39

Chapter – 2
FREEDOM OF SPEECH AND EXPRESSION UNDER
INDIAN CONSTITUTION WITH SPECIAL REFERENCE TO
ELECTRONIC MEDIA

FREEDOM OF SPEECH AND EXPRESSION

Expression is a matter of liberty and right. The liberty of

thought and right to know are the sources of expression. Free Speech

is live wire of the democracy. Freedom of expression is integral to the

expansion and fulfillment of individual personality. Freedom of

expression is more essential in a democratic setup of State where

people are the Sovereign rulers. Iver Jennings said, „Without freedom

of speech, the appeal to reason which is the basis of democracy

cannot be made‟.1 Milton in his Aeropagitica says that without this

freedom there can be no health in the moral and intellectual life of

either the individual or the nation.2

As defined by Laski „Democracy is a Government by discussion‟

could be successful only when there is effective participation of the

people in the Government. For this the people need be educated.

In the words of Krishna Iyer J. „This freedom is essential

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

The freedom of expression has been considered as a necessary

condition for a democratic polity. According to Kant „The fundamental

postulate of liberty, is that, no man can be used as a means as man is

an end to him as well as to the others‟.3

Free speech is traffic in indispensable commodity namely ideas.

Hocking has said that if an idea was born in a man, it was not an item

of capital stock. He has an impulse to give it away, to spread it every

where in the knowledge that what he gives he keeps. According to

Hocking, “The destiny of private thought is to gain power and effect

through shaping public behaviour or public enactment. Nothing could

more describe a human failure than a man physically prolific whose

ideas should count for nothing to his group or his time. A suppression

of speech, in its more painful consequence, would be the mental

sterilisation of the community.4

The social interest in free expression is based on the idea that

without expression, there is no society at all, because communication

is the very essence of social life.5

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

public danger in allowing anybody to go unheard. 6

The freedom of speech and expression is required to fulfill the

following objectives :

1) To discover truth : Historically the most durable argument for

a free speech principle has been based on the importance of open

discussion to the discovery of truth. It is evident from the famous

funeral address given by pedicles as back as in 431 B.C. Athenians,

he pericles out, did not consider public discussion merely something

to be put up with; rather they believed that the best interact of the city

could not be served with a full discussion of issue before the

assembly.7 If restrictions on speech are tolerated, society prevents the

ascertainment and publication of accurate facts and valuable opinion.

The best test of truth is power of the thought to get it accepted in the

competition of market.8 The truth would emanate from a 'free trade in

ideas‟ on intellectual competition.

2) Non self-fulfillment : A second major theory of free speech sees

it as an integral aspect of each individual's right to self development

and fulfillment. Restrictions inhibit our personality and its growth.

The reflective mind, conscious of options and the possibilities for

6 George Bernard Shaw, Socialism off Millionaires, 16 (1901).

7 Macropaedia, Vol 15, 15th edn., 620.
8 Abrams v. US, 250 US 616, 630-631 (1919).
 42

growth, distinguished human beings from animals. Freedom of speech

is also closely linked to other fundamental freedoms. Thus, for full-

feldged development of personality, freedom of speech and expression

is highly essential.

3) Democratic value : Freedom of speech is the bulwark of

democratic Government. This freedom is essential for the proper

functioning of the democratic process. It is regarded as the first

condition of liberty. It occupies a preferred position in the hierarchy of

liberties giving succor and protection to all other liberties. It has been

truly said that it is mother of all other liberties. 9

In a democracy, freedom of speech and expression open up

channels of free discussion of issues. Freedom of speech plays a

crucial role in the formation of public opinion on social, political and

economic matters.

4) To ensure pluralism : Freedom of Speech reflects and

reinforces pluralism, ensuring that different types of lifes are validated

and promote the self esteem of those who follow a particular life-style.

The French Council constitutional and the Italian Constitutional

courts have ruled that the free speech rights of media corporations

may be limited to ensure that the Constitutional value of pluralism is

safeguarded.

So, it can be concluded that freedom of speech enables the

discovery of truth, is crucial to the working of a democratic

9 Report of Second Press Commission, Vol. 1, 34-35

 43

Constitution and is an aspect of human self fulfillment or autonomy.

It is in the speaker‟s interest in communicating ideas and information

and equally in the interest of audience in receiving ideas and

information.

LAW OF EXPRESSION UNDER INDIAN CONSTITUTION

The people of India gave to themselves, the Constitution of

India, with a view of make it Sovereign, Democratic, Socialistic,

Secular and Republic. In our democratic society, pride to place has

been provided to freedom of speech and expression, which is the

mother of all liberties. One of the main objectives of the Indian

Constitution as envisages in the Preamble, is to secure LIBERTY OF

THOUGHT AND EXPRESSION to all the citizens. Freedom of Expression

is among the foremost of human rights. It is the communication and

practical application of individual freedom of thought. Irrespective of

the system of administration, various constitutions make a mention of

the freedom of expression. While freedom of thought is a personal

freedom; freedom of expression is a collective freedom, whose

character becomes more and more pronounced as the technical

methods of their diffusion multiply and improve.

The right of free speech is absolutely indispensable for the

preservation of a free society in which Government is based upon the

consent of an informed citizenry and is dedicated to the protection of

the rights of all, even the most despised minorities.10

10 Speiser v. Randall, 357 US 513.

 44

Constitutional Aspect

In order to give effect to this objective, “freedom of speech and

expression” has been guaranteed as a fundamental right under Article

19(1)(a) available to all citizens, subject only to restrictions which may

be imposed by the State under clause (2) of that Article. The relevant

portion of Article 19 reads as follows:

Article 19 (1) All citizens shall have the right

(a) Freedom of speech and expression.

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

law, in so far as such law imposed reasonable restrictions on the

exercise of the right conferred by the said sub-clause in the interests

of 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.

Article 19 (1) provides that all citizens shall have the right to

freedom of speech and expression, to assemble peaceably and without

arms, to form associations or unions, to move freely throughout the

territory of India, to reside and settle in any part of the territory of

India and to practice any profession or to carry on any occupation,

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

Article 19 are freedom to move, right of citizenship, the right to vote,

 45

or contest election, the contractual right against the Government,

right of Government servants to continue in employment and the right

to strike. The freedoms enumerated in Article 19 (1) are those great

and basic rights which are recognized as natural rights inherent in the

status of a citizen. But none of these freedoms is absolute or

uncontrolled. The rights granted by Article 19 are available only to

citizens and not to aliens or foreigners.

INTERNATIONAL PERSPECTIVE OF FREEDOM OF EXPRESSION

Freedom of Expression under Constitutions of Different Countries

Freedom of Speech and expression is guaranteed by several

Constitutions in the World. They are:

(i) The First and Fourteenth Amendments to the Constitution of

United States,

(ii) the common Law of England,

(iii) Section 40 (6)(1) of the Constitution of Eire, 1937.

(iv) Section 18 (1) (e)(f)(g) of the Constitution of Sri Lanka, 1972.

(v) Articels 50 and 51 of the Constitution of the USSR 1977, and

(vi) Section 298 of the Government of India Act, 1935.

The First Amendment to the Constitution of USA provides,

“Congress shall make no law respecting the establishment of religion,

or prohibiting the free exercise thereof; or abridging the freedom of

speech or of the press; or the right of the people to assemble peaceably

and to petition the Government for a redress of grievance.

 46

Right to Expression under International Conventions

Right to expression under Constitution of different countries

has close similarity with different International Conventions.

(i) Articles 13, 20, 23, 29 of the Universal Declaration of Human

Rights, 1948.

(ii) Article 22 of the International Covenant of Civil and political

Rights, 1966.

(iii) Article 11 of the European Convention on Human Rights, 1950.

(iv) Articles 6,12 of the International Covenant on Economic, Social

and Cultural Rights, 1966.

Article 19 of the Universal Declaration of Human Rights, 1948

declares the freedom of press and so does Article 19 of the

International Covenant on Civil and Political Rights, 1966.

Article 10 of the European Convention on Human Rights, 1950

provides that

(1) Everyone has the right to freedom of expression. This right shall

include freedom to hold opinion, to receive and impart information

and ideas without interference by the public authority and regardless

of the frontiers. This Article shall not prevent states from requiring the

licensing of broadcasting, television or cinema enterprise.

(2) The exercise of this freedom, since it carries with it duties and

responsibilities, may be subject to such formalities, conditions,

restrictions or penalties as are prescribed by the law and are

 47

necessary in a democratic society, in the interest of national security,

territorial integrity or public safety, for the prevention of the disorder

or crime, for the protection of health and morals, for the protection of

reputation or rights of the others, for preventing the disclosure of

information received in confidence or for maintaining the authority

and impartially of the judiciary.

MEDIA AS AN INSTRUMENT OF EXPRESSION

Exercise of freedom of expression is essential to communicate

the thoughts, views, ideas, philosophy and activities. The

communication keeps society together and cohabitate. For a healthy

growth of civilized world, the free flow of information and ideas is

essential. Every individual is a medium of expression. An individual

interacts through the media to reach other individuals and

institutions. The right to freedom of speech though belongs to every

individual, institution and organisation it becomes imperatively

necessary in the media world. Media world serves as the best

communicator of information and the best instrument of expression.

Exercise of right of freedom of expression is the professional duty and

character work of media, whether it is print or electronic media. The

media gets as a mass communicator. It has to enjoy this freedom for

promoting public good and for informing the people in general as to

the state of affairs in every sphere of life and activity. 11

11 Dr. Madhabhusi Sridhar, The Law of Expression, An Analytical Commentary on Law for
Media 22 (Asia Law House, Hyderabad, 2007).
 48

Every democratic set up in the present day social texture should

have been implicated with a special inseparable part i.e. which now

expanded to include electronic media also.

Responsibility of Media

Over past 66 years after independence, the three Constitutional

organs of State have fallen far short of our hopes and expectations.

Legislatures have become battle fields. Neither any serious public

policy is evolved. No accountability of the executive enforced by our

elected representatives. Most legislators are content to be disguised

executives, seeking and obtaining State patronage and privilege. A

Vicious cycle of unaccounted money power, illegitimate election

expenditure, polling irregularities, abuse of public office, corruption

and perpetuation of feudal oligarchies is operating, making citizens

somewhat helpless. Executive office has become a private estate and

legal plunder has become the norm. Both the elected executive and

appointed public servants have become the modern-day monarchs,

and the notion of public service is all but forgotten. Honesty and

survival in elective public office are increasingly incompatible. The

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

anarchy, with about 25 million cases pending in courts, many of them

for several years and decades, a well developed market has developed

for criminals and musclemen to provides rough and ready justice. 12

12 Jaya Parakash Narayan, Indian Media Great Power and Greater Responsibility, available at:
www.loksatta.org (Visited on April 13, 2010).
 49

In face of the colossal failure of three Constitutional organs of

State, the citizen is reduced to a state of abject helplessness. Thanks

to free press, India remained a democracy against all odds. In this

complex environment, the one institution which nurtured, sustained

and strengthened our democracy is the press. The role of media/press

during freedom struggle and after independence has been an

extraordinary and inspiring saga. After independence, the early

excitement and enthusiasm abated and as institutions of state

became moribund and dysfunctional, the media played an

extraordinary role. It is this fierce independence, unflinching courage

and undiminished idealism exhibited by the media which broadened

and deepened our democracy.

