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Chapter 2
FREEDOM OF SPEECH AND EXPRESSION UNDER
INDIAN CONSTITUTION WITH SPECIAL REFERENCE TO
ELECTRONIC MEDIA
FREEDOM OF SPEECH AND EXPRESSION
Expression is a matter of liberty and right. The liberty of
thought and right to know are the sources of expression. Free Speech
is live wire of the democracy. Freedom of expression is integral to the
expansion and fulfillment of individual personality. Freedom of
expression is more essential in a democratic setup of State where
people are the Sovereign rulers. Iver Jennings said, Without freedom
of speech, the appeal to reason which is the basis of democracy
cannot be made.1 Milton in his Aeropagitica says that without this
freedom there can be no health in the moral and intellectual life of
either the individual or the nation.2
As defined by Laski Democracy is a Government by discussion
could be successful only when there is effective participation of the
people in the Government. For this the people need be educated.
In the words of Krishna Iyer J. This freedom is essential
because the censorial power lies in the people over and against the
Government and not in the Government over and against the people.
1

Jennings, W.I., Cabinet Government, 13. [Cited in Dr. Madhabhusi Sridhar, The Law of
Expression, An Analytical Commentary on Law for Media 18 (Asia Law House, Hyderabad,
18, (2007)].
Johan Milton, Aeropagitica and Other Tracts, 27 (1644).

40

The freedom of expression has been considered as a necessary


condition for a democratic polity. According to Kant The fundamental
postulate of liberty, is that, no man can be used as a means as man is
an end to him as well as to the others.3
Free speech is traffic in indispensable commodity namely ideas.
Hocking has said that if an idea was born in a man, it was not an item
of capital stock. He has an impulse to give it away, to spread it every
where in the knowledge that what he gives he keeps. According to
Hocking, The destiny of private thought is to gain power and effect
through shaping public behaviour or public enactment. Nothing could
more describe a human failure than a man physically prolific whose
ideas should count for nothing to his group or his time. A suppression
of speech, in its more painful consequence, would be the mental
sterilisation of the community.4
The social interest in free expression is based on the idea that
without expression, there is no society at all, because communication
is the very essence of social life.5
George Bernard Shaw has said that our whole theory of freedom
of speech and opinion for all citizens rests not on the assumption that
3

Immanuel Kant, "Meta Physics of Morals". [Cited in Dr. Madhabhusi Sridhar, The Law of
Expression, An Analytical Commentary on Law for Media 18 (Asia Law House, Hyderabad
(2007)].
Ernest William Hocking, "Freedom of the Press: A Framework of Principle" (A Report from
the Commission on Freedom of the Press, 88-89, 1947). [Cited in Dr. Madhabhusi Sridhar,
The Law of Expression, An Analytical Commentary on Law for Media 19 (Asia Law House,
Hyderabad (2007)].
Lon L. Fuller, "The morality of Law", 184-186 (1963). [Cited in Dr. Madhabhusi Sridhar, The
Law of Expression, An Analytical Commentary on Law for Media 20 (Asia Law House,
Hyderabad (2007)].

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everybody was right. But on the certainty that everybody was wrong
on some point on which somebody else was right, so that there was a
public danger in allowing anybody to go unheard.6
The freedom of speech and expression is required to fulfill the
following objectives :
1)

To discover truth : Historically the most durable argument for

a free speech principle has been based on the importance of open


discussion to the discovery of truth. It is evident from the famous
funeral address given by pedicles as back as in 431 B.C. Athenians,
he pericles out, did not consider public discussion merely something
to be put up with; rather they believed that the best interact of the city
could not be served with a full discussion of issue before the
assembly.7 If restrictions on speech are tolerated, society prevents the
ascertainment and publication of accurate facts and valuable opinion.
The best test of truth is power of the thought to get it accepted in the
competition of market.8 The truth would emanate from a 'free trade in
ideas on intellectual competition.
2)

Non self-fulfillment : A second major theory of free speech sees

it as an integral aspect of each individual's right to self development


and fulfillment. Restrictions inhibit our personality and its growth.
The reflective mind, conscious of options and the possibilities for

6
7
8

George Bernard Shaw, Socialism off Millionaires, 16 (1901).


Macropaedia, Vol 15, 15th edn., 620.
Abrams v. US, 250 US 616, 630-631 (1919).

42

growth, distinguished human beings from animals. Freedom of speech


is also closely linked to other fundamental freedoms. Thus, for fullfeldged development of personality, freedom of speech and expression
is highly essential.
3)

Democratic value : Freedom of speech is the bulwark of

democratic Government. This freedom is essential for the proper


functioning of the democratic process. It is regarded as the first
condition of liberty. It occupies a preferred position in the hierarchy of
liberties giving succor and protection to all other liberties. It has been
truly said that it is mother of all other liberties.9
In a democracy, freedom of speech and expression open up
channels of free discussion of issues. Freedom of speech plays a
crucial role in the formation of public opinion on social, political and
economic matters.
4)

To ensure pluralism : Freedom of Speech reflects and

reinforces pluralism, ensuring that different types of lifes are validated


and promote the self esteem of those who follow a particular life-style.
The French Council constitutional and the Italian Constitutional
courts have ruled that the free speech rights of media corporations
may be limited to ensure that the Constitutional value of pluralism is
safeguarded.
So, it can be concluded that freedom of speech enables the
discovery of truth, is crucial to the working of a democratic
9

Report of Second Press Commission, Vol. 1, 34-35

43

Constitution and is an aspect of human self fulfillment or autonomy.


It is in the speakers interest in communicating ideas and information
and equally in the interest of audience in receiving ideas and
information.
LAW OF EXPRESSION UNDER INDIAN CONSTITUTION
The people of India gave to themselves, the Constitution of
India, with a view of make it Sovereign, Democratic, Socialistic,
Secular and Republic. In our democratic society, pride to place has
been provided to freedom of speech and expression, which is the
mother of all liberties. One of the main objectives of the Indian
Constitution as envisages in the Preamble, is to secure LIBERTY OF
THOUGHT AND EXPRESSION to all the citizens. Freedom of Expression

is among the foremost of human rights. It is the communication and


practical application of individual freedom of thought. Irrespective of
the system of administration, various constitutions make a mention of
the freedom of expression. While freedom of thought is a personal
freedom; freedom of expression is a collective freedom, whose
character becomes more and more pronounced as the technical
methods of their diffusion multiply and improve.
The right of free speech is absolutely indispensable for the
preservation of a free society in which Government is based upon the
consent of an informed citizenry and is dedicated to the protection of
the rights of all, even the most despised minorities.10
10

Speiser v. Randall, 357 US 513.

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Constitutional Aspect
In order to give effect to this objective, freedom of speech and
expression has been guaranteed as a fundamental right under Article
19(1)(a) available to all citizens, subject only to restrictions which may
be imposed by the State under clause (2) of that Article. The relevant
portion of Article 19 reads as follows:
Article 19 (1) All citizens shall have the right
(a) Freedom of speech and expression.
Article 19(2) Nothing in sub clause (a) of clause (1) shall effect the
operation of any existing law, or prevent the State from making any
law, in so far as such law imposed reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests
of Sovereignty and Integrity of India, the Security of the State, Friendly
relations with foreign States. Public order, Decency or Morality, or in
relation to Contempt of court, Defamation or Incitement to an offence.
Article 19 (1) provides that all citizens shall have the right to
freedom of speech and expression, to assemble peaceably and without
arms, to form associations or unions, to move freely throughout the
territory of India, to reside and settle in any part of the territory of
India and to practice any profession or to carry on any occupation,
trade or business. The rights mentioned in Article 19 (1) are not the
exhaustive of all rights of a free man. Some of the rights falling outside
Article 19 are freedom to move, right of citizenship, the right to vote,

45

or contest election, the contractual right against the Government,


right of Government servants to continue in employment and the right
to strike. The freedoms enumerated in Article 19 (1) are those great
and basic rights which are recognized as natural rights inherent in the
status of a citizen. But none of these freedoms is absolute or
uncontrolled. The rights granted by Article 19 are available only to
citizens and not to aliens or foreigners.
INTERNATIONAL PERSPECTIVE OF FREEDOM OF EXPRESSION
Freedom of Expression under Constitutions of Different Countries
Freedom of Speech and expression is guaranteed by several
Constitutions in the World. They are:
(i)

The First and Fourteenth Amendments to the Constitution of


United States,

(ii)

the common Law of England,

(iii)

Section 40 (6)(1) of the Constitution of Eire, 1937.

(iv)

Section 18 (1) (e)(f)(g) of the Constitution of Sri Lanka, 1972.

(v)

Articels 50 and 51 of the Constitution of the USSR 1977, and

(vi)

Section 298 of the Government of India Act, 1935.


The First Amendment to the Constitution of USA provides,

Congress shall make no law respecting the establishment of religion,


or prohibiting the free exercise thereof; or abridging the freedom of
speech or of the press; or the right of the people to assemble peaceably
and to petition the Government for a redress of grievance.

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Right to Expression under International Conventions


Right to expression under Constitution of different countries
has close similarity with different International Conventions.
(i)

Articles 13, 20, 23, 29 of the Universal Declaration of Human


Rights, 1948.

(ii)

Article 22 of the International Covenant of Civil and political


Rights, 1966.

(iii)

Article 11 of the European Convention on Human Rights, 1950.

(iv)

Articles 6,12 of the International Covenant on Economic, Social


and Cultural Rights, 1966.
Article 19 of the Universal Declaration of Human Rights, 1948

declares the freedom of press and so does Article 19 of the


International Covenant on Civil and Political Rights, 1966.
Article 10 of the European Convention on Human Rights, 1950
provides that
(1)

Everyone has the right to freedom of expression. This right shall

include freedom to hold opinion, to receive and impart information


and ideas without interference by the public authority and regardless
of the frontiers. This Article shall not prevent states from requiring the
licensing of broadcasting, television or cinema enterprise.
(2)

The exercise of this freedom, since it carries with it duties and

responsibilities, may be subject to such formalities, conditions,


restrictions or penalties as are prescribed by the law and are

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necessary in a democratic society, in the interest of national security,


territorial integrity or public safety, for the prevention of the disorder
or crime, for the protection of health and morals, for the protection of
reputation or rights of the others, for preventing the disclosure of
information received in confidence or for maintaining the authority
and impartially of the judiciary.
MEDIA AS AN INSTRUMENT OF EXPRESSION
Exercise of freedom of expression is essential to communicate
the

thoughts,

views,

ideas,

philosophy

and

activities.

The

communication keeps society together and cohabitate. For a healthy


growth of civilized world, the free flow of information and ideas is
essential. Every individual is a medium of expression. An individual
interacts

through

the

media

to

reach

other

individuals

and

institutions. The right to freedom of speech though belongs to every


individual, institution and organisation it becomes imperatively
necessary in the media world. Media world serves as the best
communicator of information and the best instrument of expression.
Exercise of right of freedom of expression is the professional duty and
character work of media, whether it is print or electronic media. The
media gets as a mass communicator. It has to enjoy this freedom for
promoting public good and for informing the people in general as to
the state of affairs in every sphere of life and activity.11
11

Dr. Madhabhusi Sridhar, The Law of Expression, An Analytical Commentary on Law for
Media 22 (Asia Law House, Hyderabad, 2007).

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Every democratic set up in the present day social texture should


have been implicated with a special inseparable part i.e. which now
expanded to include electronic media also.
Responsibility of Media
Over past 66 years after independence, the three Constitutional
organs of State have fallen far short of our hopes and expectations.
Legislatures have become battle fields. Neither any serious public
policy is evolved. No accountability of the executive enforced by our
elected representatives. Most legislators are content to be disguised
executives, seeking and obtaining State patronage and privilege. A
Vicious cycle of unaccounted money power, illegitimate election
expenditure, polling irregularities, abuse of public office, corruption
and perpetuation of feudal oligarchies is operating, making citizens
somewhat helpless. Executive office has become a private estate and
legal plunder has become the norm. Both the elected executive and
appointed public servants have become the modern-day monarchs,
and the notion of public service is all but forgotten. Honesty and
survival in elective public office are increasingly incompatible. The
judiciary has become very much part of the problem. Laws delay and
the breakdown of rule of law have nudged our society into near
anarchy, with about 25 million cases pending in courts, many of them
for several years and decades, a well developed market has developed
for criminals and musclemen to provides rough and ready justice.12
12

Jaya Parakash Narayan, Indian Media Great Power and Greater Responsibility, available at:
www.loksatta.org (Visited on April 13, 2010).

49

In face of the colossal failure of three Constitutional organs of


State, the citizen is reduced to a state of abject helplessness. Thanks
to free press, India remained a democracy against all odds. In this
complex environment, the one institution which nurtured, sustained
and strengthened our democracy is the press. The role of media/press
during freedom struggle and after independence has been an
extraordinary and inspiring saga. After independence, the early
excitement and enthusiasm abated and as institutions of state
became

moribund

and

dysfunctional,

the

media

played

an

extraordinary role. It is this fierce independence, unflinching courage


and undiminished idealism exhibited by the media which broadened
and deepened our democracy.
Therefore media is important pillar to lend its valuable support
to the system and hence is regarded as Fourth Estate. The Fourth
Estate performs its multi-Pronged functions in linking the three main
systems and correlating them with the social needs to bridge the gulf
between the governors and the governed.
Mr.

C.

Rajagopalchari,

the

Governor-General

of

India,

emphasizing the importance of the Fourth Estate, states as under:


A Free press is as essential limb of democracy as a parliament
freely elected by the people or an Independent Judiciary.
Justice Krishna Iyer in his article Free press in a hungry
Republic stated:

50

The philosophical basis for the freedom of publication and


circulation

is

the

social

purpose

of

supplying

unadulterated

information without tendentious presentation, readily and the right


time. And the Constitutional rights stem from political philosophy.13
The press performs some socially purposeful role. It is inherent
in human nature to have desire to communicate, to exchange ideas, to
learn about changes in the environment and finally to seek the truth
without such mutual interaction society cannot function in order. The
press enlightens the public by reporting and interpreting what is
happening in the world around them since the newspaper is an eye for
a citizen in the democracy.14
In concluding words of Thomas Jefferson, "Where it left to me to
decide whether we should have a Government without newspapers or
newspaper without a Government, I should not hesitate a moment to
prefer the latter."15
Details of Expression Rights
Based on various judicial decisions and precedent from
American and English Constitutional interpretations, the following
contents of the freedom of the Press have emerged :
(a)

Right

to

print

and

publish

news

i.e.

actual

facts

of

contemporary history and views16.


13
14
15
16

Justice V.R. Krishna Iyer, Law, Freedom and Change 68 (East West Press Pvt. Ltd., New
Delhi, 1975).
Subir Ghosh, Mass Media Today 42 (Rupa & Co. Distributor, Calcutta, 1991).
Thomas Jefferson in a letter to Edward Carrington, January 16, 1787.
Sakal Paper (Pvt.) Limited v. Union of India, AIR 1962 SC 305.

51

(b)

Such views or opinions may be those of the editor or author but


also those other people printed under his direction.17

(c)

To distribute or circulate such printed matter to any other


party.18

(d)

The freedom extends to the discussion and publication of views


relating to all issues about which information is needed to
enable the members of society to cope with the exigencies of the
period and is not necessarily confined to political or public
affairs.19

(e)

It includes the right to comment on public affairs and to criticize


public men and measures20 and to criticize the Government,
including its defence policy and the conduct of the Armed
Forces21, without prejudice to the national security by inciting
insubordination, disloyalty or refusal of duty in the Armed
Forces. This right to criticize the Government is reserved in our
country as per the Explanations 2 and 3 to Section 124-A of
Indian Penal Code, 1860 which makes sedition an offence and
restriction on freedom of expression. According to explanation 2
of Section 124-A comments expressing disapprobation of the
measures of the Government with a view to obtain their
alternation by lawful means, without existing or attempting to

17
18
19
20
21

Express Newspapers v. Union of India, 1958 SC 578; Sharma v. Sri Krishna, AIR 1959 SC
395.
Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha and Others, AIR 1950 SCR 594.
Thornhill v. Alabama, 1950 310 US 88 (102).
Baumgartner v. U.S., 1944.
Schunk v. US, 1970 398 US 58.

52

excite hatred, contempt or disaffection, do not constitute an


offence under the Section 124-A. Third explanation says
comments expressing disapprobation of the administrative or
other action of the Government without exciting or attempting
to excite hatred, contempt or disaffection, do not constitute an
offence of sedition.
(f)

A corresponding right to collect the information relating to


public affairs or the right of access to the sources of such
information.22
This does not mean, however, that the press has a
constitutional right of special access to information which is not
available to the public generally23, not has the Government any
affirmative duty to make available to journalists sources of
information not available to the public generally.24
A corollary of the right to publish must be the right to
gather news. News must not be unnecessarily cut off at its
source, for without freedom to acquire information the right to
publish would be impermissibly compromised.

