Media Laws – PGP – Media and

Entertainment

Padmaja Dholakia
 Introduction to Media Law
• Speech and Expression are the means to communicate with one another on a personal basis and
with the masses on a larger scale.
• From guaranteeing this freedom of speech and expression to ensuring the said freedom is not
misused; to framing guidelines for the different means or medium of communication and
expression, various laws have been enacted by the legislature from time to time.
• Media being a means of Communication, all laws that relate to different types of communication
and ownership of the material being communicated are applicable to Media.
History of Media Laws in India – early 19th Century
• Earliest Media Rules and Regulations can be traced back to Lord Wellesley in 1799 when he
promulgated ‘Press Regulations’.
• Press Act, 1835
• ‘Gagging Act’,1857 to curtail the rising disquiet against the British Regime and to curtail the spread
of the 1857 mutiny.
• Vernacular Press Act, 1878 to control the fast rising and popular vernacular press in the freedom
movement.
• Many other draconian laws were enacted and enforced by the British Regime to control the press in
India’s freedom movement.
 List of enactments that affect Media Law
Relating to Press:
1. Press and Registration of Books Act, 1867
2. Registration of Newspapers (Central) Rules, 1956
3. Press Council Act, 1978 & Press Council Rules, 1979
4. Working Journalists and other Newspaper Employees (Conditions of Service) and
Miscellaneous Provision Act, 1955 & Rules, 1957
5. Working Journalists (Fixation of Rates of Wages) Act, 1958
6. Newspaper (Price and Page) Act, 1956
7. Newspapers (Incitement to Offences) Act, 1908
8. Delivery of Books and Newspapers (Public Libraries) Act, 1954
9. Right to Information Act, 2005/ Rules 2012
10. Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 & Rules,
1955
12. State Emblem of India (Prohibition of Improper Use) Act, 2005; Rules 2007
13. Parliamentary Proceedings (Protection of Publication) Act, 1977
14. Young Persons (Harmful Publications) Act, 1956
15. Constitution of India, 1950
16. Copyright Act, 1957

Relating to Media:
1. Dramatic Performances Act, 1876
2. Cinematograph Act, 1952; Rules 1953
3. Guidelines for Certification of Films for Public Exhibition
4. Cine- Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 and Rules,
1984
5. Cine- Workers Welfare Cess Act, 1981 and Rules, 1984
6. Cine-Workers Welfare Fund Act, 1981 and Rules, 1984
7. Prasar Bharati (Broadcasting Corporation of India) Act, 1990
8. Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati ) Act, 2007 and Rules
2007
Telecommunication Laws:
1. The Indian Telegraph Act, 1885
2. Telecom Regulatory Authority of India Act, 1997 & Rules, 1999
3. Telecom Regulatory Authority of India Act, (Access to Information) Regulations,
2005
4. Telecommunication (Broadcasting and Cable) Services Standards of Quality of
Service and Consumer Protection (Addressable Systems) Regulations, 2017
5. Indian Post Office Act,1898
6. Information Technology Act, 2000
7. Information Technology (Intermediaries Guidelines) Rules, 2011
8. Information Technology (Guidelines for Cyber Café) Rules, 2011
Miscellaneous Acts Relating to Media -
1. Atomic Energy Act, 1962
2. Children Act, 1960
3. Civil Defence Act, 1968
4. Code of Criminal Procedure Code, 1973
5. Contempt of Courts Act, 1971
6. Exit Polls Guidelines
7. Hindu Marriage Act, 1955
8. Indecent Representation of Women (Prohibition) Act, 1986 & Rules, 1987
9. Indian Penal Code
10. Official Secrets Act, 1923
11. Prevention of Seditious Meetings Act, 1911
12. Prize Chits and Money Circulation Schemes (Banning) Act, 1978
13. Prize Competitions Act, 1955
14. Representation of the People Act, 1951
15. Unlawful Activities (Prevention) Act, 1967
Constitution of India, 1950 – Introduction to Fundamental Rights guaranteed under the
Constitution
Article 19: Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right –
(a) To freedom of speech and expression;
(b) …
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State
from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interest of the 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.
Rights conferred by Article 19(1) are not available to and cannot be claimed by any person who is not a citizen
of India. (not available to ‘persons’)