Therefore media is important pillar to lend its valuable support

to the system and hence is regarded as “Fourth Estate”. The “Fourth

Estate” performs its multi-Pronged functions in linking the three main

systems and correlating them with the social needs to bridge the gulf

between the governors and the governed.

Mr. C. Rajagopalchari, the Governor-General of India,

emphasizing the importance of the Fourth Estate, states as under:

“A Free press is as essential limb of democracy as a parliament

freely elected by the people or an Independent Judiciary.”

Justice Krishna Iyer in his article “Free press in a hungry

Republic” stated:
 50

„The philosophical basis for the freedom of publication and

circulation is the social purpose of supplying unadulterated

information without tendentious presentation, readily and the right

time. And the Constitutional rights stem from political philosophy‟.13

The press performs some socially purposeful role. It is inherent

in human nature to have desire to communicate, to exchange ideas, to

learn about changes in the environment and finally to seek the truth

without such mutual interaction society cannot function in order. The

press enlightens the public by reporting and interpreting what is

happening in the world around them since the newspaper is an eye for

a citizen in the democracy.14

In concluding words of Thomas Jefferson, "Where it left to me to

decide whether we should have a Government without newspapers or

newspaper without a Government, I should not hesitate a moment to

prefer the latter."15

Details of Expression Rights

Based on various judicial decisions and precedent from

American and English Constitutional interpretations, the following

contents of the freedom of the Press have emerged :

(a) Right to print and publish news i.e. actual facts of

contemporary history and views16.

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

also those other people printed under his direction. 17

(c) To distribute or circulate such printed matter to any other

party.18

(d) The freedom extends to the discussion and publication of views

relating to all issues about which information is needed to

enable the members of society to cope with the exigencies of the

period and is not necessarily confined to political or public

affairs.19

(e) It includes the right to comment on public affairs and to criticize

public men and measures20 and to criticize the Government,

including its defence policy and the conduct of the Armed

Forces21, without prejudice to the national security by inciting

insubordination, disloyalty or refusal of duty in the Armed

Forces. This right to criticize the Government is reserved in our

country as per the Explanations 2 and 3 to Section 124-A of

Indian Penal Code, 1860 which makes sedition an offence and

restriction on freedom of expression. According to explanation 2

of Section 124-A comments expressing disapprobation of the

measures of the Government with a view to obtain their

alternation by lawful means, without existing or attempting to

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

excite hatred, contempt or disaffection, do not constitute an

offence under the Section 124-A. Third explanation says –

comments expressing disapprobation of the administrative or

other action of the Government without exciting or attempting to

excite hatred, contempt or disaffection, do not constitute an

offence of sedition.

(f) A corresponding right to collect the information relating to

public affairs or the right of access to the sources of such

information.22

This does not mean, however, that the press has a

constitutional right of special access to information which is not

available to the public generally23, not has the Government any

affirmative duty to make available to journalists sources of

information not available to the public generally.24

A corollary of the right to publish must be the right to

gather news. News must not be unnecessarily cut off at its

source, for without freedom to acquire information the right to

publish would be impermissibly compromised.

(g) The right of the press to collect information from diverse and

antagonistic sources, on a competitive basis, free from any

monopolistic control from the Government. 25

22 New York Times v. U.S., 1971 403 US 713.

23 Branzburg v. Hayes, 1972 408 US 665.
24 Pell v. Procunier, 1974 SC 2800.
25 Report of Royal Commission on the Press UK report 1947-9 para 543.
 53

(h) The freedom neither to publish any news, article,

correspondence or any other matter 26 nor to include anything at

dictates of any authority. In short, it must have the freedom to

evolve a plan for carrying on of its activities as regards the

matter to be published, the class of readers it should address,

the price and so on.

In a Canada case, the Supreme Court held that the Bill of

Province of Alberta which sought to compel, under pain of

penalty, a newspaper to publish only the information released

by chairman of Social Credit Board is unconstitutional. 27 An

authority cannot direct the free press to publish a particular

matter.

(i) The right to refuse any advertisement, including a Government

advertisement.28 If, however, a newspaper accepts Government

advertisement, it would be bound to abide by the terms and

conditions of the contract or law relating to such contracts.

The converse of this right is the right not to be

discriminated against in the matter of supply of Government

advertisements in every newspaper.29 This rests on the

assumption that advertisements in the modern world constitute

the sustenance of every newspaper. During the Emergency,

26 Miami Herald v. Tornllio, 1874 418 US 241.

27 Ret. Re. Alberta statutes 1938 2 DLR 81.
28 Thayer, Legal Control of the Press, 152, 720 (1962).
29 Sakal Papers (Pvt.) Limited v. Union of India, AIR 1962 SC 305.
 54

Government of India issued a memorandum to control the

selection of newspapers for public advertisements. The validity

of that memorandum has been challenged by the Statesman

before the Calcutta High Court.30 The memorandum has been

withdrawn later on. The Andhra Pradesh High Court directed

the Government not to misuse the power of releasing

Government advertisements to the newspapers. 31

(j) Freedom of choice in the matter of employment or non-

employment of the necessary means of exercising the freedom of

expression, including employment in the editorial force.32

(k) Immunity from any tax specially imposed on the press or on

advertisements in a newspaper, which was calculated to limit

its circulation.33

CONSTITUTIONAL STATUS OF THE MEDIA

The preamble to the Constitution of Indian resolves to secure for

the citizens of India, liberty of thought, expression and belief. Article

19(1)(a) of the constitution is also applicable to media along with

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,

publish, circulate or broadcast. In a case that arose in Pre-

Independent India, the Privy council held:

30 Statesman Calcutta. 17-8-1978.

31 Ushodaya Publications (P) Ltd. v. Govt. of A.P., AIR 1981 AP 109.
32 Express Newspapers v. Union of India, AIR 1958 SC 578.
33 Grosjean v. American Press, 1936, 297 US 233.
 55

The freedom of the Journalist is an ordinary part of the

freedom of the subject and to whatever length the subject

in general may go, so also may the journalist, apart from

the statute law, his privilege is no other and no higher…

No privilege attaches to his position.34

The framework for analysing media rights remains much the

same in Post-Independence India. In M.S.M. Sharma v. Krishna

Sinha35 the Supreme Court observed:

A non-citizen running a newspaper is not entitled to the

fundamental right to freedom of speech and expression,

and therefore cannot claim, as his fundamental right, the

benefit of the liberty of the press. Further being only a

right flowing from the freedom of speech and expression,

the liberty of the press in India stands on no higher

footing than the freedom of speech and expression of the

citizen and that no privilege attaches to the press as such,

that is to say, as distinct from the freedom of the citizen.

In other words, the media enjoy no special immunity or elevated

status compared to the citizens and are subject to the general laws of

the land. Although no special provision was made to safeguard the

rights of the press, courts have time and again confirmed that the

34 Channing Arnold v. Emperor, AIR 1914 PC 116.

35 AIR 1959 SC 395.
 56

rights of the press are implicit in the guarantee of freedom of speech

and expression under Article 19(1)(a) of the constitution.36

Facets of Speech and Expression under Article 19(1)(a)

The freedom of speech and expression under Article 19(1)(a) is a

concept with diverse facets, both with regard to the content of the

speech and expression and in the means through which

communication takes place. It is also a dynamic concept that has

evolved with time and advances in technology. 37

Article 19(1)(a) covers the right to express oneself by word of

mouth, writing, printing, picture or in any other manner. It includes

the freedom of communication and the right to propagate or publish

one‟s views. The communication of ideas may be through any

medium, newspaper, magazine or movie38 including the electronic and

audiovisual media.

a) Right to Circulate

The right to free speech and expression includes the right not

only to publish but also to circulate information and opinion. Without

the right to circulate, the right to free speech and expression would

have little meaning. The freedom of circulation has been held to be as

essential as the freedom of publication.39

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

newspaper for that would amount to a violation of the freedom of

speech. The right under Article 19(1)(a) extends not only to the matter

which the citizen is entitled to circulate but also to the volume of

circulation.41 This case arouse out of a challenge to the newsprint

policy of the Government which restricted the number of pages a

newspaper was entitled to print.

42
Likewise, in Bennett Coleman & co. v. Union of India the

Supreme Court held that newspaper should be left free to determine

their pages and their circulation. This case arouse out of a

constitutional challenge to the validity of the Newspaper (Price & Page)

Act, 1956 which empowered the Government to regulate the allocation

of space for advertisement matter. The court held that the curtailment

of advertisements would fall foul of Article 19(1)(a), since it would have

a direct impact on the circulation of newspapers. The court held that

any restriction leading to a loss of advertising revenue would affect

circulation and thereby impinge on the freedom of speech.

43
In Indian Express Newspapers v. Union of India, a challenge to

the imposition of customs duty on import of newsprint was allowed

and the impugned levy struck down. The Supreme Court held that the

40 AIR 1962 SC 305.

41 Ibid., p. 313.
42 (1972) 2 SCC 788; AIR 1973 SC 106.
43 (1985) 1 SCC 641.
 58

expression „freedom of the press‟ though not expressly used in Article

19 was comprehended within Article 19(1)(a) and meant freedom from

interference from authority which would have the effect of interference

with the content & the circulation of newspapers.

In LIC v. Manubhai Shah44 the Supreme Court held that „the

freedom of speech and expression‟ must be broadly construed to include

the freedom to circulate one‟s views by word of mouth or in writing or

through audio visual media. This includes the right to

propagate one‟s views through the print or other media. The

honourable court observed:

Freedom to air one‟s view is the lifeline of any democratic

institution and any attempt to stifle or suffocate or gag

this right would sound a death knell to democracy and

would help user in autocracy or dictatorship.

The court held that any attempt to deny the right to circulation

and propagation of ideas must be frowned upon unless it falls with in

the mischief of Article 19(2).

b) Right to receive information

The freedom of 'speech and expression' comprises not only the

right to express, publish and propagate information, it circulation but

also to receive information. This was held by the Supreme Court in a

44 (1992) 3 SCC 637.

 59

series of judgement which have discussed the right to information in

varied contexts from advertisements enabling the citizens to get vital

information about life-saving drugs, 45 to the right of sports lovers to

watch cricket46 and the right of voters to know the antecedents of

electoral candidates47

c) Right to broadcast

The concept speech and expression has evalued with the

progress of technology and encompasses all available means of

expression and communication. This would include the electronic and

the broadcast media.

In Odyssey Communications (P) Ltd. v. Lokvidayan

Sanghatana,48 the Supreme Court held that the right of a citizen to

exhibit films on the State channel – Doordarshan is part of the

fundamental right guaranteed under Article 19(1)(a). The court held

that this right was similar to the right of a citizen to publish his views

through any other media such as newspapers, magazines,

advertisements, hoardings and so on. In this case, the petitioners

challenged the exhibition on Doordarshan of a serial titled Honi

Anhoni on the ground that it encouraged superstitious and blind faith

amongst viewers. The petition was dismissed as the petitioner failed to

show evidence of prejudice to the public.

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

The right to broadcast was also recognized in LIC v. Manubhai

D. Shah.49 Doordarshan refused to telecast a documentary film on the

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

conform to the requirements of the law. It was held that Doordarshan,

a State controlled agency that was dependent on public funds was not

entitled to refuse telecast except on grounds under Article 19(2).

