Privacy as a Human Right and Media Trial in India

Abstract

Even before India became Independent, it had already become party to the United Nations Declaration on Human Rights 1948 (UDHR). Press had played a very important and productive role in the independence movement, through its strong support for the popular movement of Satyagraha and abdication of foreign goods and other similar forms of freedom struggle. Such was the impact of the print media that it frightened the British, as it gave a picture of a strong India, though the reality was a disintegrated India ruled by princely kings and people in deep poverty. The framers of our Constitution knew the immense power vested in the print media, therefore they imbibed the Freedom of Speech and Expression in Article 19(1) (a) of the Indian Constitution from Article 19 of the UDHR, and also reflected similarly in Article 19 of the International Covenant on Civil and Political Rights 1966 (ICCPR). UDHR 1948 in Article 12 and ICCPR 1966 in Article 17 give protection to the concept of privacy. Though freedom of speech and expression given in Article 19 of the UDHR 1948 and ICCPR 1966 was enshrined in Article 19(1)(a) of the Indian Constitution. We do not find such constitutional recognition given to privacy in India. Here, privacy is not given any separate constitutional status.
Right to life, liberty and security of person is enshrined in Article 3 of the UDHR 1948. This is recognized in Article 21 of the Indian Constitution. Privacy was not included in this Article. In Nihal Chand v.Bhagwan Dei during the colonial period, as early as in 1935, the High Court recognized the independent existence of privacy from the customs and traditions of India. But privacy got recognition in free India for the first time in Kharak Singh case. In Kharak Singh v. State of U.P., the Supreme Court struck down domiciliary visits by the police as it violates Article 21. But it was in the minority view given in this case by Justice Subha Rao, that privacy got recognition as a right included in Article 21 of the Constitution. In this case the apex court recognized privacy as part of right to life and personal liberty. Privacy was recognized as a separate right in UDHR 1948. This has failed to materialize in the same spirit as a fundamental right in the Indian Constitution, like the right to speech and expression and right to life. Article 3 of the UDHR 1948, protects life and personal liberty, not privacy. In India privacy is described as part of right to life and personal liberty in Article 21 of the Constitution as there is no separate provision for privacy in the Constitution. Privacy has been defined by Supreme Court in Sharada v. Dharampal as ‘the state of being free from intrusion or disturbance in one’s private life or affairs’. This is different and distinct from the life and liberty in Article 21 of the Constitution. India being signatory and party to the UDHR1948 is bound to protect Privacy as a fundamental right in the Constitution and also to give a higher status to it in reference to Press.