1

PROJECT REPORT

CONSTITUTIONAL STATUS OF
RIGHT TO PRIVACY WITH
RESPECT TO RIGHT OF PRESS
AND MEDIA

SUBMITTED BY:
SANYA SINGH
BA.LLB (HONOURS)
7TH SEMESTER
83/13

INDEX
TOPIC

PAGE NO

TABLE OF CASES...................................................................................................................3
INTRODUCTION......................................................................................................................4
MEANING OF THE TERM PRIVACY.................................................................................4
CONSTITUTIONAL STATUS OF RIGHT TO PRIVACY...................................................
RIGHT TO PRIVACY UNDER INTERNATIONAL COVENANTS..............................
RIGHT OF PRESS.......................................................................
RIGHT OF PRESS AND MEDIA AND RIGHT TO PRIVACY..................................

PRIVACY OF PUBLIC PERSON........................................................................................

SAFEGUARDING IDENTITY OF CHILDREN...........................................................

SAFEGUARDING

IDENTITY

OF

RAPE

&

MEDIA

VICTIM.........................................................

TRIAL

BY

MEDIA

VICTIMISATION...........................................................

STING OPERATIONS.....................................................
CONCLUSION..............................................................................................
BIBLIOGRAPHY........................................................................................................

TABLE OF CASES
Brij Bhusan v. the State of Delhi, AIR 1950 SC 129
CPIO, Supreme Court of India vs Subhash Chandra Agarwal, AIR 2010 Delhi 159.........
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378..
Kharak Singh v. State of UP, AIR 1963 SC 922.
R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264
Romesh Thapar v. State of Madras, 1950 AIR 124............................................
Sidhartha Vashisht @ Manu Sharma v. State (Nct Of Delhi), (2010) 6 SCC 1...................
State of Uttar Pradesh v Raj Narain, 1975 AIR 865....................................

INTRODUCTION
One of the most fascinating developments in the Indian Constitutional Jurisprudence is the
extended dimension given to Article 21 by the Supreme Court. The Honble Court has
asserted that Article 21 is the heart of fundamental rights. The extension in the dimensions of
Article 21 has been made possible by giving an extended meaning to the word life and
liberty in the Art.
The Honble Supreme Court has asserted that in order to treat a right as a Fundamental Right,
it is not necessary that it should be expressly stated in the Constitution as a Fundamental
Right. Political, social and economic changes in the country entail the recognition of new
rights. The law in its eternal youth grows to meet the demands of society.
Right to privacy is one such right which has come to its existence after widening up the
dimensions of Article 21. The Constitution in specific doesnt grant any such right as such.
However, such a right has been culled by the Supreme Court from Article 21 and several
other provisions of the Constitution read with the Directive Principles of State Policy.
MEANING OF THE TERM PRIVACY
The term privacy has been derived from Latin word privates meaning separated from the
rest, deprived of something esp. office, participation in the government. Thus privacy is the
ability of an individual or group to seclude themselves or information about themselves and
thereby revealing them selectively.
According to Blacks Law Dictionary1, privacy means right to be let alone, the right if a
person to be free from any unwarranted publicity, the right to live without any unwarranted
interference by the public in matters with what the public is not necessarily concerned.
The right to privacy is a human right which may restrain both government and private party
action that threatens the privacy of individuals.
CONSTITUTIONAL STATUS OF RIGHT TO PRIVACY

1 Bryan A. Garner, Blacks Law Dictionary, 6th ed., 2009

For the first time, as early as 1963, in Kharak Singhs case,2 a question was raised whether the
right to privacy could be implied from the existing Fundamental Rights, such as Article 19 (1)
(e) and 21. The majority of Judges participating in the decision said that our constitution
does not in terms confer any like constitutional guarantee. On the other hand, the minority
opinion of Subha Rao, J. was in favour of conferring the right to privacy from the expression
personal liberty in Article 21.
In Govind v. State of Madhya Pradesh,3 the Apex Court undertook a more elaborate appraisal
of the right to privacy. The Court accepted a limited fundamental right to privacy as an
emanation from Article 19(a), (d) and 21. In a detailed decision, Jeevan Reddy, J. held that
the right to privacy is implicit under Article 21. This right is the right to be let alone. Again in
R. Rajagopal v. State of Tamil Nadu,4 the Supreme Court has asserted that in recent times the
right to privacy has acquired constitutional status; it is implicit in the right to life and liberty
guaranteed to citizens by Article 21.
The right to privacy has now become established in India, but as a part of Article 21 and not
as an independent right in itself. As such a right by itself has not been identified under the
Constitution. The Court has however refused to define privacy saying that 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 upon the facts of the said case.5
RIGHT TO PRIVACY UNDER INTERNATIONAL COVENANTS

