Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Chapter – 2
FREEDOM OF SPEECH AND EXPRESSION UNDER
INDIAN CONSTITUTION WITH SPECIAL REFERENCE TO
ELECTRONIC MEDIA
thought and right to know are the sources of expression. Free Speech
people are the Sovereign rulers. Iver Jennings said, „Without freedom
because the censorial power lies in the people over and against the
Government and not in the Government over and against the people‟.
1 Jennings, W.I., Cabinet Government, 13. [Cited in Dr. Madhabhusi Sridhar, The Law of
Expression, An Analytical Commentary on Law for Media 18 (Asia Law House, Hyderabad,
18, (2007)].
2 Johan Milton, Aeropagitica and Other Tracts, 27 (1644).
40
Hocking has said that if an idea was born in a man, it was not an item
ideas should count for nothing to his group or his time. A suppression
George Bernard Shaw has said that our whole theory of freedom
of speech and opinion for all citizens rests not on the assumption that
3 Immanuel Kant, "Meta Physics of Morals". [Cited in Dr. Madhabhusi Sridhar, The Law of
Expression, An Analytical Commentary on Law for Media 18 (Asia Law House, Hyderabad
(2007)].
4 Ernest William Hocking, "Freedom of the Press: A Framework of Principle" (A Report from
the Commission on Freedom of the Press, 88-89, 1947). [Cited in Dr. Madhabhusi Sridhar,
The Law of Expression, An Analytical Commentary on Law for Media 19 (Asia Law House,
Hyderabad (2007)].
5 Lon L. Fuller, "The morality of Law", 184-186 (1963). [Cited in Dr. Madhabhusi Sridhar, The
Law of Expression, An Analytical Commentary on Law for Media 20 (Asia Law House,
Hyderabad (2007)].
41
everybody was right. But on the certainty that everybody was wrong
on some point on which somebody else was right, so that there was a
following objectives :
to be put up with; rather they believed that the best interact of the city
The best test of truth is power of the thought to get it accepted in the
is highly essential.
liberties giving succor and protection to all other liberties. It has been
economic matters.
and promote the self esteem of those who follow a particular life-style.
courts have ruled that the free speech rights of media corporations
safeguarded.
information.
Constitutional Aspect
be imposed by the State under clause (2) of that Article. The relevant
Article 19(2) Nothing in sub clause (a) of clause (1) shall effect the
operation of any existing law, or prevent the State from making any
Article 19 (1) provides that all citizens shall have the right to
trade or business. The rights mentioned in Article 19 (1) are not the
exhaustive of all rights of a free man. Some of the rights falling outside
and basic rights which are recognized as natural rights inherent in the
United States,
Rights, 1948.
Rights, 1966.
provides that
(1) Everyone has the right to freedom of expression. This right shall
of the frontiers. This Article shall not prevent states from requiring the
(2) The exercise of this freedom, since it carries with it duties and
or crime, for the protection of health and morals, for the protection of
11 Dr. Madhabhusi Sridhar, The Law of Expression, An Analytical Commentary on Law for
Media 22 (Asia Law House, Hyderabad, 2007).
48
have been implicated with a special inseparable part i.e. which now
Responsibility of Media
organs of State have fallen far short of our hopes and expectations.
legal plunder has become the norm. Both the elected executive and
and the notion of public service is all but forgotten. Honesty and
judiciary has become very much part of the problem. Law‟s delay and
the breakdown of rule of law have nudged our society into near
for several years and decades, a well developed market has developed
12 Jaya Parakash Narayan, Indian Media Great Power and Greater Responsibility, available at:
www.loksatta.org (Visited on April 13, 2010).
49
systems and correlating them with the social needs to bridge the gulf
Republic” stated:
50
learn about changes in the environment and finally to seek the truth
happening in the world around them since the newspaper is an eye for
13 Justice V.R. Krishna Iyer, Law, Freedom and Change 68 (East West Press Pvt. Ltd., New
Delhi, 1975).
14 Subir Ghosh, Mass Media Today 42 (Rupa & Co. Distributor, Calcutta, 1991).
15 Thomas Jefferson in a letter to Edward Carrington, January 16, 1787.
16 Sakal Paper (Pvt.) Limited v. Union of India, AIR 1962 SC 305.
51
(b) Such views or opinions may be those of the editor or author but
party.18
affairs.19
17 Express Newspapers v. Union of India, 1958 SC 578; Sharma v. Sri Krishna, AIR 1959 SC
395.
18 Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha and Others, AIR 1950 SCR 594.