In another similar case Ramesh v. Union of India,50 a petition

was filed to restrain the screening of the film serial TAMAS on the

ground that it violates Article 21 and 25 of Indian Constitution and

Section 5B of the Cinematograph Act, 1952. The film was based on the

novel of Bhisma Sahni, which depicted the event in Lahore

immediately before the partition of the country. Two judges of 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

of the film in television as it is a powerful medium.

In another case, the freedom of cinema expression was upheld

and restrictions on exhibition of a film were removed on the ground

49 (1992) 3 SCC 637.

50 AIR 1988 SC 775.
 61

that scenes were not obscene. In Bobby Art international v. Om Pal

Singh Hoon,51 the Supreme Court drew a distinction between nudity

and obscenity. The petition was filed by a member of the Gujjar

Community seeking to restrain the exhibition of the film „Bandit Queen‟ on

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

„Suggestive of the moral depravity of the Gujjar Community‟. The Supreme

Court rejected the petitioner‟s

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

the object of showing the scene of frontal nudity of the humiliated

rape victim was not to arouse prurient feeling but revulsion for the

perpetrators.

Similarly, in Secretary, Ministry of Information and Broadcasting

52
v. Cricket Association, Bengal, the Supreme Court held that

broadcasting is a means of communication and a medium of speech

and expression with in the framework of Article 19(1)(a). This case

involved the rights of a cricket association to grant telecast rights to

an agency of its choice. It was held that the right to entertain and to

be entertained, in this case, through the broadcasting media are an

integral part of the freedom under Article 19(1)(a).

51 (1996) 4 SCC 1.
52 (1995) 2 SCC 161.
 62

If the right to freedom of speech and expression includes

the right to disseminate information to a wide of the

population as is possible the access which enables the

right to be so exercised is also an integral part of the said

right.53

The court went on to hold that since the broadcasting media

depended on the use of airwaves, a limited common property resource,

the rights of the telecaster were also limited. This was a restriction in

addition to those set out under Article 19(2) and was justified on the

ground of the limited spectrum of airwaves. This limitation did not

extend to the viewer, whose right to be informed, educated and

entertained is paramount. The term „expression‟ under Article 19(1)(a)

covers the right of an individual to entertain as also the right of the

audience to be entertained. The participants in a sports event have a

right to entertain.54

d) Right to advertisement (commercial speech)

A product or a service may be advertised through a variety of

methods such as hand bills, circulars, direct mail, billboards,

signboards, sky signs, roof signs, loudspeakers, mechanical or electric

devices, newspapers and magazines, radio, television, the internet and

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

Supreme Court held that a commercial advertisement or commercial

speech was also a part of the freedom of speech and expression, which

would be restricted only within the limitation of Article 19(2). The

Telephone Nigam permited the contractors to publish telephone

directories in „Yellow pages‟ used to be added to the directory

published by the Nigam in white pages. The Bombay High Court

allowed the appeal of the Nigam, which sough a declaration that it

alone had exclusive right to publish telephone directory and the Tata

Press has no right to publish the list of the telephone subscribers

without its permission as it would be violation of Indian Telegraph Act.

The Tata Press went in appeal to Supreme Court. Admitting the

appeal, the court said : The Advertisement as “Commercial Speech”

has two facts. Advertising which is no more than a commercial

transaction, is nonetheless dissemination of information regarding the

product-advertised. Public at large are benefited by the information

made available through the advertisements. In a democratic economy,

free flow of commercial information is indispensable. There cannot be

honest and economical marketing by public at large, without being

educated by the information disseminated through advertisements.

The economic system in a democracy would be handicapped without

there being freedom of “Commercial Speech”. The public at large has a

right to receive the commercial speech. Article 19(1)(a) of the

constitution not only guaranteed freedom of speech and expression, it

56 (1995) 5 SCC 139.

 64

also protects the rights of an individual to listen, read and receive the

said speech. The Supreme Court emphatically held that the right

under Article 19(1)(a) could not be denied by creating a monopoly in

favour of the Government. It could only be restricted on grounds

mentioned in Article 19(2) of the constitution.

Till this judgement 57, advertisements were excluded from the

realm of free speech. In an earlier ruling, Hamdard Dawakhana v.

Union of India,58 the Supreme Court held that advertisements being a

commercial gain, could not avail of the rights under Article 19(1)(a).

The case concerned a challenge to the provisions of the Drugs and

Magic Remedies (Objectionable Advertisements) Act, 1954 which was

intended at preventing self-medication. The court held that although

an advertisement was a form of speech, it ceased to fall with in the

concept of free speech when it took the form of a commercial

advertisement seeking to promote trade or commerce. The court

observed : “Freedom of speech goes to the heart of the natural right of an

organised freedom loving society to „impart and acquire information about

the common interest‟. If any limitation is placed which results

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

is that it deprives a trader from commending his waves, it would not

fall within that term”.59

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

It is curious reasoning to deprive commercial advertising from

protection under Article 19(1)(a). Traders and businessman who

advertise for commercial gain, are no different from newspapers and

other media that are run as Commercial, profit making enterprises.

This is why the media enjoy no special status or immunity and are

subject to the general laws of the land, including those relating to

taxation. The reasoning that those advertising for commercial gain

were disentitled to enjoy the right of free speech under Article 19(1)(a)

appears flawed.

e) Right to conduct interviews

This is a limited right, subject to the willing consent of the

person being interviewed. A number of cases have arisen where the

right of the media to interview convicts or under trials has been

examined.

In Prabha Dutt v. Union of India,60 the petitioner was seeking to

interview the condemned prisoners Billa and Ranga. The court held

that the press does not have an absolute or unrestricted right to

information and there is no legal obligation on the part of citizens to

supply that information. An interview may be conducted provided that

convict gives his consent to being interviewed. The right to interview

would also be subject to Rule 549 (4) of the manual for the

Superintendence and Management of Jails which allows every

60 (1982) 1 SCC 1.
 66

prisoner sentenced to death to give interviews, engage in

communication with relations, legal advisors etc. as the jail

superintendent considers reasonable.

In State v. Charulata Joshi,61 the Supreme Court reiterated the

restricted scope of this right. The Additional Session Judge had

granted the news magazine, India Today a blanket permission to

interview Babloo Srivastava who was lodged in Tihar Jail. The court

held that the under trial could be interviewed or photographed only if

he expressed his willingness. The interview had to be regulated by the

provisions contained in Jail Manuals and could be published in a

manner that did not impair the administration of justice.

f) Right to report court proceedings

The right to report judicial proceedings, stems for the necessity

for transparency. Justice must not only be done, it must be seen to be

done. Openness is a safeguard against judicial error and misconduct.

“In the darkness of secrecy sinister interest, and evil in every

shape, have full swing only in proportion as publicity has place any of

the checks applicable to judicial injustice operate. Where there is no

publicity there is no justice. Publicity is the very soul of justice. It is

the keenest spur to exertion and the surest of all guards against

improbity. It keeps the judge himself while trying, under trial.” 62

61 (1999) 4 SCC 65.

62 Bentham quoted in Scot v. Scott, (1911) All ER 1, p. 30; quoted with approval in Naresh
Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC; Vineet Narain v. Union of India
(1998) 1 SCC 226.
 67

The media enjoys privileges on account of the citizen‟s right to be

informed on maters of public importance.

It is not because of any special wisdom, interest or status

enjoyed by proprietors, editors or journalists. It is because the media

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

general public for whom they are trustees. 63

The journalist has a fundamental right to attend proceedings in

court and the right to publish a faithful report of the proceedings

witnessed and heard in court. This right is available in respect of

judicial and quasi-judicial tribunals.64

Publicity of proceedings serves another important purpose. It

enhances public knowledge and appreciation of the working of the law

and the administration of justice. There is also a therapeutic value to

the public in seeing criminal trials reach their logical conclusion. 65

Publicity of proceedings is not an absolute rule. The open justice

system must give way when there are higher considerations. For

instance, the names of rape victims or riot victims must be protected.

Such persons may be reluctant to complaint if their identities are

disclosed and trials publicised. It is not only necessary to protect such

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

persons from public humiliation and embarrassment, but also

necessary to ensure that the victim gives the best available evidence

which she may not be able to provide if she is in the public gaze.

Similarly, family disputes warrant privacy, particularly to protect

children from unwarranted publicity.66

67
In Naresh Shridhar Mirajkar v. State of Maharashtra, the

Supreme Court held that the court may restrict the publicity of

proceedings in the interests of justice. The court has the inherent

power under Section 151 of Code of Civil Procedure, 1908 to order a

trial to be held in camera, but this power must be exercised with great

caution and only where the court is satisfied beyond doubt that the

ends of justice would be defeated if the case were to be tried in open

court.68

g) Right to expression beyond national boundaries

The right to expression transcends national boundaries. The

revolution in communications and the electronic media has broken

down transnational barriers. It has made possible the transmission of

information to any part of the world in a matter of seconds. It is

possible via internet and phone.

“Every one has a right to freedom of opinion and expression,

this right includes freedom to hold opinions without interference and

to seek, receive and impart information and ideas through any media

and regardless of frontiers”69

66 Supra n. 37, p. 12.

67 AIR 1967 SC 1.
68 Ibid., pp. 8-9.
69 Universal Declaration of Human Rights, 1948, Article 13.
 69

70
In Maneka Gandhi v. Union of India, the Supreme Court

considered whether Article 19(1)(a) of Indian Constitution was

confined to Indian territory and held that the freedom of speech and

expression is not confined to National boundaries.

So electronic media also has right to expression beyond national

boundaries under Article 19(1)(a) of Indian Constitution.

h) Copyright versus the freedom of expression

The law of copyright is indeed to prevent plagiarism and unfair

exploitation of creative work. It is a natural extension of the freedom

of speech and expression protected under Article 19(1)(a) of the

constitution. If an individual enjoys the freedom of speech and

expression, he must also be guaranteed protection of the intellectual

property in his expression. Absence of such protection would

demoralize creative artists and have a chilling effect on creative

activity.71

Copyright is not a positive right to do something but confers a

negative right which restricts others from copying the original work of

an author. A right for one person is thus a restriction on another. The

laws of copyright protects the right of one person and restrains

another from exercising corresponding rights.

The question arises is as to whether the right of the copyright

owner infringes the freedom of expression72 of another person or his

70 (1978) 1 SCC 248.

71 Supra n. 37, p. 128.
72 The Constitution of India, 1950, Article 19(1)(a)
 70

freedom of business.73 Unlike defamation, contempt, morality,

decency, incitement to an offence etc., copyright is not one of the

specified restrictions imposed under constitution.74 The right of free

expression or free trade cannot be stretched to mean that a person

can be entitled to benefit from another‟s property or the fruits of another‟s

labour. This is vital public interest in copyright protection. Writer G.

Davies in “Copyright and the Public Interest” observed that copyright

serves the public interest in freedom of expression. By enabling the

creator to derive a financial award from the work, his artistic

independence and right to create and publish according to his own

wish and conscience is assured. Alternative methods of rewarding

creators, such as patronage, either by the State or by individual carry

the risk of control or censorship.

i) Right to criticize

“Acceptance by Government of a dissident press is the measure of

the maturity of a nation”

Freedom of speech and expression covers the right to criticize

Government, the requisite of a healthy democracy.

