H.

P NATIONAL LAW UNIVERSITY,

SHIMLA

Assignment

media and ethics LAW

Emerging Trends in Media Law: An analysis & evolution

Submitted To:
MS. SARITA

Submitted By:
KAUSHAL SHARMA
Roll no. –1020161714

BA.LLB. (HONS.) –VIII SEMESTER

RESEARCH METHODOLOGY

This project is researched predominately from primary sources such as Constitution of India,
Central as well as State Legislations, Case Laws and secondary sources such as Research papers,

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Judicial Writings and scholarly articles. References have also been made to research papers
published and scholarly articles on the concerned realm of law. This project is based on the
doctrinal method of research. The segments are structured and written actively. The writing style
is descriptive and analytical. The project has been done after a thorough research based upon
intrinsic and extrinsic aspect of the assigned topic.

The limitation of my project is that my topic being a very wide one, I may have missed upon
certain issues which I certainly regret about.

TABLE OF CONTENTS

RESEARCH METHODOLOGY....................................................................................................2

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I. INTRODUCTION....................................................................................................................4

II. THE HISTORICAL PERSPECTIVE...................................................................................5

III. THE MEANING AND SCOPE OF ART 19 (1) (A) AND ITS EVOLVEMENT OVER
THE YEARS FOR MEDIA.............................................................................................................7

IV. REGULATION OF PRINT MEDIA – AN ANALYSIS OF ITS EVOLUTION..............11

V. TRACKING OF THE CHANGES IN BROADCASTING LAWS OF INDIA....................12

VI. REGULATION OF FILMS IN INDIA..............................................................................13

VII. AN OVERVIEW OF REGULATIONS FOR ADVERTISEMENT..................................16

VIII. REGULATION OF DIGITAL MEDIA.........................................................................18

IX. "JUSTICE MARKANDEY KATJU ON THE ROLE OF MEDIA IN INDIA"................19

X. CONCLUDING NOTE..........................................................................................................21

I. INTRODUCTION

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Blackstonian concept of freedom of press which was expressed as early as in 1769 contained
four basic points1. Those still form the crux of the concept of press freedom. They are as follows:

 Liberty of the press is essential to the state.

 No previous restraints should be placed on the publications.
 That does not mean there is press freedom for doing what is prohibited by law.
 Every freeman has the undoubted right to lay what sentiment he places before the
public, but if he publishes what is improper, mischievous or illegal he must take the
consequence of his own temerity.

The observations of the Supreme Court in R. Rajagopal and another v. State of Tamil Nadu and
Others2 are true reminiscence of the limits of freedom of press with respect to the right to
privacy. But the legal implications arising out of the concept of 'press freedom' are many and
hence they are not confined to the constitutional provisions alone. The different aspects of it
infringe inter alia on criminal law , law of contempt, Copyright Act , Official Secrets Act,
Freedom of Information Act, Law of torts, Prevention of Insults to National Honour Act etc , to
name a few . At this juncture, as we are approaching the sixth decade of our freedom, let’s keep
in mind the pertinence of freedom of press and what our former Prime Minister Rajiv Gandhi
had said about press freedom:

"Freedom of Press is an Article of Faith with us, sanctified by our Constitution, validated by
four decades of freedom and indispensable to our future as a Nation."

Before the invention of communication satellites, communication was mainly in the form of
national media, both public and private, in India and abroad. Next stage was 'transnational media'
with the progress of communication technologies like Satellite delivery and ISDN (Integrated
Services Digital Network), the outcome: local TV, global films and global information systems. 

In such an era of media upsurge, it becomes an absolute necessity to impose certain legal checks
and bounds on transmission and communication In the due course of this research paper, we
would discuss the various aspects of media and the relevant legal checks and bounds governing
them.

1
Justice A.N.Grover,“Press and the Law” (1990); pg 7 para 2.
2
(1994) 6 SCC 632

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 II. THE HISTORICAL PERSPECTIVE

“Our freedom depends in large part, on the continuation of a free press, which is the strongest
guarantee of a free society.”3

Mass Media laws in India have a long history and are deeply rooted in the country’s colonial
experience under British rule. The earliest regulatory measures can be traced back to 1799 when
Lord Wellesley promulgated the Press Regulations, which had the effect of imposing pre-
censorship on an infant newspaper publishing industry. The onset of 1835 saw the promulgation
of the Press Act, which undid most of, the repressive features of earlier legislations on the
subject. 

