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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

2

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).

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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

4

5

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).

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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

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Constitution and is an aspect of human self fulfillment or autonomy.
It is in the speaker‟s 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,

(iv) Section 18 (1) (e)(f)(g) of the Constitution of Sri Lanka. or prohibiting the free exercise thereof. or the right of the people to assemble peaceably and to petition the Government for a redress of grievance. right of Government servants to continue in employment and the right to strike. (iii) Section 40 (6)(1) of the Constitution of Eire. (v) Articels 50 and 51 of the Constitution of the USSR 1977. The rights granted by Article 19 are available only to citizens and not to aliens or foreigners. and (vi) Section 298 of the Government of India Act. 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. 1937. or abridging the freedom of speech or of the press. 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. They are: (i) The First and Fourteenth Amendments to the Constitution of United States. 1935. (ii) the common Law of England.45 or contest election. “Congress shall make no law respecting the establishment of religion. . 1972. But none of these freedoms is absolute or uncontrolled. the contractual right against the Government. The First Amendment to the Constitution of USA provides.

1950 provides that (1) Everyone has the right to freedom of expression. (2) The exercise of this freedom. television or cinema enterprise. 1948 declares the freedom of press and so does Article 19 of the International Covenant on Civil and Political Rights. Article 19 of the Universal Declaration of Human Rights. 1966. 1950. since it carries with it duties and responsibilities. This Article shall not prevent states from requiring the licensing of broadcasting. restrictions or penalties as are prescribed by the law and are . 23. Social and Cultural Rights. (iii) Article 11 of the European Convention on Human Rights. 1966. (ii) Article 22 of the International Covenant of Civil and political Rights. may be subject to such formalities. 29 of the Universal Declaration of Human Rights. This right shall include freedom to hold opinion. 1966.12 of the International Covenant on Economic. (iv) Articles 6.46 Right to Expression under International Conventions Right to expression under Constitution of different countries has close similarity with different International Conventions. (i) Articles 13. conditions. to receive and impart information and ideas without interference by the public authority and regardless of the frontiers. 20. Article 10 of the European Convention on Human Rights. 1948.

. An individual interacts through the media to reach other individuals and institutions. whether it is print or electronic media. ideas. the free flow of information and ideas is essential. MEDIA AS AN INSTRUMENT OF EXPRESSION Exercise of freedom of expression is essential to communicate the thoughts. Media world serves as the best communicator of information and the best instrument of expression. An Analytical Commentary on Law for Media 22 (Asia Law House. philosophy and activities.11 11 Dr. 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. institution and organisation it becomes imperatively necessary in the media world. territorial integrity or public safety. For a healthy growth of civilized world. in the interest of national security. Exercise of right of freedom of expression is the professional duty and character work of media. for the protection of reputation or rights of the others. for the protection of health and morals. The media gets as a mass communicator. The right to freedom of speech though belongs to every individual. The Law of Expression. 2007). The communication keeps society together and cohabitate. Every individual is a medium of expression. views. for preventing the disclosure of information received in confidence or for maintaining the authority and impartially of the judiciary. Madhabhusi Sridhar.47 necessary in a democratic society. for the prevention of the disorder or crime. Hyderabad.

Executive office has become a private estate and legal plunder has become the norm. available at: www. with about 25 million cases pending in courts. corruption and perpetuation of feudal oligarchies is operating. Most legislators are content to be disguised executives. Honesty and survival in elective public office are increasingly incompatible. polling irregularities. The judiciary has become very much part of the problem. A Vicious cycle of unaccounted money power.loksatta. which now expanded to include electronic media also. making citizens somewhat helpless. illegitimate election expenditure.org (Visited on April 13. Responsibility of Media Over past 66 years after independence. No accountability of the executive enforced by our elected representatives. Legislatures have become battle fields. Neither any serious public policy is evolved.12 12 Jaya Parakash Narayan. and the notion of public service is all but forgotten. seeking and obtaining State patronage and privilege. the three Constitutional organs of State have fallen far short of our hopes and expectations. abuse of public office. a well developed market has developed for criminals and musclemen to provides rough and ready justice. 2010). Both the elected executive and appointed public servants have become the modern-day monarchs.e. Indian Media Great Power and Greater Responsibility. Law‟s delay and the breakdown of rule of law have nudged our society into near anarchy.48 Every democratic set up in the present day social texture should have been implicated with a special inseparable part i. . many of them for several years and decades.

the media played an extraordinary role. The role of media/press during freedom struggle and after independence has been an extraordinary and inspiring saga. India remained a democracy against all odds. Rajagopalchari. 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.” Justice Krishna Iyer in his article “Free press in a hungry Republic” stated: . the early excitement and enthusiasm abated and as institutions of state became moribund and dysfunctional.49 In face of the colossal failure of three Constitutional organs of State. After independence. It is this fierce independence. the one institution which nurtured. the citizen is reduced to a state of abject helplessness. unflinching courage and undiminished idealism exhibited by the media which broadened and deepened our democracy. states as under: “A Free press is as essential limb of democracy as a parliament freely elected by the people or an Independent Judiciary. emphasizing the importance of the Fourth Estate. In this complex environment. sustained and strengthened our democracy is the press. C. Mr. Therefore media is important pillar to lend its valuable support to the system and hence is regarded as “Fourth Estate”. the Governor-General of India. Thanks to free press.

. I should not hesitate a moment to prefer the latter. Subir Ghosh. January 16. Distributor. 1975). 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. Krishna Iyer. Mass Media Today 42 (Rupa & Co. Ltd.13 The press performs some socially purposeful role.) Limited v. AIR 1962 SC 305. Law.50 „The philosophical basis for the freedom of publication and circulation is the social purpose of supplying unadulterated information without tendentious presentation. Calcutta. "Where it left to me to decide whether we should have a Government without newspapers or newspaper without a Government. the following contents of the freedom of the Press have emerged : (a) Right to print and publish news i. actual facts of contemporary history and views16. New Delhi. 1991). to learn about changes in the environment and finally to seek the truth without such mutual interaction society cannot function in order."15 Details of Expression Rights Based on various judicial decisions and precedent from American and English Constitutional interpretations. 1787. to exchange ideas. It is inherent in human nature to have desire to communicate.14 In concluding words of Thomas Jefferson. Freedom and Change 68 (East West Press Pvt.e. Thomas Jefferson in a letter to Edward Carrington. readily and the right time. And the Constitutional rights stem from political philosophy‟. Union of India. Sakal Paper (Pvt. . 13 14 15 16 Justice V.R.

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. 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. AIR 1950 SCR 594. Schunk v. U. Baumgartner v. Thornhill v. AIR 1959 SC 395. S. 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. US.. . 1958 SC 578. 1970 398 US 58.18 (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. Alabama.51 (b) Such views or opinions may be those of the editor or author but also those other people printed under his direction. Sharma v. 1944. without existing or attempting to 17 18 19 20 21 Express Newspapers v. Sharma v. Union of India. disloyalty or refusal of duty in the Armed Forces.17 (c) To distribute or circulate such printed matter to any other party. Shri Sri Krishna Sinha and Others. 1950 310 US 88 (102). Sri Krishna. M.S. 1860 which makes sedition an offence and restriction on freedom of expression. Pandit M. without prejudice to the national security by inciting insubordination.

U. free from any monopolistic control from the Government. Hayes. 1972 408 US 665.24 A corollary of the right to publish must be the right to gather news. that the press has a constitutional right of special access to information which is not available to the public generally23. however. Report of Royal Commission on the Press UK report 1947-9 para 543. 1971 403 US 713. . contempt or disaffection. for without freedom to acquire information the right to publish would be impermissibly compromised. Third explanation says – comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred. do not constitute an offence of sedition. (g) The right of the press to collect information from diverse and antagonistic sources. News must not be unnecessarily cut off at its source.25 22 23 24 25 New York Times v. do not constitute an offence under the Section 124-A.S. Pell v. Branzburg v. Procunier. contempt or disaffection.. (f) A corresponding right to collect the information relating to public affairs or the right of access to the sources of such information. 1974 SC 2800. not has the Government any affirmative duty to make available to journalists sources of information not available to the public generally.52 excite hatred.22 This does not mean. on a competitive basis.

. 152. 1874 418 US 241.) Limited v. correspondence or any other matter26 nor to include anything at dictates of any authority. In a Canada case. however. a newspaper accepts Government advertisement. the price and so on. the class of readers it should address. Union of India.27 An authority cannot direct the free press to publish a particular matter. article. AIR 1962 SC 305. During the Emergency. Legal Control of the Press. 720 (1962). Thayer. Ret. In short. a newspaper to publish only the information released by chairman of Social Credit Board is unconstitutional. 26 27 28 29 Miami Herald v. (i) The right to refuse any advertisement.53 (h) The freedom neither to publish any news. 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. the Supreme Court held that the Bill of Province of Alberta which sought to compel. under pain of penalty. it would be bound to abide by the terms and conditions of the contract or law relating to such contracts. including a Government advertisement. Sakal Papers (Pvt. Re. Alberta statutes 1938 2 DLR 81.28 If. it must have the freedom to evolve a plan for carrying on of its activities as regards the matter to be published. Tornllio.

the media have the same right no more and no less than any individual to write. Thus. v.P. Article 19(1)(a) of the constitution is also applicable to media along with citizens. AIR 1958 SC 578. 17-8-1978. of A. In a case that arose in PreIndependent India. Govt. American Press. The Andhra Pradesh High Court directed the Government not to misuse the power of releasing Government advertisements to the newspapers.33 CONSTITUTIONAL STATUS OF THE MEDIA The preamble to the Constitution of Indian resolves to secure for the citizens of India. Grosjean v. AIR 1981 AP 109. liberty of thought. Union of India. 1936.. Ushodaya Publications (P) Ltd. 297 US 233.31 (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. the Privy council held: 30 31 32 33 Statesman Calcutta. The media derives the rights from the right to freedom of speech and expression available to the citizens.30 The memorandum has been withdrawn later on.32 (k) Immunity from any tax specially imposed on the press or on advertisements in a newspaper. . expression and belief. circulate or broadcast. Express Newspapers v. which was calculated to limit its circulation.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. publish.

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. .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.M. AIR 1959 SC 395. as his fundamental right. Further being only a right flowing from the freedom of speech and expression. 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. and therefore cannot claim. his privilege is no other and no higher… No privilege attaches to his position. Emperor. Sharma v.34 The framework for analysing media rights remains much the same in Post-Independence India. AIR 1914 PC 116. that is to say. In M. as distinct from the freedom of the citizen. 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. the benefit of the liberty of the press. 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.S. so also may the journalist. apart from the statute law.