19 Thornhill v. Alabama, 1950 310 US 88 (102).
20 Baumgartner v. U.S., 1944.
21 Schunk v. US, 1970 398 US 58.
52
offence of sedition.
information.22
(g) The right of the press to collect information from diverse and
matter.
its circulation.33
citizens. The media derives the rights from the right to freedom of
speech and expression available to the citizens. Thus, the media have
the same right no more and no less than any individual to write,
status compared to the citizens and are subject to the general laws of
rights of the press, courts have time and again confirmed that the
concept with diverse facets, both with regard to the content of the
audiovisual media.
a) Right to Circulate
The right to free speech and expression includes the right not
the right to circulate, the right to free speech and expression would
36 Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Express Newspapers Ltd. v. Union of India,
AIR 1958 SC 578; Sakal Papers v. Union of India, AIR 1962 SC 305; Bennett Coleman & Co.
v. Union of India, AIR 1973 SC 106; Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
37 Madhavi Goradia Divan, Facets of Media Law 5 (Eastern Book Company, Lucknow, 2010).
38 S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574.
39 Romesh Thappar v. State of Madaras, AIR 1950 SC 124; Virendra v. State of Punjab, AIR
1957 SC 896; Sakal Papers v. Union of India, AIR 1962 SC 305.
57
40
In Sakal Papers v. Union of India the Supreme Court held that
the State could not make laws which directly affect the circulation of a
speech. The right under Article 19(1)(a) extends not only to the matter
42
Likewise, in Bennett Coleman & co. v. Union of India the
of space for advertisement matter. The court held that the curtailment
43
In Indian Express Newspapers v. Union of India, a challenge to
and the impugned levy struck down. The Supreme Court held that the
The court held that any attempt to deny the right to circulation
electoral candidates47
c) Right to broadcast
that this right was similar to the right of a citizen to publish his views
45 Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 2 SCC 161.
46 Secy., Ministry of Information and Broadcasting v. Cricket Association Bengal, (1995) 2 SCC
161.
47 Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294; People’s Union for
Civil Liberties v. Union of India (2003) 4 SCC 399; Indian Express Newspapers v. Union of
India, (1985) 1 SCC 641.
48 (1988) 3 SCC 410.
60
Bhopal Gas Disaster titled Beyond Genocide, on the ground that the
film had lost its relevance and that it criticised the action of the State
Government. The Supreme court held that the film maker had a
fundament right under Article 19(1)(a) to exhibit the film and the onus
lay on the party refusing exhibition to show that the film did not
a State controlled agency that was dependent on public funds was not
was filed to restrain the screening of the film serial TAMAS on the
Section 5B of the Cinematograph Act, 1952. The film was based on the
Bombay High Court saw the film and rejected the contention that it
has propagated the cult of violence. The Supreme Court agreed with
the High Court and emphasized the need to encourage the telecasting
the ground that the depiction in the film was „abhorrent and unconscionable
and a slur on the womanhood of India‟ and that the rape scene in the film was
contention that the scene of frontal nudity was indecent with in Article
19(2) and Section 5-B of the Cinematograph Act, 1952 and held that
rape victim was not to arouse prurient feeling but revulsion for the
perpetrators.
52
v. Cricket Association, Bengal, the Supreme Court held that
an agency of its choice. It was held that the right to entertain and to
51 (1996) 4 SCC 1.
52 (1995) 2 SCC 161.
62
right.53
the rights of the telecaster were also limited. This was a restriction in
addition to those set out under Article 19(2) and was justified on the
right to entertain.54
so on.55
53 Supra n. 52.
54 Ibid.
55 Supra n. 37, p. 186.
63
56
In Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., the
speech was also a part of the freedom of speech and expression, which
alone had exclusive right to publish telephone directory and the Tata
also protects the rights of an individual to listen, read and receive the
said speech. The Supreme Court emphatically held that the right
commercial gain, could not avail of the rights under Article 19(1)(a).
in the society being deprived of such right then no doubt it would fall
with in the guaranteed freedom under Article 19(1)(a). But if all it does
57 Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139.
58 AIR 1960 SC 554.
59 Supra n. 58, p. 564.
65
This is why the media enjoy no special status or immunity and are
were disentitled to enjoy the right of free speech under Article 19(1)(a)
appears flawed.
examined.
interview the condemned prisoners Billa and Ranga. The court held
would also be subject to Rule 549 (4) of the manual for the
60 (1982) 1 SCC 1.
66
interview Babloo Srivastava who was lodged in Tihar Jail. The court
shape, have full swing only in proportion as publicity has place any of
the keenest spur to exertion and the surest of all guards against
are the eyes and ears of the general public. They act on behalf of
general public. Their right to know and the right to publish is neither
more nor less than that of the general public. Indeed it is that of the
system must give way when there are higher considerations. For
63 Lord Donaldson in Attorney General v. Guardian Newspapers Ltd. (No. 2), (1988) 3 All ER
595, p. 600.
