Authored By: Vaibhav Sahu


It is a well-settled principle of Criminal law that the person accused is presumed to be innocent until proven guilty. Right from the FIR, during the investigation and till convicted by the competent Court, the accused enjoys the fundamental rights guaranteed by the constitution of India. Therefore, privacy during the investigation is such right which must not be infringed by any institution of the country. Nevertheless, recently in several cases call recordings, chat screenshot and other private information are being leaked and published by media agencies, even before the investigation gets completed. In this article, the author is of the view that such practices of media publishing private information of an accused are the blatant infringement of fundamental right of privacy of the person. It is the time, Court, as the guardian of the fundamental right, must intervene to safeguard the privacy of the individuals.

PRIVACY AS FUNDAMENTAL RIGHT

The Hon’ble Supreme Court recognized right to privacy as fundamental right. In K.S. Puttaswamy v. Union of India, the Court held “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

However, it is essential to go back when privacy was firstly in question as fundamental right, but could not be recognized as fundamental right by the Court. In Kharak Singh v. State of U.P., Singh was an accused in a dacoity case and was left free because of insufficient evidence. UP Police regulations allowed domiciliary visits at night, secret picketing of Singh’s house, tracking his movement and periodic inquiries by officers. Singh filed a writ petition before the Supreme Court contending the infringement of his fundamental rights. Court agreed that fundamental right of life and personal and personal liberty is being violated and the provision allowing domiciliary visits was called unconstitutional. But, privacy as fundamental right was not recognized. Subbarao J. dissented, where he said “…despite not being recognized as fundamental right, privacy constitutes to be a necessary element of personal liberty under Article 21 of the Constitution.”

VIOLATION OF PRIVACY OF ACCUSED IN INDIA

The Supreme Court has recognized privacy as fundamental right today; therefore, the accused person’s privacy must also be taken seriously by the investigating agencies and the authorities concerned who are dealing with such private information. Publication and broadcast of private information like call recording, WhatsApp chat etc. must be regulated in order to protect the privacy of the suspects facing criminal investigation.

The question regarding the conversation over telephone and messages was dealt by the Supreme Court in PUCL Case as “telephone conversation is an important facet of a man’s private life.” Furthermore, telephonic conversations over the telephone and messages are often of an intimate and confidential character of modern man’s life. Tapping of telephones and interception of messages/conversation is a serious invasion of privacy and Intrusion can be done by the authorities only in accordance with the procedure established by law.

On balancing the privacy of an individual and Freedom of speech and expression exercised by media, Supreme Court has sought to reconcile these two Fundamental Rights which may at times come in conflict. A person has a right to safeguard the privacy of his own, and, the Publication by media or anyone concerning the above matters without his consent whether truthful or otherwise, is violating the right to privacy of the person concerned.

INSPIRATION FROM ENGLISH LAW

UK Courts have recognized the suspect’s right of privacy and awarded damages in various cases. Media’s conduct in broadcasting the private information of the suspect facing criminal investigation was held to be infringement of right to privacy.

In ZXC v Bloomberg L.P., Court held liable to a media agency, Bloomberg, for publishing the article containing private information of an accused, which they had obtained from an investigating agency of United Kingdom. It was upheld by the Court of appeal in and considered a two stage test to check weather intrusion in privacy by media can be permitted.

Stage 1: Reasonable expectation of privacy

The Court relied upon Richard’s case that suspect facing criminal investigation have a reasonable expectation of privacy about the fact and details shared with investigating agency.

Giving the leading judgment in, Lord Justice Simon was emphatic that: “those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognize the human characteristic to assume the worst that “there is no smoke without fire and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty.”

Stage 2: Justification for the privacy intrusion by the media

In this regard, the Court went on and held that media has to show there is a sufficient public interest in revealing the information as to outweigh the reasonable expectation of privacy with regard to that information. Court relied upon certain criteria for balancing the media’s right of speech and expression vis-s-vis suspect’s privacy.

Lord Justice Simon said, “there is plainly a difference between a report about the alleged criminal conduct of an individual and a report about police investigation into that individual and preliminary conclusions drawn from those investigations.”

A WAY FORWARD

As the Court ruled in Kharak Singh that provision infringing right under article 21 of an accused would be violative of his fundamental rights and, Right to privacy is an integral part of article 21 in Puttaswamy case. Therefore, any infringement with privacy of any accused would also constitute violation of right to life and personal liberty guaranteed under article 21.

The Supreme Court as guardian of fundamental right must intervene in this matter. Investigating agencies as well media should be provided with the strict guidelines to restrict the leakage and broadcast of such private information during any criminal investigation or pending trial before the Court, therefore insuring privacy as the fundamental right of the accused. On non-adherence to such guidelines by the agencies must be dealt with strictly in accordance with the law for infringing the privacy of the individual.


The author is an undergraduate student at Dr. Ram Manohar Lohiya National Law University, Lucknow.


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