1 CONSTITUTIONAL FOUNDATIONS [Where it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hésitate a moment to prefer the latter. This chapter examines the constitutional provisions which form the basis for the rights of the media in India. It is broadly divided into two sec- tions: the first section outlines the constitutional provisions on the free- dom of speech and expression and the constitutional status.of the media in India. This section also examines what the freedom of speech and expression means in the context of the media and outlines its many fac- ets. The second section analyses the constitutionally permissible restric- tions on the freedom of speech and expression. CONST! ITUTIONAL PROVISIONS ON THE FREEDOM OF SPEECH AND EXPRESSION The freedom of speech and expression has been described as the mother of all liberties. In Ramlila Maidan Incident, re,? the Supreme Court held: The freedom of speech and expression is regarded as the first con- dition’ of liberty. It occupies a preferred position in the hierarchy of liberties, giving succour and protection to-all. other liberties. It has been truly said that it is the mother of all other liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic_matters. It has beea described as a ‘basic human right’, ‘a natacalright’ and the like. With the development of law in India the right to freedom of 1. Thomas Jefferson in & letter to Edward Carrington, 16-1-1787. 2. (2012) SCC 1.: [enav, 2. FACETS OF MEDIA LAW | dl ion has taken within its ambit the right to ‘Reeive infocmacion as well asthe right of press. * ‘The Preamble to the Constitution of India resolves to secure for the citi. zens of India, liberty of thought, expression and belief.* Articlé 19(1)(a) of the Constitution from which the media derives its rights guaran tees to every citizen of India, the “freedom of speech and expression”. Article r9(z)(a) is a fundamental right guaranteed to every citizen of India.5 Article 19(x)(a) reads: x9. (2) All citizens shall have the right— (a) to freedom of speech and expression; The exceptions to the right guaranteed under Article x9(t)(a) arc con- tained in Article x9(z) which reads: Nothing in sub-clause (a) of clause (r) shall affect the operation of any existing law, or prevene the State from making any law, insofar as such law imposes reasonable restrictions on the éxer- cise of the right conferred by the said sub-clause in the inter- ‘ests of the sovereignty, and integrity of India, the security of the \ State, frieridly relations with foreign States, public order, decency | or mofality, or in ‘relation to contempt of coiirt, defamation or { incitement to ant offence. © . . ~ Constitutional status'of the media’ a The media derives ics rights from the right to freedom’ of speech and expression available to the citizen. Thus, the media has the same rights—-no more and no less than any individual to write, publish, circu- late or broadcast. In a case that arose in pre-independent India, the Privy Council held: The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever lengths the subject in general may £27.80 also may the journalist, apart from the statute law, hie privilege is no other and no higher .... No privilege. attache Position. = ~~ eo 3. Ramlila Maidan Incident, re, (2012) 5 $CC 4 Constitution of India, Preamble, 5: Funcamental rights under thc Constitution of India (Part III of the Const 3x) pera, 12, red by the “reasonable restrictions” encmerated in cls. (2) to (6) of Ane 19. While Fandseeear eats other than fundamental rights, can be taken away by lect fundamental tights cannot be taken away by legislation, Legislation ea fot ace [easenable restrictions on the exercise of the right. Dharam Dee. Ginn Of India, (2004) x SCC 712, 758-39) para, 36: AIR 1004 SC 2295, §. Channing Arnold v. King Emperor, 1924) LW 461, AIR 1914 PC 116.1] } CONSTITUTIONAL FOUNDATIONS 3 The framework for analysing media rights cemains much the ‘same in post-independence India. In M.S.M. Sharma v. Sri Krishna Sinha’ (Searchlight), the Supreme Court observed: : ° A non-citizen running a newspaper is not entitled co the funda- mental right to freedom of speech and expression and, therefore cannot claim, as his fundamental right, the benefit of the liberty of the Press. Further, being only a right flowing from the freedom of speech and expression, the liberty of the Press in India stands on no higher footing than the freedom of speech and expression of a citizen and that no privilege attaches to the Press as such, 41 that is to say, as distinct {rom the freedom of the citizen. In short, j as regards citizens running a newspaper, the position under out Constitution is the same as it was when the Judicial Committee decided the case of 41 Ind App 149: (AIR 1914 PG 116) and as regards non-citizens the position may even be worse.* Im other words, the media enjoys no special immunity or elevated status compared to the citizen and is subject to the general laws of the land, including those relating to taxation.» However, in post-independent India’ both the citizen and citizen-owned media enjoy a constitutional guarantee that was hitherto absent. Comparisons with the US Constitution “ Article 19(x)(a) finds its roots in the rst Amendment to the US Constitution. ‘The rst Amendment teads, - Congress shall make no law respecting an establishment_of vy qceligion," or prohibiting the free exercise thereof; or abridgia the freedom of speech, or of the press; or the right of the peo- ple peaceably to assemble and to petition the government for a redress of grievaiices."° Unlike the rst Amendment to the US Constitution, the Indian Constitution does not make a. specific or, separaté provision for'the freedom of the ‘press. Further, while the restrictions on the right to freedom of speech ' atid expression are expressly spelt out in Article r9(z), this is not so under the’ rst Amendment." The US Supreme Court has'read into the rights of the press certain implicit restrictions which are, in principle, no different AIR 1959 SC 595: 1959 Supp (1) SCR 806. 8. Ibid, (AIR) 402, para. 13, ae . On taxation and the media, see, Chap. 15 titled “Taxation”. . US Constitution, xst Amendment, Art. t+ ; 1o In Union of India v. Naveen Jindal, (2004) 2 SCC 5x0: AIR 2004 SC 1559, it was held that while the xst, Athendment in the US Constitution gives an absolute right of “ freedom of expression to the citizen, in India, there is only a qualified right regulated by the cestrictions in Art. 19(2). See, (SCC) 547-48, para. 77.v Romesh Thappar 4 FACETS OF MEDIA LAW (cHap. from Article 19(2)22 However, generally, from a judicial and societal standpoint, the fréedom.of the'press in America is far more robust than the corresponding Indian guarantee. " “The question of whether or not to insezt inthe Indian Constitution a separate right for the press, as distinct from that of the ordinary citizen, was extensively debated by the members of the Constituent Assembly. The Constituent Assembly came to the conclusion that such a provision was not nee Dr'B.R. Ambedkar, Chairman of the Constituent Assembly's Drafting Committee argued: The press is. merely ancther way of stating an individual or a citizen. The press has.np special rights which are not to be given Crwhich are not to be exercised by the citizen in his individual Capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers, they are merely exercising their right of expression and in my judgment therefore no special mention is necessary of the freedom of the press at all.”