Article 105: Powers, privileges etc. of the Houses of Parliament and of the members and committees thereof.
(1) subject to the provisions of this Constitution and to the rules, and standing orders regulating the procedure
of Parliament, there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any Court in respect of anything said or any
vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of either House of Parliament of any report, paper, votes or
proceedings.
• Article 194 : Powers, privileges etc., of the House of Legislatures and of the members and committees
thereof.
• Article 352: Proclamation of Emergency – (1) If the President is satisfied that a grave emergency exists
whereby the security of India or of any part of the territory thereof is threatened, whether by war or
external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect, in
respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.
• Article 358: Suspension of provisions of Article 19 during emergencies
• - any laws may be made or any such executive action may be taken, which may affect the rights guaranteed
under Article 19.
• Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies – the right
to move any Court for the enforcement of such rights conferred under Part III (except articles 20 – rights
when convicted of crimes and 21- Right to life and personal liberty)
• Article 361-A: Protection of publication of proceeding of Parliament and State Legislature. (1) No person shall
be liable to any proceedings, civil or criminal, in any Court in respect of the publication in a newspaper of a
substantially true report of any proceedings of either House of Parliament or the Legislative Assembly, unless
the publication is proved to be made with malice: However, this protection shall not apply to any report of
proceedings of a secret sitting of either House of Parliament or House of Legislative Assembly – in relation to
reports or matters broadcast by means of wireless telegraphy or services of broadcasting station
• Article 19 (1) (a) – Guarantee of Freedom of Speech and Expression
• Article 19 (2) – Reasonable Restrictions
• Article 352 : Proclamation of Emergency
• Article 358: Suspension of provisions of Article 19 during emergencies
• any laws may be made, or any such executive action may be taken, which may affect the rights
guaranteed under Article 19.
• Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies – the
right to move any Court for the enforcement of such rights conferred under Part III (except articles 20 –
rights when convicted of crimes and 21- Right to life and personal liberty)

