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Right to freedom of Press (Article 19) v. Right to Privacy (Article 21)

An under-grad student of ILS, Pune

Freedom of speech and expression is one of the important pillars of democracy. Free expression is indispensable to the unadulterated exchange of thoughts and ideas needed to regulate the democratic machinery in India. These free thoughts lead to ideas that formulate public policy. There is need for free expression so as to build political stability and check abuse of power by public officials.

Freedom of press can be said to be a subset of freedom of speech and expression. In the case of Romesh Thappar v. State of Madras , it was observed by Justice Shastri that, “freedom of speech and the press lay at the foundation of all democratic organizations, for, without free political discussion no public education, so essential for the proper functioning of the processes of the popular government is possible.”

In the case of Union of India v. Motion Picture Association , freedom of speech was advocated profoundly. The said judgment upheld free speech as a foundation of democratic society. It is the only kind of freedom, which makes it possible for the people to formulate their own opinion on a proper basis in order to exercise their social, economic and political rights in their free society in an informed manner. Democracy cannot prosper unless people go out and express their views.

Freedom of speech and expression also means freedom to propagate ideas by way of circulation of press. Liberty of circulation is as important as publication by the print media or press. Without circulation, the publication would be worthless.

Nothing in this world is absolute; hence freedom of speech and expression is also subjected to certain restrictions. No person has the right to speak or express any views towards any person or organization if it is not true. This would lead to defamation, which is punishable under both Indian Penal Code, 1860 as well as the law of torts. But in case where a person in good faith believes that certain facts are true about another person or organization then it would not be considered as an offence. Sometimes, when the press meddles in certain court proceedings which hamper the fair process of trial and delivering of justice then the press can also be charged for contempt of court under Contempt of Court Act, 1971. The press should not try to create an opinion among the people as well as the judges towards a certain case, where the outcome may be prejudicial to the interest of the accused. It can be seen that pre-trial publications have not been given importance in the existing laws dealing with contempt.

The Law Commission of India in its 200th Report condemned it and said even pre-trial reports should be brought under the purview of contempt laws. They suggested that arrest should be taken as the starting point of pendency of criminal proceedings and not charge sheet or challan. The Law Commission’s Report can be quoted as under:

“a publication made in respect of a person who is arrested but in respect of whom a charge sheet or challan has not yet been filed in a Court, in our view, prejudices or may be assumed by the public to have prejudiced the Judge, and in that case a procedure, such as the one permitted by Section 3(2) read with Explanation of the Contempt of Courts Act,1971, does not prescribe a procedure which is fair, just and equitable, and is arbitrary and will offend Article 14 of the Constitution of India.”

In the case A.K Gopalan v. Noordeen , the Supreme Court held that a publication made after “arrest” of a person could be considered as contempt if it was prejudicial to the suspect or accused. According to the Law Commission this is the correct approach and the existing law is flawed.

It is to be remembered that the press has no right to intrude into the private matters of an individual unless it is a matter of public interest and moreover not by a mere whim. The movement towards the recognition of the “Right to Privacy” in India started with Kharak Singh v. State of Uttar Pradesh and Others , wherein the apex court observed that it is true that our Constitution does not expressly declare the “Right to Privacy” as a fundamental right, but the said right is an essential ingredient of personal liberty. After an elaborate appraisal of this right in Gobind v. State of Madhya Pradesh and Another , it has been fully incorporated under the umbrella of right to life and personal liberty by the humanistic expansion of the Article 21 of the Constitution.

The observations of the Supreme Court in R. Rajagopal and Another v. State of Tamil Nadu and Others are a true reminiscence of the limits of freedom of press with respect to the right to privacy. "A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. No one can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.”

Article 21 of the Indian Constitution lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. In Maneka Gandhi v. Union of India , the court necessitated that to deprive a person of his life and liberty; such procedure must not only be established by law but must also be fair, just and reasonable. Thus right to a fair trial emanates from Article 21 which gives to a citizen the fundamental right to protection of life and personal liberty where there should not be any bias made due to the prior one sided or vague news propagated by the press and media . For a court trial to be just and fair it has to be free from bias and the accused has to be given a fair opportunity to prove his innocence.

Like every other right, these two rights also have restrictions. The situation needs to be balanced in these kinds of cases and the ultimate decision in the end lies in the hands of the Honourable Judge or the bench who decide ultimately, which right should be given precedence depending upon the circumstances of the particular case.


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