? = : though no, special provision was made to safeguard the rights of the préss, the courts have time and again confirmed that the rights of the press are implicit in the guarantee of freecom of speech and expression Prete Article x9(1)(a) of the Constitution.'*In fact, successive judgments of the Supreme Court of India have struck down laws that abridge the freedom of the press and have ‘echoed the sentiment expressed in the rst Amendment. te of Madras’ (Romesh Thappar), amongst swthe-Eatliest cases to be decided by the Suprense” “Coiirt; involved a chal- ont? lenge against.an order issued by the Government of Madras under SO Section 9(1-A), Madras Maintenance of Public Order Act, 1949 imposing a ban on the entry and circulation of the journal, Cross Roads, printed and published by the petitioner. The court struck down Section 9(1-A) holding that the right to freedom of speech and expression was para~ seountand that nothing short ofa danger to the foundations of the State, ofA threat to its overthrow, could justify a curtailment of the right to free- dom f,speech and ‘expression 7The impugned provision, which author- “Yged'the imposition of restrictions for the wide purpose of securing public i. Ministry of Information and’ Broadcasting, Govt. of India v. Cricket Assn. ¢, Bengal, (1995) 2 SCC 16x: AIR po95 SC 1-36. . 7 15, Constituent Assembly Debate: Nei VIL, 786. 1948. ; 14. Brij Boushan-v, State of Delhi, WIR 2950 SC 129: (1950) § Cri'LJ xg253 Express Newspaper (P) Ltd. v. Union of India, AIR 1958 SC 78: 2959 SCR 125 Sakal Papers (P) Ltd. vy. Union of India, AIR 1962. SC 305: (1962) 3 SCR 8425 Bennett Coleman F) Eat. “anion of India, (2972) 2, SCC 788: AIR 1973 SC x06; Mancha Gandhi v- ‘Union of India, (2978) t SCC 248: AIR 1978 SC 597- x5. AIR x90 SC 124: £950 SCR 594-o 1} \ CONSTITUTIONAL FOUNDATIONS 5 safety and public order, fell outside the scope of the reasonable restric Hops'permitted under Article ro(2) and was held to be unconstitutional in Brij Bhushan v. State of Delhi's (Brij Bhushan), the Supreme Coure quashed a pre-Ceiisorshijy Order passed against the publishers of the Organiser. The order was passed by the authorities under Section 7(/)(c) of the East Punjab Sugry Act, 1949, The court held that Section 7li)(c) which authorised suck a restriction on the ground that it was "neces sary for the purpose pf preventiing ot Combating any activity prejudicial to the public safety or the maintenance of public order” did not fall within the puryiew of Article r9(2). The strongest affirmation df the spirit of the tst Amendment i in Express Newspapers (P) Ltd. v. Union of India.” This case arose out“ot'a challenge to the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, on the ground that its provisions violated Article r9(1)(a). In the facts of the éase, the court held that the impact of the legislation on the freedom of spcech was much too remote and no judicial interference was Warranted. However, the court did recognise an important principle: Laws which single out the press for laying upon it excessive and prohibitive burdens which would restrict the circulation, impose a penalty on its right to choose the instrument for its exercise or to seek an alternative media, prevent newspapers from being started and ultimately drive the press to seek Government aid in order to survive, would therefore be struck down as unconstitutional." The freedom of the press is part of the basic structure of the Constitution. In ILR. Coelho v. State of T.N., a Bench of nine judges of the Supreme Court examined the question of whether on and from the date on which the decision in Kesavananda Bharati v. State of Kerala® (Kesavananda Bharati) was delivered (in which the Supreme Court enunciated the basic structure doctrine), it was permissible for Parliament to immunise legis- lations from being struck down for violation. of fundamental rights by inserting them into thé Ninth Schedule of the Constitution. In this con- text, the court reiterated that although the freedom of the press was not separately and specifically guaranteed under the Constitution, it had to be read'as part of Article 19(2)(a). The freedom of the press formed part of the basic structure of the Constitiition. It was held that if Article r9(x)(a) was sought to be amended so as to abrogate the freedom of the press, and the amendment fell outside judicial scrutiny by placing the law curtailing 16. AIR 1950 SC 129: (1950) 51 Cri LJ 1525. 17. AIR 1958 SC 578: 1959 SCR 12. 18, Ibid, (AIR) 617, para. 150. 39. (2007) 4 SGC 1: AIR 2007 SC 861. a0. (1973) 4 SCC 225: AIR 1973 SC 1461.25, Ramlila M ei rcam oF wisia ow fora. ights i i lule, suck an abridgement would destroy Beene, SFR press and, thus, be destructive of the basi structure In Ramlila Maidan Incident, re, which arose out of an unprovoked midnight attack by the police on peaceful protesters at a public ground, the Supreme Court drew a comparison betweeri the Ist Amendment with its counterpart under the Indian Constitution. The court held that even under the US Constitution where the Ist Amendment confers an absolute right inasmuch: as the Congress can make no law abridging the freedom of speech, press or assembly, “it has long been ¢stablished that those freedoms themselves are dependent upon the power of the constitutional Government to survive. If it is to survive, it must,have power to protect itself against unlawful conduct and under some’circumstances against incitements to commit unlawful acts. Freedom of speech, thus, does not comprehend the right to speak on any subject at any time.”®} Free speech may be restricted under the “clear and present da cited Schenck v. United State: wer” test, Thesgourt [T}he character of every Act depends upon the circumstances in which it is done.... The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic. It does not even protect a man from an injunc- tion against uttering words that have all the effect of force... ‘The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a rizht ta prevents : Ina later judgment, the Media Guidelines cdf, a Constitution Bench of the Supreme Court, considering whether to impose guidelines on reportage of court cases, felt it necessary to emphasise the difference between the xst Amendm:nt under the US Constitution and the freedom of speech under the Indian Constitution: The First Amendment does not tolerate any form of restraint In US, unlike India and Canada which alsq have weitten Constitutions, freedom of the press is ex; pressly protected as an absolute right. The US Constitution does not have provisions similar to Section x of the Charter Rights under the Canadian Constitution nor is such freedom subject to reasonable restric- tions as we have under Article 19(2) of the Indian Constitution. Therefore, in US, any interference with the media freedom to 2x. LR. Coelbo v. State of T.N., (2007) 2 SCC x, 100, para, x 22, (2012) 5 SCC r. 23. Ibid, 30, para. 5. | 24. 63 LEd 470: 249 US 47 (x919). Incident, re, (2012) 5 SCC x, 5, pata. 6. See also, Sahara India Real Estate Corpn. Ltd. v. SEBI, (2012) 10 SCC 603: AIR 2012 SG 3829. 