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MEDIA FREEDOM AND RIGHT TO PRIVACY

I. Introduction

The law on privacy is a recognition of the individual's right to be let alone and to have
his personal space inviolate. In the modern era, as the focus has shifted from society to
individual and due to the progress of civilization, the personal, intellectual and spiritual
facets of the personality have gained recognition and the scope of law has expanded to
give protection to these needs. The supreme Court has defined privacy in the case of
Sharda v. Dharampal as :

'The state of being free from intrusion or disturbance in one's private life or affairs'

II. Privacy & The Right To Free Speech

The right to freedom of speech and expression and the right to privacy are two sides of
the same coin. One person's right to know may violate another's right to be left alone.
The law on privacy seeks to balance these competing freedoms.

III. Modern Media & Privacy

The enormous growth of media, particularly the electronic media has brought into focus
the issues of privacy. Before this, in India the newspapers were the primary source of
information which had a comparatively limited impact keeping in view that majority of
the population was illiterate. But, today due to rise in literacy and explosion of visual,
electronic and social media there has been an unprecedented information revolution
which has made it possible to bring the private life of individual into public domain,
exposing him to the risk of an invasion of his space and privacy. For instance, the UID
scheme of Govt of India, though has been formed for a noble objective but has raised
serious privacy concerns as there is major scope of this information of individual being
abused without his knowledge.

IV. The Law on Privacy in India

Right to privacy has not been specifically highlighted as a fundamental right,


nevertheless, it has gained constitutional recognition. The right to privacy in India has
derived itself from two sources:

1. The Common law - Under this law, a private action for damages for unlawful
intrusion of privacy is maintainable. However there are two exceptions to this
rule :

A. The right to privacy does not survive is the publication is a matter of public record &

B. When the publication relates to the discharge of the official duties of a public servant
then an action would not be maintainable unless the publication is proved to be false,
malicious or untruthful.
2. The Constitutional law - In the case of R. Rajagopal v. State of T.N. the Supreme
Court held right to privacy to be implicit in the fundamental right to life and
liberty guaranteed by Article 21.

The constitutional right to privacy has to be balanced against the fundamental right of the media
to publish any matter of public interest as right to privacy has not been provided in the
reasonable restrictions under Art 19(2).

V. Different Facets of Right To Privacy

1. Privacy & Surveillance - The cases on which the Supreme Court initially got an
opportunity to develop on the law on privacy were police cases. The following cases
need to be considered in this regard :

Case Law : Kharag Singh v. State of UP

Facts : Petitioner had been charges with dacoity but subsequently had been acquitted. Police
continuously used to come at night and knock the door and wake him up to ensure he was at his
place.
Held : SC held it amounted to violation of right to privacy which is implicit in Article 21.

Case Law : Ram Jethmalani v. Union of India

Held : It is also known as black money case. The privacy rights of bank account holders was
considered in this case. The supreme court had permitted that the govt. shall forthwith disclose
to the petitioner all the documents and information secured from Germany and the names of
those account holder, whose investigation had already been concluded. However, recognizing
the right to privacy of the account holders, it did not permit the disclosure of names against
whom investigations were still in process. The court observed that the citizens right under
article 32 has to be balanced with right of citizens and persons under Article 21.

2. Privacy & Telephone Tapping

Except in cases, where the Indian Telegraphy Act, 1885 permits the state to intercept messages,
telephone tapping, it would be violative of the Right to Privacy, the court held in the following
case.

Case Law : PUCL v. Union of India AIR 1978 SC 568

Held : The SC held that right to privacy included the right to have a telephonic conversation in
the privacy of one's home or office and that telephonic tapping which is a form of 'technological
eavesdropping' infringed the right to privacy.

3. Privacy & Use of Intrusive Investigative Techniques

Case Law : Selvi v. State of Karnataka

Held : SC in the present case held that use involuntary administration of scientific techniques,
namely, narco analysis, BEAP, is not only violative of Article 20(3) but also violative the right to
privacy implicit in Article 21. The court brought out a distinction between privacy in the
physical sense and privacy of an individual's mental processes, the latter being violative of right
to privacy. It further said it is not possible to extend the police powers for forcible extraction of
testimonial responses.

