Media performs ‘public function’: What Delhi HC judgment means for press freedom, right to privacy

The case and the legal question

The case dates back to August 2005, when a woman filed a police complaint accusing her husband of sexually assaulting their minor daughter. Despite the mother explicitly refusing to interact with a visiting television crew from the news channel Aaj Tak, the network broadcast a segment that disclosed the father’s name, his official designation, the colony’s address board, visuals of the house, and the mother’s voice. The mother subsequently filed a writ petition against the channel before the High Court.

The main legal question before the High Court was whether a writ petition could be filed against a private television channel.

Under Article 226 of the Constitution, High Courts have the power to issue writs for the enforcement of fundamental rights as well as for any other legal right against the State or authorities discharging public duties.

Media as a ‘public functionary’

The court ruled that the media, even when privately owned, discharges a “public function”. Referring to previous Supreme Court judgments, it reasoned that the media’s role in disseminating news and shaping public opinion is so central to society that it constitutes a public function. Noting that it would be “unrealistic to hold that the media… do not perform any public function”, the court held that this role carries an inherent “public duty to ensure that the rights of the public are not prejudiced or injured by the manner in which such public function is performed”.

Based on this, the court applied the fundamental right to privacy horizontally. While fundamental rights are typically applied vertically — meaning a citizen enforces them against the government — horizontal application allows a citizen to enforce these rights against a non-State actor. A Constitution Bench of the Supreme Court had, in the 2023 Kaushal Kishor judgment, established this principle, ruling that certain fundamental rights can be enforced horizontally against private individuals.

The Delhi High Court has now extended this principle specifically to the right to privacy against the press, holding that the channel’s broadcast, aired without consent, was an illegal intrusion into the victim’s privacy, justifying the award of monetary compensation in a writ court.

Shift from civil to constitutional courts

Legal experts told The Indian Express that this ruling could alter the landscape of media litigation in India.

Senior Advocate Madhavi Goradia Divan noted that while the legal groundwork existed, its specific use here is novel. “In the Kaushal Kishor judgment, a lot of these questions regarding the horizontal application of fundamental rights were posed in the context of freedom of speech,” she said. “So, while the legal principles existed, this is the first time they are being actively put together in the context of the media.”

Shameek Sen, professor of law at the West Bengal University of Juridical Sciences, called the ruling a “logical corollary” to Kaushal Kishor, but cautioned that the context is vastly different. “That case involved statements made by a sitting minister,” he said. “But the media is typically designed to be an instrument that keeps the State in check. You cannot equate the media with the State.”

Sen added that for any act of journalistic irresponsibility, the ideal remedy should be standard civil remedies like defamation suits or tort claims. “By allowing a writ petition against a private media house, the court is essentially constitutionalising a dispute that should have been settled in the realm of private law,” he said.

The shift towards writ courts, however, is largely driven by delays in India’s civil justice system, according to Divan. “Normally, a dispute like this should go through the civil suit route,” she said. “But unfortunately, given how long our trials take, you won’t get damages post-trial for years and years.”

Fear of a chilling effect

The primary concern surrounding the judgment is the potential for weaponisation. If private media houses are amenable to writ jurisdiction, politicians, corporations, and public figures might use this decision to prevent critical reporting by claiming a breach of their privacy.

Kaushik Moitra, partner at Bharucha & Partners, said: “By declaring all press activity a ‘public function’, it hands future litigants an easier maintainability argument, which will draw more privacy-linked writ petitions against newsrooms than before.”

He warned of unintended consequences, including “an increase in pre-publication writs” and the possibility that “defamation-style claims may be repackaged as privacy/dignity claims”. Sen echoed this concern, saying that the precedent could create a chilling effect where “journalists will become more docile and defensive, and editorial controls will become overly stringent out of fear of facing constitutional writs”.

Yet, experts agreed that context will be crucial in future cases. The Delhi High Court’s strict insistence on consent was rooted in the heightened privacy considerations of a minor sexual assault victim. Divan said that genuine investigative journalism concerning matters of public interest will remain protected.

“If a politician or a public figure uses their position to enrich themselves, they cannot hide behind the right to privacy and claim it is their ‘private wealth’ to stop a media investigation, because the public interest will certainly trump the privacy interest,” she said.

Moitra agreed, stating that courts are likely to require a strict public interest analysis to avoid allowing privacy to become “a tool for prior restraint against adverse reporting”.