In a leading American Case, Terminiello v. Chicago75 the rational

behind the freedom of speech was explained J. Donglas :

73 Supra n. 72, Article 19(1)(g)

74 Ibid., Article 19(2)
75 (1948) 93 L Ed 1131 : 337 US 1 (1949)
 71

"[A] function of free speech under our system of Government is

to invite dispute. It may indeed best serve its high purpose when it

induces a condition of unrest, creates dissatisfaction with conditions

as they are, or even stirs the people to anger. Speech is often

provocation and challenging. It may strike at prejudices and

preconceptions and have profound unsettling effects at it presses for

acceptance of an idea…. There is no room under our constitution for

more restrictive view for the alternative would lead to standardization

of ideas either by legislatures, courts or dominant political or

community groups.”76

77
In Kedar Nath Singh v. State of Bihar there arose out a

constitutional challenge to Sections 124-A and 505 of Indian Penal

Code, 1860 which penalizes attempts to excite disaffection towards the

Government by words or in writing and publications which may

disturb public tranquility. The Supreme Court dismissed the challenge

but classified that criticism of public measures or comment on

Government action, however strongly worded, would be within

reasonable limits and would be consistent with the fundamental right

of freedom of speech and expression.

In Anand Chintamani v. State of Maharashtra78 a full bench of

the Bombay High Court, while quashing an order of forfeiture under

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

section 95(1) of the Code of Criminal Procedure, 1973 in respect of

“Me Nathuram Godse Boltoy” a play critical of Mahatma Gandhi,

upheld the right to criticise:

Tolerance of diversity of view points and the acceptance of

the freedom to express of those thinkings may not accord

with the mainstream are cardinal values which lie at the

very foundation of a democratic form of Government. A

society wedded to the rule of law, cannot trample upon

the rights of those who assert views which may be

regarded as unpopular or contrary to the views shared by

a majority. The law does not have to accept the views

which have been expressed by the petitioner as a

playwright to express those views. Respect for and

tolerance of a diversity of viewpoints is what ultimately

sustains a democratic society and Government. The right

of a playwright, of the artist, writer and of the poet will be

reduced to husk if the freedom of portray a message,

whether it be on canvas, prose or verse-is to depend upon

the popular perception of the acceptability of that

message. Popular perceptions, however strong cannot

override value which the constitution embodies as

guarantees of freedom in what was always intended to be

a free society.79

79 Supra n. 78, pp. 32-33.

 73

j) Right to report legislative proceedings

This right has often been curtailed in the name of legislative

privilege available to both parliament and the State assemblies.

Legislative privilege refers to special rights conferred by the

constitution on parliament and state legislatures to ensure freedom of

speech for legislators, to enable them to discuss and debate matters of

importance without the fear of inviting liability of any sort. 80

In Tej Kiran Jain v. N. Sanjiva Reddy the Supreme Court held that :

“It is the essence of parliamentary system of Government

that people representatives should be free to express

themselves without fear of legal consequences. What they

say is only subject to the discipline of the rules of

parliament, the good sense of members and the control of

proceedings by speaker. The courts have no say in the

matter and should really have none.”81

An extension of legislative privilege is the power of the

legislature to punish for breach of privilege or for contempt of the

House. Contempt of Parliament has been described as, “Any act or

omission which impedes either House of Parliament in the

performance of its functions, or which obstructs or impedes any

member or officer of such House in the discharge of his duty or which

has a tendency directly or indirectly, to produce such results may be

treated as a contempt even though there is no precedent of the offence

of sentence.”82

80 The Constitution of India, 1950, Articles 105, 194.

81 (1970) 2 SCC 272; AIR 1970 SC 1573.
82 Erksine May, Parliamentary Practice, 21st Edn. (1), p. 115.
 74

Once these powers of legislature came in confrontation with the

media. In Searchlight case,83 a notice for breach of privilege was issued

against the editor of Searchlight, a well-known English daily for

publishing an expunged portion of the proceedings of the Bihar State

Assembly. The editor‟s petition in the Supreme Court complaining that

his right to freedom of speech had been violated was dismissed. The

Supreme Court held that the report of an expunged portion of a

member‟s speech would, prima-facie, amount to breach of privilege.

Legislative privilege stemmed from special Constitutional laws and in

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).

A landmark judgement84 on legislative privilege and contempt of

the legislature, arose out of a presidential reference under Article

143(1) of the Constitution. The Allahabad Legislative Assembly issued

an arrest warrant against two Judges of Allahabad High Court for

ordering the release of one Keshav Singh against whom action had

been taken for committing contempt of the house by addressing a

disrespectful letter to the speaker. While answering the presidential

reference and holding that the Judges had not committed contempt of

house, the Supreme Court stressed that legislative privilege must be

subject to the fundamental rights of the citizen. The court sounded a

note of caution against the exercise of privilege and the power to

punish for contempt.

83 M.S.M. Sharma v. Krishna Sinha, AIR 1959 SC 745.

84 In re Keshav Singh, AIR 1965 SC 745.
 75

In an age of information & technology, where the live telecast of

legislative proceedings has become mandatory, 85 the whole concept of

legislative privilege & contempt is anachronistic. Further in the

absence of defined privileges, this power is misused with impunity. 86

CENSORSHIP OR RESTRICTIONS ON FREEDOM OF SPEECH AND

EXPRESSION

In a modern State, absolute and unrestricted individual rights

do not exist, because they cannot exist. Freedom is more purposeful if

it is coupled with responsibility. Like any other freedom, the freedom

of speech and expression has to be balanced with other social values.

The liberty of the individual to do as he pleases even in innocent

matters is not absolute. It must frequently yield to common good. 87

Freedom of the press has to be reconciled with the collective

interest of the society, which is known as “public interest” 88

The reconciliation of the contest between power and liberty,

between the claims of political society and the interests of individual is

a perennial problem of political society which curiously persists

irrespective of any difference in the form of Government. So, there are

certain permitted prior restraints and restrictions on the freedom of

the press, in the collective interest of society. Prior restraint means

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

any kind of interference or control exercised by the State over the

freedom of the press at any stage prior to publication of the alleged

offending material.89

Censorship means a bar on further publication of a journal or of

matter of a special kind without “advance approval of an executive

official”90

Under an order of censorship, the matter to be published has to

be submitted to a Governmental authority by the editor or publisher of

a newspaper prior to its printing or publication. The standard applied

by the officer is not subject of judicial review. A Government official

becomes the guardian of the people‟s mind, ideas and expression which

acts as a deterrent to the creation of new thoughts.91

Writing on the effect of censorship on the press, Prof. Thomas I.

Emerson has said:

…A system of prior restraint is in many ways more

inhibition than a system of subsequent punishment. It is

likely to bring under Government scrutiny a far wider

rang of expression; the system allows less opportunity for

public appraisal and criticism; dynamics of the system

drive towards excesses, as the history of all censorship

shows.92

89 Supra n. 11, p. 94.

90 The Statesman 8-1-1983.
91 Ibid.
92 Thomas I. Emerson, The System of Freedom of Expression 506 (Random House Vintage
Books, New York, 1970).
 77

To censor is to act so as to change or suppress speech or writing

that is condemned as subversive of the common good. 93 But it has

been abused a lot by ruling regime to hide their misconduct. One such

example is execution of Socrates in 399 B.C. on charges that he

corrupted the youth and he did not acknowledge the God, that the city

did, but other new divinities of his own.94

In China in 231 B.C. blatant oppressiveness, and an attempt to

stamp out the influence of Confucius and other sages, could be seen

in the wholesale destruction of books.95

Censorship in Time of Peace or War

In England it is acknowledged that in times of war when the

very existence of the State is in jeopardy, the State has power to

prevent the dissemination of such information and comments as

would interfere with successful prosecution of the war. In the Indian

Constitution Article 19(2) makes no distinction between times of war

and of peace. It authorises the State to impose reasonable restrictions

for preserving the interests specified there in. These restrictions must

be reasonable both substantively and procedurally. The decision of the

Supreme Court in Virendra v. State of Punjab96 is a clear authority for

the proposition that pre-censorship even in times of peace is

warranted in certain circumstances under Article 19(2) of Indian

Constitution.

93 The New Encyclopedia Britannica, Vol. 3, Macropaedia, 15th edn., 1991.

94 Ibid., Vol. 15, Macropaedia, 15th edn., 1991, p. 620
95 Ibid., p. 621.
96 AIR 1957 SC 896
 78

MEDIA REGULATIONS UNDER INDIAN CONSTITUTION

Article 19(1)(a) of the Indian Constitution guarantees to all its

citizens including media97 “the right to freedom of speech and

expression”. Clause (2) of Article 19, at the same time provides:

“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:-


Sovereignty and Integrity of India.

The Security of the State.

Friendly relations with foreign states.

Public order.

Decency or Morality.

Contempt of Court.

Defamation.

Incitement to an offence.

The meaning of the term reasonable restriction has been a

matter of judicial discussion. There has been a doubt whether the

term „reasonable restriction‟ also includes „total prohibition‟. In A.K.

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

word „restriction‟ implies that the fundamental right is not destroyed

in entirety but passport of it remained. Patanjali Sastri J. was of the

view that the term did not mean „total prohibition‟. Kania C.J.

interpreted it as „partial control‟ and distinguish it from deprivation.

Later the Supreme Court in another decision 99 interpreted the term to

mean „total prohibition‟ where the restriction was reasonable. It is

submitted that what is restrained in not the „fundamental right‟ which

continues unaffected, but the „exercise‟ of it. The restriction when it is

unreasonable does not affect the right and when it is reasonable it

only restrains the exercise of that right. Such a restraint on the

exercise of right, when reasonable, may be partial or total.100

Further, in reasonable restrictions, the test of reasonableness

depends upon the nature of the right alleged to have been infringed,

the underlying purpose of the restriction imposed, the extent and

urgency of the evil sought to be remedied thereby, the disproportion of

the imposition and the prevailing conditions at the time of imposition

of such restriction.

a) Reasonableness of restrictions

There are two conditions imposed by the Constitution to validate

the restriction on the freedoms guaranteed by Article 19(1). Any law

restricting these freedoms must satisfy these two conditions. These

conditions are that the restrictions must be for a particular purpose

mentioned in the clause permitting the imposition of the

99 Narendra Kumar v. Union of India, 1959 IND. LAW SC 61.

100 The Constitution of India, Article 358 & 359, which deals with proclamation of emergency.
 80

restriction on that particular right and the restriction must be a

reasonable one. The Constitution does not define the expression

“Reasonable Restrictions”. The test of reasonableness has to be

applied to each individual case and no general pattern of

reasonableness can be laid down which applies in all cases.

The following are some of the principles which the Supreme

Court of India has affirmed in Narottamdas v. State of M.P.101 for

ascertaining the reasonableness of restrictions on the exercise of the

rights secured under Article 19 of the Constitution, which are as

follows:

1. The phrase “reasonable restriction” connotes that the limitation

imposed upon a person in the enjoyment of a right should not

be arbitrary or of an excessive nature.

2. In determining the reasonableness of statute, the court should

see both to the nature of the restriction and procedure

prescribed by the statue for enforcing the restrictions on the

individual freedom. Not only substantive but also procedural

provisions of a statute also enter in to the verdict of its

reasonableness.

