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Introduction

Right to privacy has been the aspect of discussion since time immemorial
and it is considered as one of the comprehensive right of the individual or a
society. It is considered as a preliminary right in many of the Jurisdiction. In
India right to privacy is considered as a part of Right to life under the
Constitution of India which is a fundamental right of the Individual. The
Supreme court of India and other courts through its decision starting from
late 70s have interpreted right to privacy as a fundamental right under right
to life under article 21 of the Constitution Same is the case in USA and UK
where in USA all though privacy is not defined any where all though in the
earlier stage the courts have interpreted the right to privacy in aspect of
right to property only, at later stage the right to privacy has widen its
interpretation by not only including property, but also, other aspects. In UK
all though Common law at the earlier stage did not give much recognition to
Privacy, the passing of the Human Rights Act and the European Convention
on Human Rights gave a new interpretation to privacy which provides for
respect for a private Life.

Constitutional Framework of Privacy


Though the Indian Constitution does not provide a clear reference to Right to
Privacy, the right is read in to the constitution by the Supreme Court as a
component of two Fundamental Rights: the right to freedom under Article 19
and the right to life and personal liberty under Article 21.
It would be necessary to provide a brief background to each of these Articles
before dealing deeper into the privacy jurisprudence developed by the courts
under them. Part III of the Constitution of India (Articles 12 through 35),
which is titled Fundamental Rights, provides for several rights which are
regarded as fundamental to all citizens of India (some fundamental rights,
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notably the right to life and liberty apply all persons in India, whether they
are citizens or not). Article 13 prevents the State from making any law
which takes away or abridges the fundamental rights.
Article 19(1)(a) specifies that All citizens shall have the right to freedom
of speech and expression . However this is made competent by Article 19(2)
which provides that this will not 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 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.
Thus the Freedom of Expression guaranteed by Article 19(1)(a) is not
absolute, but a privileged right that is vulnerable, under the Constitutional
scheme, to being curtailed under specified conditions.
The other important Fundamental Right from the perspective of privacy
jurisprudence is Article 21 which reads 21. No person shall be deprived of
his life or personal liberty except according to procedure established by law.
Where Article 19 contains a detailed list of conditions under which
Freedom of Expression may be curtailed, differentially Article 21 is thinlyworded and only requires a procedure established by law as a precondition for the deprivation of life and liberty. However, the Supreme Court
has held in the famous case of Maneka Gandhi vs. Union of India1 that
any procedure which deals with the modalities of regulating, restricting or
even rejection of a fundamental right falling within Article 21 has to be fair,
not foolish, carefully designed to effectuate, not to subvert, the substantive
right itself. Thus, understood, "procedure" must rule out anything arbitrary,
freakish or bizarre.
1(1978) 2 SCR 621
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Shortly after independence, in a case challenging the constitutionality of


search and seizure provisions, the Supreme Court gave a blow to the right to
privacy in India, holding that

When the Constitution makers have

thought fit not to subject (search and seizures) to Constitutional limitations


by recognition of a fundamental right to privacy, analogous to the American
Fourth Amendment, we have no justification to import it, into a totally
different fundamental right.2 Notwithstanding this early setback, five
decisions by the Supreme Court in the succeeding five decades have
established the Right to Privacy in India as flowing from Article 19 and 21.
The first was a seven-Judge bench decision in Kharak Singh V. The
State of U.P3 decided in 1964. The question that came in for consideration
in this case was whether "surveillance" under Chapter XX of the U.P.Police
Regulations was an infringement of any of the fundamental rights
guaranteed by Part III of the Constitution. Regulation 236(b) which permitted
surveillance by "domiciliary visits at night" was held to be violative of Article
21.The meanings of the word "life" and the expression "personal liberty" in
Article 21 were elaborately considered by this court in Kharak Singh`s case.
Although the majority found that the Constitution contained no explicit
guarantee for right to privacy", it read that right to personal liberty also
include the right to dignity. It held that an unauthorized intrusion into a
person's home and the disturbance caused to him thereby, is as it were the
violation of a common law right of a man, an ultimate essential of ordered
2 M. P. Sharma v Satish Chandra, AIR 1954 SC 300 (1954), http://indiankanoon.org/doc/1306519/ The court
regarded the element of judicial supervision inherent in search orders issued under the CrPC as being sufficient
safeguard against constitutional violations. When such judicial function is. interposed between the individual and
the officer's authority for search, no circumvention thereby of the fundamental right is to be assumed. We are not
unaware that in the present set up of the Magistracy in this country, it is not infrequently that the exercise of this
judicial function is liable to serious error, as is alleged in the present case. But the existence of scope for such
occasional error is no ground to assume circumvention of the constitutional guarantee
3 (1964) 1 SCR 332

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liberty, if not of the very concept of civilization. In the minority judgment in


this case, Justice Subba Rao held that the right to personal liberty takes in
not only a right to be free from restrictions placed on his movements, but
also free from encroachments on his private life. It is true our Constitution
does not expressly declare a right to privacy as a fundamental right but the
said right is an essential ingredient of personal liberty every democratic
country sanctifies domestic life; it is expected to give him rest, physical
happiness, peace of mind and security. In the last resort, a person's house,
where he lives with his family, is his "castle" it is his rampart against
encroachment on his personal liberty. This case, especially Justice Subba
Raos observations, opened the way for later elaborations on the right to
privacy using Article 21.
In 1972, the Supreme Court decided one of its first cases on the
constitutional validity of wiretapping. In R. M. Malkani vs State Of
Maharashtra4 the petitioners voice had been recorded in the course of a
telephonic conversation where he was blackmailing another person. He
stated

in his defense that his right to privacy under Article 21 had been

violated. The Supreme Court rejected his plea holding that The telephonic
conversation of an innocent citizen will be protected by Courts against
wrongful or high handed' interference by tapping the conversation. The
protection is not for the guilty citizen against the efforts of the police to
vindicate the law and prevent corruption of public servants.5
In another case, Govind vs. State of Madhya Pradesh 6, decided by a
three- Judge Bench of the Supreme Court, is regarded as being a setback to
4 AIR 1973 SC 157, 1973 SCR (2) 417
5 Ibid
6 (1975) 2 SCC 148

