Course: Law Media and Censorship

Topic: Dichotomy between the Freedom of Press (Media) and the Right
to Privacy

Submitted by: Himanshu Malik

LLM (2nd
Sem)
Roll No. 210616110042

Submitted to: Dr. Ashutosh Srivastava

Professor (Law)
I. INTRODUCTION

India is a vast country which is known for its democracy. Under the Constitution of
India, Freedom of Speech has been guaranteed to the citizens of India. The freedom of
speech in today's life has been taken as an advantage by all. Media being the fourth
estate and one of the integral parts of our democracy is being infringed by the
restrictions put by the provisions of Freedom of Speech and Expression. The role of
the media has recently grown to hazardous dimensions, to the point where it is
invading people's privacy. However, India at present, does not have an independent
statute protecting privacy; the right to privacy is a ‘deemed right’ under the
Constitution. The right to privacy has to be understood in the context of two
fundamental rights: the right to freedom under Article 19 and the right to life under
Article 21 of the Constitution.
The higher judiciary of the country has recognized the right to privacy as a
right implicit in the right to life and liberty guaranteed to the citizens of this country
by Article 21. The Indian law has made some exceptions to the rule of privacy in the
interest of the public, especially, subsequent to the enactment of the Right to
Information Act, 2005 (RTI).
The RTI Act, makes an exception under section 8 (1) (j), which exempts disclosure of
any personal information which is not connected to any public activity or of public
interest or which would cause an unwarranted invasion of privacy of an individual.
What constitutes an unwarranted invasion of privacy is not defined. However, courts
have taken a positive stand on what constitutes privacy in different circumstances to
put a bar on the unfettered or undisclosed power of the pervasive media’s camera,
knocking every walk of life.

Media is used to communicate sentiments, ideas, and perspectives; on the other hand,
it is also used to create a foundation of opinions on various concepts such as regional,
national, and worldwide principles. As a result, millions of people’s thinking abilities
are influenced by the media. Press freedom is seen as a cornerstone of democracy. In
today’s India, there are four pillars. After ensuring Article 19 (1) (a) of the
Constitution, which protects the right to freedom of expression, the fourth pillar, the
media, was formed. The role played by the media is crucial; it works as a watchdog. It
aims to bring to light all of society’s flaws by raising awareness with the goal of
correcting them. The press is, after all, a source of information for individuals. “The
press is for them, the only window which opens upon the world, the sole means of
escape through the prison whose walls are private interests, personal ties, and
domestic concerns.”1- (Justice George).

However, with the freedom to press comes the right to privacy, which may be
infringed upon. With the media’s growing roles and duties in daily life, it is more
important than ever for the media to understand its limits. The media has a
responsibility to uphold the dignity of persons by respecting the privacy of
others. Article 21 of the Indian Constitution guarantees the “right to privacy” of
individuals.