(g)

The right of the press to collect information from diverse and


antagonistic sources, on a competitive basis, free from any
monopolistic control from the Government.25

22
23
24
25

New York Times v. U.S., 1971 403 US 713.


Branzburg v. Hayes, 1972 408 US 665.
Pell v. Procunier, 1974 SC 2800.
Report of Royal Commission on the Press UK report 1947-9 para 543.

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(h)

The

freedom

neither

to

publish

any

news,

article,

correspondence or any other matter26 nor to include anything at


dictates of any authority. In short, it must have the freedom to
evolve a plan for carrying on of its activities as regards the
matter to be published, the class of readers it should address,
the price and so on.
In a Canada case, the Supreme Court held that the Bill of
Province of Alberta which sought to compel, under pain of
penalty, a newspaper to publish only the information released
by chairman of Social Credit Board is unconstitutional.27 An
authority cannot direct the free press to publish a particular
matter.
(i)

The right to refuse any advertisement, including a Government


advertisement.28 If, however, a newspaper accepts Government
advertisement, it would be bound to abide by the terms and
conditions of the contract or law relating to such contracts.
The converse of this right is the right not to be
discriminated against in the matter of supply of Government
advertisements in

every

newspaper.29

This rests

on the

assumption that advertisements in the modern world constitute


the sustenance of every newspaper. During the Emergency,

26
27
28
29

Miami Herald v. Tornllio, 1874 418 US 241.


Ret. Re. Alberta statutes 1938 2 DLR 81.
Thayer, Legal Control of the Press, 152, 720 (1962).
Sakal Papers (Pvt.) Limited v. Union of India, AIR 1962 SC 305.

54

Government of India issued a memorandum to control the


selection of newspapers for public advertisements. The validity
of that memorandum has been challenged by the Statesman
before the Calcutta High Court.30 The memorandum has been
withdrawn later on. The Andhra Pradesh High Court directed
the

Government

not

to

misuse

the

power

of

releasing

Government advertisements to the newspapers.31


(j)

Freedom of choice in the matter of employment or nonemployment of the necessary means of exercising the freedom of
expression, including employment in the editorial force.32

(k)

Immunity from any tax specially imposed on the press or on


advertisements in a newspaper, which was calculated to limit its
circulation.33

CONSTITUTIONAL STATUS OF THE MEDIA


The preamble to the Constitution of Indian resolves to secure for
the citizens of India, liberty of thought, expression and belief. Article
19(1)(a) of the constitution is also applicable to media along with
citizens. The media derives the rights from the right to freedom of
speech and expression available to the citizens. Thus, the media have
the same right no more and no less than any individual to write,
publish, circulate or broadcast. In a case that arose in PreIndependent India, the Privy council held:

30
31
32
33

Statesman Calcutta. 17-8-1978.


Ushodaya Publications (P) Ltd. v. Govt. of A.P., AIR 1981 AP 109.
Express Newspapers v. Union of India, AIR 1958 SC 578.
Grosjean v. American Press, 1936, 297 US 233.

55

The freedom of the Journalist is an ordinary part of the


freedom of the subject and to whatever length the subject
in general may go, so also may the journalist, apart from
the statute law, his privilege is no other and no higher
No privilege attaches to his position.34
The framework for analysing media rights remains much the
same in Post-Independence India. In M.S.M. Sharma v. Krishna
Sinha35 the Supreme Court observed:
A non-citizen running a newspaper is not entitled to the
fundamental right to freedom of speech and expression,
and therefore cannot claim, as his fundamental right, the
benefit of the liberty of the press. Further being only a
right flowing from the freedom of speech and expression,
the liberty of the press in India stands on no higher
footing than the freedom of speech and expression of the
citizen and that no privilege attaches to the press as such,
that is to say, as distinct from the freedom of the citizen.
In other words, the media enjoy no special immunity or elevated
status compared to the citizens and are subject to the general laws of
the land. Although no special provision was made to safeguard the
rights of the press, courts have time and again confirmed that the
34
35

Channing Arnold v. Emperor, AIR 1914 PC 116.


AIR 1959 SC 395.

56

rights of the press are implicit in the guarantee of freedom of speech


and expression under Article 19(1)(a) of the constitution.36
Facets of Speech and Expression under Article 19(1)(a)
The freedom of speech and expression under Article 19(1)(a) is a
concept with diverse facets, both with regard to the content of the
speech

and

expression

and

in

the

means

through

which

communication takes place. It is also a dynamic concept that has


evolved with time and advances in technology.37
Article 19(1)(a) covers the right to express oneself by word of
mouth, writing, printing, picture or in any other manner. It includes
the freedom of communication and the right to propagate or publish
ones views. The communication of ideas may be through any
medium, newspaper, magazine or movie38 including the electronic and
audiovisual media.
a) Right to Circulate
The right to free speech and expression includes the right not
only to publish but also to circulate information and opinion. Without
the right to circulate, the right to free speech and expression would
have little meaning. The freedom of circulation has been held to be as
essential as the freedom of publication.39
36

37
38
39

Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Express Newspapers Ltd. v. Union of India,
AIR 1958 SC 578; Sakal Papers v. Union of India, AIR 1962 SC 305; Bennett Coleman &
Co. v. Union of India, AIR 1973 SC 106; Maneka Gandhi v. Union of India, (1978) 1 SCC
248.
Madhavi Goradia Divan, Facets of Media Law 5 (Eastern Book Company, Lucknow, 2010).
S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574.
Romesh Thappar v. State of Madaras, AIR 1950 SC 124; Virendra v. State of Punjab, AIR
1957 SC 896; Sakal Papers v. Union of India, AIR 1962 SC 305.

57

In Sakal Papers v. Union of India40 the Supreme Court held that


the State could not make laws which directly affect the circulation of a
newspaper for that would amount to a violation of the freedom of
speech. The right under Article 19(1)(a) extends not only to the matter
which the citizen is entitled to circulate but also to the volume of
circulation.41 This case arouse out of a challenge to the newsprint
policy of the Government which restricted the number of pages a
newspaper was entitled to print.
Likewise, in Bennett Coleman & co. v. Union of India42 the
Supreme Court held that newspaper should be left free to determine
their pages and their circulation. This case arouse out of a
constitutional challenge to the validity of the Newspaper (Price & Page)
Act, 1956 which empowered the Government to regulate the allocation
of space for advertisement matter. The court held that the curtailment
of advertisements would fall foul of Article 19(1)(a), since it would have
a direct impact on the circulation of newspapers. The court held that
any restriction leading to a loss of advertising revenue would affect
circulation and thereby impinge on the freedom of speech.
In Indian Express Newspapers v. Union of India,43 a challenge to
the imposition of customs duty on import of newsprint was allowed
and the impugned levy struck down. The Supreme Court held that the
40
41
42
43

AIR 1962 SC 305.


Ibid., p. 313.
(1972) 2 SCC 788; AIR 1973 SC 106.
(1985) 1 SCC 641.

58

expression freedom of the press though not expressly used in Article


19 was comprehended within Article 19(1)(a) and meant freedom from
interference from authority which would have the effect of interference
with the content & the circulation of newspapers.
In LIC v. Manubhai Shah44 the Supreme Court held that the
freedom of speech and expression must be broadly construed to
include the freedom to circulate ones views by word of mouth or in
writing or through audio visual media. This includes the right to
propagate ones views through the print or other media. The
honourable court observed:
Freedom to air ones view is the lifeline of any democratic
institution and any attempt to stifle or suffocate or gag
this right would sound a death knell to democracy and
would help user in autocracy or dictatorship.
The court held that any attempt to deny the right to circulation
and propagation of ideas must be frowned upon unless it falls with in
the mischief of Article 19(2).
b) Right to receive information
The freedom of 'speech and expression' comprises not only the
right to express, publish and propagate information, it circulation but
also to receive information. This was held by the Supreme Court in a
44

(1992) 3 SCC 637.

59

series of judgement which have discussed the right to information in


varied contexts from advertisements enabling the citizens to get vital
information about life-saving drugs,45 to the right of sports lovers to
watch cricket46 and the right of voters to know the antecedents of
electoral candidates47
c) Right to broadcast
The concept speech and expression has evalued with the
progress of technology and encompasses all available means of
expression and communication. This would include the electronic and
the broadcast media.
In

Odyssey

Communications

(P)

Ltd.

v.

Lokvidayan

Sanghatana,48 the Supreme Court held that the right of a citizen to


exhibit films on the State channel Doordarshan is part of the
fundamental right guaranteed under Article 19(1)(a). The court held
that this right was similar to the right of a citizen to publish his views
through

any

other

media

such

as

newspapers,

magazines,

advertisements, hoardings and so on. In this case, the petitioners


challenged the exhibition on Doordarshan of a serial titled Honi
Anhoni on the ground that it encouraged superstitious and blind faith
amongst viewers. The petition was dismissed as the petitioner failed to
show evidence of prejudice to the public.
45
46
47

48

Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 2 SCC 161.
Secy., Ministry of Information and Broadcasting v. Cricket Association Bengal, (1995) 2 SCC
161.
Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294; Peoples Union for
Civil Liberties v. Union of India (2003) 4 SCC 399; Indian Express Newspapers v. Union of
India, (1985) 1 SCC 641.
(1988) 3 SCC 410.

60

The right to broadcast was also recognized in LIC v. Manubhai


D. Shah.49 Doordarshan refused to telecast a documentary film on the
Bhopal Gas Disaster titled Beyond Genocide, on the ground that the
film had lost its relevance and that it criticised the action of the State
Government. The Supreme court held that the film maker had a
fundament right under Article 19(1)(a) to exhibit the film and the onus
lay on the party refusing exhibition to show that the film did not
conform to the requirements of the law. It was held that Doordarshan,
a State controlled agency that was dependent on public funds was not
entitled to refuse telecast except on grounds under Article 19(2).
In another similar case Ramesh v. Union of India,50 a petition
was filed to restrain the screening of the film serial TAMAS on the
ground that it violates Article 21 and 25 of Indian Constitution and
Section 5B of the Cinematograph Act, 1952. The film was based on
the novel of Bhisma Sahni, which depicted the event in Lahore
immediately before the partition of the country. Two judges of the
Bombay High Court saw the film and rejected the contention that it
has propagated the cult of violence. The Supreme Court agreed with
the High Court and emphasized the need to encourage the telecasting
of the film in television as it is a powerful medium.
In another case, the freedom of cinema expression was upheld
and restrictions on exhibition of a film were removed on the ground
49
50

(1992) 3 SCC 637.


AIR 1988 SC 775.

61

that scenes were not obscene. In Bobby Art international v. Om Pal


Singh Hoon,51 the Supreme Court drew a distinction between nudity
and obscenity. The petition was filed by a member of the Gujjar
Community seeking to restrain the exhibition of the film Bandit
Queen on the ground that the depiction in the film was abhorrent
and unconscionable and a slur on the womanhood of India and that
the rape scene in the film was Suggestive of the moral depravity of the
Gujjar Community. The Supreme Court rejected the petitioners
contention that the scene of frontal nudity was indecent with in Article
19(2) and Section 5-B of the Cinematograph Act, 1952 and held that
the object of showing the scene of frontal nudity of the humiliated
rape victim was not to arouse prurient feeling but revulsion for the
perpetrators.
Similarly, in Secretary, Ministry of Information and Broadcasting
v. Cricket Association, Bengal,52 the Supreme Court held that
broadcasting is a means of communication and a medium of speech
and expression with in the framework of Article 19(1)(a). This case
involved the rights of a cricket association to grant telecast rights to
an agency of its choice. It was held that the right to entertain and to
be entertained, in this case, through the broadcasting media are an
integral part of the freedom under Article 19(1)(a).

51
52

(1996) 4 SCC 1.
(1995) 2 SCC 161.

62

If the right to freedom of speech and expression includes


the right to disseminate information to a wide of the
population as is possible the access which enables the
right to be so exercised is also an integral part of the said
right.53
The court went on to hold that since the broadcasting media
depended on the use of airwaves, a limited common property resource,
the rights of the telecaster were also limited. This was a restriction in
addition to those set out under Article 19(2) and was justified on the
ground of the limited spectrum of airwaves. This limitation did not
extend to the viewer, whose right to be informed, educated and
entertained is paramount. The term expression under Article 19(1)(a)
covers the right of an individual to entertain as also the right of the
audience to be entertained. The participants in a sports event have a
right to entertain.54
d) Right to advertisement (commercial speech)
A product or a service may be advertised through a variety of
methods such as hand bills, circulars, direct mail, billboards,
signboards, sky signs, roof signs, loudspeakers, mechanical or electric
devices, newspapers and magazines, radio, television, the internet and
so on.55

53
54
55

Supra n. 52.
Ibid.
Supra n. 37, p. 186.

63

In Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.,56 the


Supreme Court held that a commercial advertisement or commercial
speech was also a part of the freedom of speech and expression, which
would be restricted only within the limitation of Article 19(2). The
Telephone Nigam permited the contractors to publish telephone
directories in Yellow pages used to be added to the directory
published by the Nigam in white pages. The Bombay High Court
allowed the appeal of the Nigam, which sough a declaration that it
alone had exclusive right to publish telephone directory and the Tata
Press has no right to publish the list of the telephone subscribers
without its permission as it would be violation of Indian Telegraph Act.
The Tata Press went in appeal to Supreme Court. Admitting the
appeal, the court said : The Advertisement as Commercial Speech
has two facts. Advertising which is no more than a commercial
transaction, is nonetheless dissemination of information regarding the
product-advertised. Public at large are benefited by the information
made available through the advertisements. In a democratic economy,
free flow of commercial information is indispensable. There cannot be
honest and economical marketing by public at large, without being
educated by the information disseminated through advertisements.
The economic system in a democracy would be handicapped without
there being freedom of Commercial Speech. The public at large has a
right to receive the commercial speech. Article 19(1)(a) of the
constitution not only guaranteed freedom of speech and expression, it
56

(1995) 5 SCC 139.

64

also protects the rights of an individual to listen, read and receive the
said speech. The Supreme Court emphatically held that the right
under Article 19(1)(a) could not be denied by creating a monopoly in
favour of the Government. It could only be restricted on grounds
mentioned in Article 19(2) of the constitution.
Till this judgement57, advertisements were excluded from the
realm of free speech. In an earlier ruling, Hamdard Dawakhana v.
Union of India,58 the Supreme Court held that advertisements being a
commercial gain, could not avail of the rights under Article 19(1)(a).
The case concerned a challenge to the provisions of the Drugs and
Magic Remedies (Objectionable Advertisements) Act, 1954 which was
intended at preventing self-medication. The court held that although
an advertisement was a form of speech, it ceased to fall with in the
concept of free speech when it took the form of a commercial
advertisement seeking to promote trade or commerce. The court
observed : Freedom of speech goes to the heart of the natural right of
an organised freedom loving society to impart and acquire information
about the common interest. If any limitation is placed which results
in the society being deprived of such right then no doubt it would fall
with in the guaranteed freedom under Article 19(1)(a). But if all it does
is that it deprives a trader from commending his waves, it would not
fall within that term.59
57
58
59

Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139.
AIR 1960 SC 554.
Supra n. 58, p. 564.

65

It is curious reasoning to deprive commercial advertising from


protection under Article 19(1)(a). Traders and businessman who
advertise for commercial gain, are no different from newspapers and
other media that are run as Commercial, profit making enterprises.
This is why the media enjoy no special status or immunity and are
subject to the general laws of the land, including those relating to
taxation. The reasoning that those advertising for commercial gain
were disentitled to enjoy the right of free speech under Article 19(1)(a)
appears flawed.
e) Right to conduct interviews
This is a limited right, subject to the willing consent of the
person being interviewed. A number of cases have arisen where the
right of the media to interview convicts or under trials has been
examined.
In Prabha Dutt v. Union of India,60 the petitioner was seeking to
interview the condemned prisoners Billa and Ranga. The court held
that the press does not have an absolute or unrestricted right to
information and there is no legal obligation on the part of citizens to
supply that information. An interview may be conducted provided that
convict gives his consent to being interviewed. The right to interview
would also be subject to Rule 549 (4) of the manual for the
Superintendence and Management of Jails which allows every

60

(1982) 1 SCC 1.

66

prisoner

sentenced

communication

with

to

death

relations,

to

give

legal

interviews,

advisors

etc.

engage
as

the

in
jail

superintendent considers reasonable.


In State v. Charulata Joshi,61 the Supreme Court reiterated the
restricted scope of this right. The Additional Session Judge had
granted the news magazine, India Today a blanket permission to
interview Babloo Srivastava who was lodged in Tihar Jail. The court
held that the under trial could be interviewed or photographed only if
he expressed his willingness. The interview had to be regulated by the
provisions contained in Jail Manuals and could be published in a
manner that did not impair the administration of justice.
f) Right to report court proceedings
The right to report judicial proceedings, stems for the necessity
for transparency. Justice must not only be done, it must be seen to be
done. Openness is a safeguard against judicial error and misconduct.
In the darkness of secrecy sinister interest, and evil in every
shape, have full swing only in proportion as publicity has place any of
the checks applicable to judicial injustice operate. Where there is no
publicity there is no justice. Publicity is the very soul of justice. It is
the keenest spur to exertion and the surest of all guards against
improbity. It keeps the judge himself while trying, under trial.62
61
62

(1999) 4 SCC 65.