126, Sahara India Real Estate Corpn. Ltd. v, SEBI, (2012) 10 SCC 603: AIR 2012 SC 3829. ‘ AIR 2007 SC 86x,CONSTITUTIONAL FOUNDATIONS 7/ access, report and comment upon ongoing trials is prima facie unlawful, Prior restraints are completely banned. If an irrespon- sible piece of journhlism results in prejudice to the proceedings, . the legal system does not provide for sanctions against the parties responsible for thp wrongdoings. Thus, restrictive contempt of court laws are genétally considered incompatible with the consti- tutional guarantee of free speech.” Facets of speech and expression under Article 19(1)(a) The freedom of speech and expression under Article 19(x)(a) is a concept 4 with diverse facets, both with regard to the content of the speech and expression and in the means through which communication takes place. It is also a dynamic concept that has evolved with time and ‘advances in technology. : Briefly, Article r9(x)(a) covers the right to express oneself by word i of mouth, writing, printing, picture or in any other manner. It includes the freedom of communication and the right to propagate or publish ‘one’s views. The communication of ideas may be through any medium, newspaper, magazine ot movie, including the electronic and audio-visual m media.** ae 1 | Y/-Right to circulate ‘| The right to free speech and expression includes the right not only to ch x publish but also to circulate information and opinion. Without the right to circulate, the right to free speech and expression would have little meaning. The freedom of circulation has been held to be as essential as the freedom of publication.”? ‘ In Sakal Papers (P) Ltd. v. Union of India” (Sakal Papers), the Supreine Court Ra teetae State could nor make laws which directly affect the circulation of a newspaper for that would amount to a viola- } tion of the freedom of speech. The right under Article 19(x)(a) extends not only to the matter which the citizen is entitled to circulate but also to the volume of circulation." Sakal Papers arose out of a challenge to the ‘newsprint policy of the government which restricted the number of pages "a newspaper was entitled to print. ace om . > 27. Ibid, (SCC) 713, para. 17. 28. S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC $74. 29. Romesh Thappar v. State of Madras, AIR 1950 SC 124: 1950. SCR 594; Virendra v., State of Punjab, AIR 1957 6C 896. 1958 SCR 303; Sokal Papers (P) beds. Union of “ India, ATR 1962 SC 305: (1962) 3 SCR 842. 7 sc 30. AIR 1962 SC 305: (1962) 3 SCR 842. 3x. Ibid, (AIR) 313, paras. 33-34. Real~ 3B PAceTs OF MEDIA LAW {cnap. Likewise, in Bennett Coleman & Co, v, Union of India” (Bennett Coleman), the Supreme Court held that newspapers, should be left free to determine their pages and their-circulation. This case arose out of a challenge to the constitutional validity of the Newspaper (Price and Page) Act, 1956 which empowered the government to regulate the allocation of space for advertisement matter. The court held that the curtailment of advertisements would fall foul of Article 19(r)(a), since it would have a direct impact on the circulation of newspapers. The court held that any restriction leading to a loss of advertising revenue would affect citcula- , ion and thereby, impinge on the freedom of speech.»* \°} & > In Indian Express Newspapers (Bombay) (| P) Ltd. v. Union of India? \ indian Express Newspapers), a challenge to the imposition of cus- toms duty on import of newsprint was allowed and the impugned levy struck down, The Supreme Court held that the expression “freedom of the press”, though not expressly: used in Article 19, was comprehended within Article r9(z)(a) and meant freedom from interference from author- ity which would have the effect of interference with the content and the circulation of newspapers. In LIC v. Manubhai D. Shab” (Manubbai D. Shah), the Supreme Court reiterated 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. This includes the right to propagate one’s views through the print or other media. The .. court observed: # Freedom to air one’s view is the lifeline of any democratic institu- :tion and any attempt to stifle or suffocate or gag this right would sound a death-knell to detnocracy and would hglp usher in autoc- racy or dictatorship." ” The court held that any attempt to deny the right to circulation and propagation of ideas must be frowned upon, unless it falls within the mischief of Article r9(2). The right to circulate encompasses the right io determine the volume of circulation.” 32. (1972) 2 SCC 788: AIR 1973 SC 306, 33- Ibid, (SCC) 824, para. 82. 34: Ibid, (SCC) 8x3, para. 43. 35» {x985) x SCC 64x: AIR 1986 SC 515. 36. Ibid, (SCC) 693, para. 84. 37- (x99) 3 SCC 637: AIR 1992 SC x71. 38. Ibid, (SCC) 6st, para. 8. ; 39. Sakal Papers (P) Ltd. v. Union of India, AIR x962 SC 305: (r962) SGR 842; Ministry of Information and Broadcasting, Govt. of India v. Cricket Assn. of Bengal; (1995) 2 SCC 16, 208, para, 43: AIR 1995 SC 1236.ay CONSTITUTIONAL FOUNDATIONS 9 Right to dissent “Acceptance by Government of a dissident press is the measure of the maturity of the nation”.4° Freedom of speech and expression covers the right to criticise the government, which is the pre-requisite of a healthy democracy. The draft Constitution proposed that laws penalising sedi- tion would be an exception to free speech. The word “sedition”, defined in draft Article 13(2) as “exciting or attempting to excite in others certain bad feelings towards the government and not in exciting or attempting to'excite mutiny ot rebellion, or any sort of actual disturbance, great or small”, was deleted from Article 13(2) of the draft Constitution feventu- ally passed as Article x9(2)]. In Romesh Thappar,"' the Supréme Court noted that the deletion made it clear that the authors of thd Constitution intended that of the government was not to be regarded as a ground for restricting the free. oe of speech or expression, Ina leading American ease, Terminiello y. Chicago,** which has been frequently cited by Indian courts, the rationale behind the freedom of speech was explained: [A] function of free speech under our system of government is to invite dispute. Ie may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with con- ditions as they are, or even stirs the people to anger. Speech is often provocative and challenging. It may strike at prejudices and. preconceptions and have profound. unsettling effects as it ss presses for acceptance of an idea.... There is no room under our Constitution for a more restrictive view for the alternative would lead to standardization of ideas either by legislatures, courts or dominant political or community groups.” Kedar Nath Singh v. State of Bikar (Kedar Nath Singh) arose out of a constitutional challenge to Sections 124-A and 505, Penal Code, 1860 (IPC), which penalise attempts to excite disaffection towards the govern- ment by words or in writing and publications which may distuzb public tranquillity. The Supreme Court dismissed the challenge but clarified that criticism of public measures or comment on government action, however strongly worded, would be within reasonable limits and would be con- sistent with the fundamental right of freedom of speech and expression. 40. Douglas J in Terminiello v. Chicago, 93 L Ed 1131: 337 US x (1949). 42. AIR p50 SC x24: 2959 a 394 Br 1 (1949). oe Pe mantals w. Chicago, 99 L Ed 3152, 1154: 537 US x 1945)5 quoted with approval by Jeevan-Reddy J in Printers (Mysore) Ltd. v. CTO, (994) 2 SCC 434, 443-42 para, 13; also referred to in Ministry of Information and Broadcasting, Govt. of India v. Cricket Asin. of Bengal, (1995) » SCC 161: AIR 1995 SC 1236. 