Thereafter on 18th June 1857, the government passed the ‘Gagging Act’, which among various
other things, introduced compulsory licensing for the owning or running of printing presses;
empowered the government to prohibit the publication or circulation of any newspaper, book or
other printed material and banned the publication or dissemination of statements or news stories
which had a tendency to cause a furore against the government, thereby weakening its authority. 

Then followed the ‘Press and Registration of Books Act’ in 1867 and which continues to remain
in force till date. Governor General Lord Lytton promulgated the ‘Vernacular Press Act’ of 1878
allowing the government to clamp down on the publication of writings deemed seditious and to
impose punitive sanctions on printers and publishers who failed to fall in line. In 1908, Lord
Minto promulgated the ‘Newspapers (Incitement to Offences) Act, 1908 which authorized local
authorities to take action against the editor of any newspaper that published matter deemed to
constitute an incitement to rebellion. 

The chapter on Fundamental rights, Part III in the Indian Constitution, was not incorporated as a
popular concession to international sentiment and thinking on human rights in vogue after the
conclusion of the Second World War. The demand for constitutional guarantees of human rights
for Indians was made as far as way back as in 1895 in the Constitution of India Bill, popularly
called the Swaraj Bill, which was inspired by Lokmanya Tilak, a lawyer and a great freedom
fighter. This bill envisaged for India a Constitution guaranteeing to every citizen, among other
freedoms, the freedom of press.
3
Cf. Herbert Lee Williams, Newspaper Organization and Management, 5th Edn., Pg 347.

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To a certain extent one can say that the debut of press in India was made with commercial
interests in mind. It was the contribution of the first British MNC -The East India Company. It
was one of those instruments of the British, which was later manipulated by the Indians to serve
their interests; as the role of the press underwent a major change and it soon turned out to be one
of the most effective weapons Indians had at their disposal during their struggle for freedom
from the British. The press was always under the control of the company, but after its press role
reversal the necessity to clamp harsh curbs became imminent. Repressive laws were passed and
judgments were given curbing press freedom.

The Founding Fathers and Mothers’ of the Indian Constitution attached great importance to
freedom of speech and expression. Their experience of waves of repressive measures during
British rule, when the nationalist press was bludgeoned by sedition trials and forfeiture of
security deposits convinced them of the immense value of this right in the sovereign democratic
republic which India was to be under its Constitution.

They believed that freedom of expression and the freedom of press are indispensable to the
operation of a democratic system. They believed that central to the concept of free press is
freedom of political opinion and at the core of that freedom lays the right to criticize the
Government. They endorsed the thinking of Jawahar Lal Nehru who said, “I would rather have a
completely free press with all the dangers involved in the wrong use of that freedom than a
suppressed and regulated press4.”

The Indian Constitution provides for this freedom in Article 19(1)(a) which guarantees right to
freedom of speech and expression. It has been held that this right to freedom also includes press
freedom. It is an implied or deduced right. The economic and business aspects of the press are
regulated under Article 19(1) (g) which provides for freedom of profession, occupation, trade or
business which is restricted by Article 19(6) which includes provisions for public interest,
professional and technical qualifications and state nationalization- total or partial.

According to the constitutional advisor, Dr. B.N. Rau, it was hardly necessary to provide for the
freedom of the press specifically, because freedom of expression would include freedom of the
press5. The views of Dr Ambedkar and Dr B.N. Rau have been vindicated by the Supreme Court.
4
Nehru’s speech on 20th June 1916 in protest against the press Act, 1910.
5
B. Shiva Rao, The Framing of India’s Constitution: A Study, pp. 219-20

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In a series of decisions from 1950 onwards the Apex court has ruled that the freedom of press is
implicit in the guarantee of freedom of speech and expression. Consequently freedom of press is
one of the fundamental rights guaranteed by the Constitution of India.6

One of the heads of restrictions on the freedom of speech and expression in the draft Constitution
was ‘sedition’, aptly described by Gandhiji as the ‘Prince of the Indian Penal Code’. It was
frequently invoked to crush the freedom movement and incarnate freedom fighters, including
prominent leaders like Tilak etc. in the heyday of British colonialism sedition was construed by
the privy Council in the cases of Tilak7, Wallace-Johnson8 and Sadashiv Bhalerao9 to include
any statement that was liable to cause ‘disaffection’, namely, exciting in others certain inimical
feelings towards the government, although there was no element of incitement to violence or
rebellion. To restrict speech under the head of ‘sedition’ was galling to the framers of the
Constitution.

