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Right to Privacy and Freedom of Press – A Struggle of the Implicit Rights


The framers of the Indian Constitution contemplated freedom of the press as a crucial element under freedom of speech and expression. Liberty of speech and press are to a great extend considered as identical because both ensure freedom to publish orally or written about their views and opinions.[1] Article 19(1)(a) of the Indian Constitution ensures freedom of speech and expression but does not expressly mention the freedom of the press. DR. B.R Ambedkar, in one of the assembly debates, stated that freedom of the press does not need any special mention because press or an individual are the same before the right to express. In both Bennet Colomon’s case[2] and Express Newspaper case[3], the court held that freedom of the press is a part of freedom of speech and expression.

To safeguard the representative government, the people should be ensured with the freedom of expressing their views and make them known to the people at large. Public opinion can play the role of a critical judge in the functioning of democracy. Press is a powerful medium of mass communication and plays a vital role in the forum of political discussions to build a strong feasible society. J Patanjali Shastri stated that “Freedom of press lays down the basic concrete for a democratic society and without a free discussion about political issues, there will be no public education and stable government” and struck down 9(1-A) of the Madras Maintenance of Public Order Act, 1949 as unconstitutional.[4]

Reasons that propelled the amendment

The Constitution of India Bill, 1895 contained the provision of freedom of speech and expression without any restriction, it was as follow: “Every citizen were given the right to express their thoughts in words or writings and they can publish them without liability to censure and they are answerable to abuses in the course of exercising their right.” After the constitution came into force in 1950, the state government started imposing restrictions on some of the works of journalists and printing presses. The main reasons for those restrictions were:

  1. To attain public order.

  2. To obstruct the enmity between different groups of society.

  3. To prevent violent crimes.

  4. To prevent any seditious material.

These restrictions were imposed by the government by relying on India Press (Emergency Powers) Act, 1931. The ban on a few newspapers and books by the government forced the aggrieved parties to file cases. Therefore, a series of orders were issued by the courts by striking down the statutes which imposed the aforesaid restriction on the free speech of the press.

In Brij Bhushan v. State of Delhi,[5] a Hindu right-wing group ran an English weekly known as “Organiser” which published objectionable and communal matters about Pakistan which was constituting a threat to the law and order. The Chief Commissioner of Delhi had imposed a restraining order on this newspaper stating that Section 7(1)(c) of East Punjab Public Safety Act, 1949 authorized a provisional government to protect the public order. By a majority, the court struck down the Section 7 of Act, on the ground that it was a restriction on the liberty of the press and held that public order was not identified as an exception in the provision of the right to speech and expression.

The freedom of press included the principle of “people’s right to know”, therefore it received generous support from the public who believed in a free flow of information. In another leading case, the Bharati Press had published leaflets which called for a revolution and insisted on violent and non-constitutional methods. Justice Sarjoo Prasad stated that even a person who preached murder and incited violence had the freedom to do so under Article 19(1)(a) of the Indian Constitution.[6] After a few days of this judgment, Jawaharlal Nehru wrote to BR Ambedkar, the lawmaker, that the freedom of right to speech and expression needs amendment. Then the first amendment of the Constitution of India was brought in 1951, which put an end to the abuse of freedom of speech and expression.

After the amendment, the freedom of speech and expression does not confer an absolute right to express their opinions. Section 19(2) of the Indian Constitution imposes reasonable restrictions on free speech in the interest of the public. The grounds on which restrictions can be imposed are sovereignty and integrity of the country, the security of the state, friendly relations with foreign states, public order, decency and morality, defamation, contempt of court, incitement of an offense. In Prabhu Dutt v. Union of India,[7] it was held that the right to know information about the government administration is included in the freedom of the press but it is not an absolute right, restrictions can be imposed on the ground of public order and state security. But only reasonable restrictions were allowed to limit the freedom to speech and expression. Restrictions on the limitation of size and number of pages in the newspaper were held violative of freedom of the press.[8]

Balancing Privacy and Freedom of Speech – The two sides of a coin.