II. MEDIA RIGHT IN INDIA

There are no explicit rights given to media by the constitution, unlike the USA
constitution. But just like individuals, the Constitution of India, under article 19 (1)
(a)2 guarantees freedom of speech and expression to the press as well. A free press,
which not only reports the happenings around the globe but is also courageous enough
to assess the government and its actions is a blessing to the democracy. Some scholars
have compared a free press as ‘oxygen’ for the democracy, without which it cannot
survive.3 After more than 7 decades of independence, we have learnt that freedom of
press is an essential tool in reducing the corrupt practices taking place and it reminds
the chosen authorities about their duty towards the people of the nation. 4 However, in
the same manner as an individual cannot speak and express whatever he/she feels like,
thereby keeping in mind the reasonable restrictions mentioned under article 19 (2) of
the Constitution of India5, the Press is also expected to communicate contents which
are neither against public policy, nor against morality or any other restrictions
1
https://www.courts.ca.gov/5763.htm
2
Constitution of India, 1950. art. 19 (1)(a).“All citizens shall have the right- (a) to freedom of speech
and expression;”
3
Hadiya Khan & Pankaj Joshi, ‘Freedom of Press: Pilar Of Democracy’, (2018), INT’L J. L. 07, 09
4
B. Mugundhan, C. Renuga, ‘A STUDY ON FREEDOM OF PRESS IN INDIA: WITH REFERENCE
TO ARTICLE 19’, (2018), IJPAM, 3957, 3973
5
Constitution of India, 1950, art. 19 (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the
operation of any existing law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of
the sovereignty and integrity of India, the security of the State, friendly relations with foreign States,
public order, decency or morality or in relation to contempt of court, defamation or incitement to an
offence.
applicable upon them both expressly or implicitly. Besides the Constitutional
guarantee, article 19 of the Universal Declaration of Human Rights 6 (to which India is
a party) also mandates the States to ensure freedom of speech and expression to its
subjects. Having discussed about the need of a free press in a democracy, it needs to
be mentioned that each country has their own expectations from its subjects, and
accordingly they try to regulate their activities. And one such expectation is ‘Privacy’,
for which the press is to be regulated in a similar manner. Each country has express or
at least implied restrictions and regulations in order to control what the press is
showing to its people, and this degree of ‘control’ determines the overall freedom
available to the press in that particular country.
In the famous case of Romesh Thapar vs. State of Madras7, Patanjali Shastri, CJ while
hearing the matter observed, that: “Freedom of speech and press lay at the foundation
of all democratic organisations, for without free political discussions no public
education, so essential for the proper functioning of the process of popular
government, is possible.” Further, the Supreme Court made it clear in the case, Sakal
Papers (Private) Limited vs. Union of India8 that the freedom of speech and
expression carries with itself the right to publish and circulate one’s views and
opinions. In another case concerning Indian Express Newspaper vs. Union of India9 it
was observed by the Apex court that press plays an important role in any democratic
set-up, and it is the duty of the judiciary to uphold and ensure the freedom of press
and invalidate any such laws or state actions which impose or tend to impose
unnecessary restrictions upon its freedom. Later, the question arose before the Apex
court that what all rights are included under the freedom of press. 10 The apex court,
after discussing the question at length, held that when one talks about the freedom of
press in India, it is inclusive of the following three rights, namely (i) The freedom of
access to all sources of information, (ii) The freedom of publication, and (iii) The
freedom of circulation. Therefore, one can understand the judicial approach towards
the freedom of press in India. The judiciary upheld the importance of free press in the
country.

6
Universal Declaration of Human Rights, 1948, art. 19
7
Romesh Thapar v State of Madras, AIR 1950 SC 124
8
Sakal Papers (Private) vs. Union of India AIR 1962 SC 305
9
Indian Express Newspaper v Union of India 1985 1 SCC 641
10
M.S.M. Sharma vs. Sri Krishna Sinha AIR 1959 SC 395
Freedom of Expression and information U/A 19(1) (a) and role of Media
The right to impart and receive information is a species of the right to freedom of
speech and expression. A citizen has a Fundamental Right to use the best means of
imparting and receiving information. The State is not only under an obligation to
respect the Fundamental Rights of the citizens, but also equally under an obligation to
ensure conditions under which the Right can be meaningfully and effectively be
enjoyed by one and all. Freedom of speech and expression is basic to and indivisible
from a democratic polity.
In Kaleidoscope (India) (P) Ltd. v. Phoolan Devi11, the trial Judge restrained the
exhibition of the controversial film Bandit Queen both in India and abroad. The trial
court reached a prima facie view that the film infringed the right to privacy of
Phoolan Devi, notwithstanding that she had assigned her copyright in her writings to
the film producers.
This was upheld by the Division Bench. The Court observed that even assuming that
Phoolan Devi was a public figure whose private life was exposed to the media, the
question was to what extent private matters relating to rape or the alleged murders
committed by her could be commercially exploited, and not just as news items or
matters of public interest.

III. CONSTITUTIONAL FRAMEWORK OF PRIVACY

The right to privacy is not explicitly defined but is recognized as a fundamental right
under the Constitution of India. It is guaranteed under the right to freedom (Article
19) and the right to life (Article 21) of the Constitution12.

Article 21 of the Constitution provides:

No person shall be deprived of his life or personal liberty except according to
procedure established by law. Courts have interpreted the right to privacy as implicit
in the right to life. In R.Rajagopal v. State of T.N. and PUCL v. UOI the courts
observed that the right to privacy is an essential ingredient of the right to life.