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the right to privacy jurisprudence. Here, the court was assessing

the

constitutional validity of Regulations 855 and 856 of the Madhya Pradesh


Police Regulations which provided for police surveillance of habitual
offenders which including domiciliary visits and picketing of the suspects.
The Supreme Court abstained from striking down these invasive provisions
holding that It cannot be said that surveillance by domiciliary visit, would
always be an unreasonable restriction upon the right of privacy. It is only
persons who are suspected to be habitual criminals and those who are
determined to lead a criminal life that are subjected to surveillance.
The court also made some observations on the right to privacy under the
constitution:
Too broad a definition of privacy will raise serious questions about the
propriety of judicial reliance on a right that is not explicit in the Constitution.
The right to privacy will, therefore, necessarily, have to go through a process
of case by case development. Hence, assuming that the right to personal
liberty. the right to move freely throughout India and the freedom of speech
create an independent fundamental right of privacy as an emanation from
them it could not he absolute. It must be subject to restriction on the basis of
compelling public interest. But the law infringing it must satisfy the
compelling state interest test. It could not be that under these freedoms the
Constitution-makers

intended

to

protect

or

protected

mere

personal

sensitiveness
This case is important since it marks the beginning of a trend in the
higher judiciary to consider the right to privacy as not being absolute. From
Govind onwards, non-absoluteness becomes the defining feature and the
destiny of this right.

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This reasoning was continued in Malak Singh v State Of Punjab &


Haryana7 where the Supreme Court held that surveillance was lawful and
did not violate the right to personal liberty of a citizen as long as there was
no illegal interference and it was unobstrusive and within bounds.
Nearly fifteen years after this case the Supreme Court elaborated the
right to privacy in R. Rajagopal vs. State of Tamil Nadu 8. Here the court
was involved in a balancing of the right of privacy of citizens against the
right of the press to criticize and comment on acts and conduct of public
officials. The case related to the publication by a newspaper of the
autobiography of Auto Shankar who had been convicted and sentenced to
death for committing six murders. In the autobiography, he had commented
on his contact and relations with various high-ranking police officials,
disclosures which would have been extremely sensational. Sometime before
the publication, he appears to have been forced to write a letter denying that
he had authored the autobiography. On this basis, the Inspector General of
Prisons issued a letter forbidding the newspaper from publishing the
autobiography claiming, inter alia, that the publication of the autobiography
would violate the prisoners privacy. Curiously, neither Shankar himself, nor
his family was made parties to this petition.
The Court decided to presume, that he had neither written his
autobiography nor had he authorized its publication. The court then
proceeded on this assumption to enquire whether he had any privacy
interests that would be breached by unauthorized publication of his life story.
The right of privacy of citizens was dealt with by the Supreme Court in the
following terms: -

7 AIR 1981 SC 760


8 (1994) 6 S.C.C. 632

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(1) The right to privacy is implicit in the right to life and liberty guaranteed to
the citizens of this country by Article 21. It is a right to be let alone. A
citizen has a right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, childbearing and education among other matters.
None 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 in an action for damages. Position may, however, be
different, if a person voluntarily thrusts himself into controversy or
voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception, that any publication
concerning

the

aforesaid

aspects

becomes

unobjectionable

if

such

publication is based upon public records including court records. This is for
the reason that once a matter becomes a matter of public record, the right to
privacy no longer subsists and it becomes a legitimate subject for comment
by press and media among others. We are, however, of the opinion that in
the interests of decency (Article 19(2)) an exception must be carved out to
this rule, viz., a female who is the victim of a sexual assault, kidnap,
abduction or a like offence should not further be subjected to the indignity of
her name and the incident being publicized in press/media.
On this reasoning, the court upheld that the newspapers right to
publish Shankars autobiography, even without his consent or authorization,
to the extent that this story was able to be kept together from public records.
However, if they went beyond that, the court held, they may be invading his
right to privacy and will be liable for the consequences in accordance with
law. Importantly, the court held that the remedy of the affected public
officials/public figures, if any, is after the publication9

9Ibid
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The final case that makes up the privacy quintet in India was the case
of PUCL v. Union of India10, a public interest litigation, in which the court
was called upon to consider whether wiretapping was an infringement of a
citizens right to privacy, violating the constitutional safe guards. The case
was filed in light of a report brought out by the Central Bureau of
Investigation on the Tapping of politicians phones which disclosed several
irregularities in the tapping of telephones. The Court made the following
observations on the aspect of the right to privacy in India:
The right privacy by itself has not been identified under the Constitution. As
a concept it may be too broad and moralistic to define it judicially. Whether
right to privacy can be claimed or has been infringed in a given case would
depend on the facts of the said case.
However, the Court went on to hold that the right to hold a telephone
conversation in the privacy of ones home or office without interference can
certainly be claimed as right to privacy. This was because conversations on
the telephone are often of an intimate and confidential characterTelephone
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, infract Article 21 of the Constitution
of India unless it is permitted under the procedure established by law.
The court also read the right to privacy as deriving from Article 19.
When a person is talking on telephone, he is exercising his right to freedom
of speech and expression., the court observed, and therefore telephonetapping unless it comes within the grounds of restrictions under Article 19(2)
would infract Article 19(1)(a) of the Constitution.