Union of India. Union of India. writing. Rangarajan v. It includes the freedom of communication and the right to propagate or publish one‟s views. Maneka Gandhi v. State of Delhi. Virendra v. the right to free speech and expression would have little meaning.56 rights of the press are implicit in the guarantee of freedom of speech and expression under Article 19(1)(a) of the constitution. AIR 1958 SC 578. 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.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. The freedom of circulation has been held to be as essential as the freedom of publication. Union of India. Union of India. magazine or movie38 including the electronic and audiovisual media. Express Newspapers Ltd. S. Union of India. printing.39 36 37 38 39 Brij Bhushan v. . State of Punjab. AIR 1962 SC 305.37 Article 19(1)(a) covers the right to express oneself by word of mouth. AIR 1973 SC 106. AIR 1962 SC 305. It is also a dynamic concept that has evolved with time and advances in technology. Sakal Papers v. Bennett Coleman & Co. v. Romesh Thappar v. (1978) 1 SCC 248. AIR 1950 SC 124. picture or in any other manner. 2010). Facets of Media Law 5 (Eastern Book Company. P. AIR 1950 SC 129. Without the right to circulate. both with regard to the content of the speech and expression and in the means through which communication takes place. State of Madaras. v. AIR 1957 SC 896. The communication of ideas may be through any medium. newspaper. Lucknow. Madhavi Goradia Divan. Jagjivan Ram (1989) 2 SCC 574. Sakal Papers v.

313. Union of India. Union of India42 the Supreme Court held that newspaper should be left free to determine their pages and their circulation. 1956 which empowered the Government to regulate the allocation of space for advertisement matter. in Bennett Coleman & co.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. The court held that any restriction leading to a loss of advertising revenue would affect circulation and thereby impinge on the freedom of speech. . The Supreme Court held that the 40 41 42 43 AIR 1962 SC 305. v. 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. (1985) 1 SCC 641. 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. AIR 1973 SC 106. 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.43 a challenge to the imposition of customs duty on import of newsprint was allowed and the impugned levy struck down. Ibid. In Indian Express Newspapers v..57 In Sakal Papers v. (1972) 2 SCC 788. This case arouse out of a constitutional challenge to the validity of the Newspaper (Price & Page) Act. Likewise. p.

In LIC v. . This includes the right to propagate one‟s views through the print or other media. 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). This was held by the Supreme Court in a 44 (1992) 3 SCC 637. Manubhai Shah44 the Supreme Court held that „the freedom of speech and expression‟ must be broadly construed to include the freedom to circulate one‟s views by word of mouth or in writing or through audio visual media. b) Right to receive information The freedom of 'speech and expression' comprises not only the right to express. The honourable court observed: Freedom to air one‟s 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. publish and propagate information. it circulation but also to receive information.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 this case. magazines. Union of India (2003) 4 SCC 399. Association for Democratic Reforms. Secy. v. (1988) 3 SCC 410. Union of India v. Lokvidayan Sanghatana. The petition was dismissed as the petitioner failed to show evidence of prejudice to the public. . Union of India.. (1985) 1 SCC 641.48 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). advertisements. 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. Cricket Association Bengal. Ministry of Information and Broadcasting v. (2002) 5 SCC 294. In Odyssey Communications (P) Ltd.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. v. (1995) 2 SCC 161. Indian Express Newspapers v. Mahanagar Telephone Nigam Ltd.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. 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. hoardings and so on. This would include the electronic and the broadcast media. 45 46 47 48 Tata Press Ltd. People’s Union for Civil Liberties v. (1995) 2 SCC 161..

Two judges of the Bombay High Court saw the film and rejected the contention that it has propagated the cult of violence. It was held that Doordarshan.49 Doordarshan refused to telecast a documentary film on the Bhopal Gas Disaster titled Beyond Genocide. Union of India. which depicted the event in Lahore immediately before the partition of the country.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. Shah. 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. on the ground that the film had lost its relevance and that it criticised the action of the State Government. a State controlled agency that was dependent on public funds was not entitled to refuse telecast except on grounds under Article 19(2).60 The right to broadcast was also recognized in LIC v. 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. . AIR 1988 SC 775. In another case. 1952. Manubhai D. The film was based on the novel of Bhisma Sahni. In another similar case Ramesh v. 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.

Bengal. Similarly. Ministry of Information and Broadcasting v. through the broadcasting media are an integral part of the freedom under Article 19(1)(a).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). . 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‟. in Secretary. Om Pal Singh Hoon.61 that scenes were not obscene. This case involved the rights of a cricket association to grant telecast rights to an agency of its choice. in this case. 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. The Supreme Court rejected the petitioner‟s contention that the scene of frontal nudity was indecent with in Article 19(2) and Section 5-B of the Cinematograph Act. In Bobby Art international v.51 the Supreme Court drew a distinction between nudity and obscenity. 51 52 (1996) 4 SCC 1. (1995) 2 SCC 161. It was held that the right to entertain and to be entertained. Cricket Association.

186. sky signs. radio. loudspeakers. Ibid. The participants in a sports event have a right to entertain. Supra n.55 53 54 55 Supra n. circulars. .53 The court went on to hold that since the broadcasting media depended on the use of airwaves. the rights of the telecaster were also limited. a limited common property resource. This limitation did not extend to the viewer.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. television. billboards. whose right to be informed. educated and entertained is paramount. p. 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. signboards. roof signs. newspapers and magazines. 37. 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.54 d) Right to advertisement (commercial speech) A product or a service may be advertised through a variety of methods such as hand bills. 52. direct mail. the internet and so on. mechanical or electric devices.

free flow of commercial information is indispensable. which would be restricted only within the limitation of Article 19(2). The public at large has a right to receive the commercial speech. without being educated by the information disseminated through advertisements.. The Bombay High Court allowed the appeal of the Nigam. Article 19(1)(a) of the constitution not only guaranteed freedom of speech and expression. 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. 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 court said : The Advertisement as “Commercial Speech” has two facts. v. The Tata Press went in appeal to Supreme Court. In a democratic economy. Mahanagar Telephone Nigam Ltd. Public at large are benefited by the information made available through the advertisements. is nonetheless dissemination of information regarding the product-advertised. The economic system in a democracy would be handicapped without there being freedom of “Commercial Speech”. Admitting the appeal. it 56 (1995) 5 SCC 139. There cannot be honest and economical marketing by public at large.63 In Tata Press Ltd.56 the Supreme Court held that a commercial advertisement or commercial speech was also a part of the freedom of speech and expression. . Advertising which is no more than a commercial transaction.

The case concerned a challenge to the provisions of the Drugs and Magic Remedies (Objectionable Advertisements) Act. v.64 also protects the rights of an individual to listen. It could only be restricted on grounds mentioned in Article 19(2) of the constitution. The court held that although an advertisement was a form of speech.59 57 58 59 Tata Press Ltd. Union of India. But if all it does is that it deprives a trader from commending his waves. 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). (1995) 5 SCC 139. Hamdard Dawakhana v. In an earlier ruling. advertisements were excluded from the realm of free 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. 58. Supra n.58 the Supreme Court held that advertisements being a commercial gain. read and receive the said speech. 564. Till this judgement57. could not avail of the rights under Article 19(1)(a). p.. Mahanagar Telephone Nigam Ltd. 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‟. it would not fall within that term”. AIR 1960 SC 554. 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. 1954 which was intended at preventing self-medication. .

65 It is curious reasoning to deprive commercial advertising from protection under Article 19(1)(a). profit making enterprises. A number of cases have arisen where the right of the media to interview convicts or under trials has been examined. An interview may be conducted provided that convict gives his consent to being interviewed. Traders and businessman who advertise for commercial gain.60 the petitioner was seeking to interview the condemned prisoners Billa and Ranga. subject to the willing consent of the person being interviewed. are no different from newspapers and other media that are run as Commercial. The reasoning that those advertising for commercial gain were disentitled to enjoy the right of free speech under Article 19(1)(a) appears flawed. In Prabha Dutt v. 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. e) Right to conduct interviews This is a limited right. 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. Union of India. . 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.

p. The Additional Session Judge had granted the news magazine. quoted with approval in Naresh Shridhar Mirajkar v. AIR 1967 SC. Charulata Joshi. engage as the in jail superintendent considers reasonable. to give legal interviews. Publicity is the very soul of justice. The court held that the under trial could be interviewed or photographed only if he expressed his willingness. 30. India Today a blanket permission to interview Babloo Srivastava who was lodged in Tihar Jail.61 the Supreme Court reiterated the restricted scope of this right. under trial. Scott. In State v.”62 61 62 (1999) 4 SCC 65. . have full swing only in proportion as publicity has place any of the checks applicable to judicial injustice operate. and evil in every shape. Openness is a safeguard against judicial error and misconduct. It keeps the judge himself while trying. Bentham quoted in Scot v. State of Maharashtra. stems for the necessity for transparency. it must be seen to be done. advisors etc. It is the keenest spur to exertion and the surest of all guards against improbity. Union of India (1998) 1 SCC 226. “In the darkness of secrecy sinister interest. Justice must not only be done. Vineet Narain v. Where there is no publicity there is no justice. f) Right to report court proceedings The right to report judicial proceedings. 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. (1911) All ER 1.66 prisoner sentenced communication with to death relations.

It is not only necessary to protect such 63 64 65 Lord Donaldson in Attorney General v. Saroj Iyer v. editors or journalists. AIR 2002 Bom 97. It is not because of any special wisdom. It enhances public knowledge and appreciation of the working of the law and the administration of justice. It is because the media are the eyes and ears of the general public. Guardian Newspapers Ltd. interest or status enjoyed by proprietors. For instance.67 The media enjoys privileges on account of the citizen‟s right to be informed on maters of public importance. 2).65 Publicity of proceedings is not an absolute rule. They act on behalf of general public. Maharashtra Medical (Council) of Indian Medicine. The open justice system must give way when there are higher considerations. (1988) 3 All ER 595. 600. Such persons may be reluctant to complaint if their identities are disclosed and trials publicised. p.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. 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. There is also a therapeutic value to the public in seeing criminal trials reach their logical conclusion. . State of Punjab (1994) 3 SCC 569. Kartar Singh v. the names of rape victims or riot victims must be protected.64 Publicity of proceedings serves another important purpose. (No. This right is available in respect of judicial and quasi-judicial tribunals.

12. Universal Declaration of Human Rights.. . The court has the inherent power under Section 151 of Code of Civil Procedure. State of Maharashtra.68 g) Right to expression beyond national boundaries The right to expression transcends national boundaries. Ibid. pp. 1948. family disputes warrant privacy. this right includes freedom to hold opinions without interference and to seek. It has made possible the transmission of information to any part of the world in a matter of seconds. “Every one has a right to freedom of opinion and expression. particularly to protect children from unwarranted publicity. 1908 to order a trial to be held in camera.66 In Naresh Shridhar Mirajkar v. It is possible via internet and phone. 37. AIR 1967 SC 1. Article 13.68 persons from public humiliation and embarrassment. p. The revolution in communications and the electronic media has broken down transnational barriers. 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. 8-9. receive and impart information and ideas through any media and regardless of frontiers”69 66 67 68 69 Supra n. 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.67 the Supreme Court held that the court may restrict the publicity of proceedings in the interests of justice.

p. 1950. Absence of such protection would demoralize creative artists and have a chilling effect on creative activity. Union of India. The Constitution of India. Article 19(1)(a) . Supra n. It is a natural extension of the freedom of speech and expression protected under Article 19(1)(a) of the constitution. So electronic media also has right to expression beyond national boundaries under Article 19(1)(a) of Indian Constitution. he must also be guaranteed protection of the intellectual property in his expression. 128.69 In Maneka Gandhi v. The laws of copyright protects the right of one person and restrains another from exercising corresponding rights. h) Copyright versus the freedom of expression The law of copyright is indeed to prevent plagiarism and unfair exploitation of creative work. 37.70 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. 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. A right for one person is thus a restriction on another. If an individual enjoys the freedom of speech and expression.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.