A considerable amount of power is given to media by the right ensured under Article 19(1) (a), the freedom of speech and expression. An increase in power subsequently increases the responsibility towards the public. The media must respect the private interest of the individual who is the subject. They should avoid telecasting content that may tarnish or cause harm to the reputation and personality of the individual. For the first time, the Supreme Court held that the right to privacy is also a fundamental right and forms a part of the right to liberty ensured under Article 21 of the Indian Constitution.[9] As every person is ensured with the fundamental right to live with dignity and right to privacy under Article 21 of the Indian Constitution, therefore the media cannot use their power to deprive this right of a person.

Freedom of the press is misused due to the over-commercialization in the market and results in the encroachment of the right to privacy of the public. Freedom of press and right to privacy has become two sides of a coin, there is a need to attain equilibrium between them. The clash between the two inherent interests of the democracy continues to exist and it deserves scrutiny so that both fundamental rights ensured under the Indian Constitution are protected. The media has to be prevented from crossing the narrow line connecting the public interest and private interest. The four elements to be satisfied to create an invasion are:

  1. The extent of use of the personal information of an individual.

  2. Publication of such invasion which may cause harm.

  3. The medium of publication used to cause such harm.

  4. The seriousness of the invasion and the harm.

Right to Privacy- Legal Framework

The right to privacy is the right to let a person alone without invading in his private interest.[10] In the realm of law, privacy has been developed drastically and has taken a vital place in protecting the individuality. In a few cases, privacy is also affected by government surveillance.[11]Even though there is no explicit statutory enactment to guarantee the right of privacy, it has been identified both in common law and criminal law by the Courts. Some of the aspects under the law which covers the right to privacy are malicious falsehood, nuisance, harassment, defamation, trespass, and breach of confidence. Under section 228A of the Indian Penal Code, disclosure of victims’ identity is also protected from certain offences.[12] The main two sources for the right to privacy in India: Common law of tort and constitutional law.

  1. Common Law of Tort – Right to Privacy.

Under the Common Law of tort, the right to privacy was considered as a distinctive concept, and the cause of action for unlawful invasion of privacy is maintainable.[13] No one can publish or print a journal, magazine, or book without consent even though the content is true or otherwise. If he does so, then it will be considered as unlawful invasion of privacy and will be held liable for damages. An exceptional situation occurs when the person voluntarily drives himself into a controversy. Section 499 and 500 of the Indian Penal Code deals with the offence of defamation and the punishment for it. The damages for invasion of the right to privacy, defamation (Section 499 and 500) are the laws saved under Article 19(2) of the Indian Constitution, but the need of the hour is to balance the freedom of the press and the existing laws, in this democratic society.[14]

Even though the court can order for a claim of damages for breach of privacy, the can also grant a pre-publication injunction on the publisher’s work to prevent the invasion of privacy.[15]Few exceptions when an invasion of privacy is not considered as an offence:

  1. The publication is based on any public records or court records. When a matter exists in the public record, then publishing any material regarding them will not be considered as invasion of privacy.

  2. The publication of content regarding the discharge of official duties of a public servant. Any acts or official duties discharge by the public servant can be published, but it should be a false report.

In Indu Jain v. Forbes[16], the magazine featured Indu Jain’s family in a list of Billionaires. She filed in Delhi High Court to stop the magazine from publication. The court considering the freedom of press and principle of privacy rejected the claim of the plaintiff.

  1. Constitutional Law – Right to Privacy.

Article 21 of the Indian Constitution ensures every person with the right to life and personal liberty except procedure by law. In the ambit of Article 21, the right to privacy is also included, this implies the “right to be let alone”. The preamble of the Indian Constitution assures the dignity of the individual which includes privacy and freedom of the press should not invade that privacy, this was mentioned by Justice Matthew in a leading case.[17] On the other hand, Article 19 of the Indian Constitution also does not expressly mention the freedom of the press and it is only impliedly taken under the ambit of Freedom of speech and expression. Initially, the press was not given that much power and they were restricted from the invasion of others’ privacy but due to over-commercialization, the rights are abused and the duties are forgotten.