10 AIR 1997 SC 568

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This case made two important contributions to communications privacy


jurisprudence in India the first was its rejection of the contention that prior
judicial scrutiny should be mandated before any wiretapping could take
place. Instead, the court accepted the contention that administrative
safeguards would be sufficient. Secondly, the Court prescribed a list of
procedural guidelines, the observance of which would save the wiretapping
power from unconstitutionality. In 2007, these safeguards were formally
incorporated into the Rules framed under the Telegraph Act11.
Thus, to conclude this section, it may be observed that the right to
privacy in India is, at its foundations a limited right rather than an absolute
one. This limited nature of the right provides a somewhat unstable assurance
of privacy since it is frequently made to yield to a range of conflicting
interests rights of paternity, national security etc which happen to have a
more pronounced standing in law.

11 Rule 419A of the Telegraph Rules stipulates the authorities from whom permission must be obtained
for tapping, the manner in which such permission is to be granted and the safeguards to be observed while
tapping communication. The Rule stipulates that any order permitting tapping of communication would
lapse (un less renewed) in two months. In no case would tapping be permissible beyond 180 days. The
Rule further requires all records of tapping to be destroyed after a period of two months from the lapse of
the period of interception.
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Right to Press and Media


Public Person
In case of a representative of the public, such as a public person, the right to
privacy afforded to them is not of the same degree as that to a private
person. The Press Council of India (PCI) has laid down Norms of Journalistic
Conduct, which address the issue of privacy. The PCI Norms of Journalistic
Conduct, recognizes privacy as an inviolable human right, but adds a caveat;
that the degree of privacy depends on circumstances and the person
concerned.
In the landmark judges asset case, CPIO, Supreme Court of India v.
Subhash Chandra Agarwal,12 the court recognized the tension between
the right to information and the right to privacy, especially, with respect to
public persons. The case arose from an application filed by a citizen who was
seeking information under the RTI Act on whether judges of high courts and
Supreme Court were filing asset declarations in accordance with full
resolution of the Supreme Court. The court held that information concerning
private individuals held by public authority falls within the ambit of the RTI
Act. It remarked that whereas public persons are entitled to privacy like
private persons, the privacy afforded to private individuals is greater than
that afforded to those in public authority, especially in certain circumstances.
The court commented:
"A private citizen's privacy right is undoubtedly of the same nature and
character as that of a public servant. Therefore, it would be wrong to assume
that the substantive rights of the two differ. Yet, inherent in the situation of
the latter is the premise that he acts for the public good, in the discharge of
his duties, and is accountable for them. The character of protection,
therefore, afforded to the two classes public servants and private
individuals, is to be viewed from this perspective. The nature of restriction on
the right to privacy is therefore, of a different order; in the case of private
individuals, the degree of protection afforded is greater; in the case of public
servants, the degree of protection can be lower, depending on what is at
stake."
In testing whether certain information falls within the purview of the RTI Act,
the court said one should consider the following three tests:
12 W.P. (C) 288/2009
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whether the disclosure of the personal information is with the aim of


providing knowledge of the proper performance of the duties and tasks
assigned to the public servant in any specific case;

whether the information is deemed to comprise the individual's private


details, unrelated to his position in the organization, and,

Whether the disclosure will furnish any information required to


establish accountability or transparency in the use of public resources.

Would this rule hold true for information on relatives/ friends of public
persons? The rule is that, unless, private information on relatives/friends of
public persons impacts public interest and accountability, the information
should not be revealed.
In 2010, the media reported that Sunanda Pushkar, a close friend of the
Minister of State for External Affairs, Shashi Tharoor, holds a significant
holding in the IPL Kochi team. The media exposure led to the exit of Shashi
Tharoor from the government. While the medias questioning of Pushkars
holdings was legitimate, the medias reporting on her past relationships and
how she dressed had no bearing on public interest or accountability.13 The
media accused Pushkar of playing proxy for Tharoor in the Rs. 70 crore sweat
equity deal. Much of the media attention focused on her personal life, as
opposed to, how she attained such a large stake in the IPL Kochi team. It
minutely analyzed her successes and failures, questioned her ability and
accused her of having unbridled ambition and greed for money and power.
If one was to consider the rules of privacy set by the court in the judges
assets case much of the personal information published by the media on
Tharoor and Pushkar, failed to shed light on the IPL holdings or the
establishment of the nexus between the IPL holdings and the government
involvement.
The tests delineated by the court in considering what personal information
regarding a public authority may be shared under the RTI Act, can be
adopted by the media when reporting on public officials. If personal
information divulged by the media does not shed light on the performance of
a public official, which would be of public interest, then the information
revealed violates the standards of privacy. Personal details which have no
bearing on public resources or interests should not be published.
The media coverage of the Bombay terror attacks displayed the same lack of
restraint, where the minutest details of a persons last communication with
13 PTI, Media just turned me into a 'slut' in IPL row: Sunanda Pushkar, 23/04/2010 Available at
http://articles.timesofindia.indiatimes.com/2010-04-23/india/28149154_1_sunanda-pushkar-shashitharoor-ipl-kochi.
Page | 11