11
AIR 1995 Delhi 316
12
https://www.lawyersclubindia.com/articles/Rights-of-Media-and-Privacy-Issues-Bridging-the-Gap-
3927.asp
For instance, in R. Rajagopal v State of Tamil Nadu13, Auto Shankar:
Who was sentenced to death for committing six murders: in his autobiography
divulged his relations with a few police officials. The Supreme Court in dealing with
the question on the right to privacy, observed, that the right to privacy is implicit in
the right to life and liberty guaranteed to the citizens of the country by Article 21. It is
a 'right to be left alone.' But media tends to stick to persons all the time, leaving no
personal space. "A citizen has a right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, child-bearing and education among other
matters.”14
The publication of any of the aforesaid personal information without the consent of
the person, whether accurate or inaccurate and 'whether laudatory or critical' would be
in violation of the right to privacy of the person and liable for damages. The exception
being, when a person voluntarily invites controversy or such publication is based on
public records, then there is no violation of privacy.
In PUCL v. UOI15 which is popularly known as the wire-tapping case, the question
before the court was whether wire-tapping was an infringement of a citizen's right to
privacy. The court held that an infringement on the right to privacy would depend on
the facts and circumstances of a case.
It observed that:
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, infarct Article 21 of the Constitution of India unless it
is permitted under the procedure established by law."
It further observed16 that the right to privacy also derives from Article 19 for "when a
person is talking on telephone, he is exercising his right to freedom of speech and
expression."
In Kharak Singh v. State of U.P17 where police surveillance was being challenged on
account of violation of the right to privacy, the Supreme Court held that domiciliary
night visits were violative of Article 21 of the Constitution and the personal liberty of
an individual.
13
1995 AIR 264, 1994 SCC (6) 632
14
Ibid.
15
AIR 1997 SC 568
16
Shirley Biagi, Media/Impact: An Introduction To Mass Media 35(Wadsworth Publishing Company,
Belmont, 2006).
17
1963 AIR 1295
AN UNBREAKABLE BOND BETWEEN THE RIGHT TO
PRIVACY AND FREEDOM OF EXPRESSION IN THE DIGITAL
AGE

In the digital era, freedom of expression and privacy are mutually reinforcing rights.
Both are necessary foundations for free and democratic societies, as well as one of the
most basic prerequisites for their growth and self-fulfillment. Freedom of expression
and opinion must be recognized and maintained in order for democracy,
accountability, and good government to prosper. The Right to Privacy is also a
significant shield against governmental and corporate authority in the modern-day.
Personal information may be gathered and made available across borders on an
unprecedented scale and at a low expense for both corporations and authorities 18,
where various online news portals or moderators can extract information,
continuously stalking the individuals etc. Digital technologies pose major challenges
to the enforcement of the right to privacy and associated rights. Simultaneously, the
application of data protection laws and other measures to preserve the Right to
Privacy might have an excessive impact on legitimate speech.19

INSTANCES WHERE MEDIA CAN INTRUDE THE PRIVACY OF OTHERS

Investigative Journalism - Investigative journalism often involves delving into

sensitive information, potentially infringing on individuals’ privacy rights. Respecting
privacy is important to ensure that innocent individuals are not unjustly harmed or
their personal lives unduly exposed. The most contentious being string operation,
when it foils out and turns out to be a hoax created by the media, now will that not
amount to deliberated and premeditated infringement of rights to privacy. Such
matters must be limited to utter public importance based on maxim ‘Salus populi
Suprema Lex’.

Paparizze - this is one of the most contemporary and contentious issue, in today’s, the
life of celebs is exposed to every fan of theirs. The madness about Kareena Kapoor’s
son has been the talk of b-town as well people across India. Even the timing of his
activities, daily chores were made public in no time. For a mother, picture of her
naked baby flowing the hands of strangers is case of utter fury. In such cases also, the