such as patronage. By enabling the creator to derive a financial award from the work. This is vital public interest in copyright protection. the requisite of a healthy democracy. In a leading American Case.73 Unlike defamation. Davies in “Copyright and the Public Interest” observed that copyright serves the public interest in freedom of expression. Chicago75 the rational behind the freedom of speech was explained J. Alternative methods of rewarding creators. Terminiello v. morality. Article 19(1)(g) Ibid. 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.. Donglas : 73 74 75 Supra n. 72. his artistic independence and right to create and publish according to his own wish and conscience is assured. Article 19(2) (1948) 93 L Ed 1131 : 337 US 1 (1949) . decency. Writer G..74 The right of free expression or free trade cannot be stretched to mean that a person can be entitled to benefit from another‟s property or the fruits of another‟s labour. incitement to an offence etc. contempt. copyright is not one of the specified restrictions imposed under constitution.70 freedom of business. either by the State or by individual carry the risk of control or censorship.

p. It may indeed best serve its high purpose when it induces a condition of unrest. v. (2002) 2 Mah LJ 14.71 "[A] function of free speech under our system of Government is to invite dispute. would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. Commercial Tax Officer. in Printers Mysore Ltd. Chicago. courts or dominant political or community groups. (1994) 2 SCC 434. It may strike at prejudices and preconceptions and have profound unsettling effects at it presses for acceptance of an idea…. 1860 which penalizes attempts to excite disaffection towards the Government by words or in writing and publications which may disturb public tranquility. There is no room under our constitution for more restrictive view for the alternative would lead to standardization of ideas either by legislatures. State of Maharashtra78 a full bench of the Bombay High Court. (1948) 93 L Ed 1131. Speech is often provocation and challenging. . Asstt. 1134. AIR 1962 SC 955. creates dissatisfaction with conditions as they are. J. or even stirs the people to anger. quoted with approval by Jeevan Reddy. The Supreme Court dismissed the challenge but classified that criticism of public measures or comment on Government action. State of Bihar77 there arose out a constitutional challenge to Sections 124-A and 505 of Indian Penal Code. In Anand Chintamani v. however strongly worded.”76 In Kedar Nath Singh v. while quashing an order of forfeiture under 76 77 78 Terminiello v.

writer and of the poet will be reduced to husk if the freedom of portray a message.72 section 95(1) of the Code of Criminal Procedure. A society wedded to the rule of law. 78. The right of a playwright. . Respect for and tolerance of a diversity of viewpoints is what ultimately sustains a democratic society and Government. 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. prose or verse-is to depend upon the popular perception of the acceptability of that message. 1973 in respect of “Me Nathuram Godse Boltoy” a play critical of Mahatma Gandhi. pp. The law does not have to accept the views which have been expressed by the petitioner as a playwright to express those views. whether it be on canvas. Popular perceptions. 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. 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. of the artist. 32-33.

115. .80 In Tej Kiran Jain v. 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. AIR 1970 SC 1573. to enable them to discuss and debate matters of importance without the fear of inviting liability of any sort. (1970) 2 SCC 272. the good sense of members and the control of proceedings by speaker. p. Articles 105. Legislative privilege refers to special rights conferred by the constitution on parliament and state legislatures to ensure freedom of speech for legislators. Contempt of Parliament has been described as. What they say is only subject to the discipline of the rules of parliament. (1). to produce such results may be treated as a contempt even though there is no precedent of the offence of sentence. The courts have no say in the matter and should really have none. 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. Parliamentary Practice. 21st Edn. “Any act or omission which impedes either House of Parliament in the performance of its functions.”81 An extension of legislative privilege is the power of the legislature to punish for breach of privilege or for contempt of the House. Erksine May.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. 1950. N.”82 80 81 82 The Constitution of India. 194.

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. In Searchlight case. The Supreme Court held that the report of an expunged portion of a member‟s speech would. The court sounded a note of caution against the exercise of privilege and the power to punish for contempt.S. a well-known English daily for publishing an expunged portion of the proceedings of the Bihar State Assembly. In re Keshav Singh. AIR 1965 SC 745. Krishna Sinha. prima-facie. Parliament Privilege has upper hand over Article 19(1)(a).M. While answering the presidential reference and holding that the Judges had not committed contempt of house.83 a notice for breach of privilege was issued against the editor of Searchlight. arose out of a presidential reference under Article 143(1) of the Constitution.e.74 Once these powers of legislature came in confrontation with the media. The editor‟s petition in the Supreme Court complaining that his right to freedom of speech had been violated was dismissed. 83 84 M. AIR 1959 SC 745. the Supreme Court stressed that legislative privilege must be subject to the fundamental rights of the citizen. . Sharma v. A landmark judgement84 on legislative privilege and contempt of the legislature. 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.

which is known as “public interest”88 The reconciliation of the contest between power and liberty. where the live telecast of legislative proceedings has become mandatory. New York. Further in the absence of defined privileges. The liberty of the individual to do as he pleases even in innocent matters is not absolute. P. in the collective interest of society. State.V. It must frequently yield to common good. 16(1) cable/2005 E-III dated 25 Feb. absolute and unrestricted individual rights do not exist. (CBI/SPE) (1998) 4 SCC 626.85 the whole concept of legislative privilege & contempt is anachronistic. 2005 issued by Prasar Bharati. Like any other freedom. . 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. State of Madras.87 Freedom of the press has to be reconciled with the collective interest of the society. there are certain permitted prior restraints and restrictions on the freedom of the press. the freedom of speech and expression has to be balanced with other social values. because they cannot exist. Narashima Rao v.86 CENSORSHIP OR RESTRICTIONS ON FREEDOM OF SPEECH AND EXPRESSION In a modern State. (1925) 263 US 652 and Kochuni v. Childrens Hospital.75 In an age of information & technology. Gitlow v. 1923 261 US 525. Adkins v. Prior restraint means 85 86 87 88 Gazettee Notification No. So. this power is misused with impunity.. Freedom is more purposeful if it is coupled with responsibility. AIR 1960 SC 1080.

It is likely to bring under Government scrutiny a far wider rang of expression. Prof. The Statesman 8-1-1983. Emerson. Thomas I. . The standard applied by the officer is not subject of judicial review. Emerson has said: …A system of prior restraint is in many ways more inhibition than a system of subsequent punishment.92 89 90 91 92 Supra n. 1970).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. the system allows less opportunity for public appraisal and criticism. 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. dynamics of the system drive towards excesses. as the history of all censorship shows. 11.89 Censorship means a bar on further publication of a journal or of matter of a special kind without “advance approval of an executive official”90 Under an order of censorship. New York. Ibid. A Government official becomes the guardian of the people‟s mind. p. ideas and expression which acts as a deterrent to the creation of new thoughts. The System of Freedom of Expression 506 (Random House Vintage Books. Thomas I. 94.91 Writing on the effect of censorship on the press.

77 To censor is to act so as to change or suppress speech or writing that is condemned as subversive of the common good.C. It authorises the State to impose reasonable restrictions for preserving the interests specified there in. 1991. Ibid. 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. One such example is execution of Socrates in 399 B. 1991. These restrictions must be reasonable both substantively and procedurally. Macropaedia. 621. 3. Vol. 93 94 95 96 The New Encyclopedia Britannica. and an attempt to stamp out the influence of Confucius and other sages. blatant oppressiveness. 620 Ibid. Vol.C. but other new divinities of his own. 15. on charges that he corrupted the youth and he did not acknowledge the God.. the State has power to prevent the dissemination of such information and comments as would interfere with successful prosecution of the war. 15th edn. AIR 1957 SC 896 . 15th edn..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. In the Indian Constitution Article 19(2) makes no distinction between times of war and of peace. p.. that the city did. p. Macropaedia.93 But it has been abused a lot by ruling regime to hide their misconduct..94 In China in 231 B. The decision of the Supreme Court in Virendra v. could be seen in the wholesale destruction of books.

Clause (2) of Article 19. State of Delhi. or prevent the State from making any law. Union of India (1978) 1 SCC 248. AIR 1950 SC 129. v. Gopalan v. at the same time provides: “nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law. Union of India.  Incitement to an offence. State of Madras98 Patanjali Sastri J. and Das J. Union of India. The meaning of the term reasonable restriction has been a matter of judicial discussion.  Defamation.K.  Friendly relations with foreign states. AIR 1973 SC 106. AIR 1958 SC 578. 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. tried to explain the term „restriction‟. There has been a doubt whether the term „reasonable restriction‟ also includes „total prohibition‟.  Public order.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”. Maneka Gandhi v. .  The Security of the State.. Union of India.J. Kania C. 1950 IND LAW SC 42. In A. Das J.. Bennett Coleman & Co. v. Express Newspapers Ltd.  Decency or Morality. was of the view that the 97 98 Brij Bhushan v. AIR 1962 SC 305.  Contempt of Court. Sakal Papers v.

J. Article 358 & 359. Such a restraint on the exercise of right.79 word „restriction‟ implies that the fundamental right is not destroyed in entirety but passport of it remained. Union of India. a) Reasonableness of restrictions There are two conditions imposed by the Constitution to validate the restriction on the freedoms guaranteed by Article 19(1). but the „exercise‟ of it. the test of reasonableness depends upon the nature of the right alleged to have been infringed. which deals with proclamation of emergency. Later the Supreme Court in another decision99 interpreted the term to mean „total prohibition‟ where the restriction was reasonable. Any law restricting these freedoms must satisfy these two conditions. The restriction when it is unreasonable does not affect the right and when it is reasonable it only restrains the exercise of that right. 1959 IND. the underlying purpose of the restriction imposed. interpreted it as „partial control‟ and distinguish it from deprivation.100 Further. LAW SC 61. It is submitted that what is restrained in not the „fundamental right‟ which continues unaffected. . the disproportion of the imposition and the prevailing conditions at the time of imposition of such restriction. Patanjali Sastri J. The Constitution of India. 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. the extent and urgency of the evil sought to be remedied thereby. may be partial or total. when reasonable. Kania C. in reasonable restrictions. was of the view that the term did not mean „total prohibition‟.

101 AIR 1964 SC 1667. State of M. 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. 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. are imposed or upon abstract . The Constitution does not define the expression “Reasonable Restrictions”.P.101 for ascertaining the reasonableness of restrictions on the exercise of the rights secured under Article 19 of the Constitution. 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. 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. In determining the reasonableness of statute.80 restriction on that particular right and the restriction must be a reasonable one. 2. which are as follows: 1. The following are some of the principles which the Supreme Court of India has affirmed in Narottamdas v.

the extent and the nature of the mischief required to be suppressed and the prevailing social and other conditions at the time. under circumstances amounts to a reasonable restriction only. The word “restriction” also includes cases of prohibition and the State can establish that a law. the purpose of the restriction. he cannot complain of the reasonableness of the law. though purporting to deprive a person of his fundamental right. The Indian Constitution provides reasonably precise general guidance in the matter of reasonableness. 6. 9. 8. 5. 7. A law may be reasonable but the restriction imposed by it on the exercise of freedom may not be reasonable. A restriction that is imposed for securing the objects laid down in the Directive Principles of State Policy may be regarded as reasonable restriction. The court is called upon to ascertain the reasonableness of the restrictions and not of the law which permits the restriction. If a restriction is not imposed by legislation but is the result of a contract freely entered into by the citizen. The conferment of wide powers exercisable on the subjective satisfaction of the Government cannot be regarded as .81 4. 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.