his/her family were repeatedly printed in the media. None of the information
presented by the media revealed anything new about the terror attack or
emphasized the gravity of the attack.
A senior journalist, who talked off the record and reported on the Mumbai
terror attacks, agreed that the media overstepped their limits in the Mumbai
terror attacks. As per her, violation of privacy takes place at two stages: the
first time, when you overstep your boundaries and ask a question you should
not have, and the second, when you publish that information. Reflecting on
her ten years of reporting experience, she said, Often when you are
covering a tragedy, there is little time to reflect on your reporting. Besides, if
you, on account of violating someones privacy, choose not to report a story,
some competing paper would surely carry that story. You would have to
defend your decision to not report the story to your boss. The
competitiveness of reporting and getting a story before your competitor, she
agreed makes even the most seasoned journalists ruthless sometimes.
Besides, although PCI norms exist, not many read the PCI norms or recall the
journalistic ethics when they are reporting on the field.14
The PCI Norms reiterate that the media should not intrude "the privacy of an
individual, unless outweighed by genuine overriding public interest, not
being a prurient or morbid curiosity."15 The well accepted rule, however, is
that once a matter or information comes in the public domain, it no longer
falls within the sphere of the private. The media has failed to make the
distinction between what is warranted invasion of privacy and what
constitutes as an unwarranted invasion of privacy. For instance, identity of a
rape or kidnap victim that would further cause discrimination is often
revealed by the media.
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.
Similarly, the Convention on the Rights of the Child (CRC) stipulates that:
Article 16
14 Interview with Senior Assistant Editor, Hindustan Times,
15 Guideline 6 (i) Right to Privacy, Norm if Journalistic Conduct, PCI.
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1.

No child shall be subjected to arbitrary or unlawful interference with his


or her privacy, family, or correspondence, or to unlawful attacks on his or
her honour and reputation.

2.

The child has the right to the protection of the law against such
interference or attacks.

Article 40 of the Convention, states that the privacy of a child accused of


infringing penal law should be protected at all stages of the proceedings.
Almost all media, print and broadcast, fail to observe these guidelines.
Prashant Kulkarni16 (name changed), who was a photographer with Reuters a
few years ago, said that in Reuters photographs taken by photojournalists
could not be altered or edited, to ensure authenticity.
As far as taking photographs of certain vulnerable persons is concerned, he
admitted to photographing street children who are drug addicts on the
streets of Mumbai. The photographs were published by Reuters. However,
when he was on an assignment for an NGO working with children, the NGO
cautioned him about photographing children who are drug addicts, to protect
their identity. Similarly, identity of HIV and AIDS patients, including children,
should be protected and not revealed. Children affected with HIV and AIDS
should not be identified by name or photograph, even if consent has been
granted by the minors parents/guardian.
As a rule, Kulkarni said, he does not seek consent of individuals when he is
taking their photographs, if they are in a public place. If they do not object,
the assumption is that they are comfortable with being photographed. The
PCI norms do not expressly provide that consent of a person should be
sought. But, journalists are expected to exercise restraint in certain
situations. Likewise, identifying juveniles in conflict with law is restricted.
This includes taking photographs of juveniles that would lead to their
identification.
Kulkarni, who extensively covered the Bombay train blasts in 2006, explains,
"At the time of the Bombay train explosions, I avoided taking pictures that
were gory or where dead people could be identified. However, I did take
photographs of those injured in the blast and were getting treated in
government hospitals. I did not expressly seek their consent. They were
aware of being photographed. That is the rule I have applied, even when I
was on an assignment in West Africa. I have never been on an assignment in
Europe, so am not sure whether I would have applied the same rule of
thumb. Nonetheless, now as a seasoned photographer, I would refrain from
taking pictures of children who are drug addicts."

16 Interview with a freelance photographer and a former Reuters photographer.


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Identity of Rape Victims


Section 228A of the Indian Penal Code makes disclosure of the identity of a
rape victim punishable. In the recent Aarushi Talwar murder case 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.17 In the TISS case, 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.
The media in both cases spent enough newsprint speculating about the
crimes. Abhinav Pandey(name changed), a senior journalist reporting on
crime, agrees that the media crossed its boundaries in the TISS case by
reporting sordid details of how the rape took place. "Names of victims of
sexual crime cannot be reported. In fact, in many instances the place of stay
and any college affiliation should also be avoided, as they could be easily
identified. Explicit details of the offence drawn from the statement given by
the victim to the police are irrelevant to the investigation or to the public at
large. Similarly, names of minors and pictures, including those of juveniles,
have to be safeguarded."
"Crime reporters receive most of their stories from the police. Therefore, one
has to be careful before publishing the story. At times in the rigor of
competitive journalism, if you decide to publish an unverified story, as a
good journalist you should present a counter-point. As a seasoned journalist
it is easy to sense when a story is being planted by the police. If you still
want to carry the story, one has to be careful not to taint the character of a
person," he adds.
"For instance, in my reporting if I find that the information will not add to the
investigation, I will not include it in my copy. Last year, we had anonymous
letters being circulated among crime reporters which alleged corruption
among senior IPS officers. Instead of publishing the information contained in
those letters with the names of the IPS officers, we published a story on
corruption and cronyism on IPS officers. In the Faheem Ansari matter, who
was an accused in the 26/11 trial, I had received his email account password.
Accessing his account also amounts to violation of privacy. But, we only
17 Kumar, Vinod, Raped American students drink not spiked in our bar, 16.04.09 Available at
http://www.mid-day.com/news/2009/apr/160409-Mumbai-News-Raped-American-student-date-drugCafeXO-Tata-Institute-of-Social-Sciences.htm, Anon, Party pics boomerangon TISS rape victim , 04 .
05.09, Available at http://www.mumbaimirror.com/index.aspx?
page=articleid=15&contentid=2009050420090504031227495d8b4e80f [Last Accessed April 20,2011].
Page | 14