64 Saroj Iyer v. Maharashtra Medical (Council) of Indian Medicine, AIR 2002 Bom 97.
65 Kartar Singh v. State of Punjab (1994) 3 SCC 569.
68
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.
67
In Naresh Shridhar Mirajkar v. State of Maharashtra, the
Supreme Court held that the court may restrict the publicity of
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
court.68
to seek, receive and impart information and ideas through any media
70
In Maneka Gandhi v. Union of India, the Supreme Court
confined to Indian territory and held that the freedom of speech and
activity.71
negative right which restricts others from copying the original work of
i) Right to criticize
to invite dispute. It may indeed best serve its high purpose when it
community groups.”76
77
In Kedar Nath Singh v. State of Bihar there arose out a
76 Terminiello v. Chicago, (1948) 93 L Ed 1131, p. 1134; quoted with approval by Jeevan Reddy,
J. in Printers Mysore Ltd. v. Asstt. Commercial Tax Officer, (1994) 2 SCC 434.
77 AIR 1962 SC 955.
78 (2002) 2 Mah LJ 14.
72
a free society.79
In Tej Kiran Jain v. N. Sanjiva Reddy the Supreme Court held that :
of sentence.”82
his right to freedom of speech had been violated was dismissed. The
the event of a conflict Article 19(1)(a) would have to yield to Article 105
and 194 i.e. Parliament Privilege has upper hand over Article 19(1)(a).
ordering the release of one Keshav Singh against whom action had
reference and holding that the Judges had not committed contempt of
EXPRESSION
85 Gazettee Notification No. 16(1) cable/2005 E-III dated 25 Feb., 2005 issued by Prasar Bharati.
86 P.V. Narashima Rao v. State, (CBI/SPE) (1998) 4 SCC 626.
87 Adkins v. Childrens Hospital, 1923 261 US 525.
88 Gitlow v. New York, (1925) 263 US 652 and Kochuni v. State of Madras, AIR 1960 SC 1080.
76
offending material.89
official”90
becomes the guardian of the people‟s mind, ideas and expression which
shows.92
been abused a lot by ruling regime to hide their misconduct. One such
corrupted the youth and he did not acknowledge the God, that the city
stamp out the influence of Confucius and other sages, could be seen
for preserving the interests specified there in. These restrictions must
Constitution.
“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
Gopalan v. State of Madras98 Patanjali Sastri J., Kania C.J., and Das
J. tried to explain the term „restriction‟. Das J. was of the view that the
97 Brij Bhushan v. State of Delhi, AIR 1950 SC 129; Express Newspapers Ltd. v. Union of India,
AIR 1958 SC 578; Sakal Papers v. Union of India, AIR 1962 SC 305; Bennett Coleman & Co.
v. Union of India, AIR 1973 SC 106; Maneka Gandhi v. Union of India (1978) 1 SCC 248.
98 1950 IND LAW SC 42.
79
view that the term did not mean „total prohibition‟. Kania C.J.
depends upon the nature of the right alleged to have been infringed,
of such restriction.
a) Reasonableness of restrictions
follows:
reasonableness.
general public and not from the point of view of persons upon
considerations.
case in the light or the nature of the right infringed, the purpose
reasonable restriction.
unreasonable.
underground.”102
in war with India to 1965 and continued till January, 1968. A second
June, 1975 was gazetted on 26th June, 1975. It declared that a grave
internal disturbances.103
102 Harold J. Laski, Liberty in the Modern State, quoted in S. Sorabjee J., The Law of Press
Censorship in India, N.M. Tripathi Pvt. Ltd., 1976.
103 Notification No. 11/16013/1/75-S&P(D-II), Gazette of India, Extraordinary, 26 June, 1975,
Part II, Section 3(i).
83
constitution & several laws to secure her position and actions. The
104
Keshavanand Bharathi judgment restricting the power of
105
India.
introduction of her son Sanjay Gandhi into active ruling politics. Her
party lost several by elections and her election to Lok Sabha from
appealed to police and armed forces not to obey „illegal and immoral orders‟
Mass arrests were ordered. Electricity was cut off to newspaper offices,
and then Mrs. Gandhi addressed the nation through All India Radio to
said:
“In the name of Democracy it has been sought to negate the very
of inciting our armed forces to mutiny and our police to rebel…. The
imperiled?”106
D’ Ocracy DEM,
106 Mrs. Indira Gandhi’s broadcast to the nation, 26th June 1975, quoted in V. Iyer : State of
Emergency 159 (2000).
107 Central Censorship Order, S.O. 275 (E) dated 26th June 1975, published in the Gazette of
India, Extraordinary, Part II, Section 3(ii).