Bentham quoted in Scot v. Scott, (1911) All ER 1, p. 30; quoted with approval in Naresh
Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC; Vineet Narain v. Union of India
(1998) 1 SCC 226.

67

The media enjoys privileges on account of the citizens right to


be informed on maters of public importance.
It is not because of any special wisdom, interest or status
enjoyed by proprietors, editors or journalists. It is because the media
are the eyes and ears of the general public. They act on behalf of
general public. Their right to know and the right to publish is neither
more nor less than that of the general public. Indeed it is that of the
general public for whom they are trustees.63
The journalist has a fundamental right to attend proceedings in
court and the right to publish a faithful report of the proceedings
witnessed and heard in court. This right is available in respect of
judicial and quasi-judicial tribunals.64
Publicity of proceedings serves another important purpose. It
enhances public knowledge and appreciation of the working of the law
and the administration of justice. There is also a therapeutic value to
the public in seeing criminal trials reach their logical conclusion.65
Publicity of proceedings is not an absolute rule. The open justice
system must give way when there are higher considerations. For
instance, the names of rape victims or riot victims must be protected.
Such persons may be reluctant to complaint if their identities are
disclosed and trials publicised. It is not only necessary to protect such

63
64
65

Lord Donaldson in Attorney General v. Guardian Newspapers Ltd. (No. 2), (1988) 3 All ER
595, p. 600.
Saroj Iyer v. Maharashtra Medical (Council) of Indian Medicine, AIR 2002 Bom 97.
Kartar Singh v. State of Punjab (1994) 3 SCC 569.

68

persons from public humiliation and embarrassment, but also


necessary to ensure that the victim gives the best available evidence
which she may not be able to provide if she is in the public gaze.
Similarly, family disputes warrant privacy, particularly to protect
children from unwarranted publicity.66
In Naresh Shridhar Mirajkar v. State of Maharashtra,67 the
Supreme Court held that the court may restrict the publicity of
proceedings in the interests of justice. The court has the inherent
power under Section 151 of Code of Civil Procedure, 1908 to order a
trial to be held in camera, but this power must be exercised with great
caution and only where the court is satisfied beyond doubt that the
ends of justice would be defeated if the case were to be tried in open
court.68
g) Right to expression beyond national boundaries
The right to expression transcends national boundaries. The
revolution in communications and the electronic media has broken
down transnational barriers. It has made possible the transmission of
information to any part of the world in a matter of seconds. It is
possible via internet and phone.
Every one has a right to freedom of opinion and expression,
this right includes freedom to hold opinions without interference and
to seek, receive and impart information and ideas through any media
and regardless of frontiers69
66
67
68
69

Supra n. 37, p. 12.


AIR 1967 SC 1.
Ibid., pp. 8-9.
Universal Declaration of Human Rights, 1948, Article 13.

69

In Maneka Gandhi v. Union of India,70 the Supreme Court


considered whether Article 19(1)(a) of Indian Constitution was
confined to Indian territory and held that the freedom of speech and
expression is not confined to National boundaries.
So electronic media also has right to expression beyond national
boundaries under Article 19(1)(a) of Indian Constitution.
h) Copyright versus the freedom of expression
The law of copyright is indeed to prevent plagiarism and unfair
exploitation of creative work. It is a natural extension of the freedom of
speech and expression protected under Article 19(1)(a) of the
constitution. If an individual enjoys the freedom of speech and
expression, he must also be guaranteed protection of the intellectual
property in his expression. Absence of such protection would
demoralize creative artists and have a chilling effect on creative
activity.71
Copyright is not a positive right to do something but confers a
negative right which restricts others from copying the original work of
an author. A right for one person is thus a restriction on another. The
laws of copyright protects the right of one person and restrains
another from exercising corresponding rights.
The question arises is as to whether the right of the copyright
owner infringes the freedom of expression72 of another person or his
70
71
72

(1978) 1 SCC 248.


Supra n. 37, p. 128.
The Constitution of India, 1950, Article 19(1)(a)

70

freedom

of

business.73

Unlike

defamation,

contempt,

morality,

decency, incitement to an offence etc., copyright is not one of the


specified restrictions imposed under constitution.74 The right of free
expression or free trade cannot be stretched to mean that a person
can be entitled to benefit from anothers property or the fruits of
anothers labour. This is vital public interest in copyright protection.
Writer G. Davies in Copyright and the Public Interest observed that
copyright serves the public interest in freedom of expression. By
enabling the creator to derive a financial award from the work, his
artistic independence and right to create and publish according to his
own wish and conscience is assured. Alternative methods of rewarding
creators, such as patronage, either by the State or by individual carry
the risk of control or censorship.
i) Right to criticize
Acceptance by Government of a dissident press is the measure
of the maturity of a nation
Freedom of speech and expression covers the right to criticize
Government, the requisite of a healthy democracy.
In a leading American Case, Terminiello v. Chicago75 the rational
behind the freedom of speech was explained J. Donglas :

73
74
75

Supra n. 72, Article 19(1)(g)


Ibid., Article 19(2)
(1948) 93 L Ed 1131 : 337 US 1 (1949)

71

"[A] function of free speech under our system of Government is


to invite dispute. It may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with conditions
as they are, or even stirs the people to anger. Speech is often
provocation and challenging. It may strike at prejudices and
preconceptions and have profound unsettling effects at it presses for
acceptance of an idea. There is no room under our constitution for
more restrictive view for the alternative would lead to standardization
of ideas either by legislatures, courts or dominant political or
community groups.76
In Kedar Nath Singh v. State of Bihar77 there arose out a
constitutional challenge to Sections 124-A and 505 of Indian Penal
Code, 1860 which penalizes attempts to excite disaffection towards
the Government by words or in writing and publications which may
disturb public tranquility. The Supreme Court dismissed the challenge
but classified that criticism of public measures or comment on
Government action, however strongly worded, would be within
reasonable limits and would be consistent with the fundamental right
of freedom of speech and expression.
In Anand Chintamani v. State of Maharashtra78 a full bench of
the Bombay High Court, while quashing an order of forfeiture under
76
77
78

Terminiello v. Chicago, (1948) 93 L Ed 1131, p. 1134; quoted with approval by Jeevan


Reddy, J. in Printers Mysore Ltd. v. Asstt. Commercial Tax Officer, (1994) 2 SCC 434.
AIR 1962 SC 955.
(2002) 2 Mah LJ 14.

72

section 95(1) of the Code of Criminal Procedure, 1973 in respect of


Me Nathuram Godse Boltoy a play critical of Mahatma Gandhi,
upheld the right to criticise:
Tolerance of diversity of view points and the acceptance of
the freedom to express of those thinkings may not accord
with the mainstream are cardinal values which lie at the
very foundation of a democratic form of Government. A
society wedded to the rule of law, cannot trample upon
the rights of those who assert views which may be
regarded as unpopular or contrary to the views shared by
a majority. The law does not have to accept the views
which have been expressed by the petitioner as a
playwright to express those views. Respect for and
tolerance of a diversity of viewpoints is what ultimately
sustains a democratic society and Government. The right
of a playwright, of the artist, writer and of the poet will be
reduced to husk if the freedom of portray a message,
whether it be on canvas, prose or verse-is to depend upon
the popular perception of the acceptability of that
message. Popular perceptions, however strong cannot
override value which the constitution embodies as
guarantees of freedom in what was always intended to be
a free society.79
79

Supra n. 78, pp. 32-33.

73

j) Right to report legislative proceedings


This right has often been curtailed in the name of legislative
privilege available to both parliament and the State assemblies.
Legislative

privilege

refers

to

special

rights

conferred

by

the

constitution on parliament and state legislatures to ensure freedom of


speech for legislators, to enable them to discuss and debate matters of
importance without the fear of inviting liability of any sort.80
In Tej Kiran Jain v. N. Sanjiva Reddy the Supreme Court held that :
It is the essence of parliamentary system of Government
that people representatives should be free to express
themselves without fear of legal consequences. What they
say is only subject to the discipline of the rules of
parliament, the good sense of members and the control of
proceedings by speaker. The courts have no say in the
matter and should really have none.81
An extension of legislative privilege is the power of the
legislature to punish for breach of privilege or for contempt of the
House. Contempt of Parliament has been described as, Any act or
omission

which

impedes

either

House

of

Parliament

in

the

performance of its functions, or which obstructs or impedes any


member or officer of such House in the discharge of his duty or which
has a tendency directly or indirectly, to produce such results may be
treated as a contempt even though there is no precedent of the offence
of sentence.82
80
81
82

The Constitution of India, 1950, Articles 105, 194.


(1970) 2 SCC 272; AIR 1970 SC 1573.
Erksine May, Parliamentary Practice, 21st Edn. (1), p. 115.

74

Once these powers of legislature came in confrontation with the


media. In Searchlight case,83 a notice for breach of privilege was
issued against the editor of Searchlight, a well-known English daily for
publishing an expunged portion of the proceedings of the Bihar State
Assembly. The editors petition in the Supreme Court complaining that
his right to freedom of speech had been violated was dismissed. The
Supreme Court held that the report of an expunged portion of a
members speech would, prima-facie, amount to breach of privilege.
Legislative privilege stemmed from special Constitutional laws and in
the event of a conflict Article 19(1)(a) would have to yield to Article 105
and 194 i.e. Parliament Privilege has upper hand over Article 19(1)(a).
A landmark judgement84 on legislative privilege and contempt of
the legislature, arose out of a presidential reference under Article
143(1) of the Constitution. The Allahabad Legislative Assembly issued
an arrest warrant against two Judges of Allahabad High Court for
ordering the release of one Keshav Singh against whom action had
been taken for committing contempt of the house by addressing a
disrespectful letter to the speaker. While answering the presidential
reference and holding that the Judges had not committed contempt of
house, the Supreme Court stressed that legislative privilege must be
subject to the fundamental rights of the citizen. The court sounded a
note of caution against the exercise of privilege and the power to
punish for contempt.
83
84

M.S.M. Sharma v. Krishna Sinha, AIR 1959 SC 745.


In re Keshav Singh, AIR 1965 SC 745.

75

In an age of information & technology, where the live telecast of


legislative proceedings has become mandatory,85 the whole concept of
legislative privilege & contempt is anachronistic. Further in the
absence of defined privileges, this power is misused with impunity.86
CENSORSHIP OR RESTRICTIONS ON FREEDOM OF SPEECH AND
EXPRESSION
In a modern State, absolute and unrestricted individual rights
do not exist, because they cannot exist. Freedom is more purposeful if
it is coupled with responsibility. Like any other freedom, the freedom
of speech and expression has to be balanced with other social values.
The liberty of the individual to do as he pleases even in innocent
matters is not absolute. It must frequently yield to common good.87
Freedom of the press has to be reconciled with the collective
interest of the society, which is known as public interest88
The reconciliation of the contest between power and liberty,
between the claims of political society and the interests of individual is
a perennial problem of political society which curiously persists
irrespective of any difference in the form of Government. So, there are
certain permitted prior restraints and restrictions on the freedom of
the press, in the collective interest of society. Prior restraint means
85
86
87
88

Gazettee Notification No. 16(1) cable/2005 E-III dated 25 Feb., 2005 issued by Prasar Bharati.
P.V. Narashima Rao v. State, (CBI/SPE) (1998) 4 SCC 626.
Adkins v. Childrens Hospital, 1923 261 US 525.
Gitlow v. New York, (1925) 263 US 652 and Kochuni v. State of Madras, AIR 1960 SC 1080.

76

any kind of interference or control exercised by the State over the


freedom of the press at any stage prior to publication of the alleged
offending material.89
Censorship means a bar on further publication of a journal or of
matter of a special kind without advance approval of an executive
official90
Under an order of censorship, the matter to be published has to
be submitted to a Governmental authority by the editor or publisher of
a newspaper prior to its printing or publication. The standard applied
by the officer is not subject of judicial review. A Government official
becomes the guardian of the peoples mind, ideas and expression
which acts as a deterrent to the creation of new thoughts.91
Writing on the effect of censorship on the press, Prof. Thomas I.
Emerson has said:
A system of prior restraint is in many ways more
inhibition than a system of subsequent punishment. It is
likely to bring under Government scrutiny a far wider
rang of expression; the system allows less opportunity for
public appraisal and criticism; dynamics of the system
drive towards excesses, as the history of all censorship
shows.92
89
90
91
92

Supra n. 11, p. 94.


The Statesman 8-1-1983.
Ibid.
Thomas I. Emerson, The System of Freedom of Expression 506 (Random House Vintage
Books, New York, 1970).

77

To censor is to act so as to change or suppress speech or writing


that is condemned as subversive of the common good.93 But it has
been abused a lot by ruling regime to hide their misconduct. One such
example is execution of Socrates in 399 B.C. on charges that he
corrupted the youth and he did not acknowledge the God, that the city
did, but other new divinities of his own.94
In China in 231 B.C. blatant oppressiveness, and an attempt to
stamp out the influence of Confucius and other sages, could be seen
in the wholesale destruction of books.95
Censorship in Time of Peace or War
In England it is acknowledged that in times of war when the
very existence of the State is in jeopardy, the State has power to
prevent the dissemination of such information and comments as
would interfere with successful prosecution of the war. In the Indian
Constitution Article 19(2) makes no distinction between times of war
and of peace. It authorises the State to impose reasonable restrictions
for preserving the interests specified there in. These restrictions must
be reasonable both substantively and procedurally. The decision of the
Supreme Court in Virendra v. State of Punjab96 is a clear authority for
the proposition that pre-censorship even in times of peace is
warranted in certain circumstances under Article 19(2) of Indian
Constitution.
93
94
95
96

The New Encyclopedia Britannica, Vol. 3, Macropaedia, 15th edn., 1991.


Ibid., Vol. 15, Macropaedia, 15th edn., 1991, p. 620
Ibid., p. 621.
AIR 1957 SC 896

78

MEDIA REGULATIONS UNDER INDIAN CONSTITUTION


Article 19(1)(a) of the Indian Constitution guarantees to all its
citizens including media97 the right to freedom of speech and
expression. Clause (2) of Article 19, at the same time provides:
nothing in sub-clause (a) of clause (1) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interest of:

Sovereignty and Integrity of India.

The Security of the State.

Friendly relations with foreign states.

Public order.

Decency or Morality.

Contempt of Court.

Defamation.

Incitement to an offence.
The meaning of the term reasonable restriction has been a

matter of judicial discussion. There has been a doubt whether the


term reasonable restriction also includes total prohibition. In A.K.
Gopalan v. State of Madras98 Patanjali Sastri J., Kania C.J., and Das
J. tried to explain the term restriction. Das J. was of the view that the
97

98

Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Express Newspapers Ltd. v. Union of India,
AIR 1958 SC 578; Sakal Papers v. Union of India, AIR 1962 SC 305; Bennett Coleman &
Co. v. Union of India, AIR 1973 SC 106; Maneka Gandhi v. Union of India (1978) 1 SCC
248.
1950 IND LAW SC 42.

79

word restriction implies that the fundamental right is not destroyed


in entirety but passport of it remained. Patanjali Sastri J. was of the
view that the term did not mean total prohibition. Kania C.J.
interpreted it as partial control and distinguish it from deprivation.
Later the Supreme Court in another decision99 interpreted the term to
mean total prohibition where the restriction was reasonable. It is
submitted that what is restrained in not the fundamental right which
continues unaffected, but the exercise of it. The restriction when it is
unreasonable does not affect the right and when it is reasonable it
only restrains the exercise of that right. Such a restraint on the
exercise of right, when reasonable, may be partial or total.100
Further, in reasonable restrictions, the test of reasonableness
depends upon the nature of the right alleged to have been infringed,
the underlying purpose of the restriction imposed, the extent and
urgency of the evil sought to be remedied thereby, the disproportion of
the imposition and the prevailing conditions at the time of imposition
of such restriction.
a) Reasonableness of restrictions
There are two conditions imposed by the Constitution to
validate the restriction on the freedoms guaranteed by Article 19(1).
Any law restricting these freedoms must satisfy these two conditions.
These conditions are that the restrictions must be for a particular
purpose mentioned in the clause permitting the imposition of the

99
100

Narendra Kumar v. Union of India, 1959 IND. LAW SC 61.


The Constitution of India, Article 358 & 359, which deals with proclamation of emergency.

80

restriction on that particular right and the restriction must be a


reasonable one. The Constitution does not define the expression
Reasonable Restrictions. The test of reasonableness has to be
applied

to

each

individual

case

and

no

general

pattern

of

reasonableness can be laid down which applies in all cases.