K.M Munshi assilated the inclusion of ‘sedition’ as a head of restriction on freedom of

expression and moved an amendment for its deletion. Almost all the members supported K.M.
Munshi’s amendment and sedition did not disfigure the Indian Constitution.

III. THE MEANING AND SCOPE OF ART 19 (1) (A) AND ITS EVOLVEMENT
OVER THE YEARS FOR MEDIA

Freedom of speech and expression means the right to express one’s own convictions and
opinions freely by means of mouth, writing, printing pictures or any other mode. It thus includes
the expression of one’s ideas through any communicable medium or visible representation, such
as gesture, signs and the like10. The expression connotes also publications and thus the freedom
of press is included in this category. Free propagation of ideas is the necessary objective and this
may be done on the platform or through the press.

6
Brij Bhushan v State of Delhi; AIR 1950 SC 129
7
25 IA 1
8
1940 AC 231
9
AIR 1947 PC 82
10
Lowell v Griffin, (1939) 303 US 444

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The freedom of propagation of ideas is secured by freedom of circulation. Liberty of circulation
is essential to the freedom as the liberty of publication. Indeed without circulation the publication
would be of little value11.

Freedom of expression has four broad purposes to serve:-

1. It helps an individual to attain self-fulfillment

2. It assists in the discovery of truth
3. It strengthens the capacity of an individual in participating in decision making
4. It provides a mechanism by which it would be possible to establish a reasonable balance
between stability and social change

In the Romesh Thappar case the court laid down an important principle:-

So long as the possibility of the law being applied for purposes not sanctioned by the
Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other
words, Clause 2 of Art 19 having allowed the imposition of restrictions on the freedom of speech
and expression only in cases where danger to public security is involved, an enactment which is
capable of being applied to cases where no such danger could arise cannot be held to be
unconstitutional and valid to any extent12.

Art 19(2) was subsequently amended by the Constitution (First Amendment) Act, 1951, which
was enacted with retrospective effect on 18 June, 1951. 13 Art 19(2) was subsequently amended
by the Constitution (Sixteenth Amendment) Act, which was enacted with prospective.

Thus by way of judicial pronouncements over the years there had been a paradigm shift in the
application of this article and it became somewhat press friendly although imposing restrictions
by way of amendments.

The Resultant position

11
Romesh Thappar v State of Madras, AIR 1950 SC 124
12
Ibid.
13
(2) “Nothing in sub clause (a) of clause (i) shall effect 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 rights
conferred by the said sub clause in the interest of 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”

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The current scenario is that freedom of press is not absolute. It can be restricted provided three
distinct and independent prerequisites are satisfied.

1) The restriction imposed must have the authority of law to support it. Freedom of the press
cannot be curtailed by executive orders or administrative instructions which lack the
sanction of law.
2) The law must fall squarely within one or more heads of restrictions specified in Art 19(2).
Restrictions on freedom of speech and expression cannot be imposed on such omnibus
grounds as ‘in the interest of the general public’.14
3) The restrictions must be reasonable and must not be excessive. The validity of
restrictions imposed is justifiable and open for judicial review by the Indian courts
Liberty has got to be limited in order to be affectively possessed. For liberty of one must
not offend the liberty of others. Patanjali Shastri,J. in A.K. Gopalan’s15 case, observed, “
man as a rational being desires to do many things, but in a civil society his desires will
have to be controlled with the exercise of similar desires by other individuals”. The
guarantee of each of the above right is therefore restricted by the Constitution itself by
conferring upon the State a power to impose by reasonable restrictions as may be
necessary in the larger interest of community. The restrictions on these freedoms are
provided in clauses 2 to 6 of Art 19 of the Constitution.

‘The Liberty of the press as defined by Lord Mansfield “consists in printing without any license
subject to the consequences of law”. Thus the liberty of the press means liberty to print and
publish what one pleases, without previous permission. It includes newspapers, periodicals and
even pamphlets.16

Freedom of press does not occupy a preferred position in the Indian Constitution which does not
recognize a hierarchy of rights. There are however dicta of the Supreme Court describing this
freedom as ‘the Ark of the Covenant of Democracy’ 17.The most precious of all freedoms
guaranteed by our Constitution.

14
Sakal Papers(P) Ltd v Union of India AIR 1962 SC 305
15
AIR 1951 SC 21
16
Lowell v Griffin, (1939) 303 US 444
17
Bennett Coleman & Co. v Union of India, AIR 1972 SC 106

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In Prabhu Dutt v Union of India 18 the Supreme Court has held that the right to know news and
information regarding administration of the Government is included in the freedom of press. But
this right is not absolute and restrictions can be imposed on it in the interest of the society and
the individual from which the press obtains information. They can obtain information from an
individual when he voluntarily agrees to give such information.

