 The Media Bureau regulates amplitude and frequency modulation, low-power

television, direct broadcast satellite, and regulates cable television.

 The Wire line Competition Bureau regulates telephone and cable facilities.

 The Wireless Telecommunications Bureau administers all domestic commercial

and private wireless telecommunications programs and policies.

 The International Bureau manages all international programs.

The growth of the Internet and digital media more generally has begun to blur the
boundaries between media segments. In 1998, Congress passed the Digital Millennium
Copyright Act 9(DMCA) to deal with Internet issues and the advanced technologies used
to bypass copy protection devices.

III PRIVACY IN INDIA

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All India Radio
8
FCC was established by the Communications Act of 1934
9
incorporated the “anti-circumvention provisions” of the WCT into U.S. law in 1998

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 Article 21 of the Constitution of India states that “No person shall be deprived of his
life or personal liberty except according to procedure established by law”. The right to
life enshrined in Article 21 has been liberally interpreted so as to mean something more
than mere survival and mere existence or animal existence. It therefore includes all those
aspects of life which makes a man’s life more augury, complete and worth living and
right to privacy is one such right. It’s one such human right which in spite of being
decisive is difficult to define, as its definition vary widely according to the context and
the environment. In the more strict sense, privacy production is spasmodically seen as a
way of drawing the line at how far society can intrude onto a person’s affairs. It is used to
mean as a, “right to be left alone” and as, “the most cherished of freedoms in a
democracy”. It signifies, “the right of the individual to be protected against intrusion into
his personal life or affairs, or those of his family, by direct physical means or by the
divulgation of information.” The first time this topic was ever raised was in the case of
Kharak Singh v. State of UP where the Supreme Court held that Regulation 236 of UP
Police regulation was unconstitutional as it clashed with Article 21 of the Constitution. It
was held by the Court that the right to privacy is a part of right to protection of life and
personal liberty.

 The Privacy Bill:-

The bill says, “every individual shall have a right to his privacy- confidentiality of
communication made to, or , by him- including his personal correspondence, telephone
conversations, telegraph, messages, postal , electronic mail and other modes of
communication, confidentiality of his private or family life, protection of his honor, and
good name, protection from search, detention or exposure of lawful communication
between and among individuals, privacy from surveillance, confidentiality of his banking
and financial transactions, medical and legal information and protection of data relating
to individuals”

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 The Bill provides four Constitution of a Central Communication Interception Review
Committee to examine and review the interception orders passed and is empowered to
render a finding that such interception contravened Section 5 of the Indian Telegraph Act
and that the intercepted material should be destroyed forthwith. It also prohibits
surveillance either by following a person or close circuit television or other electronic or
by any other mode, except in certain case as per the specified procedure.

The Bill make contravention of the provisions on interception and offence punishable
with imprisonment for a term that may extend up to 5 years or with fine, which may
extend to Rs.1 Lakh or with both for each such interception. Similarly, disclosure of such
information is a punishable offence with imprisonment up to 3 years and a fine up to Rs
50,000, or both. Further, it says any person who obtains any record of information
concerning an individual from any officer of the Government or agency under false
pretext shall be punishable with a fine up to Rs.5 lakhs.

The Government’s attempt to draft a privacy Bill is been termed as a refined one by
the experts as it expands its ambit. However, the Bill creates some wide exceptions for
law enforcements and intelligence agencies to collect personal information of individuals.
The Government has made several attempts ay drafting a privacy Bill since 2010, with
the aim of protecting individuals against data misuse by private agencies or Government.

The first draft, released in 2011, extended the right to privacy to citizens of India. But,
the 2014 version has expanded its ambit to cover all the residents of the country. The
2014 Bill also recognizes the right to privacy as a part of Article 21 of the Indian
Constitution and extends to the whole of India. In contrast, the 2011 Bill did not
explicitly recognize the right to privacy as being part of the Article 21, and excluded
Jammu and Kashmir from its purview.

Both the drafts include a list of circumstances under which authorization for the
collection and processing of the sensitive personal data is not required. The lists are
broadly the same. However, the latest version exempts insurance company and

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Government intelligence agencies collecting or processing data, “in the interest of the
sovereignty, integrity, security or the strategic, scientific or economic interest of India”.