44. AIRy962 SC 955: (1962) 2 Cri LJ 103.erty under Article 21," tus, te uperaciun vs been confined to the territory of India. The le titled, The Constitutional Right h was quoted with approval by the Rao v. Union of India.” An of the right to personal lil fundamental rights had not ‘court relied on a passage from an artic to Travel by Leonard B. Boudin’ whic! Karnataka High Court in S.S. Sadashiva ‘extract from that passage reads: v sthe final objection to limitations upon the right co travel is thajam they interfere with the individual’: freedom of expression. ‘rave jthelf is such a freedom in the view of one scholarly jurist. But we need not go that fas; it is enough that the freedom of speech indludes the right of Americans co exercise it anywhere without “the interference of cheir government. Thete are nc geographical limitations :« che Bill of Rights. A Government that sets up ba riers to ite citizens’ freedom of expression in any country in the world violates the Constitution as much as if it enjoined such expression in the United States. The court also examined whether the right toggo aoroad, could in itself be part of the fundamental right o free speechfad expression. The court keld that although going abroad may be necessary in a given case for the exercise of the right to fre~ speech, that could not elevate it to the status of an integral part of the fundamental right to free speech and expres- ~ sion, The court held: Every activity that may be necessary tor exercise of freedom of speech and expression cr that may facilitate such exercise or make it meeningful and effective cannot be elevated to the sta- tus of a fundamental right as if it were part of the fundamental right of free speech ‘and expression. Otherwise, practically every activity would become part of some fundamental right or the other and the object of making certain rights only as funda- mental rights with different permissible restrictions would be frustrated.®° The testjlaid down by the court was whether the direct and inevitable teats an order impounding a passport would violete the right to _free speech and expression, Thus, in a case where a person plans to go overseas for the purpose of expressing herself in whatever way, through a lecture, dramatics, music, dance etc., the impounding of her passport would ‘have a direct effect on her right to free expression and would amount to an infringement of her rights under Article r9(1)(a). However, in the cgse before the court, there was nothing on record,to show that the petiff oner was seeking to go abroad for the purpose of exercising free 77. Satwant Singh Sawhney y. Passport Officer, AR 1967 SC 1836: (1967) 3 SCR 525. 78. Leonard B. Boudin, The Constitutional Right to Travel, (1956) Co L Rev. 79. (1965) a Mys L] 605. 80. Maneka Gandhi v. Union of India, (1978) tSCC 248: AIR 1978 SC 597. ee rayne ieenbaeeniepernten | |Speech of to carry on ner proression as a journarist. Consequently, there was no infringement of Article 19(1)(a) : c- “Right of the press to conduct interviews This i8 a limited right, subject to the willing consent of the person being, interviewed. A number of cases have arisen where thé right of the pres i to interview convicts or under trials has been examined. ! In Prabha Dutt v. Union of India," the petitioner was seeking to view thé condemned prisoners Billa and Ranga. The court held th press does not have an absolute or unrestricted right to information and there is no iegal obligation on the part of citizens “o supply that informa tion. An interview may be conducted provided the convict gives his con sent to being interviewed. The right to interview would also be subject ro Rule 549(4) of the Manual for the Superintendence and Management of Jails, which allows every prisoner sentenced to death to give interviews, engage in communications with relations, legal advisors, etc. as the Jail Superintendent considers reasonable. The court held that where there are “weighty” reasons to do so, the interview can be refused, although the reasons ought to be recorded in writing. The Supreme Court took a similar view in Sheela Barse v. State of Maharashtra.¥ °'s/" + In State v. Charulata Joshi, the Supreme Court reiterated the restricted scope of this right. The Additional Sessions Judge had granted the news magazine, India Today, blanket permission to interview Babloo Srivastava who v.1s lodged in Tihar Jail. The court held chat the under- trial could be interviewed or photographed only if he expressed his will- ingness. The interview had to be regulated by the provisions contained in the Jail Manuals and could be published in a manner that did not impair the administration of justice. er ¢ the Reporting court’proceedings Although, in principle, the press enjoys no higher status than that of the ordinary citizen, in practice, it does. Ordinary citizens are nor allowed free access in the way the press does, as for instance, they do not enjoy the privilege of sitting in the Press Bench as journalists do.** The press enjoys privileges on account of the citizen’s right to-be informed on mat- ters of public importance. Lord Donaldson in Attorney General v. Guardian Newspapers Ltd. (No. 2)* observed: 8x. (1982) 1 SCC 1: AIR 1982 SC 6. 84. See, Chap. 13 titled “Reporting Judicial Proceedings”. 85. (1990) x AC 109: (x988) 3 WLR 476: (1988) 5 AIL ER 545 (EIL), 6005 applied in M. and N. (Minors) (Wardship: Rublication of Information), re, 1990 Fam 211: (1989)20 FACETS OF MEDIA LAW | [cHar. It isnot because of any special wisdom, interest or status enjoyed by pyopri editors or journalists. It is because the media are the eyes and ears of the general public. They act on behalf of the general public. Their. right to know and their 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. ~The journalist has a fundamental right to attend proceedings in court and the right to publish a faithful repor: of the proceedings witnessed and heard in court. This right is available in respect of judicial and quasi judicial tibunals.** The right to report judicial proceedings stems from the necessity for transparency. Justice must not only be done, it must be seen to be done. Openness is a safeguard against judicial error and misconduct, Lord Shaw in Scott v. Scott? quoted Bentham, “Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the judge himself while trying undertrial.” «, Publicity of proceedings serves another important purpose. It enhances Public knowledge and appreciation of the working of the law and the administration of justice. There is also a therapeutic value to the public in seeing criminal trials reach their logical conclusion. Publicity of proceedings is not an absolute rule. The open justice sys- tem must give way when there are higher considerations. For instance, the names of rape victims or riot victims must be protected. Such persons may be reluctant to complain, if their identities are disclosed and trials publicised. It is not only necessary to protect such persons from public humiliation and embarrassment, but also necessary to ensure that the victim gives the best available evidence which'she may not be able to provide, if she is in the public gaze. Similarly, family disputes warrant privacy, particularly to protect children from unwarranted publicity. ™n Naresh Shridhar Mirajkar v. State of Maharashtra,” the Supreme Court held that the court may restrict the publicity of proceedings “in the inter- ests of justice”. The court has the inherent power under Section 151, Civil Procedure Code;s1908 (CPC) to order a trial to be held in camera, but this power must be exercised with great caution and only where the court is satisfied beyond doubt that the ends of justice would be defeated, if the case were to be triéd in open court.” - 3 WLR 1136: (1990) x All ER 205 (CA). 86. Saroj Iyer v. Maharashtra Medical Council of Indian Medicine, AIR 2002 Bom 97. 87. 