SEAT NUMBER (IN NUMBERS) 167085

SEAT NUMBER (IN WORDS) One Lakh sixty-seven thousand eighty-

five
SEMESTER VIII
NAME OF THE COURSE Media Law

ANSWER 1(2)

FACTS:

The Central Board of Film Certification (CBFC) has refused to grant a certificate to the
film because of the Union Government's notifications which banned on-screen
smoking and the display of western headgear.

ISSUES:

The power to refuse the certificate is to be exercised in the manner set out in section
5B(2) of the Cinematograph Act, 1952. But it has been exercised arbitrarily in the
present case and violating the rights of the petitioner enshrined under Article 19(1)
(a).

RULES:

The Constitution of India :-

 Article 19(1)(a) of the Constitution of India guarantees freedom of speech

and expression. That takes within its import the right of a citizen to produce and
make a film so also exhibit the same. The right guaranteed by Article 19(1)(a)
includes a further guarantee to exhibit a film for viewing by the public.
Therefore, a certificate is sought under the Cinematograph Act, 1952.

The Cinematograph Act, 1952 :-

 Section 5B (2) (The principles for sanctioning films)

The guidelines require the CBFC to ensure that-

1. The medium of film conforms to the values of the society. 

2. Creative freedom or artistic expression shall not be unreasonably
curbed.  
3. The certification must be responsive to social change.  
4. The film must provide clean and healthy entertainment. 
5. The film must be cinematically of a decent standard and is of aesthetic
value.
6. The CBFC must judge the film in its entirety and not from a one-track
biased perspective. 

 Section 5C (Appeals)

(1) Any person applying for a certificate in respect of a film who is aggrieved by

any order of the Board—
(a) refusing to grant a certificate; or
 (b) granting only an “A” certificate; or
(c) granting only a “S” certificate; or
(d) granting only a “UA” certificate; or
(e) directing the applicant to carry out any excisions or modifications, may,
within thirty days from the date of such order, prefer an appeal to the Tribunal.
(2) Every appeal under this section shall be made by a petition in writing and
shall be accompanied by a brief statement of the reasons for the order appealed
against.

 The CBFC is a statutory body which regulates the public exhibition of films in
India according to the provisions under the Cinematograph Act, 1952.

CASE LAWS:

1. Phantom Films Pvt. Ltd. vs The Central Board Of Certification

[2016 SCC OnLine Bom 3862]

The decision of the CBFC was quashed and set aside, with the exception of one
cut and an alteration in the disclaimer. The Respondents were directed to certify
the film for viewing by Adult audiences. The prayer on behalf of the
Respondents for stay of the Order was refused bearing in mind the investment
for creation, promotion and exhibition urged by the counsel for the Petitioners.

2. Bobby Art International and Ors. vs. Om Pal Singh Hoon and Ors.
[(1996) 4 SCC 1]

The producers of the film, which told the true story of a woman who was raped
and brutalized before taking revenge on her attackers, had approached the
Court seeking the reinstatement of the classification of the film as “Adult only”.
The Court held that the scenes featuring nudity and expletives served the
purpose of telling the important story and that the producers’ right to freedom
of expression could not be restricted simply because of the content of the
scenes.

3. S. Rangarajan vs. P. Jagjivan Ram and Ors.

[(1989) 2 SCC 574]

The court directed that there must be a proper balance between one of the right
free speech and restriction of any social interest. The freedom of conveying an
idea through movies has also some restrictions under Article 19(2) of the
Constitution. Hence the guaranteed fundamental freedom under Article 19(1)
which is legitimate and constitutionally protected can only be restricted under
some circumstances that are mentioned under Article 19(2) of the Indian
Constitution.

ARGUMENTS
An artist often inadvertently enters an arena considered ‘forbidden’ by society or
religion; or prohibited by law. In recent times, this conflict between social morality
and artistic freedom guaranteed under Article 19(1)(a) of the Constitution has been
witnessed in India in many cases as mentioned above.