published the communication between him and some handlers in Pakistan,


which we knew would have an impact on the investigation. Our job requires
us to share information in the public domain, sometimes we would violate
privacy. Nonetheless, one has to be cautious."
Trial by Media & Media Victimization
The PCI norms lay down the guidelines for reporting cases and avoiding trial
by media. The PCI warns journalists not to give excessive publicity to victims,
witnesses, suspects and accused as that amounts to invasion of privacy.
Similarly, the identification of witnesses may endanger the lives of witnesses
and force them to turn hostile. Zaheera Sheikh, who was a key witness in the
Gujarat Best Bakery case, was a victim of excessive media coverage and
sympathy. Her turning hostile invited equal amount of media speculation and
wrath. Her excessive media exposure possibly endangered her life. Instead,
of focusing on the lack of a witness protection program in the country, the
media focused on the twists and turns of the case and the 19 year olds
conflicting statements. The right of the suspect or the accused to privacy is
recognized by the PCI to guard against the trial by media.
Swati Deshpande, a Senior Assistant Editor (Law) at the Times of India,
Mumbai, observes that, As a good journalist one will always have more
information than required, but whether you publish that information or
exercise restraint is up to you. In a span of 11 years of court reporting, as
per her, there have been instances when she has exercised the option of not
reporting certain information that could be defamatory and cannot be
attributed. If an allegation is made in a court room, but is not supported by
evidence or facts, then it is advisable that it be dropped from the report.
"In the Bar Dancers case which was before the Bombay High Court, the
petition made allegations of all kinds against certain ministers. I did not
report that, although I could have justified it by saying it is part of the
petition, and I was just doing my job. The allegation was neither backed by
facts nor was it of public interest. As a rule one should report on undisputed
facts. Then again, with court reporting one is treading on safer grounds, as
opposed to other beats."
"In cases of rape when facts are part of the judgment, you report facts that
are relevant to the judgment or give you an insight on why the court took a
certain view and add value to the copy. One should avoid a situation where
facts revealed are offensive or reveal the identity of the victim. The past
history of both the victim and the accused should not be reported."
She admitted, that "Media reporting often gives the impression that the
accused has committed the crime or the media through its independent
investigation wing has found a particular fact. When in fact, it has relied
entirely on the information given by the police and failed to question or verify
Page | 15

the facts by an independent source. The result is that most crime reporting is
one-sided, because the information received from the police is rarely
questioned."
As per her, to a certain degree the publication of TataRadia conversations
did violate Tatas privacy. "Media needs to question itself prior to printing on
how the information is of public interest. Of course, as a journalist you do not
want to lose out on a good story, but there needs to be gate keeping, which
is mostly absent in most of the media today."
In the Bofors pay-off case18the High Court of Delhi, observed that, The
fairness of trial is of paramount importance as without such protection there
would be trial by media which no civilized society can and should tolerate.
The functions of the court in the civilized society cannot be usurped by any
other authority.19 It further criticized the trend of police or the CBI holding a
press conference for the media when investigation of a crime is still ongoing.
The court agreed that media awareness creates awareness of the crime, but
the right to fair trial is as valuable as the right to information and freedom of
communication.
Section 3(1) of the Act exempts any publication and distribution of
publication, "if the publisher had no reasonable grounds for believing that
the proceeding was pending. In the event, the person is unaware of the
pendency, any publication (whether by words spoken or written or signs or
visible representations) interferes or tends to interfere with or obstructs the
course of justice in connection with any civil or criminal proceeding pending
at the time of publication, if at that time he had no reasonable grounds for
believing that the proceeding was pending." The report emphasizes that
publications during the pre-trial stage by the media could affect the rights of
the accused. An evaluation of the accuseds character is likely to affect or
prejudice a fair trial.
If the suspects pictures are shown in the media, identification parades of the
accused conducted under Code of Civil Procedure would be prejudiced. Under
Contempt of Court Act, publications that interfere with the administration of
justice amount to contempt. Further, the principles of natural justice
emphasize fair trial and the presumption of innocence until proven guilty.
The rights of an accused are protected under Article 21 of the Constitution,
which guarantees the right to fair trial. This protects the accused from the
over-zealous media glare which can prejudice the case. Although, in recent
times the media has failed to observe restraint in covering high-profile
murder cases, much of which has been hailed as medias success in ensuring
justice to the common man.
18 Crl.Misc.(Main) 3938/2003
19 Ibid.
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For instance, in the Jessica Lal murder case, the media took great pride in
acting as a facilitator of justice. The media in the case whipped up public
opinion against the accused and held him guilty even when the trial court
had acquitted the accused. The media took on the responsibility of
administering justice and ensuring the guilty are punished, candle light vigils
and opinion polls on the case were organized by the media. Past history of
the accused was raked up by the media, including photographs of the
accused in affluent bars and pubs in the city were published after he was
acquitted. The photographs of Manu Sharma in pubs insinuated how he was
celebrating after his acquittal.
The Apex Court observed that the freedom of speech has to be carefully and
cautiously used to avoid interference in the administration of justice. If trial
by media hampers fair investigation and prejudices the right of defence of
the accused it would amount to travesty of justice. The Court remarked that
the media should not act as an agency of the court.20
The Court, commented, "Presumption of innocence of an accused is a legal
presumption and should not be destroyed at the very threshold through the
process of media trial and that too when the investigation is pending."
Sting Operations
On 30 August, 2007 Live India, a news channel conducted a sting operation
on a Delhi government school teacher forcing a girl student into prostitution.
Subsequent to the media expos, the teacher Uma Khurana21was attacked
by a mob and was suspended by the Directorate of Education, Government
of Delhi. Later investigation and reports by the media exposed that there
was no truth to the sting operation. The girl student who was allegedly being
forced into prostitution was a journalist. The sting operation was a stage
managed operation. The police found no evidence against the teacher to
support allegations made by the sting operation of child prostitution. In this
case, the High Court of Delhi charged the journalist with impersonation,
criminal conspiracy and creating false evidence. The Ministry of Information
and Broadcasting sent a show cause notice to TV-Live India, alleging the
telecast of the sting operation by channel was defamatory, deliberate,
containing false and suggestive innuendos and half truths."
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 retransmitted on any
20 Sidhartha Vashisht @ Manu Sharma vs State (Nct Of Delhi), Available at
http://www.indiankanoon.org/doc/1515299/.
21 WP(Crl.) No.1175/2007
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cable service which contains anything obscene, defamatory, deliberate, false