The test for a law which interferes personal liberty should satisfy the following:

  1. Procedure to be prescribed.

  2. The procedure must withstand the tests of fundamental rights ensured under Article 19.

  3. The procedure should also withstand the test article 14.

The law procedure which interferes with the right to privacy and personal liberty should be fair and reasonable and should satisfy the above tests.[18] Article 19(2) specifies the restrictions for the freedom of the press, but it does not include privacy as one of its reasonable restrictions, which helped many to escape from their wrongdoings. Private space is needed for every person, it is the only space where he remains himself and drops the mask which he wears in society.[19] Every publication, it can be a newspaper or journal or advertisement, should be read fully with the accompanying message.[20]

There are also few other statutory provisions, which protect women and children from the invasion of privacy and unwarranted publicity: Section 327 of Criminal Procedure Code, Section 3 and 4 of Indecent Representation of Women(Prohibition) Act, Section 7(1)(c) of Medical Termination Pregnancy Act, Hindu Marriage Act and the Juvenile Justice Act.


Liberty means the right to tell people what they want and hear what they want. Press as a mass media tool conveys to the public about the information which they need to know. They exercise the freedom of speech and expression ensured under Article 19(1)(a) of the Indian Constitution with few exceptions mentioned under Article 19(2). But a battle occurs between freedom of press and right to privacy because privacy was not mentioned explicitly as an exception in Article 19(2). Freedom of the press does not exist in a vacuum, it shall adjust with other existing rights. When a person exercises his right to speech and expression, he should keep in mind the fundamental rights of privacy and dignity. India does not have a specific codified law for both privacy and freedom of the press, but they have attained constitutional recognition. Newspapers are doing a noteworthy job in bringing awareness to people about issues which are buried, but they need to realize that some amount of restrain must be exercised when they invade into other’s privacy. The government should introduce a specific law for privacy and frame guidelines for the press in dealing with new issues launching in the society, this is the only way to resolve the battle.


[1]Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.

[2] Bennett Coleman & Co. v. Union of India, A.I.R. 1973 S.C. 106.

[3] Indian Express Newspapers v. Union of India, A.I.R. 1986 S.C. 515.

[4] Romesh Thapar v. State of Madras, A.I.R. 1950 S.C. 124.

[5] Brij Bhushan v. State of Delhi, A.I.R. 1950 S.C. 129.

[6] Bharati Press, Sm. Shaila Bala Devi v. The Chief Secretary to the Government of Bihar, 1951 CriLJ 309.

[7] Prabhu Dutt v. Union of India, A.I.R. 1982 S.C. 6.

[8] Sakal Papers Ltd. v. Union of India, A.I.R. 1962 S.C. 305.

[9] Kharak Singh v. The State of Uttar Pradesh, A.I.R. 1963 S.C. 1295.

[10] R. Rajagopal v. State of Tamil Nadu, A.I.R. 1995 S.C. 264.

[11] Justice K. S. Puttaswamy (Retd.) v. Union of India, WRIT PETITION (CIVIL) NO 494 OF 2012.

[12] Nipun Saxena v. Union of India, WRIT PETITION (CIVIL) NO. 565 OF 2012.

[13] R. Rajagopal v. State of Tamil Nadu, A.I.R. 1995 S.C. 264.

[14] Abk Prasad v. Union of India, 2002 CriLJ 2464.

[15] Phoolan Devi v. Shekhar Kapoor, 57 (1995) D.L.T. 154.

[16] Indu Jain v. Forbes, 2007 S.C.C. Online Del 1424.

[17] Govind v. State of Madhya Pradesh, A.I.R. 1975 S.C. 1378.

[18] Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.

[19] Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277.

[20] Ajay Goswami v. Union of India, (2007) 1 S.C.C. 143.



SASTRA Deemed to be University



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