The Article 19(1)(a) of the Constitution of India guarantees freedom of speech and
expression. That takes within its import the right of a citizen to produce and make a
film so also exhibit the same. The right guaranteed by Article 19(1)(a) includes a
further guarantee to exhibit a film for viewing by the public. Therefore, a certificate is
sought under the Cinematograph Act, 1952. Bearing in mind the overriding
constitutional guarantee, which cannot be diluted nor whittled down save and except
in the opinion of the authority competent to grant the certificate a film is not liable to
be certified as it or any part of it is against the interest of sovereignty and integrity of
India, the security of the State, friendly relations with foreign States, public order,
decency or morality or involves defamation or contempt of court or is likely to incite
the commission of any offence. The freedom guaranteed under Article 19(1) which is
legitimate and constitutionally protected can only be restricted under some
circumstances that are mentioned under Article 19(2) of the Indian Constitution.

For the exercise of such right meaningfully and purposefully, the State must ensure
that the certification is expedited. A certificate cannot be withheld or refused save and
except in cases where the board is of the opinion it would be necessary to refuse it to
protect the sovereignty and integrity of India, security of State etc. The opinion that
the board forms for this purpose ought to be based on definite and relevant material.
The power to refuse the certificate is to be exercised in the manner set out in section
5B(2) of the Act. If the board acts contrary thereto, then, its decision can be set aside
in terms of the power of judicial review.

The board had refused to grant a certificate to the film in view of Union Government's
notifications which banned on-screen smoking and display of western headgear. The
appeal has been made under section 5C (1) a of the Act. The refusal of certificate by
the board is completely arbitrary in nature. Although, the board is empowered to
refuse the certification but that power has to be exercised, fairly, reasonably and not
in an arbitrary or discriminatory manner. The exercise of the power should not in any
manner violate the constitutional guarantee of freedom of speech and expression. In
this case the mandate emerging from  section 5B of the Cinematograph Act, 1952
and  Article 19(1)(a) of the Constitution of India, is completely violated. As regard to
the portrayal of western headgear, it is not for the board to determine as to how the
subject of the film should be dealt with by the maker or producer of a film.

The human sensibilities are not offended by scenes of smoking and also it carries the
statutory warnings every time such scenes are portrayed. All such scenes and
dialogues have to be viewed in totality. The story must be read and considered in its
entirety. It is not safe to select a few words, sentences, dialogues and scenes and
then to arrive at the conclusion as has been reached by the board. Smoking has been
a part of the personality traits of former British Prime Minister Winston Churchill.
Therefore, if the film has been focused on his personality traits, he cannot be shown
otherwise. That shall lead to destruction of creativity and would not achieve the
purpose of portraying his life.

The Freedom of Speech and Expression is a fundamental right. The portrayal of

western headgear cannot be restricted as in this case as the censor board is not the
moral tailor setting his own fashions but a statutory body policing films under Art.
19(2) from the angle of public order, decency or morality. Therefore, the portrayal of
scenes of smoking and the portrayal of western headgear do not harm the public
order, decency or morality of the society or the sovereignty and integrity of India and
the security of State.

PRAYER

Therefore, the relief sought is of issuance of a writ of mandamus or a writ, order or

direction in the nature thereof, directing the Central Board of Film Certification (CBFC)
to issue in favour of the petitioners a certificate styled reasonably as any category in
which the film fits and in accordance to the statutes.

ANSWER 2(1)

FACTS

Rashmi Rathore is a lawyer practicing in the Supreme Court for almost two decades.
She has been a vocal critic of the judiciary for its opaque functioning. Last month she
wrote an article in the News Times questioning the rationale behind the 2018 press
conference held by four senior-most judges of the Supreme Court against the then
Chief Justice of India Dipak Mishra. In her article, she also criticised the current CJI
for his style of functioning. Taking suo-motu cognizance of her utterances against
judges, the Supreme Court has issued contempt notice to her for “scandalizing the
judiciary”.

RULES

1. Article 129 of the Constitution of India: “The Supreme Court shall be a

court of record and shall have all the powers of such a court including the power
to punish for contempt of itself.”

2. Article 142(2) of the Constitution of India: “Subject to the provisions of

any law made in this behalf by Parliament, the Supreme Court shall, as respects
the whole of the territory of India, have all and every power to make any order
for the purpose of securing the attendance of any person, the discovery or
production of any documents, or the investigation or punishment of any
contempt of itself.”