In its landmark judgment in the case of Sakal Papers19 the Supreme Court ruled that Art 19(2) of
our Constitution permits imposition of reasonable restrictions under the heads specified in Art
19(2) and on no other grounds. Freedom of the press cannot be curtailed, like the freedom to
carry on business, in the interest of the general public.

In another celebrated decision, Bennett Coleman & Co. v Union of India20 the Supreme Court
again came to the rescue of the press. It held that freedom of press entitles newspapers to achieve
any volume of circulation and freedom lies both in its circulation and content. Freedom of press
is the heart of social and political intercourse. It is the primary duty of the courts to uphold the
freedom of the press and invalidate all laws or administrative actions which interfere with it
contrary to the constitutional mandate.21

In the case of Tata Press Ltd v Mahanagar Telephone Nigam Ltd. 22 The issue was that whether a
commercial speech is protected under Art 19(1) (a). The court after an extensive review of the
judgments of the US Supreme Court and previous Supreme Court held that Commercial
advertisements are entitled to the protection of Article 19(1) (a).

IV. REGULATION OF PRINT MEDIA – AN ANALYSIS OF ITS EVOLUTION

The Freedom of Press and the Freedom of Expression can be regarded as the very basis of a
democratic form of government. Every business enterprise is involved in the laws of the nation,
the state and the community in which it operates. Newspaper publishers find themselves more
‘hemmed in’ by legal restrictions than many other businesses do – despite the fact that the
18
AIR 1982 SC 6
19
Sakal Papers(P) Ltd v Union of India, AIR 1962 SC 305
20
AIR 1972 SC 106
21
See also In Re Harijai Singh, AIR 1997 SC 73
22
(1995) 5 SCC 139 at 154

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freedom of press is protected by the Indian constitution. The various Acts, which have to be
taken into consideration when dealing with the regulations imposed upon the Print Media, are:

1. The Press and Registration of Books Act, 1867 – This Act regulates printing presses and
newspapers and makes registration with an appointed Authority compulsory for all
printing presses.
2. The Press (Objectionable Matters) Act, 1951 – This enactment provides against the
printing and publication of incitement to crime and other objectionable matters.
3. The Newspaper (Prices and Pages) Act, 1956 – This statute empowers the Central
Government to regulate the price of newspapers in relation to the number of pages and
size and also to regulate the allocation of space to be allowed for advertising matter.
4. Defence of India Act, 1962 – This Act came into force during the Emergency proclaimed
in 1962. This Act aimed at restricting the Freedom of the Press to a large extent keeping
in mind the unrest prevailing in India in lieu of the war against China. The Act
empowered the Central Government to issue rules with regard to prohibition of
publication or communication prejudicial to the civil defence/military operations,
prevention of prejudicial reports and prohibition of printing or publishing any matter in
any newspaper.
5. Delivery of Books and Newspapers (Public Libraries) Act, 1954 – According to this
Act, the publishers of books and newspapers are required to deliver, free of cost, a copy
of every published book to the National Library at Calcutta and one copy each to three
other public libraries specified by the Central Government.
6. The Working Journalists and other Newspaper Employees (Conditions of Service and
Miscellaneous Provisions) Act, 1955 – It lays down the minimum standards of service
conditions for newspaper employees and journalists.
7. Civil Defence Act, 1968 - It allows the Government to make rules for the prohibition of
printing and publication of any book, newspaper or other document prejudicial to the
Civil Defence.
8. Press Council Act, 1978 – Under this Act, the Press Council was reconstituted (after
1976) to maintain and improve the standards of newspaper and news agencies in India.

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 9. Due to the restrictive scope of this Article, it is not possible for us to delve into all the
other statutes; however, a few of the legislations, which are worth mentioning, are the
Contempt of Courts Act, 1971 and The Official Secrets Act, 1923.

V. TRACKING OF THE CHANGES IN BROADCASTING LAWS OF INDIA

The broadcast media was under complete monopoly of the Government of India. Private
organizations were involved only in commercial advertising and sponsorships of programmes.
However, in Secretary, Ministry of I&B v. CAB  23, the Supreme Court clearly differed from the
aforementioned monopolistic approach and emphasized that, every citizen has a right to telecast
and broadcast to the viewers/listeners any important event through electronic media, television or
radio and also provided that the Government had no monopoly over such electronic media as
such monopolistic power of the Government was not mentioned anywhere in the Constitution or
in any other law prevailing in the country.