and suggestive innuendos and half truths. The Rules prescribes a
programming code to be followed by channels responsible for
transmission/re-transmission of any programme.
The programme code restricts airing of programmes that offend decency or
good taste, incite violence, contains anything obscene, defamatory,
deliberate, false and suggestive innuendos and half truths, criticizes, maligns
or slanders any individual in person or certain groups, segments of social,
public and moral life of the country and affects the integrity of India, the
President and the judiciary. The programme code provided by the Rules is
exhaustive. The Act empowers the government to restrict operation of any
cable network it thinks is necessary or expedient to do so in public interest.
The court observed that false and fabricated sting operations violate a
persons right to privacy. It further, observed, "Giving inducement to a
person to commit an offence, which he is otherwise not likely and inclined to
commit, so as to make the same part of the sting operation is deplorable and
must be deprecated by all concerned including the media. It commented
that while sting operations showing acts and facts as they are truly and
actually happening may be necessary in public interest and as a tool for
justice, but a hidden camera cannot be allowed to depict something which is
not true, correct and is not happening but has happened because of
inducement by entrapping a person."
The court criticized the role of the media in creating situations of entrapment
and using the inducement test. It remarked that such inducement tests
infringe upon the individual's right to privacy. It directed news channels to
take steps to prohibit reporters from producing or airing any programme
which are based on entrapment and which are fabricated, intrusive and
sensitive.
The court proposed a set of guidelines to be followed by news channels and
electronic media in carrying out sting operations. The guidelines direct a
channel proposing to telecast a sting operation to obtain a certificate from
the person who recorded or produced the same certifying that the operation
is genuine to his knowledge. The guidelines propose that the Ministry of
Information and Broadcasting should set up a committee which would have
the powers to grant permission for telecasting sting operations. The
permission to telecast a sting operation should be granted by the committee
only if it is satisfied about the overriding public interest to telecast the sting
operation. The guidelines mandate that, in addition, to ensuring accuracy,
the operation should not violate a persons right to privacy, "unless there is
an identifiable large public interest for broadcasting or publishing the
material. However, the court failed to define what constitutes 'larger public
interest'.

Page | 18

The PCI norms also lay down similar guidelines which require a newspaper
reporting a sting operation to obtain a certificate from the person involved in
the sting to certify that the operation is genuine and record in writing the
various stages of the sting. The decision to report the sting vests with the
editor who merely needs to satisfy himself that the sting operation is of
public interest.
In addition, to the Cable Television Networks Act and the PCI norms, the
News Broadcasting Standard Authority (NBSA) was set up in 2008 as a selfregulatory body by News Broadcasters Association.[25] The primary
objective of the NBSA is to receive complaints on broadcasts. The NBSA has
drafted a Code of Ethics and Broadcasting Standards governing broadcasters
and television journalists. The Code of Ethics provides guiding principles
relating to privacy and sting operations that broadcasters should follow.
With respect to privacy, the Code directs channels not to intrude into the
private lives of individuals unless there is a clearly established larger and
identifiable public interest for such a broadcast. Any information on private
lives of persons should be warranted in public interest. Similarly, for sting
operations, the Code directs that they should be used as a last resort by
news channels and should be guided by larger public interest. They should
be used to gather conclusive evidence of criminality and should not edit/alter
visuals to misrepresent truth.
In a recent judgment on a supposed sting operation conducted by M/s.
Associated Broadcasting Company Pvt. Limited22on TV9 on Gay culture
rampant in Hyderabad, the NBA took suo motu notice of the violation of
privacy of individuals with alternate sexual orientation and misuse of the tool
of sting operation. NBA in its judgment held that the Broadcaster had
violated clauses on privacy, sting operations and sex and nudity of the Code
of Ethics. It further, observed, that the Broadcaster and the story did not
reveal any justifiable public interest in using the sting operation and violating
the privacy of individuals. In this particular case, the Broadcaster had
revealed the personal information and faces of supposedly gay men in
Hyderabad to report on the underbelly of gay culture and life. However, the
news report, as NBSA observed, did not prove any criminality and was
merely a sensational report of gay culture allegedly prevalent in Hyderabad.
The PCI norms provide that the press should not tape-record conversations
without the persons express consent or knowledge, except where it is
necessary to protect a journalist in a legal action or for other compelling
reason. What constitutes a compelling reason is left to the discretion of the
journalist.