A third proclamation of emergency dated 25th June. Tripathi Pvt. the restriction imposed by it must be unreasonable. 1976. Sorabjee J. 1975.”102 During Indo-China War in 1962. A second emergency was declared on 3rd December 1971. 10. Section 3(i). 1968. prohibition of that freedom merely makes the agitation more dangerous because it drives it underground. b) Emergency and press censorship “Almost always freedom of speech results in a mitigation which renders disorders unnecessary. also. 1975 was gazetted on 26th June. The Law of Press Censorship in India. 11/16013/1/75-S&P(D-II). The retrospective operation of legislation is a relevant factor in deciding its reasonableness.. quoted in S.103 102 103 Harold J. almost always. It declared that a grave emergency exists whereby the security of India is threatened by internal disturbances. Laski. 1975. . the president proclaimed first emergency on 26th October.. when another war with Pakistan began. 1962 and continued when Pakistan was in war with India to 1965 and continued till January. Gazette of India. Part II. Extraordinary.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. N. 26 June. It is not correct to say that because the retrospective operation covers a long period. Ltd. Notification No. but it is not always a decisive test.M. Liberty in the Modern State.

105 Mrs. 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. continued to lose the popularity owing to certain policies and personal politics like introduction of her son Sanjay Gandhi into active ruling politics. . As the „vacation 104 105 AIR 1973 SC 1461 1980 (3) SCC 625. By the Constitution (Forty-second Amendment) Act 1976. v.83 Mrs. who won a massive victory during 1971 elections and after victory creating Bangladesh. 1975 was made to empower the President to issue overlapping proclamations of emergency on the grounds of external aggression or internal disturbance. Her party lost several by elections and her election to Lok Sabha from Allahabad was successfully challenged by Raj Narain. 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. Union of India. All these provisions were later struck down as unconstitutional by Supreme Court in Minerva Mills Ltd. Indira Gandhi Government started amending the constitution & several laws to secure her position and actions. The Constitution 38th Amendment Act. Indira Gandhi.

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

Extraordinary. every newspaper or periodical has to submit for scrutiny to an authorized officer any news. beloved husband of T.O. published in the Gazette of India. Then the censorship of newspapers was imposed107 under Defence of India Rules. . Hope. These guidelines impose an obligation on the press to assist the censor by suppressing „plainly dangerous‟ 106 107 Mrs. It was accompanied by „Guidelines for the Press”. According to this order. Indira Gandhi’s broadcast to the nation. 1971. 26th June 1975. Bertie. Iyer : State of Emergency 159 (2000). expired on 26th June. Justice. S. 275 (E) dated 26th June 1975. brother of Faith. loving father of L. comment. rumour or other report relating to certain specified subjects before its publication. quoted in V.I. Central Censorship Order. The forces of disintegration are in fully play and communal passions are being aroused.Ruth. Part II. threatening our unity… Now we learn of new programmes challenging law and order throughout the country with a view to disrupting normal functioning. Section 3(ii).85 of inciting our armed forces to mutiny and our police to rebel…. How can any Government worth the name stand by and allow the country‟s 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.

control of dramatic performances. or to bring the Government into hatred or contempt or to encourage or incite the use of criminal force against public servants. not reproducing objectionable matter published by other Indian or Foreign newspapers. any action taken under the MISA (Maintenance of Internal Security Act. 1971). committing of „prejudicial‟ acts. The Censorship Order was amended several times to strengthen the restrictions and concentrate power in the center to censor the newspapers in States also. not giving publicity to rumours. The newspapers were not allowed to leave blank spaces in the editorials. sabotage. Even publications of statements by ministers in Parliament or the State Legislatures were made subject to the censorship guidelines. The chief censor was empowered to detain. 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. imposition of President Rule in Tamil Nadu and Gujarat and family planning. not publishing anything which would likely to cause disaffection among members of armed forces or civil servants. Reporting the actions for contravention of various provisions of law and rules. control of cinematography. Reports about arrest of political adversaries to Indira Gandhi were not allowed to be published in newspapers. illegal possession of information and documents. general control of arms and explosives. public safety and order.86 news. the control and winding up of the organisations. . paraphrase or edit telegrams and to intercept and censor postal articles. censorship.

the Vice-President. 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)).87 which symbolically suggest that there is suppression of expression. or excite disaffection towards the Central or State Governments or which was defamatory of the President of India. Editors were not allowed to indicate that any item had been subject to censorship. the Speaker of the Lok Sabha and Governors of the States. the Prime Minister. August. 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. Government of India. This Act gives enormous powers of censorship of the Government. 14). 27-28 (1977). 108 White Paper on Misuse of Mass Media During the Internal Emergency. 11. (b) to forfeit the publication which contravened such orders (Section 6). New Delhi. 1976 was passed Section 3 of this Act prohibits the publication of material which would likely to bring State into hatred or contempt. (d) to demand monetary security from printing presses.108 Then the Prevention of Publication of Objectionable Matter Act. (c) to imprison those responsible for contravention (Section 7). . publishers and newspaper editors (Sections 8.

Under the Censorship Order the Censor is appointed as nurse-maid of democracy and 109 (1976) 78 Bom LR 125. at seaports and airports foreign newspapers.109 the Bombay High Court held that the censor banning several news items from publication was bad.88 (e) to detain. books and other documents suspected of containing „objectionable‟ matter (Section 20). M. The Bombay and Gujarat High Courts struck down the Censor Orders and permitted the publication of prohibited news items. which can be exercised with the authorization of a magistrate (Sections 33. In Binod Rao v. . (h) to search and seizure were conferred on the Government. (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). Masani.R. 34). 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.

Merely because dissent. Vaidya v. which was originally pushed through by her husband during her father‟s rule to secure the publications of parliament proceedings in newspapers. Mr. 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. 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. 1965 and abolished the press council which was securing the press from the Governmental pressures and other attacks. Penha Special Civil Application No. the lifelessness of forced conformity. These were 110 C. and it is not for the Censor to inject into this. Judgement delivered on 22nd March 1976 as quoted in Sorabjee’s book. Soli J. a Gandhian journal. simply for reporting the proceedings of the Civil Liberties conference criticizing the Government. H. The Indira Gandhi Government has repealed The Press Council Act.89 not its grave-digger. disapproval or criticism is expressed in strong language is no ground for banning its publication. 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. 141 of 1976. Another law that repealed during her regime was the Parliamentary Proceedings (Protection of Publication) Act 1956.D.. .

(5) Government-owned banks and financial institutions were ordered to deny loans to „hostile‟ newspapers. 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.90 severe blows to freedom of press during the emergency which suppressed the expression adverse to ruling powers. Government of India. (2) Government departments and public sector enterprises were ordered not to issue advertisements to publications which were regarded insufficiently supportive of the Emergency. even where such loans had previously been approved on purely commercial considerations. (3) Several such publications were denied. 111 White Paper on the Misuse of Mass Media During the International Emergency. neutral and hostile. (4) In cases where a newspaper remained resolutely hostile to the Emergency. 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 a comprehensive list of all newspapers and journals and classify them under three heads – friendly. . New Delhi. August 1977. their previously determined quota of State-Controlled newsprint or denied licences to import essential machinery.

resulting in the denial to them of the normal facilities extended to all working journalists. was withdrawn. 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. (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.91 (6) The official accreditation of some 51 leading journalists (including reporters. In some cases. (9) Several journalists who had written articles critical of the Emergency were arrested under preventive detention laws. (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. cartoonists and photographers). such as access to press conferences and to other sources of information. (11) The Government‟s Directorate of Advertising and Visual Publicity (DAVP) and the Publications Division were made to . seen to be „unfriendly‟ to the Government. because their reporting on the Emergency was perceived as „unhelpful‟‟.

A senior civil servant from the Prime Minister‟s Secretariat remained permanently in the AIR news rooms to give suitable directions to journals. 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.V. 88 (1977). Film-makers and artists who refused to co-operate were blacklisted. The coverage of news and current affairs was severely biased in favour of the ruling party and against the opposition. August. Film producers who were intending to avail of Kumar’s 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.92 launch propaganda in support of the Prime Minister and the Congress party and to discredit the opposition. (14) The national industry was also put under pressure to aid the Government‟s propaganda campaigns. programme designed to extol the virtues of the Emergency. found all his songs banned from All India Radio and television. was misused to generate political propaganda for the Congress Party and in particular. Sanjay Gandhi. Kishore Kumar.112 and several films which were seen as „unhelpful‟ to the Prime Minster and her 112 A leading playback singer. Mrs. who refused to take part in a T. Gandhi and her son. (13) All India Radio. which enjoyed a monopoly over both radio and television broadcasting. New Delhi. (12) Employees of the DAVP and the Government-owned All India Radio were made to produce Indian language translations of the Congress Party‟s election manifestos and to design posters for the Prime Minster and the Minister for Information and Broadcasting. . Government of India.

Inserted by the Constitution (Sixteenth Amendment) Act.114 This was as a reaction of the tense situation prevailing in different parts of the country. an American blockbuster based on the Watergate scandal involving the disgraced former President of the United States. Mysore. 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. 1963. Gandhi. Also around this time. 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‟. there were strong demands led by Master Tara Singh for a separate Sikh homeland.113 c) Sovereignty and integrity of India „Sovereignty and integrity of India‟ as a ground under Article19(2) for restricting the freedom under Article 19(1) (a) was added by amendment. The producer had to reframe the story line in consultation with the Minister of Information and Broadcastign before it was cleared for public exhibition. a politician bore a striking resemblance to Mrs. Kerala and Andhra. Section 2. . Aandhi was banned on the grounds that its protagonist.93 regime were denied exhibition certificates by the Central Board of Film Censors. Another film which was banned was All the President’s Men. Richard Nixon. Chinese incursions have started in the north-east in 1960. The Dravida Munnertra Kazhagam (DMK) had called for an entity separate from India called Dravida Nadu comprising Madras.

Javali v. 2002 on the ground. para 52.115 d) Security of the State and public order „Public order‟. State of Bihar.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 People’s Union for Civil Liberties v. „law and order‟ and „Security of the State‟ are not synonymous expression. State of Mysore. the supreme Court dismissed a challenge to the Prevention of terrorism Act.K. Kedar Nath Singh v. These concepts are in the nature of three concentric circles. that Parliament was competent to legislate on the subject of terrorism which was a threat to the security and sovereignty of the nation. Sub-Divisional Magistrate. pp. The amendment enabled the enactment of laws such as the Criminal Law Amendment Act. AIR 1962 SC 1106. inter alia.116 In Madhu Limaye v.94 inconsistent with Article 19(1) (a). 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‟. Thus. AIR 1966 SC 740. Union of India. within which lies the next circle representing „public order‟ and within which is the smallest circle representing „security of State‟. . V. This Act was subsequently repealed with effect from 21st September. 2004. Dalbir Singh v. (2004) 9 SCC 580. Ram Manohar v. AIR 1966 SC 1387. AIR 1962 SC 955. State of Punjab. State of Bihar. 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. 1961 and the Unlawful Activities (Prevention) Act.758-59. „law and order‟ representing the largest circle. (1970) 3 SCC 746: AIR 1971 SC 2486.