This judgment, thus, brought about a great change in the position prevailing in the broadcast
media, and such sector became open to the citizens.  

The Broadcasting Code, adopted by the Fourth Asian Broadcasting Conference in 1962 listing
certain cardinal principles to be followed by the electronic media, is of prime importance so far
as laws governing broadcast medium are concerned. Although, the Broadcast Code was chiefly
set up to govern the All India Radio, the following cardinal principles have ideally been
practiced by all Broadcasting and Television Organization:-

        To ensure the objective presentation of news and fair and unbiased comment
        To promote the advancement of education and culture
        To raise and maintain high standards of decency and decorum in all programmes
        To provide programmes for the young which, by variety and content, will inculcate the
principles of good citizenship
        To promote communal harmony, religious tolerance and international understanding
        To treat controversial public issues in an impartial and dispassionate manner
        To respect human rights and dignity  
23
(1995) 2 SCC 161.

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Cable Television Networks (Regulation) Act, 1995 basically regulates the operation of Cable
Television in the territory of India and regulates the subscription rates and the total number of
total subscribers receiving programmes transmitted in the basic tier. In pursuance of the Cable
Television Network (Regulation) (Amendment) Bill, 2002, the Central Government may make
it obligatory for every cable operator to transmit or retransmit programme of any pay channel
through an addressable system as and when the Central Government so notifies. Such
notification may also specify the number of free to air channels to be included in the package of
channels forming the basic service tier.  

Direct-to-Home Broadcasting – Direct-to-Home (DTH) Broadcasting Service, refers to

distribution of multi-channel TV programmes in Ku Band by using a satellite system and by
providing TV signals directly to the subscribers’ premises without passing through an
intermediary such as a cable operator. The Union Government has decided to permit Direct-to-
Home TV service in Ku band in India.24

VI. REGULATION OF FILMS IN INDIA

India is one of the largest producers of motion pictures in the world. Encompassing three major
spheres of activity – production, distribution and exhibition, the industry has an all-India spread,
employing thousands of people and entertaining millions each year. The various laws in force
regulating the making and screening of films are: -

The Cinematograph Act, 1952 – The Cinematograph Act of 1952 has been passed to make
provisions for a certification of cinematographed films for exhibitions by means of
Cinematograph. Under this Act, a Board of Film Censors (now renamed Central Board of Film
Certification) with advisory panels at regional centres is empowered to examine every film and
sanction it whether for unrestricted exhibition or for exhibition restricted to adults. The Board is
also empowered to refuse to sanction a film for public exhibition.

In K. A. Abbas v. Union of India 25, the petitioner for the first time challenged the validity of
censorship as violative of his fundamental right of speech and expression. The Supreme Court
however observed that, pre-censorship of films under the Cinematograph Act was justified under
24
The prohibition on the reception and distribution of television signal in Ku band has been withdrawn by the
Government vide notification no. GSR 18 (E) dated 9th January 2001 of the Department of Telecommunications.
25
AIR 1971 SC 481.

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Article 19(2) on the ground that films have to be treated separately from other forms of art and
expression because a motion picture was able to stir up emotion more deeply and thus,
classification of films between two categories ‘A’ (for adults only) and ‘U’ (for all) was brought
about26.

Furthermore, in Bobby Art International v. Om Pal Singh Hoon 27, the Supreme Court re-affirmed
the afore-mentioned view and upheld the order of the Appellate Tribunal (under the
Cinematograph Act) which had followed the Guidelines under the Cinematograph Act and
granted an ‘A’ certificate to a film.

The Copyright Act, 1957 – According to this Act, ‘copyright’ means the exclusive right to
commercially exploit the original literary, dramatic, artistic, musical work, sound recordings or
cinematographic films as per the wishes of the owner of copyright subject to the restrictions
imposed in the Act.

Although this Act is applicable to all the branches of media, in some areas it is specific to this
particular genre. In the case of a Cinematographed film, to do or to authorise the doing of any of
the following acts would lead to the infringement of copyright. Those acts are namely: -

 To make a copy of the film

 To cause the film, in so far, as it consists of visual images, to be seen in public and in so
far as it consists of sounds to be heard in public
 To make any record embodying the recording in any part of the soundtrack associated
with the film by utilizing such sound track
 To communicate the film by radio-diffusion

The Act also makes it a cognizable offence for anyone to sell, hire, distribute, exhibit, possess or
view any unauthorised recordings and prescribes severe penalties, including imprisonment, fines
as well as confiscation of the equipment used for the purpose of such recording and exhibition.
The Amendments to The Copyright Act also prohibit unauthorized transmission of films on the
cable television28.

