Even before India gained independence, it had already become a party to the United Nations Declaration on Human Rights and when India gained independence, the Constitution of India adopted the basic principles of the United Nations Declaration on Human Rights which include freedom of speech and expression. 
The freedom of speech and expression is guaranteed to the citizens of India through the Fundamental Rights under Article 19 (1) (a) but it is not an absolute right and there are reasonable restrictions on the right guaranteed under the above the article. Even though the freedom of the press isn’t per se guaranteed under the Constitution, the Supreme Court in the case of Romesh Thappar v State of Madras [1]  included press in the definition of freedom of speech and expression. 
Media or the press is considered to be the fourth pillar of our democracy along with the Legislature, Executive and the Judiciary. The media is now not just a way to express one’s opinions on various topics of national and international value, but it also shapes the views and thinking of millions of people in relation to various topics. Media also has a duty to refrain from reporting names of rape victims, juveniles, women, etc. so as to prevent them from becoming even more vulnerable than they already are. 
Sting operations and exposés, such as the Radia tapes which were conversations between lobbyist and entrepreneur Niira Radia and various businessmen, politicians which also included scandalous conversations with senior journalists, [2] and Wikileaks in the USA have thrown the conflict between the right to information, freedom of speech and expression and the right to privacy out in the open. 
For instance, when the Radia tapes were leaked, industrialist Ratan Tata filed a writ petition before the Supreme Court of India alleging that his conversations with Nira Radia were private and the publication of those was in violation of his right to privacy. 
The Supreme Court in the case of State of Uttar Pradesh v Raj Narain [3] did not just uphold Article 19 but also stated that Article 19 guarantees the right to receive information on matters which concern the public. 
One of the biggest issues in today’s world is the freedom of press vis-à-vis the right to privacy which is raised by controversies such as the Radia tapes. 
The right to privacy is deemed as a right under the Constitution of India by virtue of many judgments but there is no specific statute protecting the privacy of citizens as yet, the Protection of Personal Data Bill is underway. 
Let us look at the existing Constitutional framework of privacy: 
Constitutional Framework of Privacy:
Freedom of expression is guaranteed under Article 19 (1) of the Constitution of India but it is not an absolute right because Article 19 (2) of the Constitution of India imposes certain restrictions on the right mentioned under Article 19 (1). The restrictions can be imposed by the State in the interest of the sovereignty, friendly relations with other states, public order, decency, and morality. [4]  
The courts have interpreted the right to privacy in light of the right to life also which is provided for under Article 21. In R. Rajgopal v. State of Tamil Nadu[5] the Supreme Court held that the right to privacy is implicit in the right to life and personal liberty which is guaranteed under Article 21. It is a right to be left alone. Every individual has the right to safeguard his privacy and it can only be waived if the person, himself, consents to it or such publication is based on public records. 
The wire-tapping case [6] brought the question before the court whether wire-tapping was an invasion of privacy. The court held that it infringes not just right to privacy, but also right to life and personal liberty and the freedom of speech and expression.
The 2017 judgment in the case of Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India, [7]  was a landmark judgment as it upheld the Right to Privacy as a Fundamental Right guaranteed under Article 14,19 and 21 of the Indian Constitution. The above judgment also paved the way for the abolition of adultery and for decriminalizing homosexuality.  

India’s International Obligations
Article 51 of the Indian Constitution imposes a duty on the State to respect international law.
Internationally, the right to privacy is recognized under various conventions:
i. Article 12, Universal Declaration of Human Rights, 1948: The article states that no person shall be subjected to arbitrary invasion of his privacy, family, home and everyone has the right to protection of the law against such violations. [8] 
ii. Article 17, International Covenant on Civil and Political Rights, 1976.: This article also states that no person shall be subject to any arbitrary interference with his privacy, family or home and also has the right to protection against such violations. [9] 
iii. Article 16, Convention on the Rights of the Child, 1989: This article states that children and young people, like adults, have the right to privacy. [10]  
These are some of India’s International obligations which the press and media outlets must also keep in mind while reporting or while publishing articles.
The right to privacy does not apply to all types of individuals in the same manner, for example, public persons have a different level of privacy as compared to private individuals. 

Privacy Invasion and The Media
There is an open conflict between the freedom of the press, i.e. informational activism and the right to privacy. The right to privacy is the right to be left alone and media has time and again been seen invading the privacy of people’s private and domestic lives. There is no law to prohibit the unauthorized circulation of private individual’s information and it is the media that takes advantage of this. Under the Law of Torts, an action for damages would be possible for the unlawful invasion of one’s privacy. In those cases, the publisher or the printer of the journal, newspaper, magazine, etc would be held liable.  Such an action can be taken if there is an invasion in matters related to a person’s private life which include:
i. Morality and Decency: Article 19 (2) provides for restriction of freedom of speech and expression when they are against morality and decency. 
ii. Obscenity: Obscenity means something which is offensive to modesty.
Recently, after the demise of a Bollywood actor, the media was criticized as being insensitive because of the way they were seen to be reporting his demise, from circulating images of his body to reporting live from his family’s house and not providing any trigger warning. They infringed on the privacy of not only his family that was clearly mourning the loss of a loved one but also other Bollywood stars. 

Recent Trends of Trial by Media
In recent times, the media has been very enthusiastic to report every piece of information even before other agencies get to know about them. Investigative journalism and informational activism is good as long as it does not get out of hand and invade privacy. There is no way to regulate it, the Press Council of India is the only agency capable of regulating it but electronic media does not come under its purview.
Sometimes the media fails to differentiate between what is an exception to the right to privacy and the unwarranted invasion of privacy. Circumstances where the media must be extremely discreet include: 
i. Revealing the identity of minor victims: In the interest of the minor, his/her identity should not be revealed.
ii. Revealing the identity of rape victims: Section 228A of the Indian Penal Code, 1860 makes revealing the identity of a rape victim a punishable offence.
The Press Council of India warns the press to not give out excessive details about victims, witnesses, and suspects because it amounts to an invasion of privacy. It may even endanger their lives. But the Press Council has no power to penalise any journalist or media outlet if they violate the guidelines with respect to privacy. Hence, it is of utmost importance that the media take the privacy of individuals seriously. 
It has been witnessed in recent times that the over-inquisitive media is badly encroaching an individual’s right to privacy. Even though there are guidelines that are issued by agencies such as the Press Council of India but there is a need for a statute that would give citizens protection against such invasion of privacy. The media overlooks privacy on a day to day basis to fulfill their curiosity. Unless such information outweighs the larger public interest, it shall not be made public. The Indian media fails to distinguish between the private and public space of an individual’s life.
[1] 1950 S.C.R. 594. 
[2] The Quint, Available here
[3] 1975 AIR 865, 1975 SCR (3) 333.
[4] The Constitution of India, Article 19(2)
[5] (1994) 6 S.C.C. 632.
[6] PUCL v UOI AIR 1997 SC 568.
[7] (2017) 10 SCC 1
[8] Universal Declaration of Human Rights, Available here
[9] International Covenant on Civil and Political Rights, Available here
[10] Convention on the Rights of the Child, Available here

Leave a Comment

Your email address will not be published. Required fields are marked *