86
force against public servants. It was also directed that nothing was to
and order, any action taken under the MISA (Maintenance of Internal
Editors were not allowed to indicate that any item had been subject to
Minister, the Speaker of the Lok Sabha and Governors of the States.
which include:
(Section 5(1));
(Section 6);
108 White Paper on Misuse of Mass Media During the Internal Emergency, Government of India,
New Delhi, August, 27-28 (1977).
88
(Section 20);
33, 34).
The Bombay and Gujarat High Courts struck down the Censor
Binod Rao v. M.R. Masani,109 the Bombay High Court held that the
censor banning several news items from publication was bad. It was
held:
the only circumstance under which the right to free speech could be
denied was when there was a real likelihood of violence and breach of
public order.
Act, 1965 and abolished the press council which was securing the
pushed through by her husband during her father‟s rule to secure the
110 C. Vaidya v. H.D., Penha Special Civil Application No. 141 of 1976, Judgement delivered on
22nd March 1976 as quoted in Sorabjee’s book.
90
considerations;
111 White Paper on the Misuse of Mass Media During the International Emergency, Government
of India, New Delhi, August 1977.
91
directors;
Broadcasting;
(13) All India Radio, which enjoyed a monopoly over both radio and
Gandhi and her son, Sanjay Gandhi. The coverage of news and
and against the opposition. A senior civil servant from the Prime
(14) The national industry was also put under pressure to aid the
112 A leading playback singer, Kishore Kumar, who refused to take part in a T.V. programme
designed to extol the virtues of the Emergency, found all his songs banned from All India
Radio and television. The government also reportedly decided to order all recording
companies with whom he had a contract to ‘freeze’ his records and impose a ban on their
sales. Film producers who were intending to avail of Kumar’s services in their forthcoming
productions were warned that they would be denied their supplies of raw stock of films and
any films featuring Kumar would be refused clearance by the censors – White Paper on the
Misuse of Mass Media During the Internal Emergency, Government of India, New Delhi,
August, 88 (1977).
93
of Film Censors.113
Article19(2) for restricting the freedom under Article 19(1) (a) was
started in the north-east in 1960. Also around this time, there were
Mysore, Kerala and Andhra. The Law Minister Ashoke Kumar Sen
113 One such film, Aandhi was banned on the grounds that its protagonist, a politician bore a
striking resemblance to Mrs. Gandhi. The producer had to reframe the story line in
consultation with the Minister of Information and Broadcastign before it was cleared for
public exhibition. Another film which was banned was All the President’s Men, an American
blockbuster based on the Watergate scandal involving the disgraced former President of the
United States, Richard Nixon.
114 Inserted by the Constitution (Sixteenth Amendment) Act, 1963, Section 2.
94
„Public order‟, „law and order‟ and „Security of the State‟ are not
concentric circles, „law and order‟ representing the largest circle, within
which lies the next circle representing „public order‟ and within which is the
smallest circle representing „security of State‟. Thus, an act which affects „law
and order‟ may not necessarily affect „public order‟ and an activity which may
Court held that „public order‟ includes the absence of all acts which are a
danger to the security of the State and also the acts described by the
French as
115 In People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580, the supreme Court
dismissed a challenge to the Prevention of terrorism Act, 2002 on the ground, inter alia, that
Parliament was competent to legislate on the subject of terrorism which was a threat to the
security and sovereignty of the nation. This Act was subsequently repealed with effect from
21st September, 2004.
116 Ram Manohar v. State of Bihar, AIR 1966 SC 740, para 52, pp.758-59; V.K. Javali v. State of
Mysore, AIR 1966 SC 1387; Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955; Dalbir
Singh v. State of Punjab, AIR 1962 SC 1106.
117 (1970) 3 SCC 746: AIR 1971 SC 2486.
95
or crimes of violence. But it does not include acts which disturb only
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on the entry and circulation of the journal Cross Roads in the State.
significance:
security of the State or its overthrow, such law cannot fall within the
4(1) (a) of the Press (Emergency Powers) Act, 1931 dealing with words,
violence, the Supreme Court held that any speech or expression which
murder, undermines the security of the State and falls within the
scope of Sections 124-A124 and 505125 of the Indian Penal Code, 1860,
the Supreme Court held that the activity would be rendered penal only
124 124A : Sedition : Whoever, by words, either spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or
attempts to excite disaffection towards, 10 the Government established by law in India. shall
be punished with imprisonment for life, to which fine by law in India, shall be punished with
imprisonment for life, to which fine may be added, or with imprisonment which may extend
to three years, to which fine may be added, or with fine.
Explanation 1 : The expression ”disaffection” includes disloyalty and all fallings of enmity.
Explanation 2 : Comments expressing disapprobation of the measures of the Government with
a view to obtain their alteration by lawful means , without exciting or attempting to excite
hatred , contempt or disaffection, do not constitute an offence under this section.