3. The reasonableness of a restriction has to be determined in an

objective manner and from the standpoint of the interests of the

general public and not from the point of view of persons upon

whom the restrictions are imposed or upon abstract

considerations.

101 AIR 1964 SC 1667.

 81

4. The court is called upon to ascertain the reasonableness of the

restrictions and not of the law which permits the restriction. A

law may be reasonable but the restriction imposed by it on the

exercise of freedom may not be reasonable.

5. The word “restriction” also includes cases of prohibition and the

State can establish that a law, though purporting to deprive a

person of his fundamental right, under circumstances amounts

to a reasonable restriction only.

6. The Indian Constitution provides reasonably precise general

guidance in the matter of reasonableness. The test of the

reasonableness of the restriction has to be considered in each

case in the light or the nature of the right infringed, the purpose

of the restriction, the extent and the nature of the mischief

required to be suppressed and the prevailing social and other

conditions at the time.

7. A restriction that is imposed for securing the objects laid down

in the Directive Principles of State Policy may be regarded as

reasonable restriction.

8. If a restriction is not imposed by legislation but is the result of a

contract freely entered into by the citizen, he cannot complain of

the reasonableness of the law.

9. The conferment of wide powers exercisable on the subjective

satisfaction of the Government cannot be regarded as

 82

reasonable restriction because the Government is the best

authority to judge and take anticipatory action for preventing a

threat to the breach of the peace.

10. The retrospective operation of legislation is a relevant factor in

deciding its reasonableness, but it is not always a decisive test.

It is not correct to say that because the retrospective operation

covers a long period, the restriction imposed by it must be

unreasonable.

b) Emergency and press censorship

“Almost always freedom of speech results in a mitigation

which renders disorders unnecessary; almost always,

also, prohibition of that freedom merely makes the

agitation more dangerous because it drives it

underground.”102

During Indo-China War in 1962, the president proclaimed first

emergency on 26th October, 1962 and continued when Pakistan was

in war with India to 1965 and continued till January, 1968. A second

emergency was declared on 3rd December 1971, when another war

with Pakistan began. A third proclamation of emergency dated 25 th

June, 1975 was gazetted on 26th June, 1975. It declared that a grave

emergency exists whereby the security of India is threatened by

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

Mrs. Indira Gandhi Government started amending the

constitution & several laws to secure her position and actions. The

Constitution 38th Amendment Act, 1975 was made to empower the

President to issue overlapping proclamations of emergency on the

grounds of external aggression or internal disturbance. By the

Constitution (Forty-second Amendment) Act 1976, the President was

permitted to make such proclamation in respect of whole or any part

of India and to extend emergency to other areas. The 42 nd Amendment

was notorious for meddling with the character of Indian democracy

and Constitutional governance. To surpass the impact of

104
Keshavanand Bharathi judgment restricting the power of

parliament to amend the basic structure of the Constitution, the 42 nd

Amendment granted unlimited power to Parliament to alter the shape

of Constitution. All these provisions were later struck down as

unconstitutional by Supreme Court in Minerva Mills Ltd. v. Union of

105
India.

Mrs. Indira Gandhi, who won a massive victory during 1971

elections and after victory creating Bangladesh, continued to lose the

popularity owing to certain policies and personal politics like

introduction of her son Sanjay Gandhi into active ruling politics. Her

party lost several by elections and her election to Lok Sabha from

Allahabad was successfully challenged by Raj Narain. As the „vacation

104 AIR 1973 SC 1461

105 1980 (3) SCC 625.
 84

judge‟ of Supreme Court Justice Krishna Iyer gave a conditional stay

over judgment of Allahabad High Court disqualifying her to hold the

position of Prime Minister, she continued in office. She was not

entitled to vote or participate in Parliamentary proceedings, or draw

her remuneration as MP. On the other hand national opposition and

leaders like Jayaprakash Narayan were demanding her resignation.

Jayaprakash gave call for nation wide disobedience movement and

appealed to police and armed forces not to obey „illegal and immoral orders‟

of Mrs. Indira Gandhi. Terming this appeal by Jayaprakash as incitement to

mutiny Mrs. Indira Gandhi made President to proclaim emergency.

Mass arrests were ordered. Electricity was cut off to newspaper offices,

and then Mrs. Gandhi addressed the nation through All India Radio to

announce the imposition of Emergency. Fundamental Rights were

suspended. Tens of thousands of people were arrested in each State

along with the leaders of opposition parties under Maintenance of

Internal Security Act, 1971.

The declaration of Emergency on 26th June, 1975 was followed

by a broadcast to the nation on All India Radio where Mrs. Gandhi

said:

“In the name of Democracy it has been sought to negate the very

functioning of democracy. Duly elected programmes have not been

allowed to function… Agitations have a surcharged atmosphere,

leading to violent incidents… Certain persons have gone to the length

 85

of inciting our armed forces to mutiny and our police to rebel…. The

forces of disintegration are in fully play and communal passions are

being aroused, threatening our unity… Now we learn of new

programmes challenging law and order throughout the country with a

view to disrupting normal functioning. How can any Government worth

the name stand by and allow the country‟s stability to be

imperiled?”106

The Times of India published in 26th June 1975 in its Bombay

edition the obituary of democracy as follow:

D’ Ocracy DEM,

beloved husband of T.Ruth,

loving father of L.I. Bertie,

brother of Faith, Hope, Justice,

expired on 26th June.

Then the censorship of newspapers was imposed 107 under

Defence of India Rules, 1971. According to this order, every newspaper

or periodical has to submit for scrutiny to an authorized officer any

news, comment, rumour or other report relating to certain specified

subjects before its publication. It was accompanied by „Guidelines for

the Press”. These guidelines impose an obligation on the press to assist

the censor by suppressing „plainly dangerous‟

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

news, not giving publicity to rumours, not reproducing objectionable

matter published by other Indian or Foreign newspapers, not

publishing anything which would likely to cause disaffection among

members of armed forces or civil servants, or to bring the Government

into hatred or contempt or to encourage or incite the use of criminal

force against public servants. It was also directed that nothing was to

be published which was likely to promote feelings of enmity and

hatred between different classes or people. The chief censor was

empowered to detain, paraphrase or edit telegrams and to intercept

and censor postal articles. The Censorship Order was amended

several times to strengthen the restrictions and concentrate power in

the center to censor the newspapers in States also. Reporting the

actions for contravention of various provisions of law and rules, the

control and winding up of the organisations, sabotage, committing of

„prejudicial‟ acts, illegal possession of information and documents,

censorship, control of dramatic performances, control of

cinematography, general control of arms and explosives; public safety

and order, any action taken under the MISA (Maintenance of Internal

Security Act, 1971); imposition of President Rule in Tamil Nadu and

Gujarat and family planning. Even publications of statements by

ministers in Parliament or the State Legislatures were made subject to

the censorship guidelines. Reports about arrest of political adversaries

to Indira Gandhi were not allowed to be published in newspapers. The

newspapers were not allowed to leave blank spaces in the editorials,

 87

which symbolically suggest that there is suppression of expression.

Editors were not allowed to indicate that any item had been subject to

censorship. Foreign correspondents filing copies in languages other

than English were required to submit an authorized English

translation of each story for scrutiny by the censors.108

Then the Prevention of Publication of Objectionable Matter Act,

1976 was passed Section 3 of this Act prohibits the publication of

material which would likely to bring State into hatred or contempt, or

excite disaffection towards the Central or State Governments or which

was defamatory of the President of India, the Vice-President, the Prime

Minister, the Speaker of the Lok Sabha and Governors of the States.

This Act gives enormous powers of censorship of the Government,

which include:

(a) to direct printers and editors to refrain from printing on

concerning specified subjects for up to two months at a time

(Section 5(1));

(b) to forfeit the publication which contravened such orders

(Section 6);

(c) to imprison those responsible for contravention (Section 7);

(d) to demand monetary security from printing presses, publishers

and newspaper editors (Sections 8, 11, 14);

108 White Paper on Misuse of Mass Media During the Internal Emergency, Government of India,
New Delhi, August, 27-28 (1977).
 88

(e) to detain, at seaports and airports foreign newspapers, books

and other documents suspected of containing „objectionable‟ matter

(Section 20);

(f) to prohibit the transmission by post of any document containing

such matter (Section 21);

(g) to seize printing presses suspected of producing unauthorized

newspapers or news-sheets (Section 23);

(h) to search and seizure were conferred on the Government, which

can be exercised with the authorization of a magistrate (Sections

33, 34).

The Bombay and Gujarat High Courts struck down the Censor

Orders and permitted the publication of prohibited news items. In

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:

It is not the function of the Censor acting under the

Censorship Order to make all newspapers and periodicals

trim their sails to one wind or to tow along in a single file

or speak in chorus with one voice. It is not for him to

exercise his statutory powers to force public opinion in a

single mould or to turn the Press into an instrument of

brain-washing the public. Under the Censorship Order

the Censor is appointed as nurse-maid of democracy and

109 (1976) 78 Bom LR 125.

 89

not its grave-digger. Dissent from the opinions and views

held by the majority and criticism and disapproval of

measures initiated by a party in power make for a healthy

political climate, and it is not for the Censor to inject into

this, the lifelessness of forced conformity. Merely because

dissent, disapproval or criticism is expressed in strong

language is no ground for banning its publication.

Mr. Soli J. Sorabji in his “the law of Press Censorship in India”

181-190 (1976) quoted the unreported judgement 110 in which Gujarat

High Court struck down the order of closure of Bhumiputra, a

Gandhian journal, simply for reporting the proceedings of the Civil

Liberties conference criticizing the Government. The Court held that

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.

The Indira Gandhi Government has repealed The Press Council

Act, 1965 and abolished the press council which was securing the

press from the Governmental pressures and other attacks. Another

law that repealed during her regime was the Parliamentary

Proceedings (Protection of Publication) Act 1956, which was originally

pushed through by her husband during her father‟s rule to secure the

publications of parliament proceedings in newspapers. These were

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

severe blows to freedom of press during the emergency which

suppressed the expression adverse to ruling powers.

The measures taken against the press during the Emergency

between 1975 and 1977 are documented in a Government White

Paper published soon after the termination of the Emergency:111

(1) The Press Information Officer was asked to prepare a

comprehensive list of all newspapers and journals and classify

them under three heads – friendly, neutral and hostile;

(2) Government departments and public sector enterprises were

ordered not to issue advertisements to publications which were

regarded insufficiently supportive of the Emergency;

(3) Several such publications were denied, their previously

determined quota of State-Controlled newsprint or denied

licences to import essential machinery;

(4) In cases where a newspaper remained resolutely hostile to the

Emergency, Government directors were forcibly appointed on

the Board of the company which owned the newspaper on the

pretext that it had been „mismanaged‟ by the existing directors;

(5) Government-owned banks and financial institutions were

ordered to deny loans to „hostile‟ newspapers, even where such loans

had previously been approved on purely commercial

considerations;

111 White Paper on the Misuse of Mass Media During the International Emergency, Government
of India, New Delhi, August 1977.
 91

(6) The official accreditation of some 51 leading journalists

(including reporters, cartoonists and photographers), seen to be

„unfriendly‟ to the Government, was withdrawn, resulting in the

denial to them of the normal facilities extended to all working

journalists, such as access to press conferences and to other

sources of information. In some cases, this also led to their

eviction from houses which they had been occupying under a

long-standing Government scheme;

(7) Seven 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‟‟;

(8) 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;

(9) Several journalists who had written articles critical of the

Emergency were arrested under preventive detention laws;

(10) The four existing privately-owned national news agencies were

forcibly taken over by the Government and merged to form a

single agency which was controlled by Government-appointed

directors;

(11) The Government‟s Directorate of Advertising and Visual

Publicity (DAVP) and the Publications Division were made to

 92

launch propaganda in support of the Prime Minister and the

Congress party and to discredit the opposition;

(12) Employees of the DAVP and the Government-owned All India

Radio were made to produce Indian language translations of the

Congress Party‟s election manifestos and to design posters for the

Prime Minster and the Minister for Information and

Broadcasting;

(13) All India Radio, which enjoyed a monopoly over both radio and

television broadcasting, was misused to generate political

propaganda for the Congress Party and in particular, Mrs.