18
https://legaldesire.com/freedom-of-press-and-right-to-privacy-in-india/
19
https://legaldesire.com/freedom-of-press-and-right-to-privacy-in-india/
celeb media most often jumps the laxman rekha of privacy and right to know and thus
agitating the individuals. Jaya Bachchan’s reactions are apt response to such over
zealousness.
Media Trial - The trial by media has a major impact on the judiciary of Indian
democracy, because as observed by the Apex Court, it creates a widespread
perception of guilt regardless of any verdict in a court of law 20. In M.P. Lohia v. State
of W.B.21, the Supreme Court observed that freedom of speech and expression can
interfere with the administration of justice, as articles appearing in the media could be
prejudicial. The duty of a journalist is to report and not adjudicate cases.
The boon of media to Indian democracy can also, irreparably ail democracy's health. 22
Although the criticisms about media for being inaccurate about certain issues and
painting a false picture of someone is true, it has also crossed many boundaries to
ensure that people get justice.In Printers (Mysore) Ltd. v. CTO23 the Supreme Court
has reiterated that though freedom of the press is not expressly guaranteed as a
fundamental right, it is implicit in the freedom of speech and expression. Freedom of
the press has always been a cherished right in all democratic countries and the press
has rightly been described as the fourth chamber of democracy. Such a behavior
creates issues like; Pro-Plaintiff Media Bias24, The Nature of Bias in High-Publicity
Cases25, The Additional Pressure on Judges in High-Publicity Trials26

Blurred line of ‘Public Life’ vs. Private life of public figures - especially if one is so
called public figure, the media while telecasting any event from the life of politicians
or public figure often forgets the line of privacy of others. The most glaring example
is telecasting ‘sex tapes’ of individuals, whether that person is married or not, recent
case of Varun Gandhi27 or Hardik Patel. Such over zealous media forgets the they are
intruding the private space of any individual and entering their bedroom without

20
WP(C).No.16349 OF 2020
21
2005(2) SCC 686
22
Appeal (crl.) 219 of 2005
23
1994 SCR (1) 682
24
Shefali Bedi “Responsibility of media in a democracy”, 7 International Research Journal 235 (2009).
25
The print media coverage of the 26/11 Mumbai terror attacks: A study on the coverage of leading
Indian newspapers and its impact on people, M. Neelamalar, P. Chitra and Arun Darwin, Journal
Media and Communication Studies Vol. 1(6) pp. 95-105, 2009.
26
E. Siapera (eds.) Radical Democracy and the Internet: Interrogating Theory and Practice (Palgrave
Macmillan publisher, London, 2010).
27
Express Network, “Varun Gandhi Honey-Trapped”, Indian Express. Available at
https://indianexpress.com/article/india/india-news-india/varun-gandhi-denies-he-was-honey-trapped-
by-arms-dealer-abhishek-verma-3093068/
permission. These kind of misadventures have caused unwarranted embarrassment to
the politicians or public figure.
Disclosure of confidential matters, telephonic conversation etc., is another example.

IMPLICATIONS OF CROSSING A LINE BETWEEN THE RIGHT

TO PRIVACY AND FREEDOM OF SPEECH AND EXPRESSION

During early years of Independent India, media performed its functions with more
responsibility and in much more principled way 28. Since there was no rat race of
breaking the news first and making it as sensational as it can be, as we see in the
present scenario. There can be various reason behind balanced approach of media
during early years of independent India such as majority of newspapers, periodicals
and magazines were owned by editors, who were part of India’s freedom struggle and
they were fairly aware about the contribution of print media towards healthy
democratic society29. It also appears that during that time news media was not
considered purely as source of business and for earning money rather it was a medium
of contribution towards society. Now a days media has emerged as one of the most
profitable industry and lucrative business. This loophole became evident in the case
of Sudarshan TV, wherein Sudarshan TV aired few episodes of a programme titled
“Bindas Bol”. In that programme, the Editor in Chief and Anchor of Sudarshan TV
Mr. Suresh Chavhanke targeted the entire muslim community. He raised a question
mark on sudden increase of muslim candidates in civil services, putting out names and
even a list of institutions where ‘muslims’ were preparing in larges numbers, thus
infringing right to privacy of institution and individuals, disclosing there religious
beliefs and life pursuits, their way of life. Not only this, he termed this phenomena as
“UPSC-Jihad”.30 DY Chandrachud, Indu Malhotra and KM Joseph, JJ observed that
“Any attempt to vilify a religious community must be viewed with grave disfavour by
this Court as the custodian of constitutional values. Its duty to enforce constitutional
values demands nothing less.”31 During the court proceedings, NBA clearly stated that
it can not take any action against the news channel since the news channel is not a
member of NBA. It clearly reflects the flaws in selfregulatory mechanism for
broadcasting media32. If we talk about digital news media, almost everyone is using
28
Indian Express Newspaper v Union of India 1985 1 SCC 641
29
Ibid.
30
Firoz Iqbal Khan v. Union of India, 2020 SCC OnLine SC 737
31
Ibid.
32
Section 20 of the Cable Television Networks (Regulation) Act, 1995.
the platforms like WhatsApp, Facebook, Twitter, YouTube etc. There are over 487
million WhatsApp users in India alone, making it the leading country in terms of
WhatsApp audience size. Second-ranked Brazil had 118.5 million WhatsApp
messenger users. WhatsApp is one of the most used messaging services worldwide 33.
There are instances that various fake news are being circulated on these platforms
which is resulting into communal violence. We have seen that during riots, these
digital platforms are being used to spread communal violence and hatred among
society by ‘naming’ the people from so and so community or circulating photos or
videos of victim as well as accused. One can imagine the impact of such platform.