The following are some of the principles which the Supreme
Court of India has affirmed in Narottamdas v. State of M.P.101 for
ascertaining the reasonableness of restrictions on the exercise of the
rights secured under Article 19 of the Constitution, which are as
follows:
1.

The phrase reasonable restriction connotes that the limitation


imposed upon a person in the enjoyment of a right should not
be arbitrary or of an excessive nature.

2.

In determining the reasonableness of statute, the court should


see both to the nature of the restriction and procedure
prescribed by the statue for enforcing the restrictions on the
individual freedom. Not only substantive but also procedural
provisions of a statute also enter in to the verdict of its
reasonableness.

3.

The reasonableness of a restriction has to be determined in an


objective manner and from the standpoint of the interests of the
general public and not from the point of view of persons upon
whom

the

restrictions

considerations.
101

AIR 1964 SC 1667.

are

imposed

or

upon

abstract

81

4.

The court is called upon to ascertain the reasonableness of the


restrictions and not of the law which permits the restriction. A
law may be reasonable but the restriction imposed by it on the
exercise of freedom may not be reasonable.

5.

The word restriction also includes cases of prohibition and the


State can establish that a law, though purporting to deprive a
person of his fundamental right, under circumstances amounts
to a reasonable restriction only.

6.

The Indian Constitution provides reasonably precise general


guidance in the matter of reasonableness. The test of the
reasonableness of the restriction has to be considered in each
case in the light or the nature of the right infringed, the purpose
of the restriction, the extent and the nature of the mischief
required to be suppressed and the prevailing social and other
conditions at the time.

7.

A restriction that is imposed for securing the objects laid down


in the Directive Principles of State Policy may be regarded as
reasonable restriction.

8.

If a restriction is not imposed by legislation but is the result of a


contract freely entered into by the citizen, he cannot complain of
the reasonableness of the law.

9.

The conferment of wide powers exercisable on the subjective


satisfaction

of

the

Government

cannot

be

regarded

as

82

reasonable restriction because the Government is the best


authority to judge and take anticipatory action for preventing a
threat to the breach of the peace.
10.

The retrospective operation of legislation is a relevant factor in


deciding its reasonableness, but it is not always a decisive test.
It is not correct to say that because the retrospective operation
covers a long period, the restriction imposed by it must be
unreasonable.

b) Emergency and press censorship


Almost always freedom of speech results in a mitigation
which renders disorders unnecessary; almost always,
also, prohibition of that freedom merely makes the
agitation

more

dangerous

because

it

drives

it

underground.102
During Indo-China War in 1962, the president proclaimed first
emergency on 26th October, 1962 and continued when Pakistan was
in war with India to 1965 and continued till January, 1968. A second
emergency was declared on 3rd December 1971, when another war
with Pakistan began. A third proclamation of emergency dated 25th
June, 1975 was gazetted on 26th June, 1975. It declared that a grave
emergency exists whereby the security of India is threatened by
internal disturbances.103

102
103

Harold J. Laski, Liberty in the Modern State, quoted in S. Sorabjee J., The Law of Press
Censorship in India, N.M. Tripathi Pvt. Ltd., 1976.
Notification No. 11/16013/1/75-S&P(D-II), Gazette of India, Extraordinary, 26 June, 1975,
Part II, Section 3(i).

83

Mrs.

Indira

Gandhi

Government

started

amending

the

constitution & several laws to secure her position and actions. The
Constitution 38th Amendment Act, 1975 was made to empower the
President to issue overlapping proclamations of emergency on the
grounds of external aggression or internal disturbance. By the
Constitution (Forty-second Amendment) Act 1976, the President was
permitted to make such proclamation in respect of whole or any part
of India and to extend emergency to other areas. The 42nd Amendment
was notorious for meddling with the character of Indian democracy
and

Constitutional

Keshavanand

governance.

Bharathi

To

judgment104

surpass
restricting

the
the

impact

of

power

of

parliament to amend the basic structure of the Constitution, the 42nd


Amendment granted unlimited power to Parliament to alter the shape
of Constitution. All these provisions were later struck down as
unconstitutional by Supreme Court in Minerva Mills Ltd. v. Union of
India.105
Mrs. Indira Gandhi, who won a massive victory during 1971
elections and after victory creating Bangladesh, continued to lose the
popularity owing to certain policies and personal politics like
introduction of her son Sanjay Gandhi into active ruling politics. Her
party lost several by elections and her election to Lok Sabha from
Allahabad was successfully challenged by Raj Narain. As the vacation
104
105

AIR 1973 SC 1461


1980 (3) SCC 625.

84

judge of Supreme Court Justice Krishna Iyer gave a conditional stay


over judgment of Allahabad High Court disqualifying her to hold the
position of Prime Minister, she continued in office. She was not
entitled to vote or participate in Parliamentary proceedings, or draw
her remuneration as MP. On the other hand national opposition and
leaders like Jayaprakash Narayan were demanding her resignation.
Jayaprakash gave call for nation wide disobedience movement and
appealed to police and armed forces not to obey illegal and immoral
orders of Mrs. Indira Gandhi. Terming this appeal by Jayaprakash as
incitement to mutiny Mrs. Indira Gandhi made President to proclaim
emergency. Mass arrests were ordered. Electricity was cut off to
newspaper offices, and then Mrs. Gandhi addressed the nation
through All India Radio to announce the imposition of Emergency.
Fundamental Rights were suspended. Tens of thousands of people
were arrested in each State along with the leaders of opposition
parties under Maintenance of Internal Security Act, 1971.
The declaration of Emergency on 26th June, 1975 was followed
by a broadcast to the nation on All India Radio where Mrs. Gandhi
said:
In the name of Democracy it has been sought to negate the very
functioning of democracy. Duly elected programmes have not been
allowed to function Agitations have a surcharged atmosphere,
leading to violent incidents Certain persons have gone to the length

85

of inciting our armed forces to mutiny and our police to rebel. The
forces of disintegration are in fully play and communal passions are
being aroused, threatening our unity Now we learn of new
programmes challenging law and order throughout the country with a
view to disrupting normal functioning. How can any Government
worth the name stand by and allow the countrys stability to be
imperiled?106
The Times of India published in 26th June 1975 in its Bombay
edition the obituary of democracy as follow:
D Ocracy DEM,
beloved husband of T.Ruth,
loving father of L.I. Bertie,
brother of Faith, Hope, Justice,
expired on 26th June.
Then the censorship of newspapers was imposed107 under
Defence of India Rules, 1971. According to this order, every
newspaper or periodical has to submit for scrutiny to an authorized
officer any news, comment, rumour or other report relating to certain
specified subjects before its publication. It was accompanied by
Guidelines for the Press. These guidelines impose an obligation on
the press to assist the censor by suppressing plainly dangerous
106
107

Mrs. Indira Gandhis broadcast to the nation, 26th June 1975, quoted in V. Iyer : State of
Emergency 159 (2000).
Central Censorship Order, S.O. 275 (E) dated 26th June 1975, published in the Gazette of
India, Extraordinary, Part II, Section 3(ii).

86

news, not giving publicity to rumours, not reproducing objectionable


matter published by other Indian or Foreign newspapers, not
publishing anything which would likely to cause disaffection among
members of armed forces or civil servants, or to bring the Government
into hatred or contempt or to encourage or incite the use of criminal
force against public servants. It was also directed that nothing was to
be published which was likely to promote feelings of enmity and
hatred between different classes or people. The chief censor was
empowered to detain, paraphrase or edit telegrams and to intercept
and censor postal articles. The Censorship Order was amended
several times to strengthen the restrictions and concentrate power in
the center to censor the newspapers in States also. Reporting the
actions for contravention of various provisions of law and rules, the
control and winding up of the organisations, sabotage, committing of
prejudicial acts, illegal possession of information and documents,
censorship,

control

of

dramatic

performances,

control

of

cinematography, general control of arms and explosives; public safety


and order, any action taken under the MISA (Maintenance of Internal
Security Act, 1971); imposition of President Rule in Tamil Nadu and
Gujarat and family planning. Even publications of statements by
ministers in Parliament or the State Legislatures were made subject to
the censorship guidelines. Reports about arrest of political adversaries
to Indira Gandhi were not allowed to be published in newspapers. The
newspapers were not allowed to leave blank spaces in the editorials,

87

which symbolically suggest that there is suppression of expression.


Editors were not allowed to indicate that any item had been subject to
censorship. Foreign correspondents filing copies in languages other
than English were required to submit an authorized English
translation of each story for scrutiny by the censors.108
Then the Prevention of Publication of Objectionable Matter Act,
1976 was passed Section 3 of this Act prohibits the publication of
material which would likely to bring State into hatred or contempt, or
excite disaffection towards the Central or State Governments or which
was defamatory of the President of India, the Vice-President, the Prime
Minister, the Speaker of the Lok Sabha and Governors of the States.
This Act gives enormous powers of censorship of the Government,
which include:
(a)

to direct printers and editors to refrain from printing on


concerning specified subjects for up to two months at a time
(Section 5(1));

(b)

to forfeit the publication which contravened such orders


(Section 6);

(c)

to imprison those responsible for contravention (Section 7);

(d)

to demand monetary security from printing presses, publishers


and newspaper editors (Sections 8, 11, 14);

108

White Paper on Misuse of Mass Media During the Internal Emergency, Government of India,
New Delhi, August, 27-28 (1977).

88

(e)

to detain, at seaports and airports foreign newspapers, books


and other documents suspected of containing objectionable
matter (Section 20);

(f)

to prohibit the transmission by post of any document containing


such matter (Section 21);

(g)

to seize printing presses suspected of producing unauthorized


newspapers or news-sheets (Section 23);

(h)

to search and seizure were conferred on the Government, which


can be exercised with the authorization of a magistrate (Sections
33, 34).
The Bombay and Gujarat High Courts struck down the Censor

Orders and permitted the publication of prohibited news items. In


Binod Rao v. M.R. Masani,109 the Bombay High Court held that the
censor banning several news items from publication was bad. It was
held:
It is not the function of the Censor acting under the
Censorship Order to make all newspapers and periodicals
trim their sails to one wind or to tow along in a single file
or speak in chorus with one voice. It is not for him to
exercise his statutory powers to force public opinion in a
single mould or to turn the Press into an instrument of
brain-washing the public. Under the Censorship Order
the Censor is appointed as nurse-maid of democracy and
109

(1976) 78 Bom LR 125.

89

not its grave-digger. Dissent from the opinions and views


held by the majority and criticism and disapproval of
measures initiated by a party in power make for a healthy
political climate, and it is not for the Censor to inject into
this, the lifelessness of forced conformity. Merely because
dissent, disapproval or criticism is expressed in strong
language is no ground for banning its publication.
Mr. Soli J. Sorabji in his the law of Press Censorship in India
181-190 (1976) quoted the unreported judgement110 in which Gujarat
High Court struck down the order of closure of Bhumiputra, a
Gandhian journal, simply for reporting the proceedings of the Civil
Liberties conference criticizing the Government. The Court held that
the only circumstance under which the right to free speech could be
denied was when there was a real likelihood of violence and breach of
public order.
The Indira Gandhi Government has repealed The Press Council
Act, 1965 and abolished the press council which was securing the
press from the Governmental pressures and other attacks. Another
law

that

repealed

during

her

regime

was

the

Parliamentary

Proceedings (Protection of Publication) Act 1956, which was originally


pushed through by her husband during her fathers rule to secure the
publications of parliament proceedings in newspapers. These were
110

C. Vaidya v. H.D., Penha Special Civil Application No. 141 of 1976, Judgement delivered on
22nd March 1976 as quoted in Sorabjees book.

90

severe blows to freedom of press during the emergency which


suppressed the expression adverse to ruling powers.
The measures taken against the press during the Emergency
between 1975 and 1977 are documented in a Government White
Paper published soon after the termination of the Emergency:111
(1)

The

Press

Information

Officer

was

asked

to

prepare

comprehensive list of all newspapers and journals and classify


them under three heads friendly, neutral and hostile;
(2)

Government departments and public sector enterprises were


ordered not to issue advertisements to publications which were
regarded insufficiently supportive of the Emergency;

(3)

Several

such

publications

were

denied,

their

previously

determined quota of State-Controlled newsprint or denied


licences to import essential machinery;
(4)

In cases where a newspaper remained resolutely hostile to the


Emergency, Government directors were forcibly appointed on
the Board of the company which owned the newspaper on the
pretext that it had been mismanaged by the existing directors;

(5)

Government-owned

banks

and

financial

institutions

were

ordered to deny loans to hostile newspapers, even where such


loans had previously been approved on purely commercial
considerations;
111

White Paper on the Misuse of Mass Media During the International Emergency, Government
of India, New Delhi, August 1977.

91

(6)

The official accreditation of some 51 leading journalists


(including reporters, cartoonists and photographers), seen to be
unfriendly to the Government, was withdrawn, resulting in the
denial to them of the normal facilities extended to all working
journalists, such as access to press conferences and to other
sources of information. In some cases, this also led to their
eviction from houses which they had been occupying under a
long-standing Government scheme;

(7)

Seven foreign journalists were ordered to leave India and 29


others denied entry into the country, because their reporting on
the Emergency was perceived as unhelpful;

(8)

Several Indian journalists were denied clearance to undertake


visits abroad. A clearance by the Ministry of Information and
Broadcasting had been made mandatory under regulations
brought in before the Emergency;

(9)

Several journalists who had written articles critical of the


Emergency were arrested under preventive detention laws;

(10)

The four existing privately-owned national news agencies were


forcibly taken over by the Government and merged to form a
single agency which was controlled by Government-appointed
directors;

(11)

The

Governments

Directorate

of

Advertising

and

Visual

Publicity (DAVP) and the Publications Division were made to

92

launch propaganda in support of the Prime Minister and the


Congress party and to discredit the opposition;
(12)

Employees of the DAVP and the Government-owned All India


Radio were made to produce Indian language translations of the
Congress Partys election manifestos and to design posters for
the Prime Minster and the Minister for Information and
Broadcasting;

(13)

All India Radio, which enjoyed a monopoly over both radio and
television broadcasting, was misused to generate political
propaganda for the Congress Party and in particular, Mrs.
Gandhi and her son, Sanjay Gandhi. The coverage of news and
current affairs was severely biased in favour of the ruling party
and against the opposition. A senior civil servant from the Prime
Ministers Secretariat remained permanently in the AIR news
rooms to give suitable directions to journals;

(14)

The national industry was also put under pressure to aid the
Governments propaganda campaigns. Film-makers and artists
who refused to co-operate were blacklisted,112 and several films
which were seen as unhelpful to the Prime Minster and her

112

A leading playback singer, Kishore Kumar, who refused to take part in a T.V. programme
designed to extol the virtues of the Emergency, found all his songs banned from All India
Radio and television. The government also reportedly decided to order all recording
companies with whom he had a contract to freeze his records and impose a ban on their
sales. Film producers who were intending to avail of Kumars services in their forthcoming
productions were warned that they would be denied their supplies of raw stock of films and
any films featuring Kumar would be refused clearance by the censors White Paper on the
Misuse of Mass Media During the Internal Emergency, Government of India, New Delhi,
August, 88 (1977).

93

regime were denied exhibition certificates by the Central Board


of Film Censors.113
c) Sovereignty and integrity of India
Sovereignty

and

integrity

of

India

as

ground

under

Article19(2) for restricting the freedom under Article 19(1) (a) was
added by amendment.114 This was as a reaction of the tense situation
prevailing in different parts of the country. Chinese incursions have
started in the north-east in 1960. Also around this time, there were
strong demands led by Master Tara Singh for a separate Sikh
homeland. The Dravida Munnertra Kazhagam (DMK) had called for an
entity separate from India called Dravida Nadu comprising Madras,
Mysore, Kerala and Andhra. The Law Minister Ashoke Kumar Sen
introduced a bill in the Lok Sabha on 21st January, 1963 describing
its object as giving appropriate powers to impose restrictions against
those individuals or organisations who want to make secession from
India or disintegration of India as political purposes for fighting
elections. The object of the amendment was to confer on Parliament
specific power to legislate on this subject without having to face a
constitutional challenge on the ground that the legislation was

113

114

One such film, Aandhi was banned on the grounds that its protagonist, a politician bore a
striking resemblance to Mrs. Gandhi. The producer had to reframe the story line in
consultation with the Minister of Information and Broadcastign before it was cleared for
public exhibition. Another film which was banned was All the Presidents Men, an American
blockbuster based on the Watergate scandal involving the disgraced former President of the
United States, Richard Nixon.
Inserted by the Constitution (Sixteenth Amendment) Act, 1963, Section 2.