State of Madras118. The insertion of „public order‟ as a ground under Article19(2) by the Constitution (First Amendment) Act. riot. 1951 was an attempt to get over the effect of the decisions of the Supreme Court in Romesh Thappar v. the absence of insurrection. . that is.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. Patanjali Shastri. The case was a challenge to Section 9(1-A) of the Madras Maintenance of Public Order Act. In considering whether the impugned Act was made in the interests of the security of the State.95 Ordre Publique. turbulence. ta t e S ec u 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. 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. or crimes of violence. J. But it does not include acts which disturb only the serenity of others.

Similarly. the Constitution in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in Article 19(1). the difference between them being only a difference of degree. has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it. that is to say. made their prevention the sole justification for legislative abridgement of freedom of speech and expression. 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 . 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.96 Though all these offences thus involve disturbances of public tranquility and are in theory offences against public order. more or less roughly. 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.

AIR 1950 SC 129. signs or visible representations which incite or encourage or tend to incite or encourage the commission of any offence of murder or violence. although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. .97 significance treating for this purpose difference in degree as if they were differences in kind…. Mere Criticism of Government action would not fall within the mischief of „Public order‟ and would be protected under Article 19(1)(a).120 This decision was followed by the Supreme Court in Brij Bhushan v. State of Bihar.121 In State of Bihar v. AIR 1952 SC 329. undermines the security of the State and falls within the ambit of Article 19(2). Shaialabla Devi.122 while interpreting Section 4(1) (a) of the Press (Emergency Powers) Act. Ibid. State of Delhi. AIR 1962 SC 955. 1931 dealing with words. In Kedar Nath Singh v.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.123 while interpreting the 119 120 121 122 123 AIR 1950 SC 124. such law cannot fall within the restriction under clause (2) of Article 19. the Supreme Court held that any speech or expression which incites or encourages the commission of violent crimes such as murder.

within the meaning of this section when the person making. Section 505 : Statements conducing to public mischief : (1) Whoever makes.98 scope of Sections 124-A124 and 505125 of the Indian Penal Code. do not constitute an offence under this section . brings or attempts to bring into hatred or contempt. publishes or circulates it in good faith and without any such intent as aforesaid. shall be punished with imprisonment for life. any class or community of persons to commit any offence against any other class or community. 10 the Government established by law in India. the Supreme Court held that the activity would be rendered penal only when it is intended to create disorder. to which fine by law in India. or by visible representation. or which is likely to incite. hatred or ill-will between classes : Whoever makes. etc. publishes or circulates any statement. fear or alarm to the public. [Navy or Air Force] [of India] to mutiny or otherwise disregard or fail in his duty as such. Explanation 3 : Comments expressing disapprobation of the administrative or other action of attempting to excite haltered. or which is likely to cause. shall be punished with imprisonment which may extend to three years. shall be punished with imprisonment which may extend to [three years]. language. soldier. or which is likely to cause. (3) Offence under sub-section (2) committed in place of worship. shall be punished with imprisonment for life. or with fine. or with fine. . rumour or report is true and makes. or excites or attempts to excite disaffection towards. on grounds of religion. any officer. or which is likely to create or promote. race. shall be punished with imprisonment which may extend to five years and shall also be liable to fine. or (b) with intent to cause. or with fine. racial. or by signs. or otherwise. Explanation 1 : The expression ”disaffection” includes disloyalty and all fallings of enmity. or with both. It is only when the 124 125 124A : Sedition : Whoever. or with both. 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. do not constitute an offence under this section. place of birth. however strongly worded. publishing or circulating any such statement. caste or community or any other ground whatsoever. to which fine may be added. residence. or (c) with intent to incite. without exciting or attempting to excite hatred . 1860.[sailor or airman] in the Army. to which fine may be added. feelings of enmity. publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote. by words. The Criticism of public measures on Government action. has reasonable grounds for believing that such statement. contempt or disaffection. either spoken or written. : 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. or with imprisonment which may extend to three years. contempt or disaffection. would be within reasonable limits and would be consistent with the fundamental right of free speech and expression. rumour or report : (a) with intent to cause. Exception : It does not amount to an offence. rumour or report. language or regional groups or castes or communicates. hatred or ill-will between different religious. Explanation 2 : Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means . (2) Statements creating or promoting enmity.

The impugned provision was struck down by the Supreme Court. There should be a reasonable and rational relation between the act and the object sought to be achieved.968-69. Ibid. 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.128 In matters of forfeiture of books or other publications by the Government on grounds of a likely disturbance of public order. the courts have emphasised the necessity for 126 127 128 Supra n.. not a far fetched or remote connection. 1932 which made it an offence to instigate persons not to pay dues to the Government.126 Supdt.. 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. Dr Lohia was arrested under the Act for making speeches exhorting people not to pay the Government‟s increased irrigation rates. pp. 123. written or spoken.P.99 words. Special Powers Act. Central Prison v. . AIR 1960 SC 633. which held that the provision was not „in the interest of Public order‟.127 Concerned a challenge to Section 3 of the U. Ram Manohar Lohia. p. tranquility or the like. 640.

1665-66 (1972) 3 SCC 676. In Harnam Das v. 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.. Under Section 99-D of the Code of Criminal Procedure. 131 concerned a challenge to an order under Section 4 of the Criminal Law 129 130 131 AIR 1961 SC 1662 Ibid. 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... 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.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. pp.130 Narayan Dass Indurakhya v. State of U. State of M. 1860. . 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.P. could justify that opinion.100 the Government to lay down the precise grounds under which such forfeiture became necessary.P. 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.

134 the petitioner challenged the Confiscation of books imported by him from China 132 133 134 Supra n.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. The Supreme Court further emphasised that grounds must be distinguished from the opinion of the Government. The High Court upheld the order of forfeiture passed by the State Government. (2002) 2 Mah LJ 14. 131. Union of India. 1961 which empowered the Government to declare any newspaper. 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. p 680. (1994) 5 SCC 550. .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. the Supreme Court held that the forfeiture was vitiated since the notification failed to state the grounds of the State Government‟s 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. State of Maharastra.101 (Amendment) Act. 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. However.

135 the Cable Television Networks (Regulation) Act.137 135 136 137 The Cinematograph Act. The Cable Television Rules. 2005. Section 5-B (1). 1952. At present there is no specific legislation on this subject. It was found that the order of Confiscation failed to specify which of the books contained words. Section 8(1)(f). 1994. Rule 6(1)(b). 2005. 1995. The orders of confiscation were struck down as being violative of Article 19(1)(a).102 Containing Marxist literature under Section 111-D of the Customs Act. 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. 1962. However. or propaganda in favour of war with a state at peace with India. 1952. 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. Laws regulating media are enshrine in these statutes include the Cinematograph Act. 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. Section 5(1)(a). . a variety of statutes contain restrictions on forms of expression which would have an adverse impact on friendly relations with foreign states. The Right to Information Act.136 and the Right to Information Act.

Ram Mahohar Lohia. at the time. the effect it would have on their minds. AIR 1960 SC 633. The attempt to keep out evil doctrine by 138 139 140 General Clauses Act. the class of the people who would read it.140 g) Morality. a punishable offence under an existing law. 1897. Central Prison v. According to the general Clauses Act. The court must look to the circumstances in each case in judging such a tendency . obscenity and censorship Promiscuous reading is necessary to the constituting of human nature. AIR 1952 SC 329. the law imposing a restriction relating to „incitement to an offence‟ must relate to pre-existing offence i. the legislation must be in respect of a definite offence.103 f) Incitement of an offence The Word „offence‟ is not defined in the Constitution. State of Bihar v. 1897 it means „any act or omission punishable by any law for the time being in force. the time at which it was published.‟138 In order to qualify as a reasonable restriction under Article 19(2). the context of the words and the interval between the incidents narrated and the publication of the work. the incitement must be of an act which is. Section 3(38) Supdt. the purpose of the work.e. 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. . Shaialabala Devi.139 Further..

morality and public order. 574. 11.. . a nation not sow and dull. but of a quick. One of the restrictions under Article 19(2) is decency. above all liberties.142 Images of 141 142 Johan Milton : Areopagitica. p. Its utility in educating. dance and drama through small screen of television. multi-channel visual splendors is totally occupying young mind. Lords and commons of England. It must not be shackled or restricted. to other and to argue freely according to conscience. So restriction on freedom of speech and expression was put which may otherwise be conveniently abused for deliberately lowering the public morals. Give me the liberty to know. The television with powerful. The society is bound to decay if high standards of decency and morality are not maintained.. 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. informing and news-giving is camouflaged by its misuse in dishing out obscene ad indecent stuff in the name of entertainment.104 licensing is like the exploit of that gallant man who thought to keep out the crows by shutting his park gate. Pornography is available in its vulgar form in personal computer with world wide web. consider what nation it is whether of ye are.. story. 1644. ingenious and piercing spirit. Supra n.141 The society is now reeling under the impact of unending flow of cinema.

impure.” In Ranjit D. 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. The internet as an information infrastructure is a communicative device. State of Maharashtra144. the most powerful and effective vehicle of thoughts at present. is viewed as a tool for democratizing speech on a global basis. State of Maharastra143. either by way of commercial advertisements or themes of serials or in reality shows or repeated show of films. i) Decency and morality Decency and morality notions evolve with time and social changes and vary vastly between different cultures. „Obscenity‟ has been defined by the Supreme Court as „the quality being obscene which means offensive to modesty or decency. (1969) 2 SCC 687.105 women in electronic media. Udeshi v. Item songs like „Munni Badnam Hui‟ and „Sheela Ki Jawani‟ etc are having tremendous impact because of its repetition on TV. . obscene means “offensive to modesty or decency expressing or suggesting unchaste and lustful ideas. What may be morally acceptable to one section of society may be outrageous to another. can straight away influence the young mind. In Chandrakant Kalyandas Kakodkar v. lewd. According to Oxford Dictionary. fifty and repulsive‟. indecent.

representation. R. or (where it comprises two or more distinct items) the effect of any one of its items. if taken as whole. Pacificia Foundation.106 contemporary society. Stanley. „Indecency‟ is a concept wider than „obscenity‟. This makes it extremely difficult to define or straitjacket these concepts. C. Greater London Council. is.147 145 146 147 R. drawing. (1965) 1 All ER 1035. (1976) 3 All ER 184. particularly one as socially disparate and culturally diverse as India. . painting. such as to tend to deprave and corrupt persons who are likely.145 what is „indecent‟ need not always be „obscene‟. v. v. But even within the same country. (1978) 438 US 726 (740). paper. Section 292(1) of Indian Penal Code. to read. see or hear the matter contained or embodies in it. „obscenity‟ refers to that which has prurient or lascivious appeal. pamphlet. there are widely varying standards of moral acceptability. 1860 defines „obscenity‟ thus : a book. writing. F. 188-89.C. 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. having regard to all relevant circumstances.146 In other words while „indecent‟ merely means non conformance with accepted standards of morality. v. Although anything that is „obscene‟ must necessarily be „indecent‟. pp.

known as Hicklin's test. State of Maharashtra.149 iii) Obscenity and pornography In Ranjit D. iv) Test of obscenity Indian Courts have chosen to adopt the old and long outdate English test. p. laid down the test thus: 148 149 150 151 (1985) 4 SCC 289. . R. 318. AIR 1965 SC 881. Hicklin.148 the Supreme Court held: A vulgar writing is not necessarily obscene. In Samaresh Bose v. Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have effect of depraving.J.. pornography is obscenity in a more aggravated form. pictures etc. It was held that while pornography denotes writings. whereas obscenity has the tendency to deprave and corrupt those whose minds are open to such immoral influences. obscenity may include publications not intended to do so but which have that tendency. C. intended to arouse sexual desire.107 ii) Obscenity and vulgarity There is a distinction between obscenity and vulgarity. Ibid. (1868) LR 3 QB 360.150 the Supreme Court drew a difference between obscenity and pornography. While both offend against public decency and morals. v. debasing and corrupting the morals of any reader of the novel.151 Cockburn. Amal Mitra. Udeshi v.

