Right to Information Act, 2005 (RTI) in Section 8 (1) (j), 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. Find out more
Vote for note in Hyderabad, wherein Telangana ACB caught on camera an MLA red handed bribing another MLA for a vote revealing the hand of AP Chief Minister has raised the issue of privacy and the Radia tapes besides Wikileaks exposed the conflict between the right to information, and the right to privacy. This right is not absolute and not specifically guaranteed by the Constitution. However the apex court stated in many of its judgments that privacy is part of right to life. There is a need for comprehensive law on right to privacy.
Reputed industrialist Ratan Tata filed a writ petition before the Supreme Court of India alleging that the unauthorised publication of his private conversations with Nira Radia was in violation of his right to privacy. Right to Information Act, 2005 (RTI) in Section 8 (1) (j), 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 explained anywhere, it is left to be decided case by case.
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.[ (1994) 6 S.C.C. 632.]; and PUCL v. UOI[AIR 1997 SC 568.], the courts observed that the right to privacy is an essential ingredient of the right to life. In Rajgopal case it was held: “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 wire-tapping case it was held 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. Thus it is a limited right to be decided on a case to case basis. An important exception to the right to privacy, is the ‘public interest’.
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 from 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. Article 16 of the Convention on the Rights of the Child (CRC) provides protection to 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. India does have safeguards in place to protect identity of minors, especially, juveniles and victims of abuse. The right to privacy does not apply uniformly to all situations and all class of persons. For instance, privacy with respect to a certain class of persons, like a person in public authority, affords different protection as opposed to private individuals.
Press Council of India (PCI) made certain norms of journalistic conduct, which recognise privacy as an inviolable human right, but adds a caveat; that the degree of privacy depends on circumstances and the person concerned. The PCI warns journalists not to give excessive publicity to victims, witnesses, suspects and accused as that amounts to invasion of privacy.
In the landmark judge’s asset case, CPIO, Supreme Court of India vs Subhash Chandra Agarwal,[ W.P. (C) 288/2009] the court recognised the tension between the right to information and the right to privacy, especially, with respect to public persons. When a citizen was seeking information under the RTI Act on whether judges of high courts and Supreme Court were filing asset declarations in accordance with full resolution of the Supreme Court, the court held that information concerning private individuals held by public authority falls within the ambit of the RTI Act. It remarked that whereas public persons are entitled to privacy like private persons, the privacy afforded to private individuals is greater than that afforded to those in public authority, especially in certain circumstances.
“A private citizen’s privacy right is undoubtedly of the same nature and character as that of a public servant. Therefore, it would be wrong to assume that the substantive rights of the two differ. Yet, inherent in the situation of the latter is the premise that he acts for the public good, in the discharge of his duties, and is accountable for them. The character of protection, therefore, afforded to the two classes — public servants and private individuals, is to be viewed from this perspective. The nature of restriction on the right to privacy is therefore, of a different order; in the case of private individuals, the degree of protection afforded is greater; in the case of public servants, the degree of protection can be lower, depending on what is at stake.”
In testing whether certain information falls within the purview of the RTI Act, the court said one should consider the following three tests:
The rule is that, unless, private information on relatives/friends of public person’s impacts public interest and accountability, the information should not be revealed.
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. Section 228A of the Indian Penal Code makes disclosure of the identity of a rape victim punishable.
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/retransmission of any programme.
The programme code restricts airing of programmes that offend decency or good taste, incite violence, contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths, criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country and affects the integrity of India, the President and the judiciary. The programme code provided by the Rules is exhaustive. The Act empowers the government to restrict operation of any cable network it thinks is necessary or expedient to do so in public interest.
In a sting operation case the court suggested framing of guidelines. The guidelines mandate that, in addition, to ensuring accuracy, the operation should not violate a person’s right to privacy, “unless there is an identifiable large public interest” for broadcasting or publishing the material.