94

inconsistent with Article 19(1) (a). The amendment enabled the


enactment of laws such as the Criminal Law Amendment Act, 1961
and the Unlawful Activities (Prevention) Act, 1967 which made
punishable the act or words of any individual or association intending
or supporting the cession of any part of the territory of India or the
secession of the same.115
d) Security of the State and public order
Public order, law and order and Security of the State are not
synonymous expression. These concepts are in the nature of three
concentric circles, law and order representing the largest circle,
within which lies the next circle representing public order and within
which is the smallest circle representing security of State. Thus, an
act which affects law and order may not necessarily affect public
order and an activity which may be prejudicial to public order may
not necessarily affect security of the State.116 In Madhu Limaye v.
Sub-Divisional Magistrate,117 the Supreme Court held that public
order includes the absence of all acts which are a danger to the
security of the State and also the acts described by the French as

115

116

117

In Peoples Union for Civil Liberties v. Union of India, (2004) 9 SCC 580, the supreme Court
dismissed a challenge to the Prevention of terrorism Act, 2002 on the ground, inter alia, that
Parliament was competent to legislate on the subject of terrorism which was a threat to the
security and sovereignty of the nation. This Act was subsequently repealed with effect from
21st September, 2004.
Ram Manohar v. State of Bihar, AIR 1966 SC 740, para 52, pp.758-59; V.K. Javali v. State of
Mysore, AIR 1966 SC 1387; Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955; Dalbir
Singh v. State of Punjab, AIR 1962 SC 1106.
(1970) 3 SCC 746: AIR 1971 SC 2486.

95

Ordre Publique, that is, the absence of insurrection, riot, turbulence,


or crimes of violence. But it does not include acts which disturb only
the serenity of others.

ta t
e

S ec

and Orde
r
Law
c O rd e
i
l
b
r
Pu
of the
y
t
S
ri

The term Public order means public peace, safety and


tranquility. The insertion of public order as a ground under
Article19(2) by the Constitution (First Amendment) Act, 1951 was an
attempt to get over the effect of the decisions of the Supreme Court in
Romesh Thappar v. State of Madras118. The case was a challenge to
Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949
under which the Government of Madras has issued an order imposing
a ban on the entry and circulation of the journal Cross Roads in the
State.
In considering whether the impugned Act was made in the
interests of the security of the State, Patanjali Shastri, J.drew a
difference between a breach of Public order which affect the security of
the State and that which involves a breach of a purely local
significance:
118

AIR 1950 SC 124.

96

Though all these offences thus involve disturbances of


public tranquility and are in theory offences against
public order, the difference between them being only a
difference of degree, yet for the purpose of grading the
punishment to be inflicted in respect of them they may be
classified into different minor categories as has been done
by

the

Penal

Code.

Similarly,

the

Constitution

in

formulating the varying criteria for permissible legislation


imposing

restrictions

on

the

fundamental

rights

enumerated in Article 19(1), has placed in a distinct


category those offences against public order which aim at
undermining the security of the State or overthrowing it,
made their prevention the sole justification for legislative
abridgement of freedom of speech and expression, that is
to say, nothing less than endangering the foundation of
the State or threatening its overthrow could justify the
curtailment of the rights to freedom of speech and
expression The Constitution thus requires a line to be
drawn in the field of public order or tranquility marking
off, more or less roughly, the boundary between those
serious and aggravated forms of public disorder which are
calculated to endanger the security of the State and the
relatively minor breaches of the peace of a purely local

97

significance treating for this purpose difference in degree


as if they were differences in kind.119
The Court held that unless a law restricting freedom of speech
and expression is directed solely against the undermining of the
security of the State or its overthrow, such law cannot fall within the
restriction under clause (2) of Article 19, although the restrictions
which it seeks to impose may have been conceived generally in the
interests of public order.120 This decision was followed by the Supreme
Court in Brij Bhushan v. State of Delhi.121
In State of Bihar v. Shaialabla Devi,122 while interpreting Section
4(1) (a) of the Press (Emergency Powers) Act, 1931 dealing with words,
signs or visible representations which incite or encourage or tend to
incite or encourage the commission of any offence of murder or
violence, the Supreme Court held that any speech or expression which
incites or encourages the commission of violent crimes such as
murder, undermines the security of the State and falls within the
ambit of Article 19(2).
Mere Criticism of Government action would not fall within the
mischief of Public order and would be protected under Article
19(1)(a). In Kedar Nath Singh v. State of Bihar,123 while interpreting the

119
120
121
122
123

AIR 1950 SC 124.


Ibid.
AIR 1950 SC 129.
AIR 1952 SC 329.
AIR 1962 SC 955.

98

scope of Sections 124-A124 and 505125 of the Indian Penal Code, 1860,
the Supreme Court held that the activity would be rendered penal only
when it is intended to create disorder. The Criticism of public
measures on Government action, however strongly worded, would be
within

reasonable

limits

and

would

be

consistent

with

the

fundamental right of free speech and expression. It is only when the

124

125

124A : Sedition : Whoever, by words, either spoken or written, or by signs, or by visible


representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or
attempts to excite disaffection towards, 10 the Government established by law in India. shall
be punished with imprisonment for life, to which fine by law in India, shall be punished with
imprisonment for life, to which fine may be added, or with imprisonment which may extend to
three years, to which fine may be added, or with fine.
Explanation 1 : The expression disaffection includes disloyalty and all fallings of enmity.
Explanation 2 : Comments expressing disapprobation of the measures of the Government with
a view to obtain their alteration by lawful means , without exciting or attempting to excite
hatred , contempt or disaffection, do not constitute an offence under this section.
Explanation 3 : Comments expressing disapprobation of the administrative or other action of
attempting to excite haltered, contempt or disaffection, do not constitute an offence under this
section .
Section 505 : Statements conducing to public mischief :
(1) Whoever makes, publishes or circulates any statement, rumour or report :
(a) with intent to cause, or which is likely to cause, any officer, soldier,[sailor or airman] in
the Army, [Navy or Air Force] [of India] to mutiny or otherwise disregard or fail in his duty as
such; or
(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any
section of the public whereby any person may be induced to commit an offence against the
State or against the public tranquility; or
(c) with intent to incite, or which is likely to incite, any class or community of persons to
commit any offence against any other class or community; shall be punished with
imprisonment which may extend to [three years], or with fine, or with both.
(2) Statements creating or promoting enmity, hatred or ill-will between classes : Whoever
makes, publishes or circulates any statement or report containing rumour or alarming news
with intent to create or promote, or which is likely to create or promote, on grounds of
religion, race, place of birth, residence, language, caste or community or any other ground
whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language
or regional groups or castes or communicates, shall be punished with imprisonment which
may extend to three years, or with fine, or with both.
(3) Offence under sub-section (2) committed in place of worship, etc. : Whoever commits an
offence specified in sub-section (2) in any place of worship or in an assembly engaged in the
performance of religious worship religious ceremonies, shall be punished with imprisonment
which may extend to five years and shall also be liable to fine.
Exception : It does not amount to an offence, within the meaning of this section when the
person making, publishing or circulating any such statement, rumour or report, has reasonable
grounds for believing that such statement, rumour or report is true and makes, publishes or
circulates it in good faith and without any such intent as aforesaid.

99

words, written or spoken, have the pernicious tendency or intention of


creating public disorder or disturbance of law and other that the law
steps in to prevent such activities in the interest of law and order.126
Supdt., Central Prison v. Ram Manohar Lohia,127 Concerned a
challenge to Section 3 of the U.P. Special Powers Act, 1932 which
made it an offence to instigate persons not to pay dues to the
Government. Dr Lohia was arrested under the Act for making
speeches exhorting people not to pay the Governments increased
irrigation rates. The impugned provision was struck down by the
Supreme Court, which held that the provision was not in the interest
of Public order. The Supreme Court held that the expression in the
interest of public order though wider than the phrase for the
maintenance of public order could not mean that the existence of any
remote or fanciful connection between the impugned act and public
order would be sufficient to sustain the validity of the law. There
should be a reasonable and rational relation between the act and the
object

sought

to

be

achieved,

not

far

fetched

or

remote

connection.128
In matters of forfeiture of books or other publications by the
Government on grounds of a likely disturbance of public order,
tranquility or the like, the courts have emphasised the necessity for

126
127
128

Supra n. 123, pp.968-69.


AIR 1960 SC 633.
Ibid., p. 640.

100

the Government to lay down the precise grounds under which such
forfeiture became necessary. In Harnam Das v. State of U.P.,129 the
Supreme Court struck down an order of forfeiture passed by the
Government of Uttar Pradesh under Section 99-A of the Code of
Criminal Procedure, 1898 in respect of two books published in Hindi
on the ground that the publication of those books was published in
Hindi on the ground that the publication of those books was
punishable under Sections 153-A and 295-A of the India Penal Code,
1860. The Court found that the Government had not set out the
grounds for its opinion and had not stated in its order which
communities were alienated from each other, whose religious beliefs
had been wounded or why the Government thought that such
alienation or offence to religion had been caused by the publication of
the books in question. Under Section 99-D of the Code of Criminal
Procedure, the Supreme Court held that it is the duty of the High
Court to set aside an order of forfeiture if it is not satisfied that the
grounds on which the Government formed its opinion, could justify
that opinion. It is not the duty of the court to do any more or to find
out for itself whether the book contained any such matter.130
Narayan Dass Indurakhya v. State of M.P.,

131

concerned a

challenge to an order under Section 4 of the Criminal Law

129
130
131

AIR 1961 SC 1662


Ibid., pp. 1665-66
(1972) 3 SCC 676.

101

(Amendment) Act, 1961 which empowered the Government to declare


any newspaper, book or printed document to be forfeited if it appeared
that the publication questioned the territorial integrity or frontiers of
India in a manner which was or was likely to be prejudicial to the
interest of the safety or security of India. The book in question was
geography textbook and the Government took objection on the ground
that the book contained inaccurate maps of the territorial borders of
India. The High Court upheld the order of forfeiture passed by the
State Government. However, the Supreme Court held that the
forfeiture was vitiated since the notification failed to state the grounds
of the State Governments opinion and a mere reference to the words
of the statute did not fulfil the statutory requirement of setting out
precise grounds for the opinion. The Supreme Court further
emphasised that grounds must be distinguished from the opinion of
the Government.132 The judgments of the Supreme Court in Harnam
Das and Narayan Dass were followed by a full bench of the Bombay
High Court in Anand Chintamani v. State of Maharastra,133 while
quashing a forfeiture order in respect of Me Nathuran Godse Boltoy a
play in Marathi which contained critical reference to Mahatama
Gandhi.
In Gajanan Visheshwat Birjur v. Union of India,134 the petitioner
challenged the Confiscation of books imported by him from China
132
133
134

Supra n. 131, p 680.


(2002) 2 Mah LJ 14.
(1994) 5 SCC 550.

102

Containing Marxist literature under Section 111-D of the Customs


Act, 1962. It was found that the order of Confiscation failed to specify
which of the books contained words, signs or visible representations
which were likely to incite or encourage any person to resort to
violence for sabotage for the purpose of overthrowing or undermining
the Government. It was found that the show cause notices were devoid
of particulars and extremely casually drawn up and that the final
orders of confiscation also lacked the required specifications. The
orders of confiscation were struck down as being violative of Article
19(1)(a).
e) Friendly relations with Foreign States
Restrictions under this category would include not only libel of
foreign dignitaries but also propaganda in favour of rivals to authority
in a foreign state after India has recognised a particular authority in
that state, or propaganda in favour of war with a state at peace with
India. At present there is no specific legislation on this subject.
However, a variety of statutes contain restrictions on forms of
expression which would have an adverse impact on friendly relations
with foreign states. Laws regulating media are enshrine in these
statutes include the Cinematograph Act, 1952,135 the Cable Television
Networks (Regulation) Act, 1995,136 and the Right to Information Act,
2005.137
135
136
137

The Cinematograph Act, 1952, Section 5-B (1).


The Cable Television Rules, 1994, Rule 6(1)(b).
The Right to Information Act, 2005, Section 5(1)(a), Section 8(1)(f).

103

f) Incitement of an offence
The Word offence is not defined in the Constitution. According
to the general Clauses Act, 1897 it means any act or omission
punishable by any law for the time being in force.138 In order to
qualify as a reasonable restriction under Article 19(2), the law
imposing a restriction relating to incitement to an offence must relate
to pre-existing offence i.e. the incitement must be of an act which is,
at the time, a punishable offence under an existing law.139 Further,
the legislation must be in respect of a definite offence. Mere approval
of or admiration for an act of murder or violence does not
automatically come within the scope of this restriction unless the
publication itself has a present tendency to incite or encourage the
commission of the offence. The court must look to the circumstances
in each case in judging such a tendency , the purpose of the work, the
time at which it was published, the class of the people who would read
it, the effect it would have on their minds, the context of the words
and the interval between the incidents narrated and the publication of
the work.140
g) Morality, obscenity and censorship
Promiscuous reading is necessary to the constituting of
human nature. The attempt to keep out evil doctrine by

138
139
140

General Clauses Act, 1897, Section 3(38)


Supdt., Central Prison v. Ram Mahohar Lohia, AIR 1960 SC 633.
State of Bihar v. Shaialabala Devi, AIR 1952 SC 329.

104

licensing is like the exploit of that gallant man who


thought to keep out the crows by shutting his park gate....
Lords and commons of England, consider what nation it
is whether of ye are; a nation not sow and dull, but of a
quick, ingenious and piercing spirit. It must not be
shackled or restricted. Give me the liberty to know, to
other and to argue freely according to conscience, above
all liberties.141
The society is now reeling under the impact of unending flow of
cinema, story, dance and drama through small screen of television.
Pornography is available in its vulgar form in personal computer with
world wide web. The television with powerful, multi-channel visual
splendors is totally occupying young mind. Its utility in educating,
informing and news-giving is camouflaged by its misuse in dishing out
obscene ad indecent stuff in the name of entertainment. One of the
restrictions under Article 19(2) is decency, morality and public order.
The purpose behind this is through this restriction the image of
humanity and dignity of women can be sought to be protected in the
media projections. The society is bound to decay if high standards of
decency and morality are not maintained. So restriction on freedom of
speech and expression was put which may otherwise be conveniently
abused for deliberately lowering the public morals.142 Images of
141
142

Johan Milton : Areopagitica, 1644.


Supra n. 11. p. 574.

105

women

in

electronic

media,

either

by

way

of

commercial

advertisements or themes of serials or in reality shows or repeated


show of films, can straight away influence the young mind. Item songs
like Munni Badnam Hui and Sheela Ki Jawani etc are having
tremendous impact because of its repetition on TV, the most powerful
and effective vehicle of thoughts at present. The internet as an
information infrastructure is a communicative device, is viewed as a
tool for democratizing speech on a global basis.
According to Oxford Dictionary, obscene means offensive to
modesty or decency expressing or suggesting unchaste and lustful
ideas; impure, indecent.
In Ranjit D. Udeshi v. State of Maharastra143, Obscenity has
been defined by the Supreme Court as the quality being obscene
which means offensive to modesty or decency; lewd; fifty and
repulsive.
i) Decency and morality

Decency and morality notions evolve with time and social


changes and vary vastly between different cultures. What may be
morally acceptable to one section of society may be outrageous to
another.

In

Chandrakant

Kalyandas

Kakodkar

v.

State

of

Maharashtra144, the Supreme Court observed that such notions vary


from country to country depending on the standards of morals of
143
144

AIR 1965 SC 881.


(1969) 2 SCC 687.

106

contemporary society. But even within the same country, particularly


one as socially disparate and culturally diverse as India, there are
widely varying standards of moral acceptability. This makes it
extremely difficult to define or straitjacket these concepts.
Section 292(1) of Indian Penal Code, 1860 defines obscenity
thus :
a book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, shall be deemed
to be obscene if it is lascivious or appeals to the prurient
interest or if its effect, or (where it comprises two or more
distinct items) the effect of any one of its items, is, if taken
as whole, such as to tend to deprave and corrupt persons
who

are

likely,

having

regard

to

all

relevant

circumstances, to read, see or hear the matter contained


or embodies in it.
Indecency is a concept wider than obscenity. Although
anything that is obscene must necessarily be indecent,145 what is
indecent need not always be obscene.146 In other words while
indecent merely means non conformance with accepted standards of
morality, obscenity refers to that which has prurient or lascivious
appeal.147
145
146
147

R. v. Stanley, (1965) 1 All ER 1035.


R. v. Greater London Council, (1976) 3 All ER 184, pp. 188-89.
F.C. C. v. Pacificia Foundation, (1978) 438 US 726 (740).

107

ii) Obscenity and vulgarity

There is a distinction between obscenity and vulgarity. In


Samaresh Bose v. Amal Mitra,148 the Supreme Court held:
A vulgar writing is not necessarily obscene. Vulgarity
arouses a feeling of disgust and revulsion and also
boredom but does not have effect of depraving, debasing
and corrupting the morals of any reader of the novel,
whereas obscenity has the tendency to deprave and
corrupt those whose minds are open to such immoral
influences.149
iii) Obscenity and pornography

In Ranjit D. Udeshi v. State of Maharashtra,150 the Supreme


Court drew a difference between obscenity and pornography. It was
held that while pornography denotes writings, pictures etc. intended
to arouse sexual desire, obscenity may include publications not
intended to do so but which have that tendency. While both offend
against public decency and morals, pornography is obscenity in a
more aggravated form.
iv) Test of obscenity

Indian Courts have chosen to adopt the old and long outdate
English test, known as Hicklin's test.151 Cockburn, C.J. laid down the
test thus:
148
149
150
151

(1985) 4 SCC 289.