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.. The preamble described the legislation as „an Act to amend the law relating to the publication of obscene matter.H. 4th Edn. . 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. Media Law 156 (Penguin Book Ltd.. thoughts of a most impure and libidinous character. D. Robertson & A. to provide for the 152 153 Supra n. 2002). 1959 was enacted in the UK as a result of a campaign to afford protection to publications with literary merit. Nichol.108 I think the test of obscenity is this. The defence of literary merit was not available and the test licensed the prosecution of several literary works early in the 20th century. 151. whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences. p. 371. Lawrence‟s The Rainbow was destroyed in 1915. or even to persons of more advanced years. G. whether or not they were likely to read it.152 Hicklin’s test was based upon the effect of a publication on the most vulnerable members of society.

154 The Supreme Court felt that Hicklin’s 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‟. and to strengthen the law concerning pornography‟.e. having regard to all relevant circumstances. AIR 1965 SC 881. six years later. persons who are likely to read. . 1959. Although Hicklin’s test was buried in England with the enactment of the Obscene Publications Act. The definition of „obscenity‟ in the Act is based on the tendency to deprave and corrupt the likely audience i.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. State of Maharashtra. Ibid. see or hear the contents of the publication rather than those into whose hands the publication may accidentally fall. 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. In Ranjit Udesh v.109 protection of literature. see or hear the matter contained or embodied in it‟. and not just on any person into whose hands the publication may accidentally fall. Udeshi v. the Supreme Court in India chose to adopt it in Ranjit D. to read.

Ibid. filthy and repulsive. or having that tendency‟. The Supreme Court confirmed the conviction and rejected the challenge to the constitutionality of Section 292 of the Indian Penal Code. In Raj Kapoor v. . ascetic chants and austere abnegation but by 157 158 159 Supra n. and thus became subject matter of dispute when obscenity has flown through the celluloid. The Court relied on Hicklin’s test and further interpreted the word „obscene‟ to mean that. 156. 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.158 v) Film medium Film has overtaken as the most impressive and powerful medium. “Man need beautiful surroundings and tempted by biological needs. which is „offensive to modesty or decency. The much acclaimed showman of the millennium Rajkapoor was in court for his controversial film Satyam Shivan Sundaran. State159 Supreme Court said. lewd. 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. Lawrence‟s Lady Chatterley’s Lover. 1980 (1) SCC 43.110 a book containing „obscene‟ material. Social scientists and spiritual scientists broadly agree that man live not alone mystic squints.‟157 In determining what can be classified as „obscene‟.

sculptures. the Supreme Court was dealing with a pro bono publico prosecution against the producer. if prudes and prigs and state moralists prescribe paradigms and prescribe heterodoxies. actor and other connected with a film called “Satyam. nothing succeeds like excess. sensuous joy of companionship and moderate non-denial of normal demands of flesh. morals and law‟s manacles on aesthetics are a 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.111 luscious love of beauty. speaking for the court said. lofty epics. Sundaram” on the ground of prurience.” In this case. The world‟s greatest paintings.. songs and dances. India‟s lustrous heritage. . the konaraks and khajurahos. may be asphyxiated by law. Krishna Iyer J. “Art. 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. Extreme and excesses boomerange although crazy artists and film directors do practice Oscar wilde‟s observation. luscious in patches. moderation is a fatal thing. Shivan. moral depravity and shocking erosion of public decency.

160 Krishna Iyer. there is a justification for its display thereafter. circulation or distribution or the production of the film. even if it be obscene. 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. More titles may not. J. The absolution is based upon the combined operation of Section 5-A of the Act and Section 79 of the Indian Penal Code. The experience may transform because the picture is great or the audience may also lucre and culture in the bargain. cannot be an offence notwithstanding Section 292 IPC. indecency and vice are writ large on the picture. 1860. therefore. The complaint alleged that the fascinating title was misleading foul and beguiled the guideless into degeneracy. Laxman. lascivious or tending to deprave on corrupt public morals.” 160 (1980) 2 SCC 175 . Sometimes the same film may produce contrary impacts and what one regards as lecherous. IPC. If the grave men of this accusation were true. and by virtue of the antidotal provisions in Section 79 of the Indian Penal Code.112 In Raj Kapoor v. atleast the noxious or noble content of the film. Said. obscenity. 1952. The public exhibition. constituting an offence under Section 292. another man may consider elevating. “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.

Abbas v.‟ 161 (1970) 2 SCC 780.A. would do. 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. “Going to the basics. leprosy. sexual immorality which should attract the censor‟s scissors but how the theme is handled by the producer. These concepts are themselves dynamic and cannot be whittled down to stifle expression nor licentiously enlarged to promote a riot of sensual display”.161 it is related to a documentary film entitled “A Tale of Four Cities”. . Union of India. decency or morality. The Supreme Court said. be remembered that the cinematograph is a powerful medium and its appeal is different. 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. It must. The appellant contended in a petition under Article 32 that he was entitled to a certificate for unrestricted public exhibition. 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. freedom of expression is fundamental.113 Justice Krishna Iyer said. The decision of the Supreme Court most relevant to this topic was delivered in K. „it is not the elements of rape.

The revulsion that the Tribunal. within the circle of a hundred men. Explaining the plot and story of Bandit Queen the Supreme Court said: “It is not a pretty story. 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. An innocent who turns into a vicious criminal because lust and brutality have affected her psyche so. First. There are no syrupy songs or pirouetting round trees. 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. It is the serious and sad story of a worm turning : a village-born female child becoming a dreaded dacoit. . the scene where she is humiliated. The exposure of her breast and genitalia to those men is intended by those who strip her to demean her. The object of doing so was not to titillate the cinemagoer‟s lust but to arouse in him sympathy for the victim and disgust for the perpetrators.114 Bandit queen case This film was a subject matter of dispute and the appeal went up to Supreme Court. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene. paraded. stripped naked. made to draw water from the well. It is in this light that the individual scenes have to be viewed.

(1996) 4 SCC 1. The reference by the Tribunal to the film “Schindler’s List” was apt. horror and a fellow-feeling of shame are certain. “Bandit Queen” tells a powerful human story and to that story the scene of Phoolan Devi‟s enforced naked parade is central. We do not censor to protect the pervert or to assuage the susceptibilities of the oversensitive. In sum The Supreme Court said. Tears are a likely reaction. being led into the gas chambers of a Nazi concentration camp. pity. Nakedness does not always arouse the baser instinct. shown frontally. It focuses on the trauma and emotional turmoil of the victim to evoke sympathy for her and disgust for the rapist. Om Pal Singh Hoon.115 referred to was not at Phoolan Devi‟s nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shred of dignity. . Not only are they about to die but they have been stripped in their last moments of the basic dignity of human beings. There is a scene in it of rows of naked men and women. „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. except in the pervert who might be aroused. 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 helps to explain why Phoolan Devi became.

got misguided and ended up as criminal and therefore the makers of such films are also victoriously responsible. Adult Indian citizens as a whole may be relied upon to comprehend intelligently the message and react to it. 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. In the case of Shankar alias Gauri Shankar and others v. 1952. with only the caution of an „A‟ certificate. 163 1994 (4) SCC 478.116 alone. The Supreme Court also observed that the film censor board. acting under Section 5-A of Cinematograph Act. 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 hero‟s valour in punishing those wicked and the villain must only be shown in such a cruel. violence and illicit business etc.. and pleaded or rather lamented that accused having seen films depicting sex.N. The counsel for appellants has made an intensive study of the records in this case. . is specially entrusted to screen off the silver screen pictures which offensively invade or deprave public morals through over-sex. not to the possible titillation of some particular scene. The lamentation is justified.163 the Supreme Court considered an argument that the films incited a crime and makers should be made liable for it. State of T.

bootlegging and drug trafficking etc. wayward. No doubt. perversion and dangerous addictions. undisciplined. 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. 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. frustrated and likewise. When promotion of art and culture is the primary underlying object. who are very likely to become wicked and evil-minded and ultimately end up as criminals indulging in organised crime.117 gruesome and diabolical manner. which ultimately are likely to pave the way to end themselves up as criminals”. By exhibiting scenes of violence. the avowed object gets frustrated. 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. 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. sex. The films should be of educative value and then only they can play an important role in subserving the interests of the society. how can obscenity. . rape.

The court said that where a programme is telecasted and broadcasted in violation of Rule 6(1)(k) of the Cable Television Rules. The main issue involved in this petition was the depiction of women in an “undignified manner” by the media. 164 AIR 2005 Raj 300. electric inverters. mobiles and other advertisements should be stopped forthwith. advertisements & posters. shaving appliances. Similar actions must also be taken against persons responsible for hoarding. State of Rajasthan. tobacco. . The court held that before programmes under the Cable Television Networks (Regulation) Act 1995. “Using scantily clad female models for products like car batteries. including television channels and the nature of the telecasting/broadcasting the Government responsibility in regulating this.164 the Rajasthan High Court suo moto took up the matter of “the depiction of women in an undignified manner by the media”. The court directed the Government to ensure that advertisements not following rules and regulations be discontinued. corrupt or injure public morality/morals. 1994 and where the programme is found indecent or derogratory to women. or is likely to deprive. it is expected that the Government verifies whether the programmes that are going to telecast conform to the regulations or not. strict action has to be initiated against those responsible for such telecasting.118 In case Suo Moto v.

. 1986.119 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. 1994. and prompt steps need to be taken against the responsible persons. The Court held that a number of television channels were violative of the programme code under the Cable TV Act. telecasting and advertisements etc. in Bombay High Court. which had a sexual overtone. In Pratibha Naitthani v. 165 AIR 2006 (Bom) 259. 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.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. The court also passed an order restraining newspapers and periodicals from publishing any advertisement that amounts to invitation to prostitution. The court held that concrete steps should be taken to prevent the depiction of women in an undignified manner through broadcasting. Union of India. 1995 and The Cable TV network Rules. or which is violative of Section 3 of Indecent Representation of Women (Prohibition) Act.

As a result. Zee Studio. should be read. Indus and Siticables.” The arguments were that every adult viewer has the fundamental right to view programmes with adult content on TV through cable services. acting on the instructions of the court. The court held that the adult viewer‟s right to view films with adult content is not taken away by clause (o) of Rule 6(1). his private TV set by means of DVD. HBO. the police. Incable.120 Instead of the orders of Court. leading to nine channels. cracked down on the control rooms of Hathway. Zee Café. which meant for unrestricted viewing. VCD or such other mode for which no restriction exists in law. 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). Star World. AXN. Hallmark and Filmy going off the air. It was submitted that Cinematograph Act. 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. TV Channels continue to show movies rated „A‟ and „UA‟ by the CBFC. 1983 that no programme shall be carried on the cable service which is “unsuitable for unrestricted public exhibition. SET Maz. Such a viewer can always view Adult certified films in cinema halls. The court held that the restriction upon cable operators and cable service providers that is not suitable for . „Star movies.