CERTAIN MEASURES AND LEGISLATIONS REGULATING

MEDIA

1. The Official Secrets Act, 1923. This legislation was a very logical act of the
Parliament, as the main aim of this act was to prevent the press from reporting and
publishing data and information which is related to national security, in order to
maintain the national security. Similarly, the Indian Press (Emergency) Powers Act
1931 imposed necessary obligations upon the press to furnish an amount as security.
Later the Act was amended by the Criminal Law Amendment Act, 1932 and the
provincial government was empowered to make the press deposit the security amount
which was subject to forfeiture in case the press indulged in publication of any matter
which was liable to creating hatred towards the government or incitement of feelings
of hatred and enmity between different classes of citizens. 34 However this act is
limited to only government file and premises.
2. Press (Objectionable Matter) Act, 1951. This legislation was enacted with a view to
preventing the publication and printing of contents which were capable of inciting
crime or consisted of objectionable contents that may include display of private
belongings of any person. Though the act was enforced with a lot of expectations,
however, it was somehow repealed in the year 1957.
3. Laws against promoting religious hatred , Section 153A and 153B of the Indian
Penal Code (IPC) seek to ensure that no such words, expression, signs are uttered that

33
Global WhatsApp users in selected countries 2022. Available at
https://www.statista.com/statistics/289778/countries-with-the-most-facebook-based-globally-
acclaimed-users/#:~:text=There%20are%20over%20487%4499%theatrefound-across-thenati
20million,most%20used%20messaging%20services%20worldwide (accessed on 08 Aug 2023).
34
The Official Secrets Act 1923, s 4
may promote religious harted, thus riots. This invariably covers the restriction over
media from showcasing and sensitive information (including personal beliefs) in bad
light that can create communal tension or violence.
4. PCI (Press Council of India) guidelines35, these are decades old and pertains to
1990s, even then the norms like barring the exposure of confidential conversation, no
tape-recording of victim or accused, refraining from showing previous bad character
(in line with Indian Evidence Act, 1872), telecasting personal, physical, mental
incapacities. However, these guidelines like other measures are flouted every now and
them by news persons, anchors et. al., to make the news more spicy.

5. The Electronic Media Monitoring Cell was set up in 2008 to check the violation of
Programme and Advertisement Codes enshrined in Cable TV Networks (Regulation)
Act 1995. The Government has a right to impose a ban on any channel if it violates
the programme and advertisement codes enshrined under the Cable Television
Networks (Regulation) Act, 199536.

Safeguarding Identity of Children

The Juvenile Justice (Care and Protection of Children) Act lays down that the media
should not disclose the names, addresses or schools of juveniles in conflict with the
law or that of a child in need of care and protection, which would lead to their
identification. The exception, to identification of a juvenile or child in need of care
and protection, is when it is in the interest of the child. The media is prohibited from
disclosing the identity of the child in such situations.