Gandhi and her son, Sanjay Gandhi. The coverage of news and

current affairs was severely biased in favour of the ruling party

and against the opposition. A senior civil servant from the Prime

Minister‟s Secretariat remained permanently in the AIR news rooms

to give suitable directions to journals;

(14) The national industry was also put under pressure to aid the

Government‟s propaganda campaigns. Film-makers and artists

who refused to co-operate were blacklisted, 112 and several films

which were seen as „unhelpful‟ to the Prime Minster and her

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

regime were denied exhibition certificates by the Central Board

of Film Censors.113

c) Sovereignty and integrity of India

„Sovereignty and integrity of India‟ as a ground under

Article19(2) for restricting the freedom under Article 19(1) (a) was

added by amendment.114 This was as a reaction of the tense situation

prevailing in different parts of the country. Chinese incursions have

started in the north-east in 1960. Also around this time, there were

strong demands led by Master Tara Singh for a separate Sikh

homeland. The Dravida Munnertra Kazhagam (DMK) had called for an

entity separate from India called Dravida Nadu comprising Madras,

Mysore, Kerala and Andhra. The Law Minister Ashoke Kumar Sen

introduced a bill in the Lok Sabha on 21 st January, 1963 describing

its object as giving „appropriate powers to impose restrictions against

those individuals or organisations who want to make secession from

India or disintegration of India as political purposes for fighting

elections‟. The object of the amendment was to confer on Parliament specific

power to legislate on this subject without having to face a

constitutional challenge on the ground that the legislation was

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

inconsistent with Article 19(1) (a). The amendment enabled the

enactment of laws such as the Criminal Law Amendment Act, 1961

and the Unlawful Activities (Prevention) Act, 1967 which made

punishable the act or words of any individual or association intending

or supporting „the cession of any part of the territory of India or the

secession‟ of the same.115

d) Security of the State and public order

„Public order‟, „law and order‟ and „Security of the State‟ are not

synonymous expression. These concepts are in the nature of three

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

be prejudicial to „public order‟ may not necessarily affect „security of the

State‟.116 In Madhu Limaye v. Sub-Divisional Magistrate,117 the Supreme

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

Ordre Publique, that is, the absence of insurrection, riot, turbulence,

or crimes of violence. But it does not include acts which disturb only

the serenity of others.

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The term „Public order‟ means public peace, safety and

tranquility. The insertion of „public order‟ as a ground under Article19(2) by

the Constitution (First Amendment) Act, 1951 was an attempt to get

over the effect of the decisions of the Supreme Court in Romesh

Thappar v. State of Madras118. The case was a challenge to Section

9(1-A) of the Madras Maintenance of Public Order Act, 1949 under

which the Government of Madras has issued an order imposing a ban

on the entry and circulation of the journal Cross Roads in the State.

In considering whether the impugned Act was made in the

interests of the security of the State, Patanjali Shastri, J.drew a

difference between a breach of Public order which affect the security of

the State and that which involves a breach of a purely local

significance:

118 AIR 1950 SC 124.

 96

Though all these offences thus involve disturbances of

public tranquility and are in theory offences against

public order, the difference between them being only a

difference of degree, yet for the purpose of grading the

punishment to be inflicted in respect of them they may be

classified into different minor categories as has been done

by the Penal Code. Similarly, the Constitution in

formulating the varying criteria for permissible legislation

imposing restrictions on the fundamental rights

enumerated in Article 19(1), has placed in a distinct

category those offences against public order which aim at

undermining the security of the State or overthrowing it,

made their prevention the sole justification for legislative

abridgement of freedom of speech and expression, that is

to say, nothing less than endangering the foundation of

the State or threatening its overthrow could justify the

curtailment of the rights to freedom of speech and

expression… The Constitution thus requires a line to be

drawn in the field of public order or tranquility marking

off, more or less roughly, the boundary between those

serious and aggravated forms of public disorder which are

calculated to endanger the security of the State and the

relatively minor breaches of the peace of a purely local

 97

significance treating for this purpose difference in degree

as if they were differences in kind….119

The Court held that unless a law restricting freedom of speech

and expression is directed solely against the undermining of the

security of the State or its overthrow, such law cannot fall within the

restriction under clause (2) of Article 19, although the restrictions

which it seeks to impose may have been conceived generally in the

interests of public order.120 This decision was followed by the Supreme

Court in Brij Bhushan v. State of Delhi.121

In State of Bihar v. Shaialabla Devi,122 while interpreting Section

4(1) (a) of the Press (Emergency Powers) Act, 1931 dealing with words,

signs or visible representations which incite or encourage or tend to

incite or encourage the commission of any offence of murder or

violence, the Supreme Court held that any speech or expression which

incites or encourages the commission of violent crimes such as

murder, undermines the security of the State and falls within the

ambit of Article 19(2).

Mere Criticism of Government action would not fall within the

mischief of „Public order‟ and would be protected under Article 19(1)(a). In

Kedar Nath Singh v. State of Bihar,123 while interpreting the

119 AIR 1950 SC 124.

120 Ibid.
121 AIR 1950 SC 129.
122 AIR 1952 SC 329.
123 AIR 1962 SC 955.
 98

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

when it is intended to create disorder. The Criticism of public

measures on Government action, however strongly worded, would be

within reasonable limits and would be consistent with the

fundamental right of free speech and expression. It is only when the

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

words, written or spoken, have the pernicious tendency or intention of

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

Supdt., Central Prison v. Ram Manohar Lohia,127 Concerned a

challenge to Section 3 of the U.P. Special Powers Act, 1932 which

made it an offence to instigate persons not to pay dues to the

Government. Dr Lohia was arrested under the Act for making

speeches exhorting people not to pay the Government‟s increased

irrigation rates. The impugned provision was struck down by the

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

order‟ could not mean that the existence of any

remote or fanciful connection between the impugned act and public

order would be sufficient to sustain the validity of the law. There

should be a reasonable and rational relation between the act and the

object sought to be achieved, not a far fetched or remote

connection.128

In matters of forfeiture of books or other publications by the

Government on grounds of a likely disturbance of public order,

tranquility or the like, the courts have emphasised the necessity for

126 Supra n. 123, pp.968-69.

127 AIR 1960 SC 633.
128 Ibid., p. 640.
 100

the Government to lay down the precise grounds under which such

forfeiture became necessary. In Harnam Das v. State of U.P.,129 the

Supreme Court struck down an order of forfeiture passed by the

Government of Uttar Pradesh under Section 99-A of the Code of

Criminal Procedure, 1898 in respect of two books published in Hindi

on the ground that the publication of those books was published in

Hindi on the ground that the publication of those books was

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

communities were alienated from each other, whose religious beliefs

had been wounded or why the Government thought that such

alienation or offence to religion had been caused by the publication of

the books in question. Under Section 99-D of the Code of Criminal

Procedure, the Supreme Court held that it is the duty of the High

Court to set aside an order of forfeiture if it is not satisfied that the

grounds on which the Government formed its opinion, could justify

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

Narayan Dass Indurakhya v. State of M.P., 131 concerned a

challenge to an order under Section 4 of the Criminal Law

129 AIR 1961 SC 1662

130 Ibid., pp. 1665-66
131 (1972) 3 SCC 676.
 101

(Amendment) Act, 1961 which empowered the Government to declare

any newspaper, book or printed document to be forfeited if it appeared

that the publication questioned the territorial integrity or frontiers of

India in a manner which was or was likely to be prejudicial to the

interest of the safety or security of India. The book in question was

geography textbook and the Government took objection on the ground

that the book contained inaccurate maps of the territorial borders of

India. The High Court upheld the order of forfeiture passed by the

State Government. However, the Supreme Court held that the

forfeiture was vitiated since the notification failed to state the grounds

of the State Government‟s opinion and a mere reference to the words

of the statute did not fulfil the statutory requirement of setting out

precise grounds for the opinion. The Supreme Court further

emphasised that grounds must be distinguished from the opinion of

the Government.132 The judgments of the Supreme Court in Harnam

Das and Narayan Dass were followed by a full bench of the Bombay

133
High Court in Anand Chintamani v. State of Maharastra, while

quashing a forfeiture order in respect of „Me Nathuran Godse Boltoy’ a

play in Marathi which contained critical reference to Mahatama

Gandhi.

In Gajanan Visheshwat Birjur v. Union of India,134 the petitioner

challenged the Confiscation of books imported by him from China

132 Supra n. 131, p 680.

133 (2002) 2 Mah LJ 14.
134 (1994) 5 SCC 550.
 102

Containing Marxist literature under Section 111-D of the Customs

Act, 1962. It was found that the order of Confiscation failed to specify

which of the books contained words, signs or visible representations

which were likely to incite or encourage any person to resort to

violence for sabotage for the purpose of overthrowing or undermining

the Government. It was found that the show cause notices were devoid

of particulars and extremely casually drawn up and that the final

orders of confiscation also lacked the required specifications. The

orders of confiscation were struck down as being violative of Article

19(1)(a).

e) Friendly relations with Foreign States

Restrictions under this category would include not only libel of

foreign dignitaries but also propaganda in favour of rivals to authority

in a foreign state after India has recognised a particular authority in

that state, or propaganda in favour of war with a state at peace with

India. At present there is no specific legislation on this subject.

However, a variety of statutes contain restrictions on forms of

expression which would have an adverse impact on friendly relations

with foreign states. Laws regulating media are enshrine in these

statutes include the Cinematograph Act, 1952, 135 the Cable Television

Networks (Regulation) Act, 1995,136 and the Right to Information Act,

2005.137

135 The Cinematograph Act, 1952, Section 5-B (1).

136 The Cable Television Rules, 1994, Rule 6(1)(b).
137 The Right to Information Act, 2005, Section 5(1)(a), Section 8(1)(f).
 103

f) Incitement of an offence

The Word „offence‟ is not defined in the Constitution. According

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

reasonable restriction under Article 19(2), the law imposing a

restriction relating to „incitement to an offence‟ must relate to pre-existing

offence i.e. the incitement must be of an act which is, at the time, a

punishable offence under an existing law.139 Further, the legislation

must be in respect of a definite offence. Mere approval of or

admiration for an act of murder or violence does not automatically

come within the scope of this restriction unless the publication itself

has a present tendency to incite or encourage the commission of the

offence. The court must look to the circumstances in each case in

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

g) Morality, obscenity and censorship

Promiscuous reading is necessary to the constituting of

human nature. The attempt to keep out evil doctrine by

138 General Clauses Act, 1897, Section 3(38)

139 Supdt., Central Prison v. Ram Mahohar Lohia, AIR 1960 SC 633.
140 State of Bihar v. Shaialabala Devi, AIR 1952 SC 329.
 104

licensing is like the exploit of that gallant man who

thought to keep out the crows by shutting his park gate....