1913 AC 417: (x9tz~13) All ER Rep 1 (HL) 30; quotéd with approval in Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1; Samarias Trading Co. (P} Ltd. v. S, Samuel, (1984) 4 SCC 666: AIR 1985 SC 61. Also see, Vineet Narain v. Union of India, (x998) x SCC 226: AIR 998 SC B89. : 88, Kartar Singh v. State of Punjab, (1994) 3 SCC 569. 89. AIR 1967 SC 1. 90, Ibid, 8-9, para. 2x. .ti CONSTITUTIONAL FOUNDATIONS 21 In Sahara India Real Estate Corpn. Ltd. y. SEBI," a Constitution Bench of the Supreme Court held that while in favour of open justice and the media’s right ional cases, the superior courts had the power to “postpone” reportage for a limited duration in the interest of justice. Orders of postponement would be subject to necessity and proportionality. there'was a presumption to report cases, in excep- Reporting legistative Proceedings The right to report proceedings of Parliament and the State Assemblies stems from the pisblic’s right to be informed about the debates and deli. crations of its elected representatives on matters of public importance.?” Under Article 361-A of the Constitution, there is no liability in respect of the publication of a substantially true report of Parliamentary pro- ceedings, or those of the State Assemblies, so long as the publicacion te untainted by malice. A similar provision is contained in Parliamentary Proceedings (Protection of Publication) Act, 1977. The right to report legislative proceedings has often been curtailed in the name of legislative privilege available to both Parliament and the Stace Assemblies. Legislative privilege refers to special rights conferred by the Constitution on Parliament and the State Legislatures to ensure freclons of speech for the légslators, to enable them to discuss and debate matters of importance without the fear of inviting liability of any sore. The Supreme Court in Tej Kiran Jain v. N. Sanjiva Reddy" observed: Itis of the essence of parliamentary system of governinent th people's representatives should be free ‘to express themselv without fear of legal consequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the speaker. The ' courts have no say in the matter and should really have none Commonly recognised privileges include: «oer. The: privilege, pf the freedom of speech and immunity from proceedings. '” 2. The right to control publication of legislative proceedings. 3. The right of each House to be the sole judge of the lawfulness of its ‘own procecdings. 4. The right of the House to Parliament. { at es punish members for their conduct in 93. (2012) 10 SCC 603: AIR 2012 SC 3829. 92. See, Chap. ra titled *Privileges of Parlia: 93. Ss. 3 and 4, Parliamentary Proceedin; 94, Constitution of India Arts. 105, 194. 95. (1970) 2 SCC 272: AUR 1970 SC 1575, iment and the State Assemblies”, 16s (Protection of Publication) Act, 1977.22 FACETS OF MEDIA LAW 5. Protection of witnesses, petiti»ners and their counsel who appear before the House or any committee thereof. 6. The right to exclude strangers from the House. ; ; >. The right to decline permission for taking of evidence in courts of law of proceedings in Parfament. An extension of legislative privilege is the pow ish for breach ofthe privilege or for contempt Parliament has been described as or of the legislature to pun- af the House, Contempt of any act or omission which obstructs or impedes either House of Parliament in the performance ofits functions, or which obstructs cor impedes any Member or officer of such House in the discharge of his duty, or which has a tendency directly or indirectly, to pro- duce such results may be treated as a contempt even though there = is no precedent of the offene”.* On occasions, the use of these powers has brought the legislature in con- frontation with the media In the Searchlight case,’ a notice for breach of privilege was issued against the editor of Searchlight, a well known English daily for publish ing an expunged portion of the pruceedings of the Bihar State Assembly. The editor’s petition in the Supreme Court, complaining that his right to freedom of speech had been violated, was dismissed. The Supreme Court held that the report of an expunged portion of a Member’s speech would, prima facie, amount to a breach of privilege. Legislative privileges stemmed from special constitutional laws and in the event of a conflict, Article 19(1)(a) would have to yield to Articles ros and 194. In the Powers, Privileges and Immunities of State Legislatures, re case,‘ a landmark judgment on legislative privilege and contempt of the legislature, arose out of a Presidential Reference under Article 143(1) of the Constitution. The U.P. Legislative Assembly issued an arrest war- rant against two judges of the Allahabad High Court for ordering the release of one Keshav Sirgh, against whom action had been taken for committing contempt of the House by addressing a disrespectful letter .to the Speaker. While answering the Presidential Reference and holding that the judges had not committed contempt of the House, the Supreme Court stressed that legislative privilege must be subject to the fundamen- tal rights of the citizen.’ The court sounded a note of caution against the exercise of privilege and the power to punish for contempt.“ 1. Erskine May, Parlidmentary Practice (21st Edn. 1989) (1) 115. 2, AIR 1959 SC 395: 1959 Supp (1) SCR 806. 3. Ibid, (AIR) 410, para. 28. 4, AIR 1965 SC 745: (1965) x SCR 413. 5. Ibid, (AIR) 767, para. 6. 6. Ibid, (AIR) 79%, para. 142. ‘ onj CONSTITUTIONAL FOUNDATIONS 23 In an age of information and accountability, where the live telecast of legislative proceedings has become mandatory,’ the whole concept of leg- islative privilege and contempt is anachronistic. Further, in the absence of defined privileges, this power is misused with impunity.* \ Right to advertise (commercial speech) In Tata Press Ltd. v. MTNL? (Tata Press Ltd.), the Supreme Court inter- preted the fundamental right to freedom of speech and expression under Article 19(1)(a) as including,the right to advertise or the right of com- mercial speech. Till this judgment, advertisements were excluded from the realm of free speech, In an earlier ruling, Hamdard Dawakhana v. Union of India" (Hamdard Dawakhana), the Supreme Court held that advertisements being for commercial gain, could not avail of the rights under Article r9(1)(a). The case concerned a challenge to the provisions ‘of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 which was intended at preventing self-medication. The court held that although an advertisement was a form of speech, it ceased to fall within the concept of free speech, when it took the form of a commer- cial advertisement secking to promote trade or commerce. The court . observed: : Freedom of speech goes to the heart of the natural right of an organised freedom loving society to ‘impart and acquire informa- tion about that common interest’. [fany limitation is placed which results in the society being deprived of such right then no doubt its. ~ would fall within the guaranteed freedom under Article 19(x)(a). But if all it does is that it deprives a trader from commending his wares, it would not fall within that term." It is curious reasoning to deprive commercial advertising from protection under Article 19(z)(a). Traders and businessmen, who.advertise for com- mercial gain, are no different from newspapers and other media that are run as commercial, profit-making enterprises: This is precisely why the media enjoys no special status or immunity arid is subject to the general laws of the land, including those relating to taxation. The reasoning that those advertising for commercial gain were-disentitled to enjoy the right of free speech under Article r9(x)(a) appears flawed. 