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Privacy and Media

India, at present, does not have an independent statute protecting privacy; the right to privacy is a deemed right under the Constitution. The right to privacy has to be understood in the context of two fundamental rights: the right to freedom under Article 19 and the right to life under Article 21 of the Constitution.

The higher judiciary of the country has recognised the right to privacy as a right implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. 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 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.

Constitutional Framework of Privacy
The right to privacy is recognised as a fundamental right under the Constitution of India. It is guaranteed under the right to freedom (Article 19) and the right to life (Article 21) of the Constitution. Article 19(1) (a) guarantees all citizens the right to freedom of speech and expression. It is the right to freedom of speech and expression that gives the media the right to publish any information.

Reasonable restrictions on the exercise of the right can be imposed by the State in the interests of sovereignty and integrity of the State, 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.

Article 21 of the Constitution provides:
No person shall be deprived of his life or personal liberty except according to procedure established by law.

Courts have interpreted the right to privacy as implicit in the right to life. In R.Rajagopal v. State of T.N. and PUCL v. UOI the courts observed that the right to privacy is an essential ingredient of the right to life.

For instance, in R. Rajagopal v State of Tamil Nadu, Auto Shankar:
Who was sentenced to death for committing six murders: in his autobiography divulged his relations with a few police officials. The Supreme Court in dealing with the question on the right to privacy, observed, that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of the country by Article 21. It is a 'right to be left alone.' "A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.

The publication of any of the aforesaid personal information without the consent of the person, whether accurate or inaccurate and 'whether laudatory or critical' would be in violation of the right to privacy of the person and liable for damages. The exception being, when a person voluntarily invites controversy or such publication is based on public records, then there is no violation of privacy.

In PUCL v. UOI which is popularly known as the wire-tapping case, the question before the court was whether wire-tapping was an infringement of a citizen's right to privacy. The court held that an infringement on the right to privacy would depend on the facts and circumstances of a case.
It observed that:
telephone 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."

It further observed that the right to privacy also derives from Article 19 for "when a person is talking on telephone, he is exercising his right to freedom of speech and expression."

In Kharak Singh v. State of U.P where police surveillance was being challenged on account of violation of the right to privacy, the Supreme Court held that domiciliary night visits were violative of Article 21 of the Constitution and the personal liberty of an individual.

Right to Privacy Under Article 21
In India, the law of privacy evolved due to the challenge raised on police surveillance. The Court, struck down a regulation permitting surveillance and equated 'personal liberty' with 'privacy', and observed, that the concept of liberty in Article 21 was comprehensive enough to include privacy. and that a person's house, where he lives with his family is his 'castle' and that nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy. The law of privacy is the recognition of the individual's right to be let alone and to have his personal space inviolate.

Freedom of Expression and information U/A 19(1) (a)
The right to impart and receive information is a species of the right to freedom of speech and expression. A citizen has a Fundamental Right to use the best means of imparting and receiving information. The State is not only under an obligation to respect the Fundamental Rights of the citizens, but also equally under an obligation to ensure conditions under which the Right can be meaningfully and effectively be enjoyed by one and all. Freedom of speech and expression is basic to and indivisible from a democratic polity.

In Kaleidoscope (India) (P) Ltd. v. Phoolan Devi, the trial Judge restrained the exhibition of the controversial film Bandit Queen both in India and abroad. The trial court reached a prima facie view that the film infringed the right to privacy of Phoolan Devi, notwithstanding that she had assigned her copyright in her writings to the film producers.

This was upheld by the Division Bench. The Court observed that even assuming that Phoolan Devi was a public figure whose private life was exposed to the media, the question was to what extent private matters relating to rape or the alleged murders committed by her could be commercially exploited, and not just as news items or matters of public interest.

Right of privacy and Right to know under Article 21
Article 21 enshrines right to life and personal liberty. The expressions right to life and personal liberty are compendious terms, which include within themselves variety of rights and attributes. Some of them are also found in Article 19 and thus have two sources at the same time.

In R.P.Limited v Indian Express Newspapers the Supreme Court read into Article 21 the right to know. The Supreme Court held that right to know is a necessary ingredient of participatory democracy.

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, the Convention on the Rights of the Child (CRC) stipulates that:
Article 16
  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.
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.

Safeguarding 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.

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.

Right of privacy and Sting Operations
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 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.

International Conventions
Internationally the right to privacy has been protected in a number of conventions. For instance, the Universal Declaration of Human Rights, 1948 (UDHR) under Article 12 provides that:
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

The UDHR protects any arbitrary interference from the State to a person's right to privacy. Similarly, International Covenant on Civil and Political Rights, 1976 (ICCPR) under Article 17 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.

Thus, ensuring that States enact laws to protect individual's right to privacy. India has ratified the above conventions. The ratification of the Conventions mandates the State to take steps to enact laws to protect its citizens. Although, human right activists have periodically demanded that the State take adequate measures to protect human rights of the vulnerable in society, the right to privacy has received little attention.

Trial by media is a phrase popular in the late 20th century and early 21st century to describe the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt or innocence before, or after, a verdict in a court of law. Media has been the voice of thousands through which a platform is provided for the common man.

In rapidly changing socio economic conditions like in India (largest democratic country) media has gained prominence and hence referred as a fourth pillar of democracy. Of course sometimes a drop of ink dropped down from the journalist's pen might be more powerful than a bullet from the soldier's gun. According to criminal jurisprudence a suspect/accused is entitled to a fair trial until proven guilty/innocent by the court of law.

Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. Similarly, the persons in power should be able to keep the people informed about their policies and projects, therefore, it can be said that freedom of speech is the mother of all other liberties.

In Printers (Mysore) Ltd. v. CTO the Supreme Court has reiterated that though freedom of the press is not expressly guaranteed as a fundamental right, it is implicit in the freedom of speech and expression. Freedom of the press has always been a cherished right in all democratic countries and the press has rightly been described as the fourth chamber of democracy.
In R. Rajagopal v. State of T.N the Supreme Court of India has held that freedom of the press extends to engaging in uninhabited debate about the involvement of public figures in public issues and events. But, as regards their private life, a proper balancing of freedom of the press as well as the right of privacy and maintained defamation has to be performed in terms of the democratic way of life laid down in the Constitution.

Therefore, in view of the observations made by the Supreme Court in various judgments and the views expressed by various jurists, it is crystal clear that the freedom of the press flows from the freedom of expression which is guaranteed to all citizens by Article 19(1)(a). Press stands on no higher footing than any other citizen and cannot claim any privilege (unless conferred specifically by law), as such, as distinct from those of any other citizen. The press cannot be subjected to any special restrictions which could not be imposed on any citizen of the country.

Trial by media has created a problem because it involves a tug of war between two conflicting principles � free press and free trial, in both of which the public are vitally interested. The freedom of the press stems from the right of the public in a democracy to be involved on the issues of the day, which affect them. This is the justification for investigative and campaign journalism.

At the same time, the Right to Fair Trial, i.e., a trial uninfluenced by extraneous pressures is recognized as a basic tenet of justice in India. A journalist may thus be liable for contempt of Court if he publishes anything which might prejudice a 'fair trial' or anything which impairs the impartiality of the Court to decide a cause on its merits, whether the proceedings before the Court be a criminal or civil proceeding.

In Zahira Habibullah Sheikh v. State of Gujarat, the Supreme Court explained that a fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.

Through media trial, we have started to create pressure on the lawyers even: to not take up cases of accused, thus trying to force these accused to go to trial without any defense. Is this not against the principles of natural justice? Every person has a right to get himself represented by a lawyer of his choice and put his point before the adjudicating court and no one has the right to debar him from doing so.

For an instance, when eminent lawyer Ram Jethmalani decided to defend Manu Sharma, a prime accused in a murder case, he was subject to public derision. A senior editor of a television news channel CNN-IBN called the decision to represent Sharma an attempt to defend the indefensible.

Trial by Media is Contempt of Court and needs to be punished. The Contempt of Court Act defines contempt by identifying it as civil and criminal.

Criminal contempt has further been divided into three types:
  1. Scandalizing
  2. Prejudicing trial, and
  3. Hindering the administration of justice.

Prejudice or interference with the judicial process:
This provision owes its origin to the principle of natural justice; 'every accused has a right to a fair trial' clubbed with the principle that 'Justice may not only be done it must also seem to be done'. There are multiple ways in which attempts are made to prejudice trial. If such cases are allowed to be successful will be that the persons will be convicted of offences which they have not committed. Contempt of court has been introduced in order to prevent such unjust and unfair trials.

No publication, which is calculated to poison the minds of jurors, intimidate witnesses or parties or to create an atmosphere in which the administration of justice would be difficult or impossible, amounts to contempt. Commenting on the pending cases or abuse of party may amount to contempt only when a case is triable by a judge. No editor has the right to assume the role of an investigator to try to prejudice the court against any person.

Bed Impact of Media trial
Pro-Plaintiff Media Bias
Litigation involving well-known companies or individuals always has grabbed the attention of the news media, especially when it involves sensational charges. The magnitude of the coverage and the filter through which the media reports on litigation can create a clear plaintiff bias in civil cases.

While small companies can find themselves under the media spotlight in a particularly novel or bet the company suit, the media tends to focus on allegations against established and respected corporate defendants. These larger companies tend to have household names, and allegations against them can make good copy � even if the allegations are seemingly spurious, commonplace or unproven. The same is true for litigation involving celebrity defendants

The Nature of Bias in High-Publicity Cases
A larger issue is the complex nature of juror bias and how that bias predisposes a juror toward one side in a case. It is no secret that we all have biases. The difficulty comes from understanding how those biases may ultimately affect the viewing of evidence and the deliberations in a case. Judges are also Human Beings they too care about the reputation and promotion. That time is gone when judges are not considered as social because it will harm their reputation.

Now days Judges are social and being an human being they care about their promotions and remunerations. In high profile cases they tend to be bias and give verdict as per as media reports just to be in lime light. This will surely help them to get a promotion before other competitive judges. Media is so much into our daily life's that judges too can't stay away from it and they usually tend to give verdict as per media reports.

The Additional Pressure on Judges in High-Publicity Trials
The media create a series of unconscious pressures on a juror in a high-profile trial. Jurors know that they are being watched by the world. They are not only making a decision for themselves, but they are making a statement for their family, co-workers, community, and society as a whole. This elevates their verdict to a level beyond the evidence.

Though media act as a watchdog and act as a platform to bring people voice to the notice of society and legislatures. But now days media is so much sensationalized and they just do for their salaries and TRP's. There are few reporters those showing only those news for what they have been paid by political parties.

From the above account it becomes clear that the media had a more negative influence rather than a positive effect (except for a few exceptions here and there). The media has to be properly regulated by the courts. The media cannot be granted a free hand in the court proceedings as they are not some sporting event.

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