Lords and commons of England, consider what nation it

is whether of ye are; a nation not sow and dull, but of a

quick, ingenious and piercing spirit. It must not be

shackled or restricted. Give me the liberty to know, to

other and to argue freely according to conscience, above

all liberties.141

The society is now reeling under the impact of unending flow of

cinema, story, dance and drama through small screen of television.

Pornography is available in its vulgar form in personal computer with

world wide web. The television with powerful, multi-channel visual

splendors is totally occupying young mind. Its utility in educating,

informing and news-giving is camouflaged by its misuse in dishing out

obscene ad indecent stuff in the name of entertainment. One of the

restrictions under Article 19(2) is decency, morality and public order.

The purpose behind this is through this restriction the image of

humanity and dignity of women can be sought to be protected in the

media projections. The society is bound to decay if high standards of

decency and morality are not maintained. So restriction on freedom of

speech and expression was put which may otherwise be conveniently

abused for deliberately lowering the public morals.142 Images of

141 Johan Milton : Areopagitica, 1644.

142 Supra n. 11. p. 574.
 105

women in electronic media, either by way of commercial

advertisements or themes of serials or in reality shows or repeated

show of films, can straight away influence the young mind. Item songs

like „Munni Badnam Hui‟ and „Sheela Ki Jawani‟ etc are having

tremendous impact because of its repetition on TV, the most powerful

and effective vehicle of thoughts at present. The internet as an

information infrastructure is a communicative device, is viewed as a

tool for democratizing speech on a global basis.

According to Oxford Dictionary, obscene means “offensive to

modesty or decency expressing or suggesting unchaste and lustful

ideas; impure, indecent.”

143
In Ranjit D. Udeshi v. State of Maharastra , „Obscenity‟ has

been defined by the Supreme Court as „the quality being obscene which

means offensive to modesty or decency; lewd; fifty and repulsive‟.

i) Decency and morality

Decency and morality notions evolve with time and social

changes and vary vastly between different cultures. What may be

morally acceptable to one section of society may be outrageous to

another. In Chandrakant Kalyandas Kakodkar v. State of

Maharashtra144, the Supreme Court observed that such notions vary

from country to country depending on the standards of morals of

143 AIR 1965 SC 881.

144 (1969) 2 SCC 687.
 106

contemporary society. But even within the same country, particularly

one as socially disparate and culturally diverse as India, there are

widely varying standards of moral acceptability. This makes it

extremely difficult to define or straitjacket these concepts.

Section 292(1) of Indian Penal Code, 1860 defines „obscenity‟

thus :

a book, pamphlet, paper, writing, drawing, painting,

representation, figure or any other object, shall be deemed

to be obscene if it is lascivious or appeals to the prurient

interest or if its effect, or (where it comprises two or more

distinct items) the effect of any one of its items, is, if taken

as whole, such as to tend to deprave and corrupt persons

who are likely, having regard to all relevant

circumstances, to read, see or hear the matter contained

or embodies in it.

„Indecency‟ is a concept wider than „obscenity‟. Although anything that

is „obscene‟ must necessarily be „indecent‟, 145 what is „indecent‟ need not

always be „obscene‟.146 In other words while „indecent‟ merely means non

conformance with accepted standards of morality, „obscenity‟ refers to

that which has prurient or lascivious

appeal.147

145 R. v. Stanley, (1965) 1 All ER 1035.

146 R. v. Greater London Council, (1976) 3 All ER 184, pp. 188-89.
147 F.C. C. v. Pacificia Foundation, (1978) 438 US 726 (740).
 107

ii) Obscenity and vulgarity

There is a distinction between obscenity and vulgarity. In

148
Samaresh Bose v. Amal Mitra, the Supreme Court held:

A vulgar writing is not necessarily obscene. Vulgarity

arouses a feeling of disgust and revulsion and also

boredom but does not have effect of depraving, debasing

and corrupting the morals of any reader of the novel,

whereas obscenity has the tendency to deprave and

corrupt those whose minds are open to such immoral

influences.149

iii) Obscenity and pornography

150
In Ranjit D. Udeshi v. State of Maharashtra, the Supreme

Court drew a difference between obscenity and pornography. It was

held that while pornography denotes writings, pictures etc. intended

to arouse sexual desire, obscenity may include publications not

intended to do so but which have that tendency. While both offend

against public decency and morals, pornography is obscenity in a

more aggravated form.

iv) Test of obscenity

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:

148 (1985) 4 SCC 289.

149 Ibid., p. 318.
150 AIR 1965 SC 881.
151 R. v. Hicklin, (1868) LR 3 QB 360.
 108

I think the test of obscenity is this, whether the tendency

of the matter charged as obscenity is to deprave and

corrupt those whose minds are open to such immoral

influences, and into whose hands a publication of this

sort may fall… it is quite certain that it would suggest to

the minds of the young of either sex, or even to persons of

more advanced years, thoughts of a most impure and

libidinous character.152

Hicklin’s test was based upon the effect of a publication on the

most vulnerable members of society, whether or not they were likely to

read it. The defence of literary merit was not available and the test

licensed the prosecution of several literary works early in the 20 th

century. D.H. Lawrence‟s The Rainbow was destroyed in 1915. The Well

of Loneliness also met the same fate in 1928 at the hands of a

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

a most impure character‟ and „glorify a horrible tendency‟. 153

The Obscene Publications Act, 1959 was enacted in the UK as a

result of a campaign to afford protection to publications with literary

merit. The preamble described the legislation as „an Act to amend the

law relating to the publication of obscene matter; to provide for the

152 Supra n. 151, p. 371.

153 G. Robertson & A. Nichol, Media Law 156 (Penguin Book Ltd., 4th Edn., 2002).
 109

protection of literature; and to strengthen the law concerning

pornography‟. The definition of „obscenity‟ in the Act is based on 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.

Although Hicklin’s test was buried in England with the

enactment of the Obscene Publications Act, 1959, six years later, the

Supreme Court in India chose to adopt it in Ranjit D. Udeshi v. State

of Maharashtra.154 The Supreme Court felt that Hicklin’s test should

not

be discarded on the ground that „[it] makes the Court the judge of

obscenity in relation to an impugned book and lays emphasis on the

potentiality of the impugned object to deprave and corrupt by immoral

influences‟.155 This is difficult to understand considering that the

definition contained in Section 292(1) of the Indian Penal Code 1860 is

based upon the effect of the publication on „persons who are likely, having

regard to all relevant circumstances, to read, see or hear the

matter contained or embodied in it‟, and not just on any person into

whose hands the publication may accidentally fall.

In Ranjit Udesh v. State of Maharastra156 an appeal to the

Supreme Court was laid down against the conviction of a bookseller

and his partners by the Bombay High Court for being in possession of

154 AIR 1965 SC 881.

155 Ibid.
156 AIR 1965 SC 881.
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a book containing „obscene‟ material, Lawrence‟s Lady Chatterley’s Lover.

The Supreme Court confirmed the conviction and rejected the

challenge to the constitutionality of Section 292 of the Indian Penal

Code. The Supreme Court held that Section 292 constituted a

reasonable restriction on the right to freedom of expression under

Article 19(2) in the interest of decency and morality. The Court relied

on Hicklin’s test and further interpreted the word „obscene‟ to mean

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

material „appeals to the carnal side of human nature, or having that

tendency‟.158

v) Film medium

Film has overtaken as the most impressive and powerful

medium, and thus became subject matter of dispute when obscenity

has flown through the celluloid. The much acclaimed showman of the

millennium Rajkapoor was in court for his controversial film Satyam

Shivan Sundaran.

In Raj Kapoor v. State159 Supreme Court said, “Man need beautiful

surroundings and tempted by biological needs. Social scientists and

spiritual scientists broadly agree that man live not alone mystic

squints, ascetic chants and austere abnegation but by

157 Supra n. 156.

158 Ibid.
159 1980 (1) SCC 43.
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luscious love of beauty, sensuous joy of companionship and moderate

non-denial of normal demands of flesh. Extreme and excesses

boomerange although crazy artists and film directors do practice Oscar

wilde‟s observation; moderation is a fatal thing, nothing

succeeds like excess.”

In this case, the Supreme Court was dealing with a pro bono

publico prosecution against the producer, actor and other connected

with a film called “Satyam, Shivan, Sundaram” on the ground of

prurience, moral depravity and shocking erosion of public decency.

One of the questions considered was : When can a film to be publicly

exhibited be castigated as prurient and obscene and violative of norms

against Venereal depravity.

Krishna Iyer J., speaking for the court said, “Art, morals and law‟s

manacles on aesthetics are a sensitive subject where jurisprudence

meets other social sciences and never goes alone to bark and bite

because state-made strait jacket is an inhibitive prescription for a free

country unless enlightened society actively participates in the

administration of justice to aesthetics.

The world‟s greatest paintings, sculptures, songs and dances, India‟s

lustrous heritage, the konaraks and khajurahos, lofty epics, luscious in

patches, may be asphyxiated by law, if prudes and prigs and state

moralists prescribe paradigms and prescribe heterodoxies.

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In Raj Kapoor v. Laxman,160 Krishna Iyer, J. Said, “Sublime

titles of cinematograph films may enchant or entice and only after

entry into the theatre the intrinsic worth of the picture dawns on the

viewer. The experience may transform because the picture is great or

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

regards as lecherous, another man may consider elevating.

The complaint alleged that the fascinating title was misleading

foul and beguiled the guideless into degeneracy. If the grave men of

this accusation were true, obscenity, indecency and vice are writ large

on the picture, constituting an offence under Section 292, IPC. The

Supreme Court said that “Once a certificate sanctioning public

exhibition of a film has been granted by the competent authority

under the Cinematograph Act, 1952, there is a justification for its

display thereafter, and by virtue of the antidotal provisions in Section

79 of the Indian Penal Code, 1860. The public exhibition, circulation

or distribution or the production of the film, even if it be obscene,

lascivious or tending to deprave on corrupt public morals, cannot be

an offence notwithstanding Section 292 IPC. The absolution is based

upon the combined operation of Section 5-A of the Act and Section 79

of the Indian Penal Code.”

160 (1980) 2 SCC 175

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Justice Krishna Iyer said, “Going to the basics, freedom of

expression is fundamental. The censor is not the moral tailor setting

his own fashions but a statutory gendarme policing films under Article

19(2) from the angle of public order, decency or morality. These

concepts are themselves dynamic and cannot be whittled down to

stifle expression nor licentiously enlarged to promote a riot of sensual

display”.

The decision of the Supreme Court most relevant to this topic

161
was delivered in K.A. Abbas v. Union of India, it is related to a

documentary film entitled “A Tale of Four Cities”. The appellant

contended in a petition under Article 32 that he was entitled to a

certificate for unrestricted public exhibition.