26
This view was re-iterated in Life Insurance Corporation of India v. Manu Bhai D. Shah, (1992) 3 SCC 637.
27
(1996) 4 SCC 1.
28
Refer, Section 37 of the Copyright Act, 1957.

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Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 – This
legislation affords a measure of protection to those employed in the industry by imposing certain
obligations on motion picture producers and theatre owners concerning the former’s condition of
service.

Cine Workers Welfare Cess Act, 1981 and the Cine Workers Welfare Fund Act 1981 –
They seek to create means of financial support to cine employees, the seasonal and unpredictable
nature of whose employment often leaves them impoverished and helpless. Besides these, there
are also a few local legislations, which affect the film medium; viz.

1. The Bombay Entertainments Duty Act, 1923 – It imposes a tax on the public exhibition
of motion pictures and other forms of entertainment.
2. The Bombay Police Act, 1951 – It contains provisions empowering the police to regulate
the exhibition of films in the state of Maharashtra (formerly Bombay).
3. Bombay Cinemas (Regulation) Act, 1953 – It provides a scheme for state licensing of
cinema theatres and other places where motion pictures are exhibited.

Recent Developments:

The stage is set for the amendment in the Cinematograph Act 1952. The Committee constituted
by the Ministry of Information and Broadcasting, which is headed by Rtd. Justice Mudgal and
consists of members like Sharmila Tagore and Javed Akhtar among others, has come up with
recommendations to address several issues like arbitrary ban on films, piracy and use of vulgar
lyrics in songs29. 

VII. AN OVERVIEW OF REGULATIONS FOR ADVERTISEMENT

Advertising communication is a mix of arts and facts subservient to ethical principles. In order to
be consumer-oriented, advertisement will have to be truthful and ethical. It should not mislead
the consumer. If it so happens, the credibility is lost.

29
Ankur Pathak & Bharati Dubey, Mumbai Mirror, “Cinematograph Act all set to get a makeover” Oct 30, 2013,
available on, http://articles.timesofindia.indiatimes.com/2013-10-30/news-interviews/43526569_1_censor-board-
cinematograph-act-shoojit-sircar, last accessed on May, 2020 at 10:47pm.

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In order to enforce an ethical regulating code, the Advertising Standards Council of India was
set up. Inspired by a similar code of the Advertising Standards Authority (ASA) UK, ASCI
follows the following basic guidelines in order to achieve the acceptance of fair advertising
practices in the interest of the consumer: -

 To ensure the truthfulness and honesty of representations and claims made by

advertisements and to safe guard against misleading advertising;
 To ensure that advertisement are not offensive to generally accepted standards of public
decency;
 To safeguard against indiscriminate use of advertising for promotion of products which
are regarded as hazardous to society or to individuals to a degree or of a type which is
unacceptable to society at large; and
 To ensure that advertisements observe fairness in competition so that the consumers need
to be informed on choices in the market places and canons of generally accepted
competitive behaviour in business are both served.

Few Complaints filed with ASCI –

1. HLL’s Clinic All Clear Dandruff shampoo claimed that it had ZPTO, the special
ingredient in Clinic All Clear that stops dandruff. This claim was found to be untrue since
ZPTO is a micro biocide, when in reality; dandruff is known to be caused by several
other factors, besides, microbes. HLL’s multi-crore research wing ‘clearly overlooked’
this aspect. The advertisement has been withdrawn.
2. Novartis India claimed that their disposable contact lenses ensure there is no protein
build-up. This claim was found to be totally false. The truth is that build up is a natural
biological phenomenon with all contact lenses. The ad was discontinued.

The other legislations affecting the area of advertising are: -   

Drug and Magic Remedies (Objectionable Advertisement) Act, 1954 – This Act has been
enacted to control the advertisements of drugs in certain cases and to prohibit the advertisement
for certain purposes of remedies alleged to possess magic qualities and to provide for matters
connected therewith.

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In Hamdard Dawakhana v. Union of India,30 the Supreme Court was faced with the question as
to whether the Drug and Magic Remedies Act, which put restrictions on the advertisements of
drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing
diseases, was valid as it curbed the freedom of speech and expression of a person by imposing
restrictions on advertisements. The Supreme Court held that, an advertisement is no doubt a form
of speech and expression but every advertisement is not a matter dealing with the expression of
ideas and hence advertisement of a commercial nature cannot fall within the concept of Article
19(1)(a).