22 For additional details, please refer to the website: http://www.nbanewdelhi.com/authoritymembers.asp


Page | 19

It was in the 1980s, that the first sting operation on how women were being
trafficked was carried out by the Indian Express reporter Ashwin Sarin. As
part of the sting, the Express purchased a tribal girl called Kamla.
Subsequently, in 2001, the sting operation conducted by Tehelka exposed
corruption in defence contracts using spy cams and journalists posing as
arms dealers. The expos on defence contracts led to the resignation of the
then defence minister George Fernandes. Sting operations gained legitimacy
in India, especially in the aftermath of the Tehelka operation, exposing
corruption within the government. The original purpose of a sting operation
or an undercover operation was to expose corruption. Stings were justifiable
only when it served a public interest. Subsequent to the Tehelka expos,
stings have assumed the status of investigative journalism, much of which
has been questioned in recent times, especially, with respect to ethics
involved in conducting sting operations and the methods of entrapment used
by the media. Further, stings by Tehelka, where the newspaper used sex
workers to entrap politicians have brought to question the manner in which
stings are operated. Although, the overriding concern surrounding sting
operations has been its authenticity, as opposed to, the issue of personal
privacy.
For instance, in March 2005 a television news channel carried out a sting
operation involving Bollywood actor Shakti Kapoor to expose the casting
couch phenomenon in the movie industry. The video showing Shakti Kapoor
asking for sexual favours from an aspiring actress, who was an undercover
reporter, was received with public outrage. Nonetheless, prominent members
of the media questioned the manner in which the sting was conducted. The
sting was set up as an entrapment. The court has taken a strong view
against the use of entrapment in sting operations. In the case of the Shakti
Kapoor sting, privacy of the actor was clearly violated. The manner in which
the sting was conducted casts serious doubt on who was the victim.23
Additionally, the sting violated the PCI norms. It failed to provide a record of
the various stages of how the sting operation was conducted. In United
Kingdom, the media when violating privacy of a person has to demonstrate
that it is in the interest of the public.

Right to Privacy and UID (AADHAR)


Right to Privacy is a very important Human Right. The UID claims itself to be
a voluntary scheme. However, looking in to the complex operational
23 TNN, 'Full video will further embarrass Shakti', 15.03.2005 Available at
http://articles.timesofindia.indiatimes.com/2005-03-15/mumbai/27849089_1_sting-operation-shaktikapoor-film-industry.
Page | 20

structure that the UID Scheme adopts, the actual task of enrolment lies
entirely in the hands of third party Registrars who include a mass of Central
and State social security and welfare departments (including the Ministry of
Rural Development which administers the Rural employment guarantee
scheme), banks and insurance companies. There is nothing in the Aadhar
Scheme that prohibits these Registrars from getting access to their services
provided, ones consent is obtained to UID registration. In practice, many of
them have and will continue to make UID registration a preliminary formality
before access is granted to their services. So the citizens freedom to resist
UID registration depends on their ability to give up, say, minimum guarantee
of the right to employment, cooking gas, banking and insurance services,
food rations etc.
In addition, the Registrar General of India, the authority responsible for
compilation of the National Population Register of India under the Citizenship
Act, also happens to be a Registrar for the purposes of the UID. This means
that ones registration in the NPR will entail automatic enrolment in the UID.
The Citizenship (Registration of Citizens and Issue of National Identity Cards)
Rules, 2003 makes it mandatory for everyone to be enrolled in the National
Population Register. So, paradoxically, although the Aadhar number does not
confer citizenship, one cannot be a citizen anymore without owning an
Aadhar number.

Surveillance and Interception


The principle statutory base for surveillance and interception is the Indian
Telegraph Act 1885. Section 5(2) of the act states that On the occurrence of
any public emergency, or in the interest of the public safety, the Central
Government or a State Government or any officer specially authorized in this
behalf by the Central Government or a State Government may, if satisfied
that it is necessary or expedient so to do in the interests of the sovereignty
Page | 21

and integrity of India, the security of the State, friendly relations with foreign
States or public order or for preventing incitement to the commission of an
offence, for reasons to be, recorded in writing, by order, direct that any
message' or class of messages to or from any person or., class of persons, or
relating to any particular subject, brought for transmission by or transmitted
or received by any telegraph, shall not be transmitted, or shall be
intercepted or detained, or shall be disclosed to the Government making the
order or an officer thereof mentioned in the order. Section 7(2)(b) of the act
permits central government to make rules regarding precautions to prevent
the improper interception or disclosure of messages. These provisions were
challenged before the supreme court of India as violation of right to privacy
under article 21 of the constitution in PUCL v. Union of India24, in which
the honble court held, telephone conversation is an important facet of mans
private life. Right to privacy would certainly include telephone-conversation
in the privacy of one's home or office. Telephone-tapping would, thus, infract
Article 21 of the Constitution of India unless it is permitted under the
procedure established by law.25 When a person is talking on phone, he is
exercising his right to freedom of speech and expression. Telephone-tapping
unless it comes within the grounds of restrictions under Article 19(2) would
infract Article 19(1)(a) of the Constitution 26. India is a signatory to the
International Covenant on Civil and Political Rights, 1966, which required that
a persons privacy should not be subject to arbitrary interference 27. Unless a
public emergency occurred or public safety required the government cannot
24 Supra note 10

25 Id, para 19
26 Id, para 20

27 Id para 21, Article 17 of the ICCPR.

Page | 22

take action under section 5(2).

