Introduction

‘Democracy is a government of the people, by the people and for the people’, said Abraham Lincoln. It is a well settled fact that an informed citizen plays a pivotal role in democracy, the reason being- Public opinion is emphasized as a fundamental tool against the autocracy of the representatives of the people. How is this public opinion formed? The most effective medium is media and press. The important task of keeping the citizens informed about the actions of the government is carried by it, thus, a considerable amount of importance is given to the freedom of speech and expression guaranteed by Article 19(1) (a). It was concluded by the constituent assembly that there was no need to have a separate provision for freedom of Press unlike the First Amendment of USA. It is the settled view of the Supreme Court that freedom of speech and expression includes freedom of the Press and circulation.[1]

The success of a democracy depends on the efficacy of the three pillars namely- Legislature, Executive and the Judiciary. Media rightly called as the fourth pillar acts as a watchdog by bringing these 3 pillars under the public scrutiny. It is undisputable that people have been benefitted because of the fearless approach of the journalists.

In S P Gupta v Union of India, the Supreme Court held that, “No democratic government can survive without accountability and the basic postulate of accountability is that people should have the information about the functioning of the government.”[2]

Investigative Journalism is one such method engaged by the media to uncover the truth which is wanted to be hidden from the public. It is also termed as Undercover Journalism or Sting Operations. This article attempts to throw some light on the investigative journalism aspect vis-à-vis right to privacy.

What is Investigative Journalism?

Investigative Journalism is a means through with the media discloses the matter which is otherwise not disclosed deliberately mostly by someone in position of power.[3] Through thorough fact finding missions held in secrecy, analysis of the data and exposure, investigative journalism educates the public. Typically, in such cases the media persons pose themselves as criminals in order to set up a trap. They catch the concerned person by means of deceit. 

Why do we need Investigative Journalism?

            The need for investigative Journalism stems the public’s right to know. This is reiterated by the Supreme Court in the landmark judgement of Romesh Thappar v State of Madras. The court held that, “The public interest of freedom of discussion (of which the freedom of press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves. In some the fundamental principle involved is the people’s right to know.”[4]

Types of Investigative Journalism-

Investigative Journalism can be of two types, namely, positive and negative.

Positive Operations are those which welfare the society as the disclosure of such cases interests the society.

Negative Operations are those which infringe the privacy of individuals, causing severe harm to the reputation of the individual. These do not benefit the society and may be termed as unethical.

Protection of Privacy

A lot of importance has been attached to the investigative journalism practiced by media, however responsibility is associated with every authority and hence the need for media to be accountable and implication of an ethical approach by it can’t be stressed enough. If it be left unchecked, it might be vulnerable to abuse of the liberty or freedom given.

It raises a concern as the method of deception is adopted to catch the criminal in investigative journalism. Sometimes such a condition is created where the criminal is tempted to do the wrongdoing who might otherwise be innocent, thus bringing into question the limitation of public morality and decency under Article 19(2) of the Constitution[5]. The intent of the criminal might not be known, henceforth, a check on media is unobjectionable.

A lot of times, sting operations are carried to increase TRP’s by means of obstructing privacy. The moot question that arises at this point is whether the privacy of individuals be compromised so as to let media exercise its fundamental right of speech and expression. In this era of technological advancement, it becomes quite easy to infringe privacy of a person. With a click, a whole lot of information can be obtained. Small camera’s, GPS trackers, mics can aid the operations.

The person on whom investigation might be carried, has his/her reputation, family and career to protect. In spite of increasing invasion of privacy, there is no explicit provision of law which protects the privacy of individuals. Right to privacy of an individual is inherent in the protection of life and liberty assured by Article 21 of the Indian Constitution.[6]  Article 12 of the Universal Declaration of Human Rights, 1948 (UDHR), also protects the privacy of individuals by restricting by restricting arbitrary interference.[7]

 However, like freedom of speech and expression, right to privacy is not absolute. It may be considered as limited if public interest outweighs individual privacy.[8] Furthermore, in cases where the privacy of an individual is infringed without his consent will be objectionable in a court of law and would amount to damages as a citizen has a right to safeguard his own privacy, family, career, etc. As stated above that right to privacy is subject to public interest, a balance needs to be sought in such cases. Where there is sufficient reason to believe that even if protection of privacy is essential, encroachment of privacy would help in gathering of important information which would advance public interest, then public interest in disclosure will prevail unless such disclosure is of highly personal nature. Positive Investigative Journalism backs this idea as it deals with disclosure of cases of corruption, bribery, terrorism, grievous crimes. Furthermore, it is held by the court of law that privacy can be compromised when the person is a public servant and the matters relates to discharging of his official duty.[9] It won’t be objectionable in cases of public servants as the people have a right to know every public act of the public functionaries, if norms of journalism are followed.

In the judgement Labour Liberation Front v. State of Andhra Pradesh, the Andhra Pradesh High Court further commentated on the said issue, it stated that when a case involves high profile person the media tends to cross its line and this might lead to dangerous turns. It results in abuse of the technological advancements available and causes unhealthy competition among the journalists. In the end the whole idea of responsible journalism gets compromised.

Conclusion

With no concrete legal provisions on Freedom of Media and Press, Right to Privacy and procedures or regulations relating to Investigative Journalism, confusion is bound to occur. There have been attempts to pass draft bills relating to protect of data and privacy in 2011, 2014 and 2017, however, no success has been achieved. Correct use of technology can help in disclosing truths. What needs to be kept in mind is that the freedom of speech and expression is not only for the benefit of media but for the benefit of the whole nation. In cases of clash between the two fundamental rights, only a case to case approach can give a clarity as to which right over weighs the other in that particular matter because there is no blanket winning right.