3. Article 215 of the Constitution of India: “Every High Court shall be a court
of record and shall have all the powers of such a court including the power to
punish for contempt of itself.”

4. Section 2(a) of the Contempt of Courts Act, 1971: “Contempt of court”

means civil contempt or criminal contempt.

5. Section 2(b) of the Contempt of Courts Act, 1971: “Civil contempt” means
wilful disobedience to any judgement, decree, direction, order, writ or other
process of a court or wilful breach of an undertaking given to a court.

6. Section 2(c) of the Contempt of Courts Act, 1971: “Criminal contempt”

means the publication (whether by words, spoken or written, or by signs, or by
 visible representation, or otherwise) of any matter or the doing of any other act
whatsoever which

i. Scandalizes or tends to scandalize, or lowers or tends to lower the

authority of, any court, or
ii. Prejudices, or interferes or tends to interfere with the due course of any
judicial proceeding, or
iii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner.

7. Section 3 of Contempt of Courts Act, 1971: Innocent publication and

distribution of matter not contempt

8. Section 4 of Contempt of Courts Act, 1971: Fair and accurate report of

judicial proceeding not contempt. Subject to the provisions contained in section
7, a person shall not be guilty of contempt of court for publishing a fair and
accurate report of a judicial proceeding or any stage thereof.

DEFENCES

1. Courts play a very important role in adjudication of disputes in any

constitutional set-up. Be it a dispute between two or more individual or citizens’
dispute with the State, without there being courts, dispute resolution would not
be possible.

2. Generally, people have faith in judges, courts and the judicial system which
provides stability to the entire political system as people have confidence that
they can approach courts, if wronged. If people lose faith in the judiciary, there
is a possibility that they might take the law into their own hands. This can lead
to vigilantism and push a country towards anarchy and chaos. It’s for these
reasons that any act that tends to diminish people’s faith in the judiciary is
categorized as contempt of court and made punishable.

3. Civil Contempt has two key expressions:

- Wilful disobedience to a judgement, decree, direction, order, writ or other
process of a court
- Or wilful breach of an undertaking given to a court.

4. Section 2(c) of the Contempt of Courts Act, 1971 defines criminal

contempt as the publication of any matter or the doing of any other act which
scandalises or lowers the authority of any court; or prejudices or interferes with
the due course of any judicial proceeding; or obstructs the administration of
justice.

There is a thin line between separating criticism and contempt.

5. Freedom of speech is a fundamental right guaranteed to every Indian citizen

under Article 19(1)(a) of the Constitution, albeit subject to reasonable
restrictions under Article 19(2). In C.K. Daphtary v. O.P. Gupta (1971), the
Supreme Court held that the existing law of criminal contempt is one such
 reasonable restriction. That does not mean that one cannot express one’s ire
against the judiciary for fear of contempt.

6. Hari Singh Nagra v. Kapil Sibal, (2010) 7 SCC 502: In this case, the
Supreme Court has held that if a comment is made against the functioning of a
judge, it would have to be seen whether the comment is fair or malicious. If the
comment is made against the judge as an individual, the Court would consider
whether the comment seeks to interfere with the judge’s administration or is
simply in the nature of libel or defamation. The Court would have to determine
whether the statement is fair, bona fide, defamatory or contemptuous. A
statement would not constitute criminal contempt if it is only against the judge
in his or her individual capacity and not in discharge of his or her judicial
function.

7. Criminal contempt does not seek to afford protection to judges from statements
which they may be exposed to as individuals. Such statements would only leave
the individual liable for defamation. Statements which affect the administration
of justice or functioning of courts amount to criminal contempt since public
perception of the judiciary plays a vital role in the rule of law. An attack on a
judge in his or her official capacity denigrates the judiciary as a whole and the
law of criminal contempt would come down upon such a person unless it is a fair
critique of a judgment.

8. In Prabhakar Laxman Mokashi v. Sadanand Trimbak Yardi, 1973 SCC

OnLine Bom 79, it was held that Section 3 shows that immunity attaches to
certain statements or certain matter which may interfere or tend to interfere or
obstruct or tend to obstruct the course of justice in connection with any civil or
criminal proceedings pending at the time of the publication. However, if the
persons so publishing had at the time of its publication no reasonable grounds
for believing that the proceeding was pending, the publication is described by
this section as “innocent”.