Ibid., p. 318.
AIR 1965 SC 881.
R. v. Hicklin, (1868) LR 3 QB 360.

108

I think the test of obscenity is this, whether the tendency


of the matter charged as obscenity is to deprave and
corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this
sort may fall it is quite certain that it would suggest to
the minds of the young of either sex, or even to persons of
more advanced years, thoughts of a most impure and
libidinous character.152
Hicklins test was based upon the effect of a publication on the
most vulnerable members of society, whether or not they were likely to
read it. The defence of literary merit was not available and the test
licensed the prosecution of several literary works early in the 20th
century. D.H. Lawrences The Rainbow was destroyed in 1915. The
Well of Loneliness also met the same fate in 1928 at the hands of a
magistrate who felt that a passage that implied that two women had
slept together (And that night they were not divided) would arouse
thought of a most impure character and glorify a horrible
tendency.153
The Obscene Publications Act, 1959 was enacted in the UK as a
result of a campaign to afford protection to publications with literary
merit. The preamble described the legislation as an Act to amend the
law relating to the publication of obscene matter; to provide for the
152
153

Supra n. 151, p. 371.


G. Robertson & A. Nichol, Media Law 156 (Penguin Book Ltd., 4th Edn., 2002).

109

protection of literature; and to strengthen the law concerning


pornography. The definition of obscenity in the Act is based on the
tendency to deprave and corrupt the likely audience i.e. persons who
are likely to read, see or hear the contents of the publication rather
than those into whose hands the publication may accidentally fall.
Although Hicklins test was buried in England with the
enactment of the Obscene Publications Act, 1959, six years later, the
Supreme Court in India chose to adopt it in Ranjit D. Udeshi v. State of
Maharashtra.154 The Supreme Court felt that Hicklins test should not
be discarded on the ground that [it] makes the Court the judge of
obscenity in relation to an impugned book and lays emphasis on the
potentiality of the impugned object to deprave and corrupt by immoral
influences.155 This is difficult to understand considering that the
definition contained in Section 292(1) of the Indian Penal Code 1860 is
based upon the effect of the publication on persons who are likely,
having regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it, and not just on any person into
whose hands the publication may accidentally fall.
In Ranjit Udesh v. State of Maharastra156 an appeal to the
Supreme Court was laid down against the conviction of a bookseller
and his partners by the Bombay High Court for being in possession of
154
155
156

AIR 1965 SC 881.


Ibid.
AIR 1965 SC 881.

110

a book containing obscene material, Lawrences Lady Chatterleys


Lover. The Supreme Court confirmed the conviction and rejected the
challenge to the constitutionality of Section 292 of the Indian Penal
Code. The Supreme Court held that Section 292 constituted a
reasonable restriction on the right to freedom of expression under
Article 19(2) in the interest of decency and morality. The Court relied
on Hicklins test and further interpreted the word obscene to mean
that, which is offensive to modesty or decency; lewd, filthy and
repulsive.157 In determining what can be classified as obscene, the
Court held that regard should be had to our community mores and
standards and whether the material appeals to the carnal side of
human nature, or having that tendency.158
v) Film medium

Film has overtaken as the most impressive and powerful


medium, and thus became subject matter of dispute when obscenity
has flown through the celluloid. The much acclaimed showman of the
millennium Rajkapoor was in court for his controversial film Satyam
Shivan Sundaran.
In Raj Kapoor v. State159 Supreme Court said, Man need
beautiful surroundings and tempted by biological needs. Social
scientists and spiritual scientists broadly agree that man live not
alone mystic squints, ascetic chants and austere abnegation but by
157
158
159

Supra n. 156.
Ibid.
1980 (1) SCC 43.

111

luscious love of beauty, sensuous joy of companionship and moderate


non-denial of normal demands of flesh. Extreme and excesses
boomerange although crazy artists and film directors do practice
Oscar wildes observation; moderation is a fatal thing, nothing
succeeds like excess.
In this case, the Supreme Court was dealing with a pro bono
publico prosecution against the producer, actor and other connected
with a film called Satyam, Shivan, Sundaram on the ground of
prurience, moral depravity and shocking erosion of public decency.
One of the questions considered was : When can a film to be publicly
exhibited be castigated as prurient and obscene and violative of norms
against Venereal depravity.
Krishna Iyer J., speaking for the court said, Art, morals and
laws

manacles

on

aesthetics

are

sensitive

subject

where

jurisprudence meets other social sciences and never goes alone to


bark and bite because state-made strait jacket is an inhibitive
prescription for a free country unless enlightened society actively
participates in the administration of justice to aesthetics.
The worlds greatest paintings, sculptures, songs and dances,
Indias lustrous heritage, the konaraks and khajurahos, lofty epics,
luscious in patches, may be asphyxiated by law, if prudes and prigs
and state moralists prescribe paradigms and prescribe heterodoxies.

112

In Raj Kapoor v. Laxman,160 Krishna Iyer, J. Said, Sublime


titles of cinematograph films may enchant or entice and only after
entry into the theatre the intrinsic worth of the picture dawns on the
viewer. The experience may transform because the picture is great or
the audience may also lucre and culture in the bargain. More titles
may not, therefore, atleast the noxious or noble content of the film.
Sometimes the same film may produce contrary impacts and what one
regards as lecherous, another man may consider elevating.
The complaint alleged that the fascinating title was misleading
foul and beguiled the guideless into degeneracy. If the grave men of
this accusation were true, obscenity, indecency and vice are writ large
on the picture, constituting an offence under Section 292, IPC. The
Supreme Court said that Once a certificate sanctioning public
exhibition of a film has been granted by the competent authority
under the Cinematograph Act, 1952, there is a justification for its
display thereafter, and by virtue of the antidotal provisions in Section
79 of the Indian Penal Code, 1860. The public exhibition, circulation
or distribution or the production of the film, even if it be obscene,
lascivious or tending to deprave on corrupt public morals, cannot be
an offence notwithstanding Section 292 IPC. The absolution is based
upon the combined operation of Section 5-A of the Act and Section 79
of the Indian Penal Code.

160

(1980) 2 SCC 175

113

Justice Krishna Iyer said, Going to the basics, freedom of


expression is fundamental. The censor is not the moral tailor setting
his own fashions but a statutory gendarme policing films under Article
19(2) from the angle of public order, decency or morality. These
concepts are themselves dynamic and cannot be whittled down to
stifle expression nor licentiously enlarged to promote a riot of sensual
display.
The decision of the Supreme Court most relevant to this topic
was delivered in K.A. Abbas v. Union of India,161 it is related to a
documentary film entitled A Tale of Four Cities. The appellant
contended in a petition under Article 32 that he was entitled to a
certificate for unrestricted public exhibition.
The Supreme Court said, it is not the elements of rape, leprosy,
sexual immorality which should attract the censors scissors but how
the theme is handled by the producer. It must, be remembered that
the cinematograph is a powerful medium and its appeal is different.
The horrors of war as depicted in the famous etchings of Goya do not
horrify one so much as the same scenes rendered in colour and with
sound and movement, would do. We may view a documentary on the
erotic tableaux from our ancient temples with equanimity or read the
Kamasutra but a documentary from them as practical sexual guide
would be abhorrent.

161

(1970) 2 SCC 780.

114

Bandit queen case

This film was a subject matter of dispute and the appeal went
up to Supreme Court. The Supreme Court upheld the certification of
the film for public exhibition on the ground that the frontal nudity of
woman and depiction of rape were necessary parts of the theme of the
film justifying the criminalisation of a young girl who was brutally
hurt by the cruel society. Explaining the plot and story of Bandit
Queen the Supreme Court said: It is not a pretty story. There are no
syrupy songs or pirouetting round trees. It is the serious and sad
story of a worm turning : a village-born female child becoming a
dreaded dacoit. An innocent who turns into a vicious criminal because
lust and brutality have affected her psyche so. The film levels and
accusing finger at members of society who had tormented Phoolan
Devi and driven her to become a dreaded dacoit filled with the desire
to revenge. It is in this light that the individual scenes have to be
viewed. First, the scene where she is humiliated, stripped naked,
paraded, made to draw water from the well, within the circle of a
hundred men. The exposure of her breast and genitalia to those men
is intended by those who strip her to demean her. The effect of so
doing upon her could hardly have been better conveyed than by
explicitly showing the scene. The object of doing so was not to titillate
the cinemagoers lust but to arouse in him sympathy for the victim
and disgust for the perpetrators. The revulsion that the Tribunal,

115

referred to was not at Phoolan Devis nudity but at the sadism and
heartlessness of those who had stripped her naked to rob her of every
shred of dignity. Nakedness does not always arouse the baser instinct.
The reference by the Tribunal to the film Schindlers List was apt.
There is a scene in it of rows of naked men and women, shown
frontally, being led into the gas chambers of a Nazi concentration
camp. Not only are they about to die but they have been stripped in
their last moments of the basic dignity of human beings. Tears are a
likely reaction; pity, horror and a fellow-feeling of shame are certain,
except in the pervert who might be aroused. We do not censor to
protect the pervert or to assuage

the susceptibilities of the

oversensitive. Bandit Queen tells a powerful human story and to


that story the scene of Phoolan Devis enforced naked parade is
central. It helps to explain why Phoolan Devi became, dacoit what she
did: her rage and vendetta against the society that had heaped
indignities upon her.162
It shows what a terrible and terrifying effect rape and lust can
have upon the victim. It focuses on the trauma and emotional turmoil
of the victim to evoke sympathy for her and disgust for the rapist.
In sum The Supreme Court said, we should recognize the
message of a serious film and apply this test to the individual scenes
thereof : do they advance the message? If they do they should be left
162

Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1.

116

alone, with only the caution of an A certificate. Adult Indian citizens


as a whole may be relied upon to comprehend intelligently the
message and react to it, not to the possible titillation of some
particular scene.
The Supreme Court also observed that the film censor board,
acting under Section 5-A of Cinematograph Act, 1952, is specially
entrusted to screen off the silver screen pictures which offensively
invade or deprave public morals through over-sex.
In the case of Shankar alias Gauri Shankar and others v. State of
T.N.,163 the Supreme Court considered an argument that the films
incited a crime and makers should be made liable for it. The counsel
for appellants has made an intensive study of the records in this case,
and pleaded or rather lamented that accused having seen films
depicting sex, violence and illicit business etc. got misguided and
ended up as criminal and therefore the makers of such films are also
victoriously responsible. The lamentation is justified. The Supreme
Court asked: We are at a loss to know whether it is compulsory that a
heroine should invariably appear on the screen with accentuated
angularities, depended depressions and exaggerated protuberances of
the body? Is it an irrevocable convention that the violence unleashed
by the wicked or the evil-mind villain or the heros valour in punishing
those wicked and the villain must only be shown in such a cruel,
163

1994 (4) SCC 478.

117

gruesome and diabolical manner. When promotion of art and culture


is the primary underlying object, how can obscenity, cruelty and many
such wicked things be depicted and shown in such blown-up and
magnified manner leaving an impression that the film is meant only to
depict such things. It is here that the Censor Board should step in
firmly and insist that the film being released has a message meant to
improve the values of life and should see that the film contains only
such scenes which do not affect the values of life. By exhibiting scenes
of violence, sex, rape, bootlegging and drug trafficking etc. in such a
manner or manners which have the propensities of disturbing or
corrupting the minds of some viewers like children and particularly of
those who are weak-minded, wayward, undisciplined, frustrated and
likewise, who are very likely to become wicked and evil-minded and
ultimately end up as criminals indulging in organised crime, the
avowed object gets frustrated. The films should be of educative value
and then only they can play an important role in subserving the
interests of the society. No doubt, entertainment is one of the
important underlying objects but it is mainly meant to make the
viewers mentally relaxed and enjoy and not to render them heavyheated sensually aroused and mentally disturbed which may lead
them to indulge in frivolities, perversion and dangerous addictions,
which ultimately are likely to pave the way to end themselves up as
criminals.

118

In case Suo Moto v. State of Rajasthan,164 the Rajasthan High


Court suo moto took up the matter of the depiction of women in an
undignified manner by the media. The main issue involved in this
petition was the depiction of women in an undignified manner by the
media,

including

television

channels

and

the

nature

of

the

telecasting/broadcasting

the

Government responsibility in regulating this.


The

court

held

that

before

programmes under the Cable Television Networks (Regulation) Act


1995, it is expected that the Government verifies whether the
programmes that are going to telecast conform to the regulations or
not.
The court said that where a programme is telecasted and
broadcasted in violation of Rule 6(1)(k) of the Cable Television Rules,
1994 and where the programme is found indecent or derogratory to
women,

or

is

likely

to

deprive,

corrupt

or

injure

public

morality/morals, strict action has to be initiated against those


responsible for such telecasting. Similar actions must also be taken
against persons responsible for hoarding, advertisements & posters.
The court directed the Government to ensure that advertisements not
following rules and regulations be discontinued. Using scantily clad
female models for products like car batteries, tobacco, electric
inverters, shaving appliances, mobiles and other advertisements
should be stopped forthwith.
164

AIR 2005 Raj 300.

119

According to the court the Censor Board should ensure that A


certificates are given to adult films and posters for such films are
displayed in a more healthy and less revealing manner at public
places and near cinema halls.
The court held that concrete steps should be taken to prevent
the

depiction

of

women

in

an

undignified

manner

through

broadcasting, telecasting and advertisements etc. and prompt steps


need to be taken against the responsible persons.
In Pratibha Naitthani v. Union of India,165 the complainant filed a
writ petition against the telecast of adult and obscene films shown by
the electronic media and obscene photographs in the print media,
in Bombay High Court. The Court held that a number of television
channels were violative of the programme code under the Cable TV
Act, 1995 and The Cable TV network Rules, 1994. The court directed
television channels to give details of A rated films telecasted on TV
Channels over the previous three months and restrained TV channels
from

telecasting

any

adult

programme

and/or

film

without

appropriate certificates from the CBFC. The court also passed an


order restraining newspapers and periodicals from publishing any
advertisement that amounts to invitation to prostitution; which had a
sexual overtone; or which is violative of Section 3 of Indecent
Representation of Women (Prohibition) Act, 1986.

165

AIR 2006 (Bom) 259.

120

Instead of the orders of Court, TV Channels continue to show


movies rated A and UA by the CBFC. As a result, the police, acting
on the instructions of the court, cracked down on the control rooms of
Hathway, Incable, Indus and Siticables, leading to nine channels.
Star movies, HBO, AXN, SET Maz, Zee Studio, Zee Caf, Star World,
Hallmark and Filmy going off the air.
The main question before the court was whether cable
operators/cable service providers are free to telecast CBFC certified
adult films despite the restriction in clause (o) of Rule 6(1) of the
cinematograph Rules, 1983 that no programme shall be carried on the
cable service which is unsuitable for unrestricted public exhibition.
The

arguments

were

that

every

adult

viewer

has

the

fundamental right to view programmes with adult content on TV


through cable services. It was submitted that Cinematograph Act,
1952 provides that a programme unsuitable for children shall not be
carried at times when large number of children are viewing and clause
(o) of Rule 6(1), which meant for unrestricted viewing, should be read.
The court held that the adult viewers right to view films with
adult content is not taken away by clause (o) of Rule 6(1). Such a
viewer can always view Adult certified films in cinema halls, his
private TV set by means of DVD, VCD or such other mode for which
no restriction exists in law. The court held that the restriction upon
cable operators and cable service providers that is not suitable for

121

unrestricted public exhibition did not violate their right to carry on


trade and business. The court further held that only films sanctioned
by the CBFC, under the Cinematograph Act and Rules, as suitable for
unrestricted public exhibition could be telecasted or transmitted on
Cable TV.
In R. Basu v. National Capital Territory of Delhi and Another,166
complaint was filed before Chief Metropolitan Magistrate (CMM)
against star TV, star movies and channel V, naming persons
responsible for the day to day affairs of these channels. According to
the complainant, the obscene and vulgar TV films shown and
transmitted through various cable operators amounted to obscenity
and therefore, the accused persons had committed offences under
Section 292/293/294 IPC and under Section 6 read with Section 7 of
the Indecent Representation of Women (Prohibition) Act, 1986.
The Chief Metropolitan Magistrate (CMM) viewed these movies &
find that four films shown on TV channels were obscene. The CMM
mentioned that there in haphazard mushrooming of cable television
network all over the country, resulting in availability of signals of
foreign television networks via satellites. The programmes available on
these satellite channels are predominantly western and totally alien to
our culture and way of life. Such programmes play havoc with the
moral fabric of society and need to be regulated.
166

2007 Cri L J 4245.

122

The petitioners argued that two of the movies had been awarded
A certificate by the CBFC and therefore were immune from being
prosecuted for obscenity under Section 292 of the Indian Penal Code,
1860 and the Indecent Representation of Women Act, 1986. With
regard to other two movies it was admitted that they have no censor
certificates. However, they stated that with respect to the movie, Big
Bad Mama, the application for certification had been made to the
CBFC. They argued that these movies are telecast from other
countries via satellite and broadcasters comply with various strict
internal codes as well as statutory codes prescribed by the
Broadcasting Authority of the place of uplink. The High Court held
that for the two films without censor certificates the petitioners could
not claim immunity from Section 292 IPC. For the other two films,
also the court said that since the petitioners had not produced Central
Board Film Certification (CBFC) certificates they could not claim
immunity from prosecution.
The court observed that the legislature had enacted the Cable
TV Network (Regulation) Act, 1995 to tackle the problem of
obscenity, and a programme code had also been introduced. Various
statutory safeguards for regulating transmission on cable television
networks in India have been provided therein. The petitioners have to
abide by these guidelines and laws relating to electronic media,
keeping in mind the sentiments and social value of the Indian society
while relaying its programmes.