But the substantive law as laid down in

Section 5(2) of the Act must have procedural backing so that the exercise of
power is fair and reasonable28.

Conflict Between: Right to Information and Right to


Privacy
In India the Constitution does not expressly recognise the right to privacy.
But after the case of Kharak Singh v. State of U.P29 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.
In R. Rajagopal v. State of T.N., the apex Court held that the right to
privacy is a right to let alone. No one can publish anything concerning the
above matters without his consent, whether truthful or otherwise whether
laudatory or critical. If he does so, he would be violating the right to privacy
of the person concerned and would be liable in the action of damages.
In Mr. X v. Hospital Z, it was held that where there is a clash of two
fundamental rights, as in the instant case, namely, the appellants right to
privacy as a part of right to life and other persons right to lead a healthy life
which is her fundamental right u/a 21, the right which would advance the
public morality or public interest, would alone be enforced through the
process of Court, for the reason that moral consideration cannot be kept at
bay and judges are not expected to sit as mute structures of clay as in Hail,
known as Courtroom but have to be sensitive, in the sense that they must

28Id para 30

29 1964 SCR (1) 332


Page | 23

keep their fingers firmly upon the pulse of the accepted morality of the
day30.
Voicing concern over vexatious use of RTI Act, Prime Minister Manmohan
Singh said the citizens to know should definitely be circumscribed if it
encroaches on an individuals privacy. He said there is a fine balance
required to be maintained between right to information and the right to
privacy, which stems out of the fundamental right of life and liberty. The
citizens right to know should definitely be circumscribed if disclosure of
information encroaches upon someones personal privacy. But where to draw
a line is a complicated question.
Recently in one of the most controversial case Ratan Tata went 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 Radias 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 satisfied, unless the information officer is satisfied that the larger
public interest justifies the disclosure of such an information.31
In that case a preliminary question that should be asked is whether Tatas
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
30 http://books.google.co.in/books?id
31 http://www.thehindu.com/news/national/supreme-court-to-examine
Page | 24

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.
By the use of the 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. In addition, what constitutes personal
information has not been defined in the legislation.
However, according to expert legal opinion, the Supreme Court of India is
well within its rights to allow disclosure of conversation details between
Ratan Tata and Nira Radia.

Later Developments in Right to Privacy


Right to privacy, once incorporated as a fundamental right, is wide enough to
encroach into any sphere of activity. The conferment of such a right has
become extremely difficult with the advancement of technology and the
social networking sites. But the other side of the picture is that right to
privacy of a person includes the right to seclude personal information. The
extent to which the realm of privacy of each person should remain is
subjective, which might differ from person to person. The recognition of right
to privacy can also be seen in the S.43 of Information Technology Act which
makes unauthorised access into a computer resource invoke liability.

Today, each person is a press, taking in view the emergence of blog spots
and social networking sites. Many a times, the right to privacy may come in
conflict with the right to press the right to press is a right derived from Article
19 (1) (a) in particular. The right to expression of a person may come in
conflict with the right to privacy of another person. The question, where
there is a conflict, which should prevail over the other, is well explained by
bringing in the concept of public interest and public morality. The
publication of personal information of an individual without his consent or
approval is justified if such information forms part of public records including
Court records. Each case is distinct and each right is special.
Page | 25

Conclusion
So to conclude although Right to privacy is considered as an important
right in India and other countries, it is to be noted that priority is given for
other rights such as National Security and other reasons in record. Right to
Privacy of individuals including citizens is often violated on these grounds
which are unnecessary in many cases. Take the situation of India, all though
Indian Courts especially the Supreme Court has recognized the Right to
Privacy as a Fundamental Right under Article 21 of the constitution though a
number of cases, still the Right to Privacy Remains as an Uncertain right. The
Provisions of Information Technology Act and Telegraph Act and pending of
the Right to Privacy Bill 2011 in Parliament are examples to prove that when
certain other factors such as National Security, Census Population Register
etc comes in to picture Right to Privacy is given Less Importance. The
National Population Register and Unique Identification Number (AADHAR)
schemes although claims to be protecting privacy but it is not so the
documents of NPR and AADHAR proves that it is not so. Same is the case
with USA and UK. The Patriot Act of USA gives the Authorities ultimate power
to intercept ones communication or indulge in to privacy without providing
any specific reason. All though state that it is for National Security, there is a
greater chance of authorities misusing the act and its provisions.
So a question is always put up Although Right to Privacy is a universally
accepted right, is it given proper recognition as it requires to be given?

Bibliography
Books:
1 . Bakshi, P.M., The Constitution of India, 8th Edition, Universal Law
Publishing Co., Delhi, 2008.
Page | 26

2. Basu, Durga Das; Shorter Constitution of India, 14th Ed., Volume 1, Lexis
Nexis Butterworths Wadhwa, Nagpur, 2010.
3. Gauba, OP., An Introduction to Political Theory, 4th Edition, Macmillan India
Ltd., Delhi,2007.
4. Kumar, Narender, Constitutional Law of India, Allahabad Law Agency,
2008.
5. Myneni, SR., Political Science for Law Students, 2nd Ed., Allahabad Law
Agency, Allahabad, 2006.

Websites
1. http://www.nos.org/
2. http://dictionary.reference.com/
3. http://leagalserviceindia.com/
4.http://www.thehindu.com/news/national/bill-on-right-to-privacy-inmonsoon-session-moily/article2082643.ece

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