7. Gazette Notification No. 16(1) Cable/2005 E- 8. See, P.V. Narasimha Rao v. State (CBI/SPE), (1 and a detailed Assemblies”. 9. (1995) 5 SCC 139: AIR 1995 SC 2438. , x0. See, Chap. 10 titled “Advertising”. x1. AIR 1960 SC $54: 1960 Cri L} 735. 12. Ibid, (AIR) 564, para. 18. 5-2-2005 issued by Prasar Bharati. 8).4 SCC 626: AIR 1998 SC 2120 scussion in Chap. 12 titled “Pritileges of Parliament and the State24 FACETS OH MEDIA LAW {cuar. : In Indian Express Newspapers," a case concerning a challenge to the imposition of import duty on newsprint, thereby affecting the circulation of newspapers and consequently advertising revenue, the Supreme Court restricted the application of Hamdard Dawakhana:* In Hamdard Dawakhana case th: court was principally dealing with the right to advertise prohibited drugs, to prevent self-medi- cation and self-treatment, That was the main issue in the case. It is no doubt true that some of the observations referred to above go beyond the needs of the case and tend to affect the right to _ publish“all‘commercial advertisements. ...we feel that the obser- vations made in the Hamdard Dawakhana case are too broadl; stated and the Government cannot draw much support from it. | We are of the view that all commercial advertisements cannot be denied the protection of Article r9(r)(a) of the Constitution . «merely because they are issued by businessmen.'* : XN The issue of commercial speech was also dealt with by the Supreme Court ‘in Sakal Papers."* The case arose out of a constitutional challenge to the ‘validity of the Newspaper (Price and Page) Act, 1956 which empowered the government to regulate the prices of newspapers in relation co their pages and size and to regulate allocation of space for advertisement mat- vee The court held that the curtaiiment of advertisements would be hit By Article 19(2)(a) since it would have a dicect impact on the circulation of newspapers. The court observed: Again Section 3(x) of che Act in so far as it pesmits the alloca: tion of space to advertisements also directly affects freedom of circulation. If the area for advertisements is curtailed the price of the newspaper will be forced up. If that happens, the circulation will inevitably go down. This would be no remote, but a direct consequence of curtailment of advertisements. If, on the other hand, the space for advertisements is reduced the earnings of a newspaper would go down and it would either have to run at a loss or close down or raise its price. The object of + the Act in regulating the space for advertisements is stated to be to prevent ‘unfair’ competition. [tis thus directed against circula- tion of a newspaper. When a law is intended to bring about this result there would be a direct interfetence with the right of free- dom of speech and expression guaranteed under Article 39(z)(a).7 x3. (7985) t so 64x: AIR ees sts. : \ - AAAI 1960 SC 554: 1960-CHiL] 735~ . oe radian Ep ess Newspaners (Bombay) (P) Ltd. v. Union of India, (1985) x SCC 64, Jor-02, para. 93- z A 16. AIR’ 1962 SC 305: (1962) 3 SCR 842 17, Ibid, (AIR) 333, paras. 33-34- | i1 CONSTITUTIONAL FOUNDATIONS 2, ‘This position was endorsed in Bennett Goleman & Co. v. Untion 0, India," where the court recognised the ,position chat advertisement: ‘were an essential factor affecting circulation and any restraint on adyer tisements would have the effect of infringing the fundamental right o! propagation, publication and circulation ender Article roa) Since the time the Hamdard Dawakh na case was decided, there has been’a huge transformation in the economy and advertising has come to acquire a very prominent role not only in shaping public choices but also in influencing economic activity. In the liberalised economy, where countless products have flooded the market generating fierce competitio: advertising gives one product an edge over another. Mote importantly, i is advertising which effectively sustains the media. Newspapers earn far more revenue from advertisements than {rom readership subscription Tata Press Ltd.,” the Supreme Court recognised this phenomenon: Advertising is considered to be the cornerstone of our economic system. Low prices for consumers are dependent on mass pro: duction, mass production is dependent upon volume sales, and Volume sales are dependent upon advertising. Apart from the Iifeline of the free economy in a democratic country, advertis- Jag can be viewed ae the lifeblood of free med) Ob the costs snd thus making the media widely available newspaper industry obtains 60 per cent/So per cent of from advertising, Advertising pays a large portion of the cost supplying the public with newspaper. For a democratic press the advertising subsidy is crucial. Without advertis resources ‘available for expenditure on the ‘news’ would decline, lead to an erosion of quality and quantity. The cost of : forthe public would increase, thereby restricting its ‘democratic c Court reiterated the importance of adve@ising and its imp: The case, arose out ef a challenge co an order Government directing a cut of 5 per cent from bills payabl pets with a circulation of about 25,000 copies for publication of gov venment advertisements. The government clairied chat che order was to sid a pension and social security scheme for full-time journalists. ance held that advertisements in newspapers play an impostant role in cnerating revenue and have a direct nexus with circulation. Advert a eerie newspapers to meet the cost of newsprint and othe: Meaeer ing also enables the feader to purchase 2 to newspa- —_— Too)» $CC788: AIR 1973 $C 206 van Te (e978 See 39: ATR 1995 SC 2438 Bai ScO) pace20. ae eee spt: AIR 2003 SC 38026 FACETS OF MEDIA LAW ! [erar, newspaper at an affordable price.?* The owndR of a newspaper was not liable to undertake the burden of the impugned tax which was struck down as being unconstitutional. The bargaining power of the State and newspapers in matters of release of advertisements was unequal and ary unjust condition on newspapers would be violative of Article 14 of the Constitution as also of Section 23, Contract Act, 1872.23 In NOVVA ADS v. Deptt. Of Municipal Admn and Water Suppiy,® it was contended that hoardings are protected as commercial speech under ~ Article (r9)(r)(a) and that dissemination of information, whether politi- cal, social or commercial, could noi Le xcstricted on the ground that it caused an obstruction to traffic, a ground not covered under Article 19(2). Section 326-A, Chennai City Municipal Corporation Act, r9r9 defines “hoardings” to mean “any screen or board ar any place whether public or private used or intended to be used for exhibiting advertisements...” The Act mandated licences for hoardings in both public and private places. ‘While the State has a right to regulate hoardings in public places as they vest in the State as a trustee for the public, hoardings in private places also require regulation so as to ensure that they are not hazardous to the public in any manner whether by posing a danger to free flow of traf- fic, distracting traffic or containing obscene or otherwise objectionable material. The court held that there was no infringement of the freedom of speech which includes the right to advertise. Right of rebuttal The freedom of speech and expression entails the right to respond or the right of rebuttal. This was held by the Supreme Court in Manubbai D. Shah. The case arose out of the publication in a newspaper of an article by the trustce of a consumer rights organisation. The article ctiticised unfair practices adopted by the Life Insurance Corporation of India (LIC) on its policy-holders. A member of the LIC responded to this article challenging the conclusions of the trustee and published them in the same newspaper. The trustee published his rejoinder which also appeared in the same newspaper. Meanwhile, the author of the counter ~-had his piece published in the Yogakshema, the in-house magazine of the LIC, When the trustee tried to have his rejoinder published in the same journal, his request was turned down on the.ground that the maga- zine was an in-house publication. Adopting the “fairness doctrine”, the Gujarat High Court allowed the trustee’s writ petition. The Supreme Court upheld the High Court judgment and held that the PIC was under an obligation to publish the rejoinder since it had published the counter. 