123

vi) Relevant provisions under different laws regulating morality and


obscenity

(i)

Indian Penal Code, 1860 makes the sale, letting to hire,


distribution, public exhibition, circulation, import, export and
advertisement of obscene material and offence punishable with
imprisonment and fine.167

(ii)

The Cinematograph Act, 1952 prohibits the certification of a


film by the Censor Board for public exhibition if the film or any
part of it is against the interest of morality and decency.168

(iii)

The Dramatic Performance Act, 1876 empowers the Government


to prohibit public dramatic performances on the ground of
obscenity and visits the disobedience of a prohibition with
imprisonment and fine.169

(iv)

The Customs Act, 1962 empowers the Government to prohibit


or impose conditions on the import or export of goods in the
ground of decency and morality.170

167
168

169
170

Indian Penal Code, 1860, Sections 292-94.


The Cinematograph Act, 1952, Section 5-B, Section 4 and 5-A of the Act deal with the
examination and certification of films for public exhibition. A film certified by the Board of
Film Certification for unrestricted public exhibition carries a U certificate. A film certified at
being suitable for unrestricted public exhibition may carry a UA certificate if the Board is of
the view that the question as to whether a child below the age of twelve should be allowed to
view the film should be considered by his parents or guardians. A film certified for public
exhibition restricted to adults carries an A certificate, while a film certified for public
exhibition restricted to members of any profession or class of persons carries an S certificate.
Once the film has obtained any of these certificates, the distributor, exhibitor or any other
person to whom rights in the film have passed shall not be liable for punishment under any
law relating to obscenity.
The Dramatic Performances Act, 1876, Section 3(c) and Section 6.
The Customs Act, 1962, Section 11(b).

124

(v)

The Post Office Act, 1898 prohibits the transmission by post any
material on the ground of decency or obscenity.171

(vi)

The Indecent Representation of Women (Prohibition) Act, 1986


prohibits the indecent representation172 of women through
advertisements or other publications, writings, painting, figures,
etc. and makes the contravention of the provisions of this Act
punishable with imprisonment and fine.173

(vii)

The Young Persons (Harmful Publications) Act, 1956 prohibits


publications which could corrupt a child or young person and
incite

him

to

commit

crimes

of

violence

or

cruelty. A

contravention of the provisions of this Act is punishable with


imprisonment and fine.174
(viii) The Information Technology Act, 2000 makes the publication
and transmission in electronic form of material which is
lascivious or appeals to the prurient interest or if its effect is
such as to tend to deprave and corrupt persons who are likely,
having regard to all relevant circumstances, to read, see or hear
the matter contained or embodies in it is punishable with
imprisonment and fine.175
171
172

173
174
175

The Post Office Act, 1898, Section 20.


The Indecent Representation of Women Act, 1986, Section 2(c) of the Act defines the
'indecent representation of women' as, "the depiction in any manner of the figure of a woman,
her form or body or any part thereof, in such a way as to have the effect of being indecent, or
derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public
morality of morals".
The Indecent Representation of Women (Prohibition) Act, 1986, Section 3-6.
The Young Persons (Harmful Publications) Act, 1956, Sections 2(a) and 3-7.
The Information Technology Act, 2000, Section 67; Avinash Bajaj v. State, (2005) 3 Comp L
J 364 (Del.).

125

(ix)

The Cable Television Networks (Regulation) Act, 1995 prohibits


the telecast of programmes on cable television, which offered
decency

and

morality

and

visits

contravention

with

imprisonment and fine.176 In fact, Section 5 of the Cable


Television Networks (Regulation) Act, 1995 read with Rule
6(1)(o) of the Cable Television Networks Rules, 1994 prohibits
the

carriage

of

programmes

that

are

not

suitable

for

unrestricted public exhibition. The expression, unrestricted


public exhibition is found in Section 5-A read with Section 4 of
the

Cinematograph

Act,

1952

which

provides

for

the

examination and certification of films by the Board of Film


Certification (CBFC). This effectively means that no adult film
(A film) or film which is suitable for public exhibition restricted
to members of any profession or any class of persons (S film)
can be telecast on television by cable operators.177
vii) Restrictions on Offensive Advertisements

Article 19(2) of Constitution of India provides that the


Government can impose restrictions on the right to freedom of speech
176

177

The Cable Television Networks (Regulation) Act, 1995 Sections 5, 6, 16, 17, 19 and 20, read
with the Cable Television Network Rules, 1994, Rules 6(1)(a), (d), (k), (n) and (o), 6(2), 6(5);
Rules 7(2)(iii) and (vi) Rule 7(8).
In Pratibha Naitthani v. Union of India (Writ Petition No. 1232 of 2004), a public interest
petition filed by a college lecturer to control obscenity in the media, in an order dated 21st
December 2005 (unreported), the Bombay High Court interpreted Rule 6(1)(o) of the Cable
Networks Rules, 1994 to mean that no film of which public exhibition is restricted can be
carried on the cable service. The Court upheld the restriction under Rule 6(1)(o) holding that it
did not violate the rights of an adult to watch adult films (A films) since such films could be
viewed in a cinema hall or even privately on DVD or VCD.

126

and expression to protect the countrys sovereignty, integrity, security,


friendly relation with foreign states, public order, morality and
decency and to prevent contempt of court, incitement to an offence
and defamation.
Advertisers often view these rules and regulations as violating
their right to freedom of speech. Some advertisements, in particular,
were considered derogatory and banned by the Government such
as:178

A deodorant advertisement that showed a man accompanied by


scantily clad women was banned by Government after several
complaints were received from viewers about advertisement
being offensive to family viewers.

A soft drink advertisement that showed a child bringing the


drink for Indian Cricket players was banned after complaints
from child labour activists.

Advertisements of two underwear ads were banned due to


vulgarity and indecency. Objectionable content in advertisement
is usually a reason for taking it off channels.

h) Contempt of Court
Contempt by scandalising the court owes its origin to the
medieval

ages

in

Britain,

when

the

courts

were

considered

representatives of the monarch and were called kings courts or


Queens courts. Thus any imputation against the courts was
178

Available at: www.lawisgreek.com/Constitution-India-Advertisement-and-freedom-speech.


(Visited on June 27, 2012).

127

considered an imputation against the sovereign and therefore


punishable. The United States has a more liberal dispensation, where
only something that presents a clear and present danger to the
administration of justice is considered contempt.179
i) Contempt of court under Indian constitution

The Constitutional right to freedom of speech and expression


(Article 19(1)(a)) does not allow a person to contempt of court.180 The
expression contempt of court has been defined in contempt of courts
Act, 1971.181 The term contempt of court refers to civil contempt or
criminal contempt under the Act. The law of contempt of court is for
keeping the administration of justice pure and undefiled while the
dignity of the court is to be maintained at all costs, the contempt
jurisdiction which is of special nature should be sparingly used.182
Judges do not have any general immunity from criticism of their
judicial conduct, provided that it is made in good faith and is a
genuine criticism, and not any attempt to impair the administration of
justice. In re Arundhati Roy183 the Supreme Court followed the view
179
180
181

182
183

Prashant Bhushan, "Contempt of Court and the Triple Shield", The Hindu, Sep. 07, 2005
Under Article 19(2) of Constitution of India.
Contempt of Court Act, 1971, Section 2(c) Criminal Contempt means the publication,
whether by words, spoken or written, or by signs, or by visible representations, or otherwise,
of any matter on the doing of any other act whatsoever which
(i)
Scandalises or tends to scandalize, or lowers or tends to lower the authority of any
court; or
(ii)
Prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or
(iii) Interfers, or tends to interfere with, or obstructs, or tends to obstruct, the administration
of justice in any other manner.
Shukuntala Sahadevram Tewari v. Hemchand M. Singhania, (1990) 3 Bom CR 82 (Bom).
(2002) 3 SCC 343.

128

taken in the American Supreme Court (Frankfurter, J.) in Penne Kamp


v. Florida,184 in which United States Supreme Court observed:
If men, including judges and journalists, were angels,
there would be no problem of contempt of court. Angelic
judges would be undisturbed by extraneous influences
and angelic journalists would not seek to influence them.
The power to punish for contempt, as a means of
safeguarding

judges

in

deciding

on

behalf

of

the

community as impartially as is given to the lot of men to


decide, is not a privilege accorded to judges. The power to
punish for contempt of court is a safeguard not for judges
as persons but for the function which they exercise.
ii) Object of contempt of court

The object of contempt jurisdiction is to safeguard the interests


of the public which would be adversely affected if the authority of the
court is denigrated and public confidence in the administration of
justice is weakened.185
The

public

have

vital

stake

in effective

and

orderly

administration of justice. The court has the duty of protecting the


interest of the community in the due administration of justice and, so,
it is entrusted with the power to commit for contempt of court, not to
184
185

328 US 331 : 90 L Ed 1295 (1946)


Roshan Lal Ahuja, In Re (1993) Supp. (4) SCC 446; Aruhadhati Roy, In re (2002) 3 SCC 343.

129

protect the dignity of the court against insult or injury but, to protect
and vindicate the right of the public so that the administration of
justice is not prevented, prejudiced, obstructed or interfered with186
c) Balance of free speech and public confidence

The right of criticism is a vital ingredient of any democratic


system and is integral part of the fundamental right to free speech
and expression guaranteed under Article 19(1)(a) of the constitution.
The judiciary, like any other institution does not enjoy immunity from
criticism. The right to criticize judgements has been recognised and
reiterated on a number of occasions.187 Indian courts have quoted
with approval the observations of Lord Atkin in Andre Paul Terrence
Ambard v. Attorney-General of Trinidad and Tobago.
[No] wrong is committed by any member of the public who
exercises the ordinary right of criticising in good faith in
private or public, the public act done in the seat of justice.
The path of criticism is a public way; the wrong headed
are permitted to err there in: provided that members of
the public abstain from imputing improper motives to
those taking part in the administration of justice, and are
genuinely exercising a right of criticism and not acting in
malice or attempting to impair the administration of
186
187

Delhi Judicial Service Assn. v. State of Gujarat 457 (1991) 4 SCC 406.
Sheela Barse v. Union of India (1998) 4 SCC 226; Surya Prakash Khatri v. Madhu Trehan
(2001) 92 DLT 665; Rajendra Sail v. M.P. High Court Bar Assn. (2005) 6 SCC 109.

130

justice, they are immune. Justice is not a cloistered virtue


: he must be allowed to suffer the scrutiny and respectful
even though outspoken comments of ordinary men.188
iv) Dividing line between criticism and contempt

The principal test applied by courts in India while deciding


matters of criminal contempt is the test of erosion of public
confidence. The courts have emphasised the distinction between an
attack on an individual judge which may be tantamount merely to
libel on the judge and contempt of court. While the former may be a
wrong done to the judge personally, the latter seeks to interfere with
and denigrate the course of justice and is a wrong done to the
public.189
In D.C. Saxena v. Honble The Chief Justice of India,190 this
distinction between contempt and criticism became blurred as the
Supreme Court held that libel against a judge can constitute criminal
contempt if the imputation is of such gravity that it erodes public
confidence in the system. The court held:
Any personal attack upon a judge in connection with the
office he holds is dealt with under law of libel or slander.
Yet defamatory publication concerning the judge as a
judge brings the court or judges into contempt, a serious
188
189
190

AIR 1936 PC 141.


Perspective Publications (P) Ltd. v. State of Maharashtra, AIR 1971 SC 221 and C.K.
Daphtary v. D.P. Gupta (1971) 1 SCC 626.
(1996) 5 SCC 216.

131

impediment to justice and an inroad on the majesty of


justice. Any caricature of a judge calculated to lower the
dignity of the court would destroy, undermine or tend to
undermine public confidence in the administration of
justice or the majesty of justice.191
In Rajendra Sail v. M.P. High Court Bar Association,192 The
Supreme Court held that criticism must always be dignified and that
motives must never be attributed:
The judgments of courts are public documents and can be
commented upon, analysed and criticised, but in a
dignified manner without attributing motives. Before
placing before public, whether on print or electronic
media, all concerned have to see whether any such
criticism has crossed the limits as aforesaid and if it has
then resist every temptation to make it public.193
The test based on erosion of public confidence is by itself a
flawed one. After all, it is only natural that serious allegations made
against an individual judge would undermine public confidence in the
system. Indeed the greater the gravity of and truth in the allegations;
the greater the jolt to public faith in the system. Till recently, neither
truth nor good faith were defences against the law of contempt in
191
192
193

Supra n. 190.
(2005) 6 SCC 109.
Ibid., p. 125.

132

India. In the circumstances, the test of erosion of public confidence


has the effect of acting as a deterrent against genuine complaints
made against an individual judge. Ironically, although Article 124(4) of
the constitution provides for the removal of a judge for proved
misbehaviour, no one could offer proof of such misbehavior without
risking being sent to jail for contempt of court. This provision is now
rectified by an amendment to the contempt of courts Act, 1971 which
makes truth a raid defence to a charge of contempt.194
v) Contempt of court by media

With the coming into being of the television and cable channels,
the amount of publicity which any crime or suspect or accused gets in
the media has reached alarming proportions. Innocents may be
condemned for no reason or those who are guilty may not get a fair
trial or may get a higher sentence after trial than they deserve. These
appears to be very little restraint in the media in so far as the
administration of criminal justice is concerned. If media exercises an
unrestricted or rather unregulated freedom in publishing information
about a criminal case and prejudice the mind of the public and those
who are to adjudicate on the guilt of accused and the person has been
adjudged guilty well before the trail in court, there can be serious
prejudice to the accused. Other issues about the privacy rights of
194

The Contempt of Courts (Amendment) Act, 2006. Section 2 substitutes Section 13 of the
Contempt of Courts Act, 1971, making truth a valid defence, in any proceeding for contempt
of court. This amendment precludes the courts from imposing a sentence for contempt is of
such a nature that it substantially interferes or tend to substantially interfere with the due
course of justice.

133

individuals or defendants may also arise. After the judgement in R.


Rajagopal v. State of Tamil Nadu,195 public figures, with slender rights
against defamation are more in danger and more vulnerable in the
hands of the media.
In Saibal v. B.K. Sen,196 the Supreme Court said, It would be
mischievous

for

newspaper

to

systematically

conduct

an

independent investigation into a crime for which a man has been


arrested and to publish the results of the investigation. This is
because, trial by newspaper, when a trial by one of the regular
tribunal is going on, must be prevented. The basis for this view is that
such action on the part of the newspaper tends to interfere with the
course of justice.
In Rao Harnarain v. Gumori Ram197 the Punjab High Court
stated that Liberty of the press is subordinate to the administration
of justice. The plain duty of journalist is the reporting and not the
adjudication of cases.
In Bijoyananda v. Bala Kush198 the Orissa High Court observed
that the responsibility of the press is greater than the responsibility
of an individual because the press has larger audience. The freedom of
press should not degenerate into a licence to attack litigants and close
the door of justice nor can it include any unrestricted liberty to
damage the reputation of responsible persons.
195
196
197
198

(1994) 6 SCC 632.


AIR 1961 SC 633.
AIR 1958 Punjab 273.
AIR 1953 Orissa 249.

134

In Harijai Singh v. Vijay Kumar199 the Supreme Court stated


that press or journalists enjoy no special right of freedom of
expression and the guarantee of this freedom was the same as
available to every citizen. The press does not enjoy any special
privilege or immunity from law.
In State of Maharashtra v. Rajendra Jawanmal Gandhi,200 the
Supreme Court held that a trial by press, electronic media or by way
of a public agitation is the very anti-thesis of rule of law and can lead
to miscarriage of justice.
i) Defamation
He that filches from me my good name, Fobs me of that,
which not enriches him, and makes me poor indeed.201
Every individual has a right to claim that his reputation shall
not be disparaged by defamatory statements made about him to a
third person, without lawful justification/excuse. Reputation is an
integral and important aspect of the dignity of an individual.202 The
right to preservation of ones reputation is acknowledged as a right in
rem, a right good against all the world.
i) Constitutional aspect

The law of defamation is a culmination of a conflict between


society and the individual. On one hand lies the fundamental right to
199
200
201
202

1996 (6) SCC 466.