121 unrestricted public exhibition did not violate their right to carry on trade and business. the obscene and vulgar TV films shown and transmitted through various cable operators amounted to obscenity and therefore. The court further held that only films sanctioned by the CBFC. The programmes available on these satellite channels are predominantly western and totally alien to our culture and way of life. 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. star movies and channel V. 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. Basu v. According to the complainant. Such programmes play havoc with the moral fabric of society and need to be regulated. under the Cinematograph Act and Rules. National Capital Territory of Delhi and Another. 1986. .166 complaint was filed before Chief Metropolitan Magistrate (CMM) against star TV. as suitable for “unrestricted public exhibition” could be telecasted or transmitted on Cable TV. naming persons responsible for the day to day affairs of these channels. 166 2007 Cri L J 4245. In R. resulting in availability of signals of foreign television networks via satellites.

1986. The court observed that the legislature had enacted the Cable TV Network (Regulation) Act. 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. 1860 and the Indecent Representation of Women Act. However. The High Court held that for the two films without censor certificates the petitioners could not claim immunity from Section 292 IPC. The petitioners have to abide by these guidelines and laws relating to electronic media.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. and a programme code had also been introduced. they stated that with respect to the movie. the application for certification had been made to the CBFC. Big Bad Mama. Various statutory safeguards for regulating transmission on cable television networks in India have been provided therein. keeping in mind the sentiments and social value of the Indian society while relaying its programmes. also the court said that since the petitioners had not produced Central Board Film Certification (CBFC) certificates they could not claim immunity from prosecution. 1995 to tackle the “problem” of obscenity. For the other two films. With regard to other two movies it was admitted that they have no censor certificates. .

168 (iii) The Dramatic Performance Act. Section 11(b). Section 5-B. 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. 1952. Once the film has obtained any of these certificates.169 (iv) The Customs Act.123 vi) Relevant provisions under different laws regulating morality and obscenity (i) Indian Penal Code. letting to hire. 1860. Sections 292-94. A film certified by the Board of Film Certification for unrestricted public exhibition carries a ‘U’ certificate. export and advertisement of obscene material and offence punishable with imprisonment and fine. Section 4 and 5-A of the Act deal with the examination and certification of films for public exhibition. import. 1962. The Dramatic Performances Act. the distributor. 1860 makes the sale. Section 3(c) and Section 6. circulation.170 167 168 169 170 Indian Penal Code. The Cinematograph Act. 1876.167 (ii) The Cinematograph Act. A film certified for public exhibition restricted to adults carries an ‘A’ certificate. public exhibition. 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. . 1962 empowers the Government to prohibit or impose conditions on the import or export of goods in the ground of decency and morality. while a film certified for public exhibition restricted to members of any profession or class of persons carries an ‘S’ certificate. distribution. 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. 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. The Customs Act.

The Indecent Representation of Women (Prohibition) Act. The Young Persons (Harmful Publications) Act. 2000.124 (v) The Post Office Act. 1956. Section 20. The Indecent Representation of Women Act. see or hear the matter contained or embodies in it is‟ punishable with imprisonment and fine. or is likely to deprave. 1986. etc. Section 67. 1986. (2005) 3 Comp L J 364 (Del. 1898 prohibits the transmission by post any material on the ground of decency or obscenity. having regard to all relevant circumstances. in such a way as to have the effect of being indecent. . figures. A contravention of the provisions of this Act is punishable with imprisonment and fine. Sections 2(a) and 3-7.171 (vi) The Indecent Representation of Women (Prohibition) Act. writings. The Information Technology Act. and makes the contravention of the provisions of this Act punishable with imprisonment and fine. to read.173 (vii) The Young Persons (Harmful Publications) Act. "the depiction in any manner of the figure of a woman. Section 2(c) of the Act defines the 'indecent representation of women' as. or denigrating women. 1986 prohibits the indecent representation172 of women through advertisements or other publications. State. her form or body or any part thereof. 1898. corrupt or injure the public morality of morals". painting.).174 (viii) The Information Technology Act. Avinash Bajaj v.175 171 172 173 174 175 The Post Office 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. or derogatory to. 1956 prohibits publications which could corrupt a child or young person and incite him to commit crimes of violence or cruelty. Section 3-6.

Rules 6(1)(a). Union of India (Writ Petition No. Section 5 of the Cable Television Networks (Regulation) Act. 16. The expression. 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. Rules 7(2)(iii) and (vi) Rule 7(8). 6(5). 1994.176 In fact. 6(2). 1994 prohibits the carriage of programmes that are not suitable for „unrestricted public exhibition‟. (d). . read with the Cable Television Network Rules. 1952 which provides for the examination and certification of films by the Board of Film Certification (CBFC). the Bombay High Court interpreted Rule 6(1)(o) of the Cable Networks Rules. 19 and 20. which offered decency and morality and visits a contravention with imprisonment and fine. in an order dated 21st December 2005 (unreported). In Pratibha Naitthani v. 1995 read with Rule 6(1)(o) of the Cable Television Networks Rules. 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. 6. 1995 prohibits the telecast of programmes on cable television. „unrestricted public exhibition‟ is found in Section 5-A read with Section 4 of the Cinematograph Act. a public interest petition filed by a college lecturer to control obscenity in the media. 1994 to mean that no film of which public exhibition is restricted can be carried on the cable service. 17. (n) and (o).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. (k).125 (ix) The Cable Television Networks (Regulation) Act. 1995 Sections 5. 1232 of 2004).

friendly relation with foreign states. morality and decency and to prevent contempt of court. 2012). incitement to an offence and defamation.com/Constitution-India-Advertisement-and-freedom-speech. in particular.lawisgreek. public order. Advertisers often view these rules and regulations as violating their right to freedom of speech. when the courts were considered representatives of the monarch and were called king‟s courts or Queen‟s courts. (Visited on June 27. security. integrity.  A soft drink advertisement that showed a child bringing the drink for Indian Cricket players was banned after complaints from child labour activists. . Objectionable content in advertisement is usually a reason for taking it off channels. Some advertisements.126 and expression to protect the country‟s sovereignty. h) Contempt of Court Contempt by „scandalising‟ the court owes its origin to the medieval ages in Britain.  Advertisements of two underwear ads were banned due to vulgarity and indecency. Thus any imputation against the courts was 178 Available at: www. 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.

or by visible representations. .182 Judges do not have any general immunity from criticism of their judicial conduct. the due course of any judicial proceeding. Singhania. (1990) 3 Bom CR 82 (Bom).181 The term contempt of court refers to civil contempt or criminal contempt under the Act. The Hindu. spoken or written. 1971. where only something that presents a clear and present danger to the administration of justice is considered contempt. or (iii) Interfers. 07. 1971.127 considered an imputation against the sovereign and therefore punishable. or tends to obstruct.180 The expression contempt of court has been defined in contempt of courts Act.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. whether by words. provided that it is made in good faith and is a genuine criticism. or interferes or tends to interfere with. or by signs. In re Arundhati Roy183 the Supreme Court followed the view 179 180 181 182 183 Prashant Bhushan. 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. Section 2(c) ‘Criminal Contempt’ means the publication. the contempt jurisdiction which is of special nature should be sparingly used. Contempt of Court Act. or (ii) Prejudices. Shukuntala Sahadevram Tewari v. Sep. or lowers or tends to lower the authority of any court. the administration of justice in any other manner. or tends to interfere with. or obstructs. 2005 Under Article 19(2) of Constitution of India. (2002) 3 SCC 343. Hemchand M. The United States has a more liberal dispensation. or otherwise. "Contempt of Court and the Triple Shield". and not any attempt to impair the administration of justice. of any matter on the doing of any other act whatsoever which – (i) Scandalises or tends to scandalize.

were angels. The power to punish for contempt. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. so. is not a privilege accorded to judges.184 in which United States Supreme Court observed: “If men. there would be no problem of contempt of court. not to 184 185 328 US 331 : 90 L Ed 1295 (1946) Roshan Lal Ahuja. The court has the duty of protecting the interest of the community in the due administration of justice and. 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.128 taken in the American Supreme Court (Frankfurter.185 The public have a vital stake in effective and orderly administration of justice. (4) SCC 446. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise. In Re (1993) Supp. Aruhadhati Roy. it is entrusted with the power to commit for contempt of court. including judges and journalists.” 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. In re (2002) 3 SCC 343. . Florida. J.) in Penne Kamp v.

Attorney-General of Trinidad and Tobago. Union of India (1998) 4 SCC 226. .129 protect the dignity of the court against insult or injury but.P. Sheela Barse v. 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. to protect and vindicate the right of the public so that the administration of justice is not prevented. Rajendra Sail v. High Court Bar Assn. (2005) 6 SCC 109. 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. the public act done in the seat of justice. The judiciary. v. Surya Prakash Khatri v. Madhu Trehan (2001) 92 DLT 665. State of Gujarat 457 (1991) 4 SCC 406. 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. [No] wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public. M. 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. The path of criticism is a public way. prejudiced.187 Indian courts have quoted with approval the observations of Lord Atkin in Andre Paul Terrence Ambard v.

Yet defamatory publication concerning the judge as a judge brings the court or judges into contempt. While the former may be a wrong done to the judge personally. D. Hon’ble The Chief Justice of India.189 In D. a serious 188 189 190 AIR 1936 PC 141. Daphtary v.K.P. AIR 1971 SC 221 and C. Gupta (1971) 1 SCC 626. 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. Saxena v. . v.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.130 justice.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. (1996) 5 SCC 216.C. Perspective Publications (P) Ltd. the latter seeks to interfere with and denigrate the course of justice and is a wrong done to the public. State of Maharashtra. 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. 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.

131 impediment to justice and an inroad on the majesty of justice. but in a dignified manner without attributing motives. analysed and criticised. the greater the jolt to public faith in the system. Before placing before public. Till recently. High Court Bar Association. (2005) 6 SCC 109. 125. 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.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. Any caricature of a judge calculated to lower the dignity of the court would destroy. Ibid. Indeed the greater the gravity of and truth in the allegations. it is only natural that serious allegations made against an individual judge would undermine public confidence in the system.. whether on print or electronic media. M. After all. neither truth nor good faith were defences against the law of contempt in 191 192 193 Supra n. . undermine or tend to undermine public confidence in the administration of justice or the majesty of justice. 190.191 In Rajendra Sail v. p.P.

This provision is now rectified by an amendment to the contempt of courts Act. no one could offer proof of such misbehavior without risking being sent to jail for contempt of court. 1971. Ironically. In the circumstances. These appears to be very little restraint in the media in so far as the administration of criminal justice is concerned. 2006. 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.194 v) Contempt of court by media With the coming into being of the television and cable channels. there can be serious prejudice to the accused. 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.132 India. making truth a valid defence. the amount of publicity which any crime or suspect or accused gets in the media has reached alarming proportions. 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. the test of erosion of public confidence has the effect of acting as a deterrent against genuine complaints made against an individual judge. Section 2 substitutes Section 13 of the Contempt of Courts Act. 1971 which makes truth a raid defence to a charge of contempt. . in any proceeding for contempt of court. Other issues about the privacy rights of 194 The Contempt of Courts (Amendment) Act. although Article 124(4) of the constitution provides for the removal of a judge for proved misbehaviour.