22. Ibid, (SCC) 601-04, paras. 33-38. L 23. Ibid, (SCC) 6o1-02, 604, paras. 27-30, 39, respectively. 24, (2008) 8 SCC 42: AIR 2008 SC 2943. 25. (1992) 3 SCC 637: AIR r991 SC 171. yi iat q) CONSTITUTIONAL FOUNDATIONS 27 The trustee's fundamental right of speech ¢ and expression entitled him to insist that his view on the subject should reach readers so that they have a complete picture rather than a lopsided or distorted one. The court hele that the LIC, a “monopolistic state instrumentality” which survived on public funds could not act in an arbitrary manner on the ground that it was a matter of exclusive privilege to publish or refuse to publish in an in-house magazine, But the court also clarified that there was no absolute tule that a public institution was under an obligation to publish any mat ter that a citizen forwarded for publication. Compelied speech Compelled speech, often known as a “must carry” provision in a statute, rule or regulation could amount to an infringement of the right co free speech, Whether or not compelled speech amounts to a violation of the freedom of speech depends on the nature of the “must carry” provision. Ifa “must carry” provision furthers informed decision-making, which is the essence of free speech and expression, it will not amount to a Violation of free speech. There arc several such instances: The statutory obligation that a food product must carry on its package, a list of ingredients used in its preparation; and the obligation that cigarette cartons must carry a ‘statutory warning that cigarette smoking is harmful to health. Such compulsory disclosures are meant to further the basic purpose of impart- ing relevant information which cnables a user to make a well informed decision and do not infringe the right to free speech. In Union of India v, Motion Picture Assn.,7 there was a challenge by distributors arid exhibitors of motion pictures to the compulsory screen- ing of educational, scientific or documentary films, or films carrying news or current events along with other films.?* The short films pro- duced by the Films Division of the Government of India were required to be screened along with the usual films exhibited in cinema halls and che } exhibitors were required to enter into agreements with the Films Division “' for suyply of such films and pay for such supply a rental of one per cent of * the net collections. The court held that the test was to examine whether the purpose of the compulsory speech in question was to promote free- *» dom of speech or to curtail it. S.V. Manohar J observed: We have to examine whether the purpose of compulsory speech y in the impugned provisions is to promote the fundamental free- dom of speech ‘and expression and dissemination of ideas, or { 26. Ibid, (SCC) 655, para, 12. 27. (1999) 6 SCC 150: AIR 1999 SG 23343 see also, M.C. Mehta v, Union of India, (1993) x SCC 358: AIR x992 SC 382, where in a public interest litigation on environmental pollution, the Suprem Court directed that all cinema halls must show short films to spread environmental awareness. 28. See, Ss. 12(4) and 16, Cinematograph Act, 1952.“28 FACETS OF MEDIA LAW [cnap. whether it is to restrain this freedom. The social context of any such legislation cannot be ignored. When a substantially signifi- cant population body is illiterate or does not have easy access to ideas or information, it is important that all available means = of communication particularly audio visual communication, are ; utilised not just for entertainment but also for education, infor- i mation, propagation ‘of scientific ideas and the like. The hest way by which ideas can reach this large body of uneducated peo- ple is through the entertainment channel which is wa'hed by all—literate and illiterate alike. ‘To earmark a small portion of } time of this entertainment medium for the purpose of showing : scientific, educational or'documentary films, or for showing news { films has to be looked’ at in this context of promoting dissemina- tion of ideas, information and knowledge to the masses so that there may be an informed debute and decision making on public issues. Clearly, the impugned previsions >°- designed to further free speech and expression and not to curtail it. None of these statutory provisions require the exhibitor to show a propaganda film or a film conveying views which he objects t0....? ‘The contention-of the exhibitors, that the exaction by the government of one per cent of their net collections for these documentaries, exhibiting which was costing the exhibitors vitai business time, did not find favour with the court. The court found that the Films Division was incurring, huge expenses on the production and distribution of these films through- out India and was able to recover only part of the expenditure from the curing : ‘ impugned levy. There was nothing excessive or unreasonable about thc charge.2? ‘The requirement to run a scroll displaying'a statutory warning against smoking in films that show smoking scenes, is also a form of compelled speech. Bieta The concept “speech and expression” has evolved with the progress of technology and”encompasses all available means of expression and 29. Union of India. Motion Picture Assn., (1999) 6 SCC x50, 165, para. 17: AIR 1999 SC 2334. 30. Ibid, (SCC) x68~71, paras. 28-32. Fy 32, The Ministry of Health and Family Wellare notified the rules for/Cigatetces and other Tobacco Produets (Probibition of Advertisement &¢ Regulation of Trade &c Commerce, Production, Suppl & Distribution) (2nd Amendmeng rules) 2orz which require old films displaying tWbacco products of their use to mandatorily display anti-tobacco health spots or messages at the beginning and middle of the film or pro- gramme aad an anti tobacco health warning as a scroll at the bottom of the screen during the period of display. New films and programmes tequire a strong justifica- tion for display of tobacco products or their use and such displays, if justified, will require to be accompanied by similar scrolls, health spots or messages and warnings.y CONSTITUTIONAL FOUNDATIONS 29 ‘.communication. This would include the electronic and the broadcast media.?? In Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana,” the Supremg Court held that the right of a citizen to exhibit films on the 7 State channel, Doordarshan, is part of the fundamental right guaran teed under Article 19(1)(a). The court held that this right was similar to the right of a citizen to publish his views through any other media such as newspapers, magazines, advertisements, hoardings and so on. In this case, the petitioners challenged the exhibition