9. In Prashant Bhushan, In re, (2021) 3 SCC 160: 2020 SCC OnLine SC

698, Section 13 of the Act enables the Court to permit justification by truth as a
valid defence in any contempt proceedings if it satisfied that such a defence is
in the public interest and the request for invoking the defence is bona fide.
Truth should ordinarily be allowed as a defence unless the Court finds, that it is
only a camouflage to escape the consequences of the deliberate attempt of
scandalising the Court. However, for considering the truth as valid defence
there is a twin requirement:
- defence is in public interest, and
- request for invoking the defence is bona fide.
CONCLUSION

Therefore, from this we can conclude that Rashmi Rathore can take up the defence of
innocent publication under Section 3 and truth as a defence under Section 13. The
publication done by her was innocent and did not lead to contempt of court. She has
the right to express her views under Article 19(1)(a) of Constitution of India which
gives her the Freedom to speech and expression. Whatever that she wrote in the
article was a series of true events. It was written and expressed in public interest and
it was what she had gathered from the 2018 press conference. Being a practising
lawyer of Supreme Court, she possessed special knowledge of law and its institutional
working. Therefore, she was eligible and had locus to criticize the judiciary.

In PN Duda vs P Shivashankar, the court observed that “fair criticism of the conduct
of the judge, the institution of the judiciary and functioning may not amount to
contempt if it is made in good faith and in public interest.

In Re: Arundhati Roy on 6 March, 2002, it was expressed by the Court that
rationale seemed to be grounded in the perspective that fair criticism of the judicial
process can be accommodated only if it is made by people erudite in law and the
judicial process. Those well-versed in the discipline of law can take liberties with the
judiciary to level criticisms but others cannot do so.

Therefore, considering the above given laws and precedents, Rashmi Rathore can be
set free for her innocent and fairly published remarks.

ANSWER 3(1):

FACTS

ABC is a senior leader of AJP Political Party contesting the Lok Sabha polls 2014 and
has filed a criminal defamation case against a Congress leader for having allegedly
defamed him by accusing him of corruption.

ISSUE
What are the defences that can be taken up by the Congress Leader against this case
of criminal defamation filed by the ABC against him?

RULES

1. Section 499 of Indian Penal Code, 1860: Defamation—Whoever, by words

either spoken or intended to be read, or by signs or by visible representations,
makes or publishes any imputation concerning any person intending to harm, or
knowing or having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases hereinafter expected, to
defame that person.

Explanation 1—It may amount to defamation to impute anything to a deceased

person, if the imputation would harm the reputation of that person if living, and
is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2—It may amount to defamation to make an imputation concerning

a company or an association or collection of persons as such.

Explanation 3—An imputation in the form of an alternative or expressed

ironically, may amount to defamation.

Explanation 4—No imputation is said to harm a person’s reputation, unless that

imputation directly or indirectly, in the estimation of others, lowers the moral or
intellectual character of that person, or lowers the character of that person in
respect of his caste or of his calling, or lowers the credit of that person, or
 causes it to be believed that the body of that person is in a loathsome state, or
in a state generally considered as disgraceful.

2. Section 500 of Indian Penal Code, 1870: Punishment for defamation-

Whoever defames another shall be punished with simple imprisonment for a
term which may extend to two years, or with fine, or with both.

3. Article 19(1)(A) of Constitution of India: It guarantees to all its citizens the

right to freedom of speech and expression. The law states that, “all citizens
shall have the right to freedom of speech and expression”.

4. Article 19(2) of Constitution of India: In this it is stated that every citizen

has a right of freedom, speech and expression subject to a few exceptions,
namely, India's sovereignty and integrity, the State's security, friendly relations
with foreign states, public order, decency or morality, or in relation to contempt
of court, defamation or incitement to an offence.
DEFENCE OF CONGRESS LEADER
 In State of Bihar Vs. Lal Krishna Advani (2003), it was rightly stated by
Supreme Court that Right to reputation is a facet of the right to life. Where any
authority in discharge of its duty’s traverses into the realm of personal
reputation it must provide a chance to the person concerned to have a say in
the matter.