The plain duty of journalist is the reporting and not the adjudication of cases.K. This is because. when a trial by one of the regular tribunal is going on. State of Tamil Nadu. with slender rights against defamation are more in danger and more vulnerable in the hands of the media.195 public figures.” In Bijoyananda v. B. Sen.196 the Supreme Court said.” In Rao Harnarain v. The basis for this view is that such action on the part of the newspaper tends to interfere with the course of justice. trial by newspaper. After the judgement in R. Gumori Ram197 the Punjab High Court stated that “Liberty of the press is subordinate to the administration of justice. Rajagopal v. AIR 1958 Punjab 273. 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. must be prevented. 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. AIR 1961 SC 633. “It would be mischievous for a 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. . AIR 1953 Orissa 249.” 195 196 197 198 (1994) 6 SCC 632.133 individuals or defendants may also arise. In Saibal v.

III.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. On one hand lies the fundamental right to 199 200 201 202 1996 (6) SCC 466. Fobs me of that. In State of Maharashtra v. Reputation is an integral and important aspect of the dignity of an individual. i) Defamation He that filches from me my good name. ii. The press does not enjoy any special privilege or immunity from law. and makes me poor indeed. In State of Bihar v. without lawful justification/excuse. (1604-1605).134 In Harijai Singh v.200 the Supreme Court held that a trial by press. a right good against all the world. 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. which not enriches him. The Apex Court held right to reputation is a facet of the right to life. William Shakespeare : Othello. Lal Krishna Advani (2003) 8 SCC 361. . 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. 1997 (8) SCC 386. 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. Rajendra Jawanmal Gandhi.202 The right to preservation of one‟s reputation is acknowledged as a right in rem. i) Constitutional aspect The law of defamation is a culmination of a conflict between society and the individual.

A statement is said to be „defamatory‟ when it injures the reputation of the person to whom it refers and „exposes him to hatred. waxwork. (1897) AC 68. ridicule and contempt‟ or which causes him to be shunned or avoided or which has a tendency to injure him in his office. 37. effigy etc. 86. it constitutes the tort of slander. . or by gestures or in some other transient form. Supra n. printing. Fine Arts and General Ins. 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. Libel consists in the publication of a defamatory statement expressed in some permanent form for instance by writing..204 203 204 Nevill v. on the other is the right of the individual to have his reputation intact. pictures.203 iii) Libel and slandar Defamation could take one of two forms : libel or slander. p.135 freedom of speech and expression enshrined under Article 19 (1) (a) of the Indian Constitution. where on the other hand defamation is oral. profession or calling. 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). statute.

.205 Under English common law. it will support an indictment if it is likely to cause breach of peace. Hence. R. on the other hand. For civil remedy courts apply corresponding rules of English common law. AIR 1970 Guj 171. which are based on principles of justice. publication is an essential condition for a criminal offence under Section 499 of IPC. Adams (1882) 22 QBD 66. the plaintiff must prove that the publication was „intending to harm. State of Gujarat. Good faith on the part of the defendant is thus a good defence in a criminal prosecution but nor in a civil action. under Section 499 of IPC. the essence of the crime of private libel is its tendency to cause a breach of peace. or knowing or having reason to believe that such imputation will harm‟. the intention of the defendant is immaterial and it is no defence to plead that the defendant did not intend to defame the plaintiff. In a civil action. 205 206 Gulabchand v. On the other hand. even where the defamatory matter is not published to a third party. 1860.136 iv) Defamation under civil and criminal law Defamation is an injury to a person‟s reputation which is regarded as a part of his property. It also constitutes a criminal offence under section 499 of Indian Penal Code. It constitutes an actionable wrong and give rise to the civil remedy of damages. equity and good conscience. as in an action for damages.206 In India. v.

. Fry (1930) 1 KB 467.208 the Daily Express described a prisoner in a trial for bigamy as „Harold Newstead. London Express Newspapers Ltd. 479. Per Green LJ. interalia. 207 208 Tolley v. the right-thinking man. This difficulty which common law presented for media persons was rectified by Section 2 of English Defamation Act. This provisions applies. (1940) 1 KB 377. 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. 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. p. 1996.207 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. .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. 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 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. In Newstead v.

AIR 1973 Nag 354. the plaintiff must prove that the statement refers to him.C. Ibid. AIR 1918 Mad 700. nor is it necessary to even show that the defendant intended it to refer to the plaintiff. In T. by description or any reasonable inference. That is to say that the plaintiff must be identified as the person to defame. Jones. Ramasubba v. when he published the news item did not know of the existence of the plaintiff and had later published a correction in his paper. p. 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. It is not necessary that there should be any „peg or pointer‟ in the defamatory words. London Express Newspapers. Hulton v.210 Viscount Simon. Naganatha Sastri v. A. Subramania Iyer. 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. b) The Statement must refer to the Plaintiff In every action for defamation. Rukminibai.. In Knupffer v. . (1994) AC 116.V. (1910) AC 20. he was not liable for defamation. L.212 It is irrelevant that the defendants did not intend to 209 210 211 212 AIR 1972 Mad 398. 118. Secretary of State v. Observed: “It is an essential element of the cause of action in defamation that the words complained of should be published of the plaintiff”211 The plaintiff may be identified by name. Ahmad Mohideen209 it was held that since the publishers.M.138 In India.

there is no defamation since although the words may injure his self-esteem.213 In Cassidy v.214 The defendants published in their newspaper photographs of the Plaintiff‟s husband with an unnamed lady announcing that they were engaged. The requirement of „publication‟ in the present context means no more than „communication‟. where copies of such a letter are sent to third parties. 213 214 Supra n. Therefore. and not to any third party. there is defamation. Daily Mirror Newspapers Ltd. they cannot injure his reputation.139 refer to any real person but was talking instead about a fictional character. (1929) 2 KB 331. Thus. it is necessary that the words complained of must have been published to a person or persons other than the person defamed. 212. But. where the words are communicated to the defendant in a sealed letters there is no defamation.. even to single other person and a „publisher‟ is one who communicates the defamatory words to a third party. If the words complained of are communicated to the plaintiff alone. . 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. for an action for defamation to lie. Even though the defendants had no reason to defame the plaintiff who was not even mentioned in the paper.

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. p. It knows no geographical or jurisdiction boundaries. British Broadcasting Corporation.216 215 216 (1991) 1 QB 283. the defendants were also held liable for the foreseeable repetition of that defamation by other persons in the media. It makes communication with a million people or more and is no more difficult than with a single person. Supra n. Based on a preview of the programme shown by the defendants to the press and television journalists. 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. The growth of news groups.140 In Slipper v. 109. In addition to being held liable for their defamatory portrayal of the plaintiff. The availability of internet as a medium of expression opens up new channels for circulation of information. a number of review appeared in newspapers and magazines which portrayed the plaintiff in a negative light. This also means that faster and farreaching means are available for propagating defamatory material. vi) Defamation through electronic media The internet is a medium of instantaneous. 37. global and long distance communication.215 the plaintiff. .

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
person‟s 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 court‟s assertion of jurisdiction over Dow
Jones and Company Inc. based on its online publication of an
allegedly defamatory article. The article appeared in Barron’s Online,
the online version of Dow Jone‟s print publication. Barron’s 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).

com web site. but only when subscribers in Victoria accessed it. Ordinarily then. For these reasons. and that Victorian law governed. The site recorded about 5. Since . the location of the servers hosting the wsj. less than 0. the article was published. „It is where that person downloads the material that the damage to reputation may be done. which would make the Victorian Court a clearly inappropriate forum.000 hits. The Court held.144 should decline jurisdiction under the doctrine of forum non conveniens. It was not ascertainable how many of these users were Victorian but it was agreed that „several hundred‟ downloads had taken place in Victoria. that will be the place where the tort of defamation is committed‟. Thus in this case the decision hinged on where the article was deemed to be published. From this it would follow that the substantive law to be applied in deciding the case was New Jersey law.50. contrary to Dow Jones‟s 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. which would be applicable if the Victoria Court was “clearly inappropriate forum”. with respect to Gutnick‟s cause of action. the Court held that the defamation occurred in Victoria. Dow Jones argued that Barron’s Online was published in New Jersey.01 per cent of them from people with Australian credit cards.‟ Therefore. not when Dow Jones put it on its web server.

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. In the United Kingdom. (2000) 2 All ER 986. 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. (1999) EMLR 735. (1999) EMLR 5724. the fact of publication within the jurisdiction of the court is a highly relevant consideration. 12791 2001. Ahronson.145 jurisdiction in Victoria was proper and Victorian law applied. Kitakufe v. 223 224 Schapira v. Delhi High Court. v. Olaya. Other relevant considerations are whether the plaintiff has a reputation to protect the United Kingdom. who has since been restrained by the Delhi High Court for sending any form of communication to the plaintiff. defamatory. and there was no basis for declining jurisdiction. Jogesh Kwatra. .. Chadha v. Michaels. 2 June 1998). Dow Jones & Co Inc. the Victorian Court was not an inappropriate forum. Suit No.223 Asia‟s First case of cyber defamation has been filed in India in the case of SMC Pneumatics Ltd.224 Defamatory emails were allegedly sent to the top management of SMC Pneumatics by the defendant. Berezovsky v. abusive and obscene emails either to the plaintiff or their subsidiaries. (Ontario Court of Justice.

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. Because of the delays in the legal system. An „information distributor‟ merely acts as a carrier of information without examining its content.146 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. Section 19. With the growth of the media. There is a pressing need for quicker and more effective redress through courts as well as self regulatory bodies within the media. defamation suits drag on for years on end and people are understandably reluctant to adopt legal remedies. defamation both in the print and the electronic media is likely to proliferate. an offence of contempt is something more than mere 225 The Information Technology Act. 2000. 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. .225 These challenges thrown up by online defamation are yet to be decided by courts in India. ix) Dividing line between defamation and contempt Although contempt of court may include defamation of an individual judge. An „information publisher‟ on the other hand is under a duty to examine content and take reasonable care in relation to all its publications.

Brahma Prakash Sharma v. State of Madras.228 But a scurrilous. Sales Tax Service Assn. 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. .147 defamation.229 226 227 228 229 AIR 1952 SC 149. Arundhati Roy. it would certainly amount to contempt. offensive. U.P. In Bathinda Ramakrishna Reddy v. Agra (1995) 5 SCC 716.226 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. although it may be the subject matter of a libel proceeding. (2002) 3 SCC 343. 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. Taxation Bar Assn.. In Re. AIR 1954 SC 10.227 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. v. If a judge is defamed in a manner that does not impair the administration of justice.P.. he has the choice of invoking the ordinary remedies for defamation. State of U.

This caused serious difficulties by deterring genuine complaints against an errant judge. 2006. Section 2 substitutes Section 13 of the Contempt of Courts Act. . Although under Article 124(4) of the Constitution. The Contempt of Courts (Amendment) Act. 1971.148 Till recently in India. neither truth nor good faith were defences against contempt action. ironically no one could provide proof of such misbehaviour without risking being sent to jail for contempt of court. 2006 seeks to rectify this position by making truth a defence to contempt action.230 230 The Contempt of Courts (Amendment) Act. a judge may be removed for misbehaviour.