Visual media invasion of the right to privacy is an emerging matter of concern in India. This article would be an approach towards delineating the Constitutional aspects of the right to privacy and its exceptions as enshrined under Article 21 of the Indian Constitution. It would also involve deep scrutiny of circumstances under which privacy right can be surpassed in matters of “public interest”.
In Olmstead v. United States, right to privacy was described as the right “to be let alone”. Privacy can also be interpreted as the right to make decisions or to be free from any kind of interference by the state or other institutions in personal matters. It is understood that the public has the ‘right to know’ many things that happen in and around us. Media plays a vital role in sharing knowledge. It plays a crucial role in shaping and moulding public opinion. To what extent this “right to know” exists and the dilemma between this right and privacy will be dealt with in detail.
Constitutional framework- Right to Privacy
In India, there is no separate framework pertaining to the right to privacy. It can be considered as a significant part of the right to life and personal liberty under Article 21 of the Indian constitution. Several cases formed the basis in upholding an individual’s right to privacy.
- Kharak Singh v. State of U.P.: recognised that any intrusion into a person’s house violates his personal liberty. The judgement was confusing as it still did not specify that right to privacy is a facet of Article 21.
- It was held in Gobind v. State Of Madhya Pradesh And Anrthat if the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling state interest test.
- R. Rajagopal v. State of Tamil Nadu– “Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21”.
- People’s Unionof Civil Liberties v. Union of India andAnr – Tapping is a serious invasion of an individual’s privacy. It was held that telephone tapping without authority violates Article 21 of the constitution.
- Puttuswamy v. Union of India: It has been declared that the right to privacy is a fundamental right protected under Part III of the Constitution of India.
- In Ram Jethmalani&Ors v. Union of India &Ors,it was held that “Right to privacy is an integral part of the right to life. This is a cherished constitutional value, and human beings must be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner”.
Article 21 is regarded as the “heart of fundamental rights” due to the plethora of crucial rights that can be extracted or interpreted from this article. Right to privacy was one such right. Thus, in this way right to privacy of individuals was given true meaning. Every individual has the right to live a dignified life. Also, privacy is a much-needed ingredient of a dignified life.
Right to privacy under International Conventions
- Article 12 of the Universal Declaration of Human Rights, 1948 provides that: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
- International Covenant on Civil and Political Rights, 1976 imposes the State to ensure that individuals are protected by law against “arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation (Article 17).
- Article 16 of the Convention on the Rights of the Childprotects a minor from any unlawful interference to his/her right to privacy and imposes a positive obligation on States who have ratified the convention to enact a law protecting the same.
Public’s right to know and Media
“To be let alone” does not apply to all situations without exceptions. The public’s “right to know” comes to play under certain ramifications. The Right to Information Act, 2005 enabled citizens the right to obtain official information. This legislation strengthened the right to freedom of speech and expression of the media.In-State of Uttar Pradesh V. Raj Narain, the Supreme Court of India 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 Press Council of India regulated the print media to some extent. But this was not applicable to the electronic media.
Freedom of speech and expression guaranteed under Article 19(1) (a) includes “freedom of the press”. It clearly gives the right to find and circulate information. This is indeed necessary for a democratic country like India. In Secretary, Ministry of I & B, Government of India v. Cricket Association of Bengal the Supreme Court held that: “The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self-expression which is an important means of free conscience and self-fulfilment.
When is an infringement of privacy right acceptable?
Here, terms such as ‘public interest’ or ‘public person’ become functional. The publication of information related to a person’s private life would be acceptable when it forms part of public record. More precisely, infringement of privacy of a person is acceptable in matters of ‘public morality’. When an individual’s right to privacy is contradicting a larger public good, then ‘public interest’ prevails. Hence, the right to privacy is not an absolute right.
At the same time, when it comes to media it becomes even more essential to ensure that the information has been shared for the public good and not for defaming anyone. Considering an example of news that was published in the year 2010 can prove this point: the media reported that SunandaPushkar, a close friend of the Minister of State for External Affairs, ShashiTharoor, holds a significant holding in the IPL Kochi team and the media exposure led to the exit of ShashiTharoor from the government.“Though media’s questioning was legitimate, reporting on her past relationships and how she dressed had no bearing on public interest or accountability”. A person is not accountable to anyone in matters of their personal life or choices. There have been many instances where visual media influence on private life has been observed.
Need to strike a balance
The ‘freedom of speech and expression’ gave birth to the right to press and the ‘right to life and personal liberty’ gave birth to an individual’s privacy right. The Right to Information Act further strengthens the rights of media. There is a need to strike a balance between these two rights and “public good” bridges this gap. The reputation of people falls prey to the morbid inquisitiveness of visual media in many situations. Above all, it would be incomplete without mentioning the changing mentality of viewers or readers. Gossips and unconstrained reports are something that many people love to read. This very nature requires a change as such interests create a trivial need to invade the privacy of another individual.
It was held by the Supreme Court in many instances regarding the fabrication of stories and violation of privacy. The Court criticised the role of the media in creating situations of entrapment and using the ‘inducement test’ in Jagran T.V. Pvt. Ltd. v. Union Of India &Anr. 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.
Right to privacy is something that is going to become more essential in future India. At the same time, media is a great weapon to bring out frightening revelations that are crucial for a developing country. Citizens get to know about the outcome of the vote they cast in elections with the help of media. The fact is that we cannot possibly imagine a society without print and electronic media. On the other hand, the number of people who are knowingly or unknowingly being disrepute by the media is also not meagre in number. Hence, it must be ensured that a compromise of any individual’s right to privacy is done only in case of an “undeniable public interest”. This is because harm to a minuscule of individuals is considered less important only when there is compelling state interest. Otherwise, all citizens have the right “to be let alone”.
277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928)
1963 AIR 1295, 1964 SCR (1) 33
 AIR 1975 SC 1378
1995 AIR 264
AIR 1997 SC 568
(2017) 10 SCC 1
(2011) 8 SCC 1
International Covenant on Civil and Political Rights, Article 17: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
1975 AIR 865, 1975 SCR (3) 333
 (1995) 2 SCC 161