However, in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd31, a three judge bench of the
Supreme Court differed from the view expressed in the Dawakhana case and held that
‘commercial advertisement’ was definitely a part of Article 19(1)(a) as it aimed at the
dissemination of information regarding the product. The Court, however, made it clear that the
government could regulate commercial advertisements, which are deceptive, unfair, misleading
and untruthful. 

Monopolies and Restrictive Trade Practices Act, 1969 - Section 36 A of the Act deals with 5
major Unfair Trade Practices: -  

 Any misleading, false, and wrong representation either in writing (i.e. in advertisements,
warranty, guarantee etc.) or oral (at the time of sale) actual or intended, even if actual
injury or loss is not caused to the consumer/buyer constitutes as unfair trade practices;

 Sales, where there is element of deception;

 All business promotion schemes announcing ‘free gifts’, ‘contests’, etc. where any
element of deception is involved;

  Violation of laws existing for protection of consumers; 

 Manipulating sales with a view to raising prices.

Parle’s mango drink ‘Maaza’ gave the advertisement of Maaza mango and the MRTP issued a
notice against Parle Exports Pvt. Ltd. The advertisement implied that the soft drink was prepared
30
AIR 1960 SC 554.
31
(1995) 5 SCC 139.

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from fresh mango while actually preservatives were added to it. The company had to suspend
production pending enquiry. 

VIII. REGULATION OF DIGITAL MEDIA32

USA was the first to implement the provisions of the WCT (WIPO Copyright Treaty) and WPPT
(WIPO Performances and Phonograms Treaty. It enacted the Digital Millennium Copyright Act
1998 that discussed protection of technological measures by dividing it into two categories being
a measure that prevent unauthorized access of data and measures that prevent unauthorized
copying. Thus it prohibits circumvention of technological measures controlling access The 
second limb of the DMCA 1998 was it dealt with the technological measures used by authors to
protect their copyright. However, this was severely criticized by the critics who state that this
legislation prevented scientific research and academic development; although the DMCA had a
good impact in updating copyright law for the digital environment, as it was the first legislation
of its kind.

The Digital Economy Act 2010 was enacted by the Parliament of the United Kingdom regulating
digital media and was introduced by Lord Mendelssohn; it received Royal Assent on 8 April
2010, and came into force on 8 June 2010. However, the Open Rights Group, privacy and
consumer rights organizations criticized the online copyright infringement provisions viz section
3 to 18 of the Act, because it partly had a proposal of a graduated response scheme, which could
eventually disconnect Internet accounts used for persistent copyright infringement. The Group
took their concerns to the House of Lords and raised issues about the impact on businesses
offering Internet access to their customers, such as libraries and universities.

An Indian Perspective

In India the Copyright Act does not fix a liability on the ISPs for infringement of Digital
Copyright. Therefore, as an initiative the Information Technology Act 2000 redressed issue of
fixing liability on the ISPs for infringement. It states that no Service Provider was responsible for

32
Emerging trends in Digital copyright law – Growing technology and digitalization entail a protective regime,
available on, http://www.helplinelaw.com/business-law/ETDCL/emerging-trends-in-digital-copyright-law.html, last
accessed on may 5, 2020 at 10:54pm.

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an offence committed or for violations happening without his knowledge, if the service provider
has exercised all due diligence to prevent the violations. 

Indian law resembles the provisions of the US Home Recording Act 1992, as section 52 of the
Indian copyrights Act 1957 describes the concept of fair use exception. It exempts works done
for private use or for criticizing or reviewing of the work. However the major drawback in Indian
law is the Indian Copyright Law does not implement the anti circumvention provisions under the
WCT and WPPT, as US and UK have done. Therefore, there are no provisions that prohibit
circumvention of digital rights management systems in India. Therefore, there is piracy
happening benefiting the users, who are getting copyrighted material at half the cost. On the
contrary the owners are getting publicity, fame and prosperity vis s vis loosing out on
opportunity to sell their original works that would have yielded them good revenue. The only
remedy at the moment is to initiate legal action under the Copyright Act to prevent piracy. 

IX. "JUSTICE MARKANDEY KATJU ON THE ROLE OF MEDIA IN INDIA"

If we study the history of Europe when it was passing through its transition period, i.e. from the
16th to the 19th Centuries, we find that this was a terrible period in Europe, full of turbulence,
turmoil, revolutions, wars, chaos, social churning and intellectual ferment. It was only after
passing through this fire that modern society emerged in Europe. India is presently going through
this fire. We are passing through a very painful period in our history.