Explanation 3 : Comments expressing disapprobation of the administrative or other action of
attempting to excite haltered, contempt or disaffection, do not constitute an offence under this
section .
125 Section 505 : Statements conducing to public mischief :
(1) Whoever makes, publishes or circulates any statement, rumour or report :
(a) with intent to cause, or which is likely to cause, any officer, soldier,[sailor or airman] in
the Army, [Navy or Air Force] [of India] to mutiny or otherwise disregard or fail in his duty as
such; or
(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any
section of the public whereby any person may be induced to commit an offence against the
State or against the public tranquility; or
(c) with intent to incite, or which is likely to incite, any class or community of persons to
commit any offence against any other class or community; shall be punished with
imprisonment which may extend to [three years], or with fine, or with both.
(2) Statements creating or promoting enmity, hatred or ill-will between classes : Whoever
makes, publishes or circulates any statement or report containing rumour or alarming news
with intent to create or promote, or which is likely to create or promote, on grounds of
religion, race, place of birth, residence, language, caste or community or any other ground
whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language
or regional groups or castes or communicates, shall be punished with imprisonment which
may extend to three years, or with fine, or with both.
(3) Offence under sub-section (2) committed in place of worship, etc. : Whoever commits an
offence specified in sub-section (2) in any place of worship or in an assembly engaged in the
performance of religious worship religious ceremonies, shall be punished with imprisonment
which may extend to five years and shall also be liable to fine.
Exception : It does not amount to an offence, within the meaning of this section when the
person making, publishing or circulating any such statement, rumour or report, has reasonable
grounds for believing that such statement, rumour or report is true and makes, publishes or
circulates it in good faith and without any such intent as aforesaid.
99
creating public disorder or disturbance of law and other that the law
steps in to prevent such activities in the interest of law and order. 126
Supreme Court, which held that the provision was not „in the interest of
Public order‟. The Supreme Court held that the expression „in the interest of
public order‟ though wider than the phrase „for the maintenance of public
should be a reasonable and rational relation between the act and the
connection.128
tranquility or the like, the courts have emphasised the necessity for
the Government to lay down the precise grounds under which such
punishable under Sections 153-A and 295-A of the India Penal Code,
1860. The Court found that the Government had not set out the
grounds for its opinion and had not stated in its order which
Procedure, the Supreme Court held that it is the duty of the High
that opinion. It is not the duty of the court to do any more or to find
out for itself whether the book contained any such matter. 130
India. The High Court upheld the order of forfeiture passed by the
forfeiture was vitiated since the notification failed to state the grounds
of the statute did not fulfil the statutory requirement of setting out
Das and Narayan Dass were followed by a full bench of the Bombay
133
High Court in Anand Chintamani v. State of Maharastra, while
Gandhi.
Act, 1962. It was found that the order of Confiscation failed to specify
the Government. It was found that the show cause notices were devoid
19(1)(a).
statutes include the Cinematograph Act, 1952, 135 the Cable Television
2005.137
f) Incitement of an offence
to the general Clauses Act, 1897 it means „any act or omission punishable
by any law for the time being in force.‟ 138 In order to qualify as a
offence i.e. the incitement must be of an act which is, at the time, a
come within the scope of this restriction unless the publication itself
judging such a tendency , the purpose of the work, the time at which
it was published, the class of the people who would read it, the effect
it would have on their minds, the context of the words and the interval
between the incidents narrated and the publication of the work. 140
all liberties.141
show of films, can straight away influence the young mind. Item songs
like „Munni Badnam Hui‟ and „Sheela Ki Jawani‟ etc are having
143
In Ranjit D. Udeshi v. State of Maharastra , „Obscenity‟ has
been defined by the Supreme Court as „the quality being obscene which
thus :
distinct items) the effect of any one of its items, is, if taken
or embodies in it.
appeal.147
influences.149
150
In Ranjit D. Udeshi v. State of Maharashtra, the Supreme
Indian Courts have chosen to adopt the old and long outdate
English test, known as Hicklin's test.151 Cockburn, C.J. laid down the
test thus:
libidinous character.152
read it. The defence of literary merit was not available and the test
century. D.H. Lawrence‟s The Rainbow was destroyed in 1915. The Well
magistrate who felt that a passage that implied that two women had
slept together (And that night they were not divided‟) would arouse „thought of
merit. The preamble described the legislation as „an Act to amend the
tendency to deprave and corrupt the likely audience i.e. persons who
are likely to read, see or hear the contents of the publication rather
than those into whose hands the publication may accidentally fall.