2 Kharak Singh v. State of UP, AIR 1963 SC 922

3 AIR 1975 SC 1378

4 AIR 1995 SC 264

5 Prof. MP Jain, Indian Constitutional Law, 6th Ed., Lexis Nexis, 2012

India is a signatory to the United Nations Declaration of Human Rights, 1948 6 and the
International Covenant on Civil and Political, 1966,7 the two major International instruments,
building the foundations of the major democracies and the constitutions of the world. Both
these instruments give an independent and upper position to right to privacy compared to
right to freedom of speech and expression. The freedom of press finds its place under this
right to freedom of speech and expression. Both these rights are the two opposite faces of the
same coin. Therefore, without the right of privacy finding an equal place in Indian law
compared to right to freedom of speech and expression, the working of democracy would be
severely handicapped and violations against citizens rights will be on the rise.
The right to privacy has been interpreted to include the right to be let alone. This however,
must be read together with the Constitutional right to publish any matter of public interest,
subject to reasonable restrictions. The Court, therefore, has interpreted the right to privacy not
as an absolute right, but as a limited right to be considered on a case to case basis.
RIGHT OF PRESS
Freedoms of press means freedom to present, publish, broadcast, circulate and transmit
through any media, news to the masses. This has won freedom for ideas, people and nations
throughout the world. It has been through a long battle that this freedom, which eventually
emerged victorious in democratic countries. The Freedom of the Press is nowhere expressly
mentioned in the Indian Constitution. However, the Right to Freedom of Speech and
Expression is provided in Article 19 of the Indian Constitution and Art. 19 of the Indian
Constitution includes the freedom of the press as well.
Freedom of expression enables one to express ones own voices as well as those of others.
The press enjoys normal freedom of expression guaranteed by Article 19 of Indian
Constitution. Hence no law can be passed to abridge its freedom of expression, cannot be
subjected to excessive or prohibitive burdens to curtail its circulation and cannot be subjected
to specific tax deliberately imposed to limit circulation of information. In gist, the

6 Article 12 states that No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence nor to attack upon his honour and reputation. Everyone has the right to
protection of law against such interference or attacks.

7 Article 17 states No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home and correspondence nor to unlawful attacks on his honour and reputation.

Constitution does not grant any power to the government to impose arbitrary restrictions on
the press.
Thus, the censorship of the press is a very crucial and sensitive issue in every democracy. In
general press censorship is regarded as very unhealthy check on the freedom of free
expression of views. In India, the Constitution does not specifically forbid press censorship.
Hence only check on the State in resorting to censorship is that it should be reasonable. Even
this check on the government was not there before the 1st amendment of the Constitution in
1951. But in two cases, Brij Bhusan v. the State of Delhi, 8 and Romesh Thapar v. State of
Madras,9 the Supreme Court held that censorship imposes obvious restrictions on freedom of
speech and expression. After the last amendment, censorship is permitted if it is reasonable
and if it is called for in the interest of public order.
RIGHT OF PRESS AND MEDIA AND RIGHT TO PRIVACY
The development of media laws in modern times has a special relevance to the evolution of
the law of privacy. The media has made it possible to bring the private life of an individual
into the public domain, thus exposing him to the risk of invasion of his space and his privacy.
At a time, when information was not so easily accessible to the public, the risk of such an
invasion was relatively remote. This has changed with a growth in public consciousness, a
rise in literacy and perhaps an explosion of visual and electronic media which has facilitated
an unprecedented information revolution.
Right to information and the right to communicate the information via media are guaranteed
under Article 19(1) (a) of the Constitution of India. In State of Uttar Pradesh v Raj Narain,10
the Apex Court held that Article 19(1) (a), in addition, to guaranteeing freedom of speech and
expression, guarantees the right to receive information on matters concerning public interest.
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
8
AIR 1950 SC 129
9
1950 AIR 124
10
1975 AIR 865

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.
The rights of media have been curtailed with respect to the following:
PRIVACY OF 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, recognises 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 vs Subhash Chandra
Agarwal,11 the court recognised 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."

11
AIR 2010 Delhi 159

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.
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.
Similarly, Article 16 of the Convention on the Rights of the Child (CRC) stipulates that:
1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy,
family, or correspondence, nor 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.
Furthermore, 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.
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.
SAFEGUARDING IDENTITY OF RAPE VICTIM
Section 228A of the Indian Penal Code makes disclosure of the identity of a rape victim
punishable. "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."
TRIAL BY MEDIA & MEDIA VICTIMISATION

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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.
STING OPERATIONS
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."12

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 self-regulatory body by News
Broadcasters Association. 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.
12
Sidhartha Vashisht @ Manu Sharma vs State (Nct Of Delhi), Available at
http://www.indiankanoon.org/doc/1515299/.

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CONCLUSION
Media is a social instrument that is powerful enough to mould a society, to develop or
destruct it. It is a force that could be put to much constructive use in the right hands. Given
such a huge social impact, it is also necessary to keep such a force in check. While the
insinuations made by media on a factual basis must be given protection, the wrongful
wielding of pen and power should be condemned. Just as the media is blessed with the
freedom of speech and expression for spreading awareness and catering to the right to kknow
of the public, it is equally important to ensure the privacy of individuals which is an objective
sought to be achieved by the law of privacy.

BIBLIOGRAPHY
De., DJ., Interpretation and enforcement of Fundamental Rights., Eastern Law House,
Kolkata, 2000

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Makhija Sonal, Privacy & Media Laws, the centre for internet and society, 2011
Seervai HM, Constitutional law of India: a critical outlook, 3rd ed., Vol 2, 20008
Shukla, VN., Constitution of India., 10 th ed., March 2007, Eastern Book Company,
Lucknow