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constitutional_law:media-and-right-to-privacy

Media and right to privacy

Privacy is originated from Latin privates. It means ‘separated from the rest, deprived of something, esp. office, participation in the government’. It is the ability of an individual or group to seclude them or information about themselves and thereby reveal them selectively. The boundaries and content of what is considered private differ among cultures and individuals. Privacy is sometimes related to anonymity, the wish to remain unnoticed or unidentified in the public realm. When something is private to a person, it usually means there is something within them that is considered inherently special or personally sensitive. The degree to which private information is exposed therefore depends on how the public will receive this information. It differs between places and over time. Privacy is broader than security and includes the concepts of appropriate use and protection of information. Privacy is an interest of the human personality. It protects the inviolate personality, the individual’s independence, dignity and integrity. It is the right to be let alone – the most comprehensive of the rights and the right most valued by civilized men. Privacy is the state of being free from intrusion or disturbance in one’s private life or affairs.

The guarantee of Article 19 (1) (a) has given rise to a fourth pillar i.e. media. It plays the role of a conscience keeper. It is a watchdog of the functionaries of society. It attempts to address to the wrongs in our system by bringing them to the knowledge of all hoping for correction. In many dimensions the unprecedented media revolution has resulted in great gains for the general public. The judicial wing of the state has benefited from the ethical and fearless journalism. The judiciary has taken suo moto cognizance of the matters in various cases after relying on their reports and news highlighting grave violations of human rights. Media is a medium to express one's feelings, opinions and views. It is responsible and instrumental for shaping opinions and views on various topics of regional, national and international agenda. The existence of a free, independent and powerful media is the cornerstone of every society. ‘Freedom of Press’ has been held to be a part of the Fundamental Right of ‘Freedom of Speech and expression’ guaranteed by article 19(1) (a) to the citizens of India. The criminal justice system in our country has many loopholes which are used by the rich and powerful to go scot-free. In such circumstances the media plays a crucial role in not only mobilizing public opinion but also bringing to light injustice.

There are always two sides of a coin. With the increased role and importance attached to the media, the need for its accountability, responsibility and professionalism in reportage is necessary. In a civil society no right to freedom is considered absolute, unlimited, or unqualified in all circumstances. The freedom of the media, like any other freedom recognized under the constitution has to be exercised within reasonable boundaries. There is an indomitable duty on media to respect the privacy of others. The individual who is the subject of a press or television ‘item’ has his or her personality, his or her reputation or career dashed to the ground after the media exposure. He too has a fundamental right to live with liberty, dignity and respect. A right to privacy is guaranteed to him under Article 21 of the Indian Constitution. Freedom of press is guaranteed under Article 19(1) (a) of the Indian Constitution. Restrictions on the exercise of the freedom of expression are found in Article 19(2). Such right to press is subject to the right to privacy guaranteed under Article 21. Due to the absence of privacy as one of the ground for reasonable restriction on freedom of press circumstances demand an effective and adequate regulation. A kind of proper and harmonious balance between the rights of citizens and the Press is need of the hour.

There are few statutory provisions contained in Cr. PC, 1973 (s.327 (1)), the Indecent Representation of Women (Prohibition) Act, 1980 (s.3 & s.4), the Medical Termination of Pregnancy Act, 1971 (s.7(1)(c)), the Hindu Marriage Act (s.36), and the Juvenile Justice Act, which seek to protect women and children from unwarranted publicity. Under the Common law, a private action for damages for unlawful invasion of privacy is maintainable. The printer and publisher of a (newspaper) journal, magazine or book are liable for damages if they publish any matter concerning the private life of a citizen which includes his family, marriage, procreation, parenthood, child-bearing, education etc. without his consent. It is subjected to the following exceptions:

  1. When the publication is based on public records, including court records- because the right of privacy no longer subsists once a matter becomes a matter of public records.
  2. When the offending publication relates to the acts and conduct relevant to discharge of the official duties of a public servant. - Unless the publication is proved to be false or actuated by malice or reckless disregard for truth.

Sometimes the privacy action is covered under the Tort of Defamation, it is insufficient to protect the individual’s privacy. There is a fundamental distinction between defamation and the privacy tort of public disclosure of embarrassing private facts. Truth is an (absolute) defence to the former, but not to the latter. This difference is crucial. This is the reason behind need of specific law protecting privacy of individual.

Role of Judiciary in Maintaining Checks and Balances

There is no comprehensive law to deal with the subject. The media is yet to evolve a code of conduct of its own. So the judiciary is bound to play the role of an umpire. It has done so on many occasions.

In Romesh Thapar v State of Madras the Supreme Court laid down an important principle that clause (2) of Article 19 authorises the state to impose restrictions upon the freedom of speech only on certain specified grounds so that if, in any particular case, the restrictive law cannot rationally be shown to relate to any of the specified grounds, the law must be held to be void. The movement towards the recognition of right to privacy in India started with Kharak Singh v. State of Uttar Pradesh and Others. In that the apex court observed that it is true that our constitution does not expressly declare a right to privacy as fundamental right, but this right is an essential ingredient of personal liberty. In Gobind v. State of Madhya Pradesh and Another, it has been fully incorporated under the umbrella of right to life and personal liberty by the humanistic expansion of the Article 21 of the Constitution.

Right To Privacy is Fundamental Right Under Article 21 of Indian Constitution

In the case of Justice K.S. Puttaswamy v. Union of India, 2012, a Constitutional bench of Nine-Judge of the Supreme Court declared that the Right to Privacy is a Fundamental Right. Right to privacy is an intrinsic part of right to life and personal liberty envisaged under Article 21. It overruled the observations which were held in the case of MP Sharma and Kharak Singh that held that the right to privacy is not protected by the Constitution of India. The Right to Privacy is now a fundamental right and is protected under Article 21 of the Constitution.

Today there is the over-inquisitive media. It is a product of over-commercialization. It is severely encroaching on the individual’s right to privacy by crossing the boundaries of its freedom. In Labour Liberation Front v. State of Andhra Pradesh, the Court observed:

Once an incident involving a prominent person or institution takes place, the media is swinging into action virtually leaving very little for the prosecution or the Courts to examine in the matter. Recently, it has assumed dangerous proportions, to the extent of intruding into the very privacy of individuals. Gross misuse of technological advancements and the unhealthy competition in the field of journalism resulted in obliteration of norms or commitments to the noble profession. The freedom of speech and expression, which is the bedrock of journalism, is subjected to gross misuse. It must not be forgotten that only those who maintain restraint can exercise rights and freedoms effectively”.

The Supreme Court in R. Rajagopal and Another v. State of Tamil Nadu and Others observed:

A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. No one 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 to action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy”. The ever-increasing tendency to use media while the matter is sub-judice has been frowned down by the courts including the Supreme Court of India on the several occasions.”

In State of Maharashtra v. Rajendra Jawanmal Gandhi, it is observed: “There is the procedure established by law governing the conduct of trial of a person accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and is to be guided strictly by rules of law. If he finds the person guilty of an offence he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law”.

The Hon’ble Supreme Court in the case of Rajendra Sail v. Madhya Pradesh High Court Bar Association and Others, observed that for rule of law and orderly society, a free responsible press and an independent judiciary are both indispensable and both have to be, therefore, protected. The aim and duty of both is to bring out the truth. And it is well known that the truth is often found in shades of grey. Therefore the role of both cannot be but emphasized enough, especially in a ‘new India’, where the public is becoming more aware and sensitive to its surroundings than ever before. The only way of functioning orderly is to maintain the delicate balance between the two.

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