enactment of the Obscene Publications Act, 1959, six years later, the
not
be discarded on the ground that „[it] makes the Court the judge of
based upon the effect of the publication on „persons who are likely, having
matter contained or embodied in it‟, and not just on any person into
and his partners by the Bombay High Court for being in possession of
Article 19(2) in the interest of decency and morality. The Court relied
that, which is „offensive to modesty or decency; lewd, filthy and repulsive.‟ 157
In determining what can be classified as „obscene‟, the Court held that regard
should be had to „our community mores and standards‟ and whether the
tendency‟.158
v) Film medium
has flown through the celluloid. The much acclaimed showman of the
Shivan Sundaran.
spiritual scientists broadly agree that man live not alone mystic
In this case, the Supreme Court was dealing with a pro bono
Krishna Iyer J., speaking for the court said, “Art, morals and law‟s
meets other social sciences and never goes alone to bark and bite
entry into the theatre the intrinsic worth of the picture dawns on the
the audience may also lucre and culture in the bargain. More titles
may not, therefore, atleast the noxious or noble content of the film.
Sometimes the same film may produce contrary impacts and what one
foul and beguiled the guideless into degeneracy. If the grave men of
this accusation were true, obscenity, indecency and vice are writ large
upon the combined operation of Section 5-A of the Act and Section 79
his own fashions but a statutory gendarme policing films under Article
display”.
161
was delivered in K.A. Abbas v. Union of India, it is related to a
The Supreme Court said, „it is not the elements of rape, leprosy,
sexual immorality which should attract the censor‟s scissors but how the
horrify one so much as the same scenes rendered in colour and with
erotic tableaux from our ancient temples with equanimity or read the
would be abhorrent.‟
This film was a subject matter of dispute and the appeal went
the film for public exhibition on the ground that the frontal nudity of
woman and depiction of rape were necessary parts of the theme of the
hurt by the cruel society. Explaining the plot and story of Bandit
Queen the Supreme Court said: “It is not a pretty story. There are no
lust and brutality have affected her psyche so. The film levels and
Devi and driven her to become a dreaded dacoit filled with the desire
paraded, made to draw water from the well, within the circle of a
hundred men. The exposure of her breast and genitalia to those men
doing upon her could hardly have been better conveyed than by
explicitly showing the scene. The object of doing so was not to titillate
the cinemagoer‟s lust but to arouse in him sympathy for the victim and
referred to was not at Phoolan Devi‟s nudity but at the sadism and
heartlessness of those who had stripped her naked to rob her of every
shred of dignity. Nakedness does not always arouse the baser instinct.
The reference by the Tribunal to the film “Schindler’s List” was apt.
camp. Not only are they about to die but they have been stripped in
their last moments of the basic dignity of human beings. Tears are a
central. It helps to explain why Phoolan Devi became, dacoit what she
did: her rage and vendetta against the society that had heaped
It shows what a terrible and terrifying effect rape and lust can
have upon the victim. It focuses on the trauma and emotional turmoil
of the victim to evoke sympathy for her and disgust for the rapist.
In sum The Supreme Court said, „we should recognize the message
of a serious film and apply this test to the individual scenes thereof :
alone, with only the caution of an „A‟ certificate. Adult Indian citizens as a
and react to it, not to the possible titillation of some particular scene.
The Supreme Court also observed that the film censor board,
incited a crime and makers should be made liable for it. The counsel
for appellants has made an intensive study of the records in this case,
depicting sex, violence and illicit business etc. got misguided and
ended up as criminal and therefore the makers of such films are also
those wicked and the villain must only be shown in such a cruel,
is the primary underlying object, how can obscenity, cruelty and many
depict such things. It is here that the Censor Board should step in
firmly and insist that the film being released has a message meant to
improve the values of life and should see that the film contains only
such scenes which do not affect the values of life. By exhibiting scenes
likewise, who are very likely to become wicked and evil-minded and
and then only they can play an important role in subserving the
viewers mentally relaxed and enjoy and not to render them heavy-
criminals”.
118
164
In case Suo Moto v. State of Rajasthan, the Rajasthan High
not.
According to the court the Censor Board should ensure that „A‟
certificates are given to adult films and posters for such films are
165
In Pratibha Naitthani v. Union of India, the complainant filed
a writ petition against the telecast of “adult and obscene films shown by
Act, 1995 and The Cable TV network Rules, 1994. The court directed
movies rated „A‟ and „UA‟ by the CBFC. As a result, the police, acting
movies, HBO, AXN, SET Maz, Zee Studio, Zee Café, Star World,
adult films despite the restriction in clause (o) of Rule 6(1) of the
carried at times when large number of children are viewing and clause
(o) of Rule 6(1), which meant for unrestricted viewing, should be read.
The court held that the adult viewer‟s right to view films with adult content
is not taken away by clause (o) of Rule 6(1). Such a viewer can
restriction exists in law. The court held that the restriction upon cable
trade and business. The court further held that only films sanctioned
by the CBFC, under the Cinematograph Act and Rules, as suitable for
Cable TV.