Historically, the print media emerged in Europe as an organ of the people against feudal
oppression. At that time the established organs were all in the hands of the feudal despotic
authorities (the king, aristocrats, etc). Hence the people had to create new organs which could
represent them. That is why the print media became known as the fourth estate. In Europe and
America it represented the voice of the future, as contrasted to the established feudal organs
which wanted to preserve the status quo. The media thus played an important role in
transforming feudal Europe to modern Europe.

In the Age of Enlightenment in Europe the print media represented the voice of reason. Voltaire
attacked religious bigotry and superstitions, and Rousseau attacked feudal despotism. Diderot
said that “Man will be free when the last king is strangled with the entrails of the last priest”.

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Thomas Paine proclaimed the Rights of Man, and Junius (whose real name we still do not know)
attacked the despotic George III and his ministers 33. Louis XVI, while in the Temple prison saw
books by Voltaire and Rousseau in the prison library and said that these two persons have
destroyed France. In fact what they had destroyed was not France but the feudal order. In the
19th Century the famous writer Emile Zola in his article ‘J’ Accuse’ accused the French
Government of falsely imprisoning Captain Dreyfus in Devil’s Island only because he was a
Jew.

In his lordship the Indian media should be playing a role similar to the progressive role played by
the media in Europe during the transitional period in Europe. In other words, the Indian media
should help our country get over the transition period and became a modern industrial state. This
it can do by attacking backward, feudal ideas and practices e.g. casteism, communalism and
34
superstitions, and promoting modern scientific and rational ideas. In his lordship opinion a
large section of the Indian media (particularly the electronic media) does not serve the interest of
the people, in fact some of it is positively anti-people.

X. CONCLUDING NOTE

There are differing views of the status of press and media freedom in India. Some external
observers consider the Indian news media to be in an enviable position in the developing world,
their freedom, space, stability, and security derived from history, constitutional protection, the
workings of a democratic political system, and their own rapid growth and expansion over the
past quarter-century. Others, mostly media insiders, believe these advantages are offset to a
considerable extent by an illiberal framework of laws, dating back to the British Raj, which
cover criminal and civil defamation, contempt of court, legislative privilege, official secrecy,
national security, and incitement to offences – and have a chilling effect on freedom of
expression.35

Further, media freedom in India is considered ‘incomplete’ because the print media and the
broadcast media have not been placed on an equal constitutional and legal footing. Freedom of
33
(see Will Durant’s ‘The Story of Civilization: Rousseau and Revolution’)
34
 "Justice Markandey Katju on the role of media in India".The Hindu (Chennai, India). 5 November 2011.
35
N. Ram, “The Changing Role of the News Media in Contemporary India”, available on
http://www.thehindu.com/multimedia/archive/00863/Contemporary_India__863821a.pdf, last accessed on
November 5, 2020 at 9:40pm.

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the press is a fundamental right not explicitly mentioned by the Constitution of India.
Fortunately, judicial interpretation has derived it from Article 19 and placed it on firm ground.
Specifically, the Supreme Court of India has held that freedom of the press is a combination of
two freedoms, Article 19(1) (a), ‘the freedom of speech and expression’, and Article 19(1) (g),
‘the freedom to practice any profession, or to carry on any occupation, trade or businesses. The
first is clearly the principal component. It is subject to ‘reasonable restrictions’ that can be
imposed by law for the purposes specified under eight heads in Article 19(2) – and for no other
purpose. Article 19(1) (g) is, however, subject to ‘reasonable restrictions’ that can be imposed by
law ‘in the interests of the general public’. It has also been held that the restrictions must meet
judicial standards of reasonableness. No such protection has been conferred on television and
radio, whose status within the Article 19 framework can only be described as nebulous, insecure,
and yet to be settled.

Secondly, newspapers in independent India function within a benign system of registration; since
there is no licensing, they cannot be de-licensed. By contrast, while terrestrial television is a state
monopoly and All India Radio alone is allowed to do news and current affairs radio broadcasts
from within India, private television channels and FM radio stations function under a licensing
system and can be taken off the air for alleged serious transgressions of the rules.

Paradoxically, in practice, while the press has a statutorily established watchdog, the Press
Council of India, in place, there is no legal regulatory framework for private satellite television
channels, which have attracted growing public complaint that they are a law unto themselves.

This paradoxical situation demands well-considered, progressive reform. The aim of such reform
must be to expand the scope of media freedom – but also to ensure professional and social
accountability.

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