Safeguarding Identity of Rape Victims or Woman victim in Sexual Offences

Section 228A of the Indian Penal Code makes disclosure of the identity of a rape
victim punishable. In the Aarushi Talwar murder case 37 and the rape of an
international student studying at the Tata Institute of Social Sciences (TISS) the media
frenzy compromised the privacy of the TISS victim and besmirched the character of
the dead person.

35
Press Council of India, Norms of Journalistic Conduct. Avaiable at
https://www.presscouncil.nic.in/WriteReadData/PDF/Norms1996.pdf
36
Section 19 of the Cable Television Networks (Regulation) Act, 1995.
37
https://ibnlive.com/news/aarushi-hemraj murders
In the TISS case38, the media did not reveal the name of the girl, but revealed the
name of the university and the course she was pursuing, which is in violation of the
PCI norms. In addition to revealing names of individuals, the PCI norms expressly
states that visual representation in moments of personal grief should be avoided. In
the Aarushi murder case, the media repeatedly violated this norm. But this was
possible only due to ineffective nature of the PCI and its guidelines.

Against Sting Operations

Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the Cable
Television Network Rules (hereafter the Cable Television Networks Act), stipulates
that no programme can be transmitted or re-transmitted on any cable service which
contains anything obscene, defamatory, deliberate, false and suggestive innuendos
and half truths the veracity of which has not been proved yet.. The Rules prescribes a
programming code to be followed by channels responsible for transmission/re-
transmission of any programme.

CONCLUSION

Though media act as a watchdog and act as a platform to bring people’s voice to the
notice of society and legislatures. But now days media is so much sensationalized and
they just do it for their salaries and TRP's39. There are few reporters who show only
those news for which they have been paid by political parties, no matter it infringes
upon someone’s right to privacy.
From the above account it becomes clear that the media had a more negative influence
rather than a positive effect (except for a few exceptions here and there). The media
has to be properly regulated by the courts. The media cannot be granted a free hand in
the court proceedings as they are not some sporting event, thereby violating the core
of every right i.e. privacy of individuals and sanctity of institutions.
No human activity is feasible without some type of control. No institution can work
logically in the event that it is self-controlled. Essential to self-guideline is the
hypothesis of expected similarity. The self-administrative bodies can't work except if
it is free from bureaucracy, industrial and specific interests; except if an arbitrary
check is done inside the institution; except if it has the power to oblige good grant, for
38
https://www.deccanherald.com/india/tiss-rape-case-six-accused-2519533
39
LiveLaw News Network, “ED Clean Chit To Republic TV, R Bharat In TRP Scam”
https://www.livelaw.in/news-updates/trp-scam-ed-clean-chit-republic-tv-and-r-bharat-209938
example the publication of an amendment or a requesting for forgiveness. In the light
of these, it should be examined with respect to how far self-regulation for media is
justified. Accordingly, the supposition that will be that simply leaving the guideline to
the media itself would make the likelihood that it might subvert regulatory objectives
to its own business objectives. It is the need of great importance that our govt. bump
proprietors to put resources into training for media journalists. For the reason of the
significance of media freedom, as of now western governments have offer workshops
to train journalists. Media responsibility through self-regulation can be accomplished
when reporters and the management join to frame norms of journalistic lead
subsequently guaranteeing that these principles are consented to. As a part of this,
there ought to be mechanism created to offer a methods by which aggrieved people
because of any news or data thing can approach a fair trial. An voluntary accord of
media experts, writers and the board or broadcasting group should hence give to
create magnificent journalistic standards to stay away from any kind of burden to
open for whom they spread news. It is much the same as following the proverb,
Prevention is better than cure. The government has to devise a mechanism to make
the self-regulation mechanism more robust & effective and may provide external
regulation provided such regulation shall not curtail the freedom of speech and
expression of various Digital News Platforms. Some major reforms that can be
implemented ranges from, having a constitutionally or statutorily mandated body in
place of PCI, that has quasi-judicial powers and executable authority, secondly an
assessment ( may be on quarterly basis) of compliance with the media ethics via third
party regulation, further various judgement pertaining to media trial and ethics can be
pursued with the armor of contempt at hand, at same time media’s must not be
curtailed with an iron fist, the balance is the key for upholding both these freedoms
and instilling a democratic order.