166
In R. Basu v. National Capital Territory of Delhi and Another,
find that four films shown on TV channels were obscene. The CMM
our culture and way of life. Such programmes play havoc with the
The petitioners argued that two of the movies had been awarded
„A‟ certificate by the CBFC and therefore were immune from being
prosecuted for obscenity under Section 292 of the Indian Penal Code,
regard to other two movies it was admitted that they have no censor
certificates. However, they stated that with respect to the movie, Big
Bad Mama, the application for certification had been made to the
CBFC. They argued that these movies are telecast from other
that for the two films without censor certificates the petitioners could
not claim immunity from Section 292 IPC. For the other two films,
also the court said that since the petitioners had not produced Central
The court observed that the legislature had enacted the Cable
keeping in mind the sentiments and social value of the Indian society
obscenity
(i) Indian Penal Code, 1860 makes the sale, letting to hire,
film by the Censor Board for public exhibition if the film or any
(v) The Post Office Act, 1898 prohibits the transmission by post any
and fine.175
176 The Cable Television Networks (Regulation) Act, 1995 Sections 5, 6, 16, 17, 19 and 20, read
with the Cable Television Network Rules, 1994, Rules 6(1)(a), (d), (k), (n) and (o), 6(2), 6(5);
Rules 7(2)(iii) and (vi) Rule 7(8).
177 In Pratibha Naitthani v. Union of India (Writ Petition No. 1232 of 2004), a public interest
petition filed by a college lecturer to control obscenity in the media, in an order dated 21st
December 2005 (unreported), the Bombay High Court interpreted Rule 6(1)(o) of the Cable
Networks Rules, 1994 to mean that no film of which public exhibition is restricted can be
carried on the cable service. The Court upheld the restriction under Rule 6(1)(o) holding that it
did not violate the rights of an adult to watch adult films (‘A’ films) since such films could be
viewed in a cinema hall or even privately on DVD or VCD.
126
and defamation.
178
as:
A deodorant advertisement that showed a man accompanied by
scantily clad women was banned by Government after several
h) Contempt of Court
(Article 19(1)(a)) does not allow a person to contempt of court. 180 The
criminal contempt under the Act. The law of contempt of court is for
179 Prashant Bhushan, "Contempt of Court and the Triple Shield", The Hindu, Sep. 07, 2005
180 Under Article 19(2) of Constitution of India.
181 Contempt of Court Act, 1971, Section 2(c) ‘Criminal Contempt’ means the publication,
whether by words, spoken or written, or by signs, or by visible representations, or otherwise,
of any matter on the doing of any other act whatsoever which –
(i) Scandalises or tends to scandalize, or lowers or tends to lower the authority of any
court; or
(ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or
(iii) Interfers, or tends to interfere with, or obstructs, or tends to obstruct, the administration
of justice in any other manner.
182 Shukuntala Sahadevram Tewari v. Hemchand M. Singhania, (1990) 3 Bom CR 82 (Bom).
183 (2002) 3 SCC 343.
128
justice is weakened.185
protect the dignity of the court against insult or injury but, to protect
system and is integral part of the fundamental right to free speech and
judiciary, like any other institution does not enjoy immunity from
186 Delhi Judicial Service Assn. v. State of Gujarat 457 (1991) 4 SCC 406.
187 Sheela Barse v. Union of India (1998) 4 SCC 226; Surya Prakash Khatri v. Madhu Trehan
(2001) 92 DLT 665; Rajendra Sail v. M.P. High Court Bar Assn. (2005) 6 SCC 109.
130
libel on the judge and contempt of court. While the former may be a
wrong done to the judge personally, the latter seeks to interfere with
public.189
190
In D.C. Saxena v. Hon’ble The Chief Justice of India, this
Supreme Court held that libel against a judge can constitute criminal
192
In Rajendra Sail v. M.P. High Court Bar Association, The
Supreme Court held that criticism must always be dignified and that
flawed one. After all, it is only natural that serious allegations made
system. Indeed the greater the gravity of and truth in the allegations;
the greater the jolt to public faith in the system. Till recently, neither
truth nor good faith were defences against the law of contempt in
risking being sent to jail for contempt of court. This provision is now
With the coming into being of the television and cable channels,
condemned for no reason or those who are guilty may not get a fair
trial or may get a higher sentence after trial than they deserve. These
about a criminal case and prejudice the mind of the public and those
who are to adjudicate on the guilt of accused and the person has been
adjudged guilty well before the trail in court, there can be serious
194 The Contempt of Courts (Amendment) Act, 2006. Section 2 substitutes Section 13 of the
Contempt of Courts Act, 1971, making truth a valid defence, in any proceeding for contempt
of court. This amendment precludes the courts from imposing a sentence for contempt is of
such a nature that it substantially interferes or tend to substantially interfere with the due
course of justice.