on Doordarshan of a serial titled Honi Anhoni on the ground that it encouraged superstition and blind faith amongst viewers. The petition was dismissed as the petitioner failed to show evidence of prejudice to the public. The right to broadcast was also recognised in Manubbai D. Shab. Doordarshan refused to telecast a documentary film on the Bhopal gas disaster titled Beyond Genocide on the ground that the film had lost irs relevance and that it criticised the action of the State Government. The Supreme Court held that the film-make: had a fundamental right under Article 19(x)(a) to exhibie the film and the onus lay on the party refusing exhibition to show that the film did not conform to the requirements of the law, It was held that Doordarshan, a State-controlled agency that was dependent on public funds, was not entitled to refuse telecast except ‘on the grounds under Article 19(2). Likewise, in Anand Patwardhan,” the Supreme Court held that Doordarshan could not deny a film-maker the right to telecast his award-winning documentary film based on com- munal violénce and atrocities on women. In Ministry of Information and Broadcasting, Govt. of India v. Cricket Assn. of Bengal, the Supreme Court held that broadcasting is a means of communication and a medium of speech and expression within the framework of Article r9(r)(a). This case involved the rights of a cricket association to grant telecast rights to an agency of its choice. It was held that the right to entertain and to be entertained, in this case, through the broadcasting media are an integral part of the freedom under Article r9(z)(a). The court said: If the right to freedom of speech and expression includes the right to disseminate information to as wide a section of the population asis possible the access which enables the right to be so exercised is also an integral part of the said right.” 32. See, Chap. 14 sitcB-Brosdcasing™ 33..(1988) 3 SCC gro: AIR 1588 SC 1642. 34. (1992) 3 SCC 637: AIR 1991 SC x71. 35. (2006) 8 SCC 433: AIR 2006 SC 3346. 36. (1995) 2 SCC réx: AIR 1995 SC 1236. 37. Ibid, (SCC) 227, para. 78.30 FACETS OF MEDIA LAW (cHap. The court went on to hold that since the broadcasting media depended on the use of airwaves, a limited common property resource, the rights of the telecaster were also limited. This was a restriction in addition to those set out under Article r9(z) and was justified on the ground of the lim- .d spectrum of airwaves. This liriitarion did not extend to the views whose right ro be informed, educated and ciiertained is paramount. ’* In Directorate of Film Festivals v. Gaurav Ashwin Jain,” the Supreme Court held that the right of film-maker 10 make and exhibit films is part of his fundamental right of freedom of speech and expression under Article z9(1)(a) of the Constitution and that films are a medium to express and communicate idi is, thoughts, messages; information, frel- ings and emotions, whether intended for public’exhibition (commercial or non-commercial) or purely for private use. However, matters relat- ing to whether the government should encourage the production of films with aesthetic and technical excellence or social relevance, whether sncis encouragement should be in the form of awards, periodically or annually, and whether in conferring such awards, the field of competition should be:restricted only to films certified by the Censor Board are matters of government policy which cannot be the subject-matter of judicial review. The court held that the government's policy of restricting entries for the purposes of conferring awards t> non-feature films was justified, since the government could not be expected to evaluate or confer an award in respect of a film which may never be seen by the public in its uncensored form. The argument that such a policy was unreasonable and arbitrary was rejected by the court on the ground that the government could not be precluded from laying down separate policies for national film awards (NFAs) and for film festivals. While film festivals provide a platform for film-makers from all over the world to interact and exchange ideas, explore the possibility of co-production, and market filfns, the object of NFA is to encourage the production of films of aesthetic and technica! excellence and social relevance which would contribute to the under- standing and appreciation of different cultures and promote national integration. In the circumstances, the exemptions. granted in respect of film festivals could not automatically be applied to 'NFAs. The two being unequal and dissimilar, the same standards and norms could not be applied and that could not be a sustainable grievance of discrimination under Article 14. Right to silence F The very converse of speech, i.e. silence is also inhi in the right to freedom of speech under Article 19(1){a). In Bijoe Emmanuel v. State of 38. Ibid. 39. (2007) 4 SCC 737: AIR 2007 SC 1640.a) CONSTITUTIONAL FOUNDATIONS | 31 Kerala,® the Supremé-Court upheld the right of school children belong. ing to the sect of Jehovah's Witnesses to refrain from singing while the national anthem way sung during the school assembly. It was contended on behalf of the children that their religious beliefs prechided them from singing the anthem/though they were prepared to stand by respectfully while other school children sang it. Such a right was held as flowing not from the fundamental right to practise religion under Article 25(1) alone but also from the right to free speech and expression under Article 9(1)(a) In Noise Pollution (5), re," che Supreme Court held that Article r9(r)(a) did not protect noise {rom loudspeakers, radios, horns, automabiles, industries, rail engines, aeroplanes and the like. While everyone has the tight to speech and expression, others have the right to listen or decline to listen, if they so desire. Nobody can be compelled to listen, nor can any one claim the right to indulge in aural aggression or insist that his voice trespass into the ears and minds of others. Underlining the right to life under Article 21, as including the right to a pollution free and peace- ful environment, the court held: If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnox- ious levels, then the person speaking is violating the right of oth- ers to a peaceful, comfortable and pullution~free life guaranteed by Article 2r. Article x9(x)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21." The court placed reliance on a passage from the judgment of the Kerala High Court, P.A. Jacob v. Supt. of Police: The right to speech implies, the right to silence. It implies free- dom, not to listen, and not to be forced to listen. The right com- prehended freedom to be free from what one desires to be free from.... A person can decline to read a publication, or switch off a radio or a television set. But, he cannot prevent the sound from a loudspeaker reaching him, He could be forced to hear what he wishes not to hear. That will be an invasion of his right to be Jet alone, to hear what he wants to hear, or not to hear, what he does not wish to hear. One may put his mind or hearing to his own use but not that of another. No one has a right to trespass on the mind or ear of another and commit auricular or visual aggression...,. The use of a loudspeaker may be incidental to the exezcise of the right, But, its use is not a matter of right, or part of the right, I 40. (1986) 3 SCC 6rs: AIR 1987 SC 748. 41. Noise Pollution (5), re, (2003) 5 SCC 733: AIR 2005 SC 4136. 42, Ibid, (SCC) 746, para, x1. 43. AIR 1993 Ker 1, 5