1997 (8) SCC 386.
William Shakespeare : Othello, (1604-1605), III, ii.
In State of Bihar v. Lal Krishna Advani (2003) 8 SCC 361, The Apex Court held right to
reputation is a facet of the right to life. Where any authority in discharge of its duties traverses
into the realm of personal reputation it must provide a chance to the person concerned to have
a say in the matter.

135

freedom of speech and expression enshrined under Article 19 (1) (a) of


the Indian Constitution, on the other is the right of the individual to
have his reputation intact. The law of defamation seeks to attain a
balance between these competing freedoms and is a reasonable
restriction under Article 19 (2) on the fundamental right to freedom of
speech and expression guaranteed by Article 19(1)(a).
ii) What is defamation?

The wrong of defamation consists in the publication of a false


and defamatory statement about another person without lawful
justification or excuse. A statement is said to be defamatory when it
injures the reputation of the person to whom it refers and exposes
him to hatred, ridicule and contempt or which causes him to be
shunned or avoided or which has a tendency to injure him in his
office, profession or calling.203
iii) Libel and slandar

Defamation could take one of two forms : libel or slander. Libel


consists in the publication of a defamatory statement expressed in
some permanent form for instance by writing, printing, pictures,
statute, waxwork, effigy etc. where on the other hand defamation is
oral, or by gestures or in some other transient form, it constitutes the
tort of slander.204
203
204

Nevill v. Fine Arts and General Ins., (1897) AC 68.


Supra n. 37, p. 86.

136
iv) Defamation under civil and criminal law

Defamation is an injury to a persons reputation which is


regarded as a part of his property. It constitutes an actionable wrong
and give rise to the civil remedy of damages. It also constitutes a
criminal offence under section 499 of Indian Penal Code, 1860. For
civil remedy courts apply corresponding rules of English common law,
which

are

based

on

principles

of

justice,

equity

and

good

conscience.205 Under English common law, the essence of the crime of


private libel is its tendency to cause a breach of peace. Hence, even
where the defamatory matter is not published to a third party, it will
support an indictment if it is likely to cause breach of peace.206 In
India, on the other hand, publication is an essential condition for a
criminal offence under Section 499 of IPC, as in an action for
damages.
In a civil action, the intention of the defendant is immaterial and
it is no defence to plead that the defendant did not intend to defame
the plaintiff. On the other hand, under Section 499 of IPC, the plaintiff
must prove that the publication was intending to harm, or knowing or
having reason to believe that such imputation will harm. Good faith
on the part of the defendant is thus a good defence in a criminal
prosecution but nor in a civil action.

205
206

Gulabchand v. State of Gujarat, AIR 1970 Guj 171.


R. v. Adams (1882) 22 QBD 66.

137
v) Essential of defamation
a)

The Statement must be defamatory

The test of the defamatory character of a statement is that of the


reasonable man, the right-thinking man. To write or say of a man
something that will disparage him in the eyes of a particular section of
the community but will not affect his reputation in the eyes of the
average right-thinking man is not actionable under the law of
defamation.207
Defamatory statements by Media: The difficulties facing news editors
and other publishers is compounded by the fact that statements true
of their intended target may nevertheless be unforeseeably defamatory
of another.
In Newstead v. London Express Newspapers Ltd.,208 the Daily
Express described a prisoner in a trial for bigamy as Harold
Newstead, 30-year-old camberwell man. Coincidentally, the plaintiff
fitted that description and was successful in a defamation action. The
fact that here the defendant had taken due care was quite irrelevant.
This difficulty which common law presented for media persons was
rectified by Section 2 of English Defamation Act, 1996. This provisions
applies, interalia, to publications in which the defendant neither knew
nor had reason to know that the statement referred to the plaintiff or
was likely to be so understood. This provision requires the defendant
to offer to print a correction and an apology and to pay compensation
and costs as agreed or as determined by the court.
207
208

Tolley v. Fry (1930) 1 KB 467, p. 479, Per Green LJ.


(1940) 1 KB 377.

138

In India, the courts have come to the rescue of the press in such
situations where the identity of the plaintiff was not known to the
publisher. In T.V. Ramasubba v. A.M. Ahmad Mohideen209 it was held
that since the publishers, when he published the news item did not
know of the existence of the plaintiff and had later published a
correction in his paper, he was not liable for defamation.
b)

The Statement must refer to the Plaintiff

In every action for defamation, the plaintiff must prove that the
statement refers to him. That is to say that the plaintiff must be
identified as the person to defame. In Knupffer v. London Express
Newspapers,210 Viscount Simon, L.C. Observed:
It is an essential element of the cause of action in
defamation that the words complained of should be
published of the plaintiff211
The plaintiff may be identified by name, by description or any
reasonable inference. It is not necessary that there should be any peg
or pointer in the defamatory words, nor is it necessary to even show
that the defendant intended it to refer to the plaintiff. It is enough for
the plaintiff to show that any person to whom the statement was
published reasonably thought that the plaintiff was the person
referred to.212 It is irrelevant that the defendants did not intend to
209
210
211
212

AIR 1972 Mad 398; Naganatha Sastri v. Subramania Iyer, AIR 1918 Mad 700; Secretary of
State v. Rukminibai, AIR 1973 Nag 354.
(1994) AC 116.
Ibid., p. 118.
Hulton v. Jones, (1910) AC 20.

139

refer to any real person but was talking instead about a fictional
character.213
In Cassidy v. Daily Mirror Newspapers Ltd.214 The defendants
published in their newspaper photographs of the Plaintiffs husband
with an unnamed lady announcing that they were engaged. Even
though the defendants had no reason to defame the plaintiff who was
not even mentioned in the paper, the plaintiff was entitled to damages
since the publication was capable of bearing the meaning that the
plaintiff was not married to her husband and was living with him in
sin.
c)

The Statement must be published by the defendant

The law of defamation seeks to protect the reputation of persons


in the eyes of their fellows. Therefore, for an action for defamation to
lie, it is necessary that the words complained of must have been
published to a person or persons other than the person defamed. If
the words complained of are communicated to the plaintiff alone, and
not to any third party, there is no defamation since although the
words may injure his self-esteem, they cannot injure his reputation.
Thus, where the words are communicated to the defendant in a sealed
letters there is no defamation. But, where copies of such a letter are
sent to third parties, there is defamation. The requirement of
publication

in

the

present

context

means

no

more

than

communication, even to single other person and a publisher is one


who communicates the defamatory words to a third party.
213
214

Supra n. 212..
(1929) 2 KB 331.

140

In Slipper v. British Broadcasting Corporation,215 the plaintiff, a


retired

police

officer

claimed

he

had

been

portrayed

as

an

incompetent buffoon on a television programme which traced


attempts to bring back an escaped train robber back from Brazil to
Britain. Based on a preview of the programme shown by the
defendants to the press and television journalists, a number of review
appeared in newspapers and magazines which portrayed the plaintiff
in a negative light. In addition to being held liable for their defamatory
portrayal of the plaintiff, the defendants were also held liable for the
foreseeable repetition of that defamation by other persons in the
media.
vi) Defamation through electronic media

The internet is a medium of instantaneous, global and long


distance communication. It makes communication with a million
people or more and is no more difficult than with a single person. It
knows no geographical or jurisdiction boundaries. The availability of
internet as a medium of expression opens up new channels for
circulation of information. This also means that faster and farreaching means are available for propagating defamatory material. The
growth of news groups, electronic bulletin boards and electronic
mailing

lists

developed

for

the

exchange

of

views

and

the

dissemination of information have facilitated the spread of defamatory


material.216
215
216

(1991) 1 QB 283.
Supra n. 37. p. 109.

141

In the context of online defamation, the following questions


arise: When does a publication take place? How does a publication
take place? Where does the publication take place? Who is liable for
the publication?217
vii) Defamation on social networking websites

Social Networking Websites (SNW), one side provide an easy to


use, convenient and cost effective way of networking and on the other
hand

provide

for

mushrooming

Cyber-defamation

or

virtual

defamation. The Internet has made it easier than ever before to spread
a huge amount and variety of information worldwide. SNW like Orkut,
Facebook etc. are, at a grassroot level, a medium for exchanging
information between people. SNWs allow any person to write any
statement, including the defamatory one, on their own or on a third
persons virtual profile. In this scenario the question which naturally
arises is who can be sued by the person against whom such
defamatory statement has been made?
Cyber defamation is not different from conventional defamation
except the involvement of virtual medium e.g. the E-mail. Account of
Thomas was hacked and some mails were sent from his account to
some of his batch mates regarding his affair with a girl with intent to
defame him.218
217
218

Supra n. 216.
Tr. Syed Umarhathab, "Types of Cyber Crime- An Overview", Criminal Investigation
Department Review, Tamil Naidu, January 2008.

142

In Prof. Imtiaz Ahmad v. Durdana Zamir,219 the Delhi High Court


observed that under the laws of defamation, the test of defamatory
nature of a statement is its tendency to incite an adverse opinion or
feeling of other persons towards the plaintiff. A statement is to be
judged by the standard of the ordinary, right thinking members of the
society at the relevant time. The words must have resulted in the
plaintiff to be shunned or evaded or regarded with the feeling of
hatred, contempt, ridicule, fear, dislike or disrespect or to convey an
imputation to him or disparaging him or his office, profession, calling,
trade or business.
In the context of the internet, publication occurs when the
contents of the publication, oral, spoken or written are seen, heard
and comprehended by the reader or the hearer. Every email message
which has been received and is capable of being understood by a
recipient other than the person defamed, it has been published. Every
message posted on a bulletin board and every web page which is
accessible to and accessed by computer users has been published.220
An electronic publication could take place through the email,
online

bulletin

board

messages,

chat

room

messages,

music

downloads, audio files, screaming videos, digital photographs and so


on. Section 499 of the Indian Penal Code, 1860 expressly provides
that defamation could take place not only by words but also by signs
219
220

IA No. 10367/2007 in CS (OS) 569/2006.


Matthew Collins, The Law of Defamation and the Internet 137 (Oxford University Press,
Australia, 2001).

143

or visible representations. This would mean that even dissemination of


defamatory material through the SMS, MMS, photographs and videos
or mobiles phones would constitute an actionable claim.221
viii) Place of publication and jurisdiction

An online defamatory statement can be published anywhere in


the world where internet is available. This raises jurisdictional issues.
Since technically, a suit would be maintainable in any jurisdiction in
the world where the statement has been accessed. Therefore, a
defendant could be dragged to any jurisdiction where the statement is
accessed notwithstanding where he had posted the information. The
place of publication, the place where the material is read, heard or
seen is the basis of the cause of action for defamation. In Australia,
the fact of publication within the jurisdiction of the Court should be
enough to justify the exercise of jurisdiction.
In Dow Jones and Company Inc v. Gutnick,222 the High Court of
Australia approved the trial courts assertion of jurisdiction over Dow
Jones and Company Inc. based on its online publication of an
allegedly defamatory article. The article appeared in Barrons Online,
the online version of Dow Jones print publication. Barrons Online,
was available to subscribers of wsj.com. Joseph Gutnick, a resident of
the Australia state of Victoria, brought a defamation action against
Dow Jones in a Victoria Court. Dow Jones argued that the Court
221
222

Supra n. 220.
(2002) HCA 56 (Austl).

144

should

decline

jurisdiction

under

the

doctrine

of

forum

non

conveniens, which would be applicable if the Victoria Court was


clearly inappropriate forum. Dow Jones argued that Barrons Online
was published in New Jersey, the location of the servers hosting the
wsj.com web site. From this it would follow that the substantive law to
be applied in deciding the case was New Jersey law, which would
make the Victorian Court a clearly inappropriate forum. Thus in this
case the decision hinged on where the article was deemed to be
published.
The Court held, contrary to Dow Joness contention that
publication of a defamatory statement is a bilateral act in which the
publisher makes it available and a third party has it available for his
or her comprehension. Therefore, the article was published, with
respect to Gutnicks cause of action, not when Dow Jones put it on its
web server, but only when subscribers in Victoria accessed it. The
site recorded about 5,50,000 hits, less than 0.01 per cent of them
from people with Australian credit cards. It was not ascertainable how
many of these users were Victorian but it was agreed that several
hundred downloads had taken place in Victoria. For these reasons,
the Court held that the defamation occurred in Victoria, and that
Victorian law governed. It is where that person downloads the
material that the damage to reputation may be done. Ordinarily then,
that will be the place where the tort of defamation is committed. Since

145

jurisdiction in Victoria was proper and Victorian law applied, the


Victorian Court was not an inappropriate forum, and there was no
basis for declining jurisdiction.
In the United Kingdom, the fact of publication within the
jurisdiction of the court is a highly relevant consideration. Other
relevant considerations are whether the plaintiff has a reputation to
protect the United Kingdom, the extent to which publication has
occurred in other countries where the plaintiff has a reputation and
the location of the parties and their witnesses.223
Asias First case of cyber defamation has been filed in India in
the case of SMC Pneumatics Ltd. v. Jogesh Kwatra.224 Defamatory
emails were allegedly sent to the top management of SMC Pneumatics
by the defendant, who has since been restrained by the Delhi High
Court for sending any form of communication to the plaintiff. The
order of Delhi High court assumes tremendous significance as this is
for the first time that an Indian court assumes jurisdiction in a matter
concerning cyber defamation and grants an ex-parte injunction
restraining the defendant from defaming the plaintiff by sending
derogatory, defamatory, abusive and obscene emails either to the
plaintiff or their subsidiaries.

223

224

Schapira v. Ahronson, (1999) EMLR 735; Chadha v. Dow Jones & Co Inc., (1999) EMLR
5724; Berezovsky v. Michaels, (2000) 2 All ER 986; Kitakufe v. Olaya, (Ontario Court of
Justice, 2 June 1998).
Delhi High Court, Suit No. 12791 2001.

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Another important question which arises is who is liable for the


publication of defamatory material the internet service provider or
the website promoter? An internet service provider may provide a
variety of services it may act merely as an information distributor or
as an information publisher. An information distributor merely acts
as a carrier of information without examining its content. An
information publisher on the other hand is under a duty to examine
content and take reasonable care in relation to all its publications.225
These challenges thrown up by online defamation are yet to be
decided by courts in India. Because of the delays in the legal system,
defamation suits drag on for years on end and people are
understandably reluctant to adopt legal remedies. The most common
method adopted by the person defamed in response to a defamatory
publication is to publish a counter story defaming the person
responsible. With the growth of the media, defamation both in the
print and the electronic media is likely to proliferate. There is a
pressing need for quicker and more effective redress through courts as
well as self regulatory bodies within the media.
ix) Dividing line between defamation and contempt

Although contempt of court may include defamation of an


individual judge, an offence of contempt is something more than mere
225

The Information Technology Act, 2000, Section 19, provides immunity to network service
provides in respect of third party information or data if such person proves that the offence
was committed without his knowledge or that he had exercised all due diligence to prevent the
commission of that offence.

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defamation. In Bathinda Ramakrishna Reddy v. State of Madras,226 the


Supreme Court held:
When an act of defaming a Judge is calculated to obstruct
or interfere with the due course of justice or proper
administration of law, it would certainly amount to
contempt. The offence of contempt is really a wrong done
to the public by weakening the authority and influence of
courts of law which exist for their good.
A defamatory statement attacking the integrity of a judge may
not in the circumstances of a particular case amount to contempt at
all, although it may be the subject matter of a libel proceeding.227 The
object of contempt proceedings is not to afford protection to judges
personally but to protect the public interest which would be adversely
affected if the authority of the court were to be lowered. If a judge is
defamed in a manner that does not impair the administration of
justice, he has the choice of invoking the ordinary remedies for
defamation.228 But a scurrilous, offensive, intimidatory or malicious
attack on a judicial officer or authority beyond condonable limits
amounts to scandalizing the court and is amenable not only to
conviction for contempt but also for libel.229
226
227
228
229

AIR 1952 SC 149.


In Re, Arundhati Roy, (2002) 3 SCC 343.
Brahma Prakash Sharma v. State of U.P., AIR 1954 SC 10.
U.P. Sales Tax Service Assn. v. Taxation Bar Assn., Agra (1995) 5 SCC 716.

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Till recently in India, neither truth nor good faith were defences
against contempt action. This caused serious difficulties by deterring
genuine complaints against an errant judge. Although under Article
124(4) of the Constitution, a judge may be removed for misbehaviour,
ironically no one could provide proof of such misbehaviour without
risking being sent to jail for contempt of court. The Contempt of
Courts (Amendment) Act, 2006 seeks to rectify this position by
making truth a defence to contempt action.230

230

The Contempt of Courts (Amendment) Act, 2006, Section 2 substitutes Section 13 of the
Contempt of Courts Act, 1971.