133
195
Rajagopal v. State of Tamil Nadu, public figures, with slender rights
tribunal is going on, must be prevented. The basis for this view is that
such action on the part of the newspaper tends to interfere with the
course of justice.”
of justice. The plain duty of journalist is the reporting and not the
adjudication of cases.”
press should not degenerate into a licence to attack litigants and close
available to every citizen. The press does not enjoy any special
i) Defamation
i) Constitutional aspect
society and the individual. On one hand lies the fundamental right to
the reputation of the person to whom it refers and „exposes him to hatred,
tort of slander.204
criminal offence under section 499 of Indian Penal Code, 1860. For
damages.
is no defence to plead that the defendant did not intend to defame the
plaintiff. On the other hand, under Section 499 of IPC, the plaintiff
must prove that the publication was „intending to harm, or knowing or having
v) Essential of defamation
the community but will not affect his reputation in the eyes of the
defamation.207
of another.
208
In Newstead v. London Express Newspapers Ltd., the Daily
here the defendant had taken due care was quite irrelevant. This
difficulty which common law presented for media persons was rectified
In India, the courts have come to the rescue of the press in such
situations where the identity of the plaintiff was not known to the
that since the publishers, when he published the news item did not
In every action for defamation, the plaintiff must prove that the
the plaintiff to show that any person to whom the statement was
209 AIR 1972 Mad 398; Naganatha Sastri v. Subramania Iyer, AIR 1918 Mad 700; Secretary of
State v. Rukminibai, AIR 1973 Nag 354.
210 (1994) AC 116.
211 Ibid., p. 118.
212 Hulton v. Jones, (1910) AC 20.
139
refer to any real person but was talking instead about a fictional
character.213
though the defendants had no reason to defame the plaintiff who was
not even mentioned in the paper, the plaintiff was entitled to damages
since the publication was capable of bearing the meaning that the
plaintiff was not married to her husband and was living with him in
sin.
words may injure his self-esteem, they cannot injure his reputation.
215
In Slipper v. British Broadcasting Corporation, the plaintiff, a
portrayal of the plaintiff, the defendants were also held liable for the
media.
material.216
take place? Where does the publication take place? Who is liable for
the publication?217
use, convenient and cost effective way of networking and on the other
The Internet has made it easier than ever before to spread a huge
Thomas was hacked and some mails were sent from his account to
some of his batch mates regarding his affair with a girl with intent to
defame him.218
219
In Prof. Imtiaz Ahmad v. Durdana Zamir, the Delhi High Court
society at the relevant time. The words must have resulted in the
trade or business.”
recipient other than the person defamed, it has been published. Every
on. Section 499 of the Indian Penal Code, 1860 expressly provides
that defamation could take place not only by words but also by signs
222
In Dow Jones and Company Inc v. Gutnick, the High Court of
the online version of Dow Jone‟s print publication. Barron’s Online, was
“clearly inappropriate forum”. Dow Jones argued that Barron’s Online was
wsj.com web site. From this it would follow that the substantive law to
be applied in deciding the case was New Jersey law, which would
published.
publisher makes it available and a third party has it available for his
respect to Gutnick‟s cause of action, not when Dow Jones put it on its
web server, but only when subscribers in Victoria accessed it. The site
recorded about 5,50,000 hits, less than 0.01 per cent of them from
many of these users were Victorian but it was agreed that „several
the Court held that the defamation occurred in Victoria, and that
that will be the place where the tort of defamation is committed‟. Since
145
Asia‟s First case of cyber defamation has been filed in India in the
224
case of SMC Pneumatics Ltd. v. Jogesh Kwatra. Defamatory emails
defendant, who has since been restrained by the Delhi High Court for
subsidiaries.
223 Schapira v. Ahronson, (1999) EMLR 735; Chadha v. Dow Jones & Co Inc., (1999) EMLR
5724; Berezovsky v. Michaels, (2000) 2 All ER 986; Kitakufe v. Olaya, (Ontario Court of
Justice, 2 June 1998).
224 Delhi High Court, Suit No. 12791 2001.
146
content and take reasonable care in relation to all its publications. 225
pressing need for quicker and more effective redress through courts as
225 The Information Technology Act, 2000, Section 19, provides immunity to network service
provides in respect of third party information or data if such person proves that the offence
was committed without his knowledge or that he had exercised all due diligence to prevent the
commission of that offence.
147
226
defamation. In Bathinda Ramakrishna Reddy v. State of Madras, the
all, although it may be the subject matter of a libel proceeding. 227 The
Till recently in India, neither truth nor good faith were defences
230 The Contempt of Courts (Amendment) Act, 2006, Section 2 substitutes Section 13 of the
Contempt of Courts Act, 1971.