IV THE FEUD BETWEEN PRIVACY AND MEDIA RIGHTS

In India the Constitution does not expressly recognise the right to privacy. But after the
case of Kharak Singh v. State of U.P the Supreme Court for the first time recognised the
right to privacy which is implicit in the Constitution under Article 21. The Court held that
the right to privacy is an integral part of the right to life, but without any clear cut laws, it
still remains in the gray area. The view was based on the conclusion that the infringement
of a fundamental right must be both direct as well as tangible that the freedom guaranteed
u/a 19(1)(a)- a right to freedom of speech and expression was not infringed upon by a
watch being kept over the movement of the suspect. Recently in one of the most
controversial case Ratan Tata 10went to Supreme Court against the publication of intercepts
of his conversation with Neera Radia who handles the corporate communication for the
group. Tata holds that as Radia’s phones were tapped by Government agencies especially
for investigating a possible offence the recorded conversations should have been used for
that purpose alone. Ratan Tata has submitted his petition before Supreme Court asking to
protect his right to privacy. But given that freedom of information laws have at their core
the purpose of disclosure, exemptions are strictly construed, and it has been said that the
public right to know should prevail unless disclosure would publicise intimate details of a
highly personal nature. The Radia tapes so far published public issues, but not personal life
of Tata. These conversations would be available to every citizen under the RTI Act because
the only objection that one could raise would be on the ground of 8(j) of RTI Act which
says-information which relates to personal information, the disclosure of which has no
relationship to any public activity on interest. It also says “or which would cause
unwarranted invasion of the privacy of the individual unless the public authority is

10
www.legalserviceIndia.com

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satisfied, unless the information officer is satisfied that the larger public interest justifies the
disclosure of such an information.”

In that case a preliminary question that should be asked is whether Tata’s conversations
would be revealed through an RTI, or whether his conversations would fall under the
exemption of personal information found in section 8(j). It is interesting to note the
structure of this exemption. By the use of word “or” the legislation suggests that
unwarranted invasion of individual privacy may trigger the exemption, even if the
information has a relationship to public activity or interest. But the added caveat says that
the larger public interest could justify the release of even purely private information

As mentioned before, in Kharak Singh v State of Uttar Pradesh 11, Supreme Court of India
struck down Regulation which authorized domiciliary visits as being unConstitutional but
upheld the other provisions of surveillance under that Regulation. Their view was based
on the conclusion that the infringement of a fundamental right must be both direct as well
as tangible and that the freedom guaranteed under Article 19(1)(a) - a right to freedom of
speech and expression - was not infringed by a watch being kept over the movements of a
suspect. At that time court did not recognize the right of privacy.

But in Gobind v. State of M.P 12, also a case of surveillance, the Supreme Court, while
upholding the regulation in question which authorized domiciliary visits by security
personal, also held. Depending on the character and antecedents of the person subjected
to surveillance as also the objects and the limitation under which surveillance is made, it
cannot be said surveillance by domiciliary visits would always be unreasonable restriction
upon the right of privacy. Assuming that the fundamental rights explicitly guaranteed to a
citizen have penumbral zones and that the right to privacy is itself a fundamental right,
that fundamental right must be subject to restriction on the basis of compelling public
interest.

11
www.scconline.com
12
www.scconline.com

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 V CONCLUSION

Right to privacy is an essential component of right to life and personal liberty under Article
21. Right of privacy may, apart from contract, also arise out of a particular specific
relationship, which may be commercial, matrimonial or even political. Right to privacy is
not an absolute right; it is subject to reasonable restrictions for prevention of crime,
disorder or protection of health or morals or protection of rights and freedom of others.
Where there is a conflict between two derived rights, the right which advances public
morality and public interest prevails.

Louis Brandeis J in a celebrated judgment has said that right to privacy is ‘the right most
valued by civilized men.” Lord Hoffmann has observed in relation to the complaints against
media that there is no logical ground for saying that a person should have less protection
against a private individual than he would have against the state for the publication of
personal information for which there is no justification.

Being part of a society often overrides the fact that we are individuals first. Each individual
needs his/her private space for whichever activity (assuming here that it shall be legal). The
state accordingly gives each individual that right to enjoy those private moments with those
whom they want to without the prying eyes of the rest of the world. Clinton Rossiter has
said that privacy is a special kind of independence which can be understood as an attempt
to secure autonomy in at least a few personal and spiritual concerns. This autonomy is the
most special thing that the person can enjoy. He is truly a free man there. This is not a right
against the state, but against the world. The individual does not want to share his thoughts
with the world and this right will help protect his interests.

In this day and age, this right is becoming more essential as every day passes. With all our
lives being splattered over the media be it through social networking sites or the spy
cameras, we need protection so that we can function in a way we want to and not think of

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others before our actions. After all, the only ones we owe an explanation to is ourselves,
and not to the entire world.

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