The Dark period In the history of India, since Independence

• Emergency in India 1975-1977 – 21 months
• The most controversial periods of independent India’s history.
• Circumstances leading to the declaration of Emergency.
• Sweeping powers assumed by Mrs. Gandhi, then Prime Minister.
• War of 1971 with Pakistan – victory- at her greatest peak as a ‘mass leader’.
• Golaknath case in 1967 SC ruled that Constitution cannot be amended by Parliament if the changes
affect basic issues such as fundamental rights.
• Judiciary – Executive battle continued in the Kesavananda Bharati case,- with a 7:6 majority, SC was
able to restrict Parliament’s amendment power by stating that it could not be used to alter the “basic
structure” of the Constitution.
• Mrs. Gandhi retaliated by make a junior judge the Chief Justice of India, superseding 3 judges above
him in seniority.
• Mrs. Gandhi’s tendency to control the judiciary met with severe criticism both from press and political
opponents.
• Intolerance to criticism and the rise of Sanjay Gandhi – ostentatious displays of sycophancy became
routine.
• During 1973 to 1975, political unrest against the Indira Gandhi Government increased across the
country.
• Presidents rule imposed in Gujarat, after the dissolution of the State Legislature – students’ unrest.
• In June 1975, Gujarat Assembly elections Congress was defeated.
• Attempts on the lives of political leaders were made.. Growing law and order problem.
• Jayaprakash Narayan, agitation against Mrs. Gandhi. Called for a “total revolution”, asking students,
peasants and labour unions to non-violently transform Indian Society.
• Raj Narain who was defeated by Mrs. Indira Gandhi filed cases of election fraud and use of state
machinery for election purposes against her in the Allahabad High Court.
• Citing threats to national security in the light of the recent war with Pakistan in 1971, and additional
challenges faced due to draught and the 1973 oil crisis, the economy was in a poor condition.
• Election verdict against Mrs. Indira Gandhi in State of Uttar Pradesh v/s Raj Narain (AIR 1975 865) (from
a Judgement of Allahabad High Court). Mrs. Gandhi’s election declared null and void, and unseated her
from her seat in the LS. Also banned her from contesting any elections for additional 6 years and
debarred from voting. Supreme Court upheld the Allahabad High Court verdict and she lost all her
privileges as an MP.
• The persistent efforts of Raj Narain were praised world wide as it took 4 years for Justice Sinha to pass
the judgement against the prime minister.
• JP Narayan and Morarji Desai call for daily anti-government protests, organised a rally in Delhi where JP
said that a police officer must reject the orders of the government if the order is immoral and
unethical.
• A Railway employees nationwide strike was brutally suppressed by the Government with a mass arrest
of the employees and throwing out of their families from the living quarters.
• Government cited threats to national security, (as a war with Pakistan had recently been concluded).
• Economy was in shambles and in the light of the massive political opposition, desertion and disorder
prevailed across the country and the congress party.
• In this situation, Sanjay Gandhi, the younger son of Mrs. Indira Gandhi assumed great power, to
become an “extra constitutional authority”; he began to terrorize the administration and almost ran a
police state.
• Compulsory family planning or sterilization program, raising of the maze of tenements supposedly
blocking his view of the Old Jama Masjid, which saw the death of over 150 people who were protesting
the raising of their houses.
• Government introduced a 25 point program – economic and social – including Sanjay Gandhi’s 5 point
program
• Invoking Article 352, Indira Gandhi granted herself extraordinary powers and launched a massive
crackdown on the civil liberties of citizens and opposition political leaders – leading to political and civil
oppression.
• Government used police force to place political opponents in prison. Several pollical parties and
organisations were banned (RSS and Jamaat-e-Islami)
• This was taken as a sign of inciting unrest and rebellion in the country and later that day, Mrs. Gandhi
the President Fakhruddin Ali Ahmed to issue a proclamation of a state of ‘internal emergency’.
• The proposal to declare emergency was sent without discussion with the Union Cabinet, who only
learnt about it and ratified it the next morning.
 Suspension of Freedom of Speech and Expression
• Within 3 hours of the declaration of Emergency, electricity to all major newspapers was cut and the political
opposition arrested.
• Several opposition leaders were arrested and put in jail.
• Large scale and illegal enactment of laws (including modifications to the Constitution of India)
• Several journalists were arrested and put in prison.
• Censorship Order was passed by the Government, under Defence of India Rules, 1971. –
• Every newspaper, periodical or other document to be submitted for scrutiny to an authorised officer
Maintenance of Internal Security Act, 1971 (MISA)
“Guidelines for the Press in the Present Emergency” were framed –
i. where news is “plainly dangerous”, newspapers should assist the censor by suppressing it themselves.
ii. No publicity to be given to rumours. No “objectionable matter already published in another Indian or
foreign newspaper was to be reproduced.
iii. Nothing was to be publicized which was likely to cause disaffection among members of the armed
forces or civil servants, or to bring the government into hatred or contempt or to encourage or incite
the usage of criminal force against public servants.
iv. Nothing was to be published which was likely to promote feelings of enmity and hatred between
different classes of people.
Central Government assumed full control over the administration of the States.
• On 13th July 1975, new instructions were issued, bringing news, comments and reports of proceedings in the
legislature and the courts within the purview of censorship.
• Publication of statements made by Ministers in Parliament or the State Legislature Assemblies were made
subject to the censorship guidelines.
• Reports about the detention of political personalities were not allowed to be published. Further, publications
(including those which left blank spaces), which were likely to convey the impression of a protest or
disapproval of the government measures were prohibited.
• Editors were disallowed from indicating that any item had been subject to censorship.
• Foreign correspondents filing copies in languages other than English were required to submit authorised
English translations of each story for scrutiny of the censors.
• Two Acts – the Press Council Act, 1965 and the Parliamentary Proceedings (Protection of Publication) Act,
1956 were both repealed.
• 7 foreign journalists were ordered to leave India and 29 others denied entry into the country, because their
reporting on the Emergency was perceived as “unhelpful”.
• 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.
• Despite the intimidation of the press and suspension of fundamental rights of speech and expression, and
the sweeping censorship of the mass media which curbed the normal reporting of judicial proceedings,
many High Courts stood up to uphold fundamental freedoms and the rule of law.
• High Courts of Bombay and Gujarat upheld a number of challenges and struck down Censorship Orders on
the ground that the citizen possessed certain inherent right which stood independently of those granted by
the Constitution, and which he was entitled to invoke to keep the executive with the bounds of legal
authority.
• SC however, in ADM, Jabalpur vs Shivakant Shukla, (1976) 2 SCC 521 significantly undermined this effort, by
holding that in effect, if not in intent, as to life and personal liberty, all laws in India were abrogated during
the Emergency.
• The Bombay High Court struck down the order of the censor and allowed the publication of the banned
items.
• The Gujarat High Court was equally forthright in its condemnation of mindless censorship.
• Held in C Vaidya vs H. D. ’Penha SCA decided on 22-03-1976 – “Free press and the right of dissent are the
arteries of society through which flows the blood of democracy. To stifle them is to suffocate democracy and
toll its death-knell. Any system of censorship which prohibits … publication of critical comments of a
constructive character which are directed at educating public opinion even with the avowed object of having
the ruling party voted out of power… … ”
• Emergency was revoked on 21st March 1977.
• General Elections held thereafter, saw the defeat of Mrs Gandhi as well as Mr. Sanjay Gandhi.
• With the revocation of Emergency, Censorship Order was withdrawn.
• The Prevention of Publication of Objectionable Matter Act, 1976 was repealed and so was MISA.
• New acts were brought in to protect the fair reporting.
• Further, constitutional amendments were brought about to undo the effects of the 42 nd
Amendment.
• To further protect against future abuse, the fundamental rights under Article 20 (protection
against ex-post facto laws, self-incrimination and double jeopardy) and Article 21 (the right to life
and personal liberty) were made unsuspendable even during emergency.
• Further, the automatic suspension of the various freedoms guaranteed under Article 19 was
confined to emergencies, which are expressly declared to have arisen due to a threat to national
security by war or external aggression.
Judgements :
1. Romesh Thappar vs The State of Madras – AIR (37) 1950 SC
2. Bijoe Emmanuel and Ors vs State of Kerala & Ors. (1986) 3 Supreme
Court Cases 615
3. S. Khusboo vs Kanniammal & Ors. – AIR 2010 SC 3196
4. The State of Uttar Pradesh vs Raj Narain and ors. – AIR 1975 SC
(Appeal from Allahabad High Court)
5. Kesavananda Bharati vs State of Kerala – (1973) 4 SCC 225

Books Referred:
• Media World & The Law – By Lalit Bhasin
• Facets of Media Law – By Madhavi Goradia Divan
•