 The Law on defamation is a recognition of the inherent right of an individual to

preserve his honour and respect in the society. It often leads to a conflict
between right to freedom of speech and expression and and an individual’s right
to reputation.

 Under the Constitutional Framework of free speech in India, Defamation is a

ground for imposing a “reasonable restriction” to this freedom under Article
19(2) of the Constitution.

 Law on defamation attempts to strike a balance between right to reputation

under Article 21 and right to free speech guaranteed under Article 19(1)(a) of
the Constitution.

 Defamation means harming someone’s reputation by making a false and

derogatory statement against that person without any lawful justification. It can
be by publication of spoken or written words or by visual representation. If it’s
by spoken words it’s slander and if it’s by written words it called libel. A single
statement can result into both civil and criminal defamation. But to constitute
criminal defamation, intention to harm reputation is a must. What is important
is that even truth is not a complete defence in criminal defamation as it’s
qualified by public good. Section 500 of IPC prescribes a maximum two-year jail
term and fine for criminal defamation.

 Essential Ingredients of Defamation:

1. The Statement must be false
2. It must be defamatory
3. It must refer to the plaintiff
 4. It must be published by the defendant
5. There is no lawful justification for making such a defamatory statement
 Certain defences can be taken up by the Congress leader on the case of
defamation that has been filed against him:
i. Justification by truth: Truth is an absolute defence. If the statement made
is authentic then it does not constitute defamation. The burden of proof is on
the defendant who is claiming the defence. But in criminal defamation cases,
mere truth is not a defence and it must be proved that the publication was for
public good.

Alexander v North Eastern Railway Co., 1885, it was held that the
defendant does not have to show that every single characteristic of the
statement made is true, merely that it is substantially true.

ii. Fair and bona fide comment: The defence of fair comment on a matter of
public interest is a complete defence in defamation cases. It’s particularly true
about the media. This defence is based on public policy which gives every
person the right to comment and criticize without any malicious intention the
work or activities of public offices, actors, authors and athletes as well as
those whose career is based on public attention. Any fair and honest opinion
on a matter of public interest is also protected even though it is not true.
There is no definition of a matter of public interest. Generally, a matter of
public interest can is a subject which invites public attention or is open to
public discussion or criticism.

iii. Absolute Privilege: It gives the person an absolute right to make the
statement even if it is defamatory, the person is immune from liability arising
out of defamation lawsuit. Generally, absolute privilege exempts defamatory
statements made:
i. during judicial proceedings,
ii. by government officials,
iii. by legislators during debates in the parliament,
iv. during political speeches in the parliamentary proceedings and,
v. communication between spouses.

 The Indian defamation laws covered by IPC Sections 499 and 500 and CrPc
Sections 199(1) to 199(4) are referred to as SLAPP (Strategic Law Against
Public Participation) cases around the world. The purpose of a SLAPP litigation is
to intimidate and prevent a party from speaking freely and without fear.
CONCLUSION
 Congress leader can take up the defence of Truth against the case of
defamation filed against him. Every citizen of India has the Right to Freedom of
Speech and Expression given under Article 19(1)(A) of the Constitution of India.
Since, mere truth won’t suffice, he will have to prove that his comment was for
public good. The comment could have been for public good because telling the
public about a political leader’s nature is important. If he is corrupt, he should
be exposed so that the public doesn’t suffer in later stages. As given in the
above cases and laws, the leader doesn’t need to show that every single
 characteristic of his statement is true, he just has to show that it is substantially
true.

 The congress leader can also take up the defence of fair and bona fide
comment. Since, ABC is a contesting for a public office, any fair and public
opinion in the matter of public interest is justified.

 Political Leaders of India who are the member of parliament get absolute
privileges. If the comment or statement is given by congress leader was during
political speeches or during debates in parliament, he can take up the defence
of Absolute Privilege.

 SLAPP litigation, such as defamation suits, have a chilling and prohibitive effect
on public participation and free speech activities. They give authority and means
to gang up on you and nab you in your thoughts, threaten you with grave
repercussions, silence you, and make you your own censors.

 Since the statements made by the Congress leader were stated keeping in mind
the public welfare, as no corrupt official should come into power in a democratic
government as that simply distorts the entire system.