The News Broadcasting Standard Authority (NBSA) was set up in 2008 as a selfregulatory body by News Broadcasters Association. The NBSA’s Code of Ethics and Broadcasting Standards provided guiding principles relating to privacy and sting operations. Regarding privacy, the Code directs channels not to intrude into the private lives of individuals unless there is a “clearly established larger and identifiable public interest for such a broadcast.” Any information on private lives of persons should be “warranted in public interest.” Similarly, for sting operations, the Code directs that they should be used as “a last resort” by news channels and should be guided by larger public interest. They should be used to gather conclusive evidence of criminality and should not edit/alter visuals to misrepresent truth. That means in public interest and in investigating the crime, privacy cannot be used as a shield by accused.
When in 1980 Indian Express reported Ashwin Sarin exposed a market where women are sold, it was considered a sting operation in public interest. Express purchased a tribal girl called Kamla. Tehelka in 2001, used spy cameras and conducted a sting operation to expose corruption in defence contracts with journalists posing as arms dealers. Sting operations gained legitimacy in India, aftermath of the Tehelka operation to expose corruption. Stings were justifiable only when it served a public interest. Stings continued to expose many irregularities and corrupt deeds. But it is repeatedly held that only ‘public interest’ justifies the invasion of privacy.
The Press Complaints Commission (PCC), UK defines public interest to include, but it is not restricted to:
It requires editors to amply demonstrate that a publication is of public interest. In case the material is already in public domain the same rules of privacy do not apply. However, in cases involving children below 16 years of age, editors must demonstrate exceptional public interest that overrides the interest of the child. Tellingly, the PCC recognises freedom of expression as public interest.
The PCC, to ensure that persons are not hounded by the media have started issuing desist orders. The PCC issues a desist notice to editors to prevent the media from contacting the person. Preventive prepublication is when the PCC pre-empts a story that may be pursued or published and attempts to either influence the reporting of the story in a way that it is not in violation of a person’s privacy or persuades the media house not to publish the story. The PCC, however, does not have the powers to prevent publication.
In the BMW hit-and-run case in Delhi of 1999, an advocate was recorded in a sting operation by a TV channel trying to bribe a prosecution witness and manipulate the evidence. When considering a challenge to the justifiability of the ‘sting’, the Supreme Court concluded it was in the public interest. The advocate was penalized and debarred for some time.
The Supreme Court approved a sting operation as being in the public interest in R.K. Anand vs. Registrar, Delhi High Court (2009) 8 SCC 106. However, when dealing with the Judeo/Jogi case, it said that the decision in the R.K. Anand case could not be taken as justifying sting operations as an accepted method of law enforcement.
The concept of mens rea (Latin for guilty mind or criminal intent) is an essential ingredient of criminality. If ‘abetment’ or ‘conspiracy’ or ‘bribe giving’ are in the public interest, mens rea is absent, which makes it no crime. If the public interest is missing, it becomes either a conspiracy or an incitement to commit an offence with mens rea and needs to be penalised.
The Supreme Court said that if there is no public interest behind a sting operation, it is unjustifiable. A sting operation has serious legal implications. If it exposes the corruption of a public servant, the journalist or citizen journalist responsible for it wins popularity.
The Supreme Court explained these issues in Rajat Prasad v CBI which involved a sting operation. A news item in the Indian Express on November 16, 2003 said that Dalip Singh Judeo, Union Minister of State for the Environment and Forests (deceased) accepted a bribe of Rs 9 lakhs.
After investigation it was stated that Amit Jogi, son of Ajit Jogi, former chief minister of Chattisgarh, had conspired to conduct this sting operation and released the clandestine recordings to the media. The accused argued that the sting was carried out to expose the murky deeds of those in power and that if a criminal intention was attributed to the sting operation, the public interest would be severely jeopardised and there would be no sting operations in future. Rajat Prasad, accused no. 6, was one of the co-conspirators who booked the hotel room in which the sting was carried out.
The prosecutor said the sting was an abetment to bribery and therefore a crime (under the Prevention of Corruption Act) as per Section 107 of the IPC because the sting’s motive was to disgrace a politician and to derive political mileage for Ajit Jogi. Therefore, the accused should be prosecuted for corruption, abetment and conspiracy in the absence of public interest.
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