4. Privacy & The Right to Information

Case Law : PUCL v. Union of India AIR 2003 SC 2363

The SC held that democracy based on adult franchise is a part of the basic structure, therefore,
"once a person becomes a candidate to acquire public office", then declaration about his
criminal antecedents and his assets and liabilities would not affect his right to privacy.

5. Privacy and subjecting a person to medical tests

Case Law : Mr X v. Hospital Z

Held : SC held that right to privacy is not absolute and subject to prevention of crime or disorder
or protection of health or morals or protection of rights and freedoms of others. In case of
conflict of fundamental rights of two parties, the one which advances public interest should
prevail.

Case Law : Sharda v. Dharampal

Held : SC held that a Matrimonial Court can direct a party to divorce proceedings, to undergo a
medical examination or else an adverse inference could be drawn against the concerned person.

6. Privacy & Sting Operations

A sting operation is a deceptive operation that is designed to apprehend a person committing a


crime. This technique or method of exposing a public wrong, has been greeted with mixed
responses and have raised serious ethical and legal concerns.

Undoubtedly, sting operations have been extremely effective in exposing corruption and crime.
In India, the sting operation came to be highlighted in public sphere by the "Tehelka Expose" in
2001 also famously called 'Operation West End'.

Case Law : Aniruddha Bahal v. Union of India

Facts : A sting operation exposing MP's receiving bribes for raising questions in Parliament was
conducted. The question before the court was that whether a citizen of this country, which
includes media, has a right to conduct such sting operation to expose the corruption by using
agent provocateurs and to bring to the knowledge of common man, corruption at high strata of
society.

Held : The Delhi High Court held that in order to expose corruption of the corrupt state
managers, acting as agent provocateurs does not amount to committing a crime. Subsequently, a
challenge to this order of Delhi high Court had failed in the Supreme Court.

Case Law : R.K. Anand v. Delhi High Court

Facts : A sting operation had been conducted by a TV channel, NDTV exposing the nexus
between the witness, prosecution and the defence lawyer. Delhi HC suo motto initiated
contempt proceedings. It was contended on behalf of appellants that the TV channel was guilty
of trial by media and it could have telecasted the sting only after obtaining permission of the
High Court.

Held : SC rejected the contention and said that prior consent from the high court would
tantamount to pre censorship of reporting of court proceedings and it would be an infraction on
the media's right to freedom of speech and expression guaranteed under Article 19(1)(a).
However, SC said that media is not free to publish any kind of report of a sub-judice matter and
to a sting of a pending trial in any manner they please.

Case Law : Court on its own Motion v. State

Facts : It is also known as Uma Khurana case. A sting operation was conducted ostensibly to
expose her nexus with a prostitution racket but actually intended to falsely implicate her. Soon
after it was telecasted, Delhi HC acted suo motto and reprimanded the TV channel and acquitted
the victim. It laid down guidelines to prevent the misuse of sting operations, some of which are
as follows :

A. A channel which proposes to telecast a sting operation shall obtain a certificate from the
person who recorded it certifying that the operation is genuine to his knowledge.

B. The subject matter of reports should not present a distorted picture of reality, make public
any activities relating to individuals private affairs unless there is a larger public interest or
create public panic which is likely to incite the public to commit crime.

C. News should be reported with accuracy and verification.

D. The person conducting the sting operation should not use entrapment methods to induce the
commission of a crime.

LEGAL LIMITS FOR A STING OPERATION

The position in India can be highlighted in brief as follows. In Art 19(1)(a) is implicit the right to
broadcast and also the right to receive information. Therefore, sting operations may be
conducted in the interest of public's right to know the manner in which public servants conduct
themselves. But the question that arises is of the right to privacy of the other person. Although,
Article 19(2) includes certain reasonable restrictions in which privacy is not there, but it is a
right carved out by the courts from Art 21. Having said that, privacy is not a defence for public
servants acting in the course of their public duties and their activities in purely private domain
cannot be subject to public scrutiny.

VI. Conclusion

At present, India has no well defined law on privacy. In 2011, the govt. proposed a Privacy Bill,
2011 in which certain safeguards have been provided to protect the right to privacy of the
citizens, but the same yet remains to be enacted as a law. However, there exist some limited
provision for the protection of individual's privacy, namely, S. 72 of IT ACT, 2000.

In submission, the sting operations should be conducted sparingly, with caution and
responsibility, and with a public purpose than casually or for entertainment.

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