The Supreme Court said, „it is not the elements of rape, leprosy,

sexual immorality which should attract the censor‟s scissors but how the

theme is handled by the producer. It must, be remembered that the

cinematograph is a powerful medium and its appeal is different. The

horrors of war as depicted in the famous etchings of Goya do not

horrify one so much as the same scenes rendered in colour and with

sound and movement, would do. We may view a documentary on the

erotic tableaux from our ancient temples with equanimity or read the

Kamasutra but a documentary from them as practical sexual guide

would be abhorrent.‟

161 (1970) 2 SCC 780.

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Bandit queen case

This film was a subject matter of dispute and the appeal went

up to Supreme Court. The Supreme Court upheld the certification of

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

film justifying the criminalisation of a young girl who was brutally

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

syrupy songs or pirouetting round trees. It is the serious and sad

story of a worm turning : a village-born female child becoming a

dreaded dacoit. An innocent who turns into a vicious criminal because

lust and brutality have affected her psyche so. The film levels and

accusing finger at members of society who had tormented Phoolan

Devi and driven her to become a dreaded dacoit filled with the desire

to revenge. It is in this light that the individual scenes have to be

viewed. First, the scene where she is humiliated, stripped naked,

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

is intended by those who strip her to demean her. The effect of so

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

disgust for the perpetrators. The revulsion that the Tribunal,

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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.

There is a scene in it of rows of naked men and women, shown

frontally, being led into the gas chambers of a Nazi concentration

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

likely reaction; pity, horror and a fellow-feeling of shame are certain,

except in the pervert who might be aroused. We do not censor to

protect the pervert or to assuage the susceptibilities of the

oversensitive. “Bandit Queen” tells a powerful human story and to

that story the scene of Phoolan Devi‟s enforced naked parade is

central. It helps to explain why Phoolan Devi became, dacoit what she

did: her rage and vendetta against the society that had heaped

indignities upon her.162

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 :

do they advance the message? If they do they should be left

162 Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1.

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alone, with only the caution of an „A‟ certificate. Adult Indian citizens as a

whole may be relied upon to comprehend intelligently the message

and react to it, not to the possible titillation of some particular scene.

The Supreme Court also observed that the film censor board,

acting under Section 5-A of Cinematograph Act, 1952, is specially

entrusted to screen off the silver screen pictures which offensively

invade or deprave public morals through over-sex.

In the case of Shankar alias Gauri Shankar and others v. State

of T.N.,163 the Supreme Court considered an argument that the films

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,

and pleaded or rather lamented that accused having seen films

depicting sex, violence and illicit business etc. got misguided and

ended up as criminal and therefore the makers of such films are also

victoriously responsible. The lamentation is justified. The Supreme

Court asked: “We are at a loss to know whether it is compulsory that a

heroine should invariably appear on the screen with accentuated

angularities, depended depressions and exaggerated protuberances of

the body? Is it an irrevocable convention that the violence unleashed

by the wicked or the evil-mind villain or the hero‟s valour in punishing

those wicked and the villain must only be shown in such a cruel,

163 1994 (4) SCC 478.

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gruesome and diabolical manner. When promotion of art and culture

is the primary underlying object, how can obscenity, cruelty and many

such wicked things be depicted and shown in such blown-up and

magnified manner leaving an impression that the film is meant only to

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

of violence, sex, rape, bootlegging and drug trafficking etc. in such a

manner or manners which have the propensities of disturbing or

corrupting the minds of some viewers like children and particularly of

those who are weak-minded, wayward, undisciplined, frustrated and

likewise, who are very likely to become wicked and evil-minded and

ultimately end up as criminals indulging in organised crime, the

avowed object gets frustrated. The films should be of educative value

and then only they can play an important role in subserving the

interests of the society. No doubt, entertainment is one of the

important underlying objects but it is mainly meant to make the

viewers mentally relaxed and enjoy and not to render them heavy-

heated sensually aroused and mentally disturbed which may lead

them to indulge in frivolities, perversion and dangerous addictions,

which ultimately are likely to pave the way to end themselves up as

criminals”.
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164
In case Suo Moto v. State of Rajasthan, the Rajasthan High

Court suo moto took up the matter of “the depiction of women in an

undignified manner by the media”. The main issue involved in this

petition was the depiction of women in an “undignified manner” by the

media, including television channels and the nature of the

Government responsibility in regulating this.

The court held that before telecasting/broadcasting the

programmes under the Cable Television Networks (Regulation) Act

1995, it is expected that the Government verifies whether the

programmes that are going to telecast conform to the regulations or

not.

The court said that where a programme is telecasted and

broadcasted in violation of Rule 6(1)(k) of the Cable Television Rules,

1994 and where the programme is found indecent or derogratory to

women, or is likely to deprive, corrupt or injure public

morality/morals, strict action has to be initiated against those

responsible for such telecasting. Similar actions must also be taken

against persons responsible for hoarding, advertisements & posters.

The court directed the Government to ensure that advertisements not

following rules and regulations be discontinued. “Using scantily clad

female models for products like car batteries, tobacco, electric

inverters, shaving appliances, mobiles and other advertisements

should be stopped forthwith.

164 AIR 2005 Raj 300.

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According to the court the Censor Board should ensure that „A‟

certificates are given to adult films and posters for such films are

displayed in a “more healthy and less revealing manner” at public

places and near cinema halls.

The court held that concrete steps should be taken to prevent

the depiction of women in an undignified manner through

broadcasting, telecasting and advertisements etc. and prompt steps

need to be taken against the responsible persons.

165
In Pratibha Naitthani v. Union of India, the complainant filed

a writ petition against the telecast of “adult and obscene films shown by

the electronic media” and “obscene photographs” in the print media, in

Bombay High Court. The Court held that a number of television

channels were violative of the programme code under the Cable TV

Act, 1995 and The Cable TV network Rules, 1994. The court directed

television channels to give details of „A‟ rated films telecasted on TV

Channels over the previous three months and restrained TV channels

from telecasting any adult programme and/or film without

appropriate certificates from the CBFC. The court also passed an

order restraining newspapers and periodicals from publishing any

advertisement that amounts to invitation to prostitution; which had a

sexual overtone; or which is violative of Section 3 of Indecent

Representation of Women (Prohibition) Act, 1986.

165 AIR 2006 (Bom) 259.

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Instead of the orders of Court, TV Channels continue to show

movies rated „A‟ and „UA‟ by the CBFC. As a result, the police, acting

on the instructions of the court, cracked down on the control rooms of

Hathway, Incable, Indus and Siticables, leading to nine channels. „Star

movies, HBO, AXN, SET Maz, Zee Studio, Zee Café, Star World,

Hallmark and Filmy going off the air.

The main question before the court was whether cable

operators/cable service providers are free to telecast CBFC certified

adult films despite the restriction in clause (o) of Rule 6(1) of the

cinematograph Rules, 1983 that no programme shall be carried on the

cable service which is “unsuitable for unrestricted public exhibition.”

The arguments were that every adult viewer has the

fundamental right to view programmes with adult content on TV

through cable services. It was submitted that Cinematograph Act,

1952 provides that a programme unsuitable for children shall not be

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

always view Adult certified films in cinema halls, his private TV

set by means of DVD, VCD or such other mode for which no

restriction exists in law. The court held that the restriction upon cable

operators and cable service providers that is not suitable for

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unrestricted public exhibition did not violate their right to carry on

trade and business. The court further held that only films sanctioned

by the CBFC, under the Cinematograph Act and Rules, as suitable for

“unrestricted public exhibition” could be telecasted or transmitted on

Cable TV.

166
In R. Basu v. National Capital Territory of Delhi and Another,

complaint was filed before Chief Metropolitan Magistrate (CMM)

against star TV, star movies and channel V, naming persons

responsible for the day to day affairs of these channels. According to

the complainant, the obscene and vulgar TV films shown and

transmitted through various cable operators amounted to obscenity

and therefore, the accused persons had committed offences under

Section 292/293/294 IPC and under Section 6 read with Section 7 of

the Indecent Representation of Women (Prohibition) Act, 1986.

The Chief Metropolitan Magistrate (CMM) viewed these movies &

find that four films shown on TV channels were obscene. The CMM

mentioned that there in haphazard mushrooming of cable television

network all over the country, resulting in availability of signals of

foreign television networks via satellites. The programmes available on

these satellite channels are predominantly western and totally alien to

our culture and way of life. Such programmes play havoc with the

moral fabric of society and need to be regulated.

166 2007 Cri L J 4245.

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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,

1860 and the Indecent Representation of Women Act, 1986. With

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

countries via satellite and broadcasters comply with various strict

internal codes as well as statutory codes prescribed by the

Broadcasting Authority of the place of uplink. The High Court held

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

Board Film Certification (CBFC) certificates they could not claim

immunity from prosecution.

The court observed that the legislature had enacted the Cable

TV Network (Regulation) Act, 1995 to tackle the “problem” of

obscenity, and a programme code had also been introduced. Various

statutory safeguards for regulating transmission on cable television

networks in India have been provided therein. The petitioners have to

abide by these guidelines and laws relating to electronic media,

keeping in mind the sentiments and social value of the Indian society

while relaying its programmes.

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vi) Relevant provisions under different laws regulating morality and

obscenity

(i) Indian Penal Code, 1860 makes the sale, letting to hire,

distribution, public exhibition, circulation, import, export and

advertisement of obscene material and offence punishable with

imprisonment and fine.167

(ii) The Cinematograph Act, 1952 prohibits the certification of a

film by the Censor Board for public exhibition if the film or any

part of it is against the interest of morality and decency. 168

(iii) The Dramatic Performance Act, 1876 empowers the Government

to prohibit public dramatic performances on the ground of

obscenity and visits the disobedience of a prohibition with

imprisonment and fine.169

(iv) The Customs Act, 1962 empowers the Government to prohibit

or impose conditions on the import or export of goods in the

ground of decency and morality.170

167 Indian Penal Code, 1860, Sections 292-94.

168 The Cinematograph Act, 1952, Section 5-B, Section 4 and 5-A of the Act deal with the
examination and certification of films for public exhibition. A film certified by the Board of
Film Certification for unrestricted public exhibition carries a ‘U’ certificate. A film certified at
being suitable for unrestricted public exhibition may carry a ‘UA’ certificate if the Board is of
the view that the question as to whether a child below the age of twelve should be allowed to
view the film should be considered by his parents or guardians. A film certified for public
exhibition restricted to adults carries an ‘A’ certificate, while a film certified for public
exhibition restricted to members of any profession or class of persons carries an ‘S’ certificate.
Once the film has obtained any of these certificates, the distributor, exhibitor or any other
person to whom rights in the film have passed shall not be liable for punishment under any
law relating to obscenity.
169 The Dramatic Performances Act, 1876, Section 3(c) and Section 6.
170 The Customs Act, 1962, Section 11(b).
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(v) The Post Office Act, 1898 prohibits the transmission by post any

material on the ground of decency or obscenity.171

(vi) The Indecent Representation of Women (Prohibition) Act, 1986

prohibits the indecent representation172 of women through

advertisements or other publications, writings, painting, figures,

etc. and makes the contravention of the provisions of this Act

punishable with imprisonment and fine.173

(vii) The Young Persons (Harmful Publications) Act, 1956 prohibits

publications which could corrupt a child or young person and

incite him to commit crimes of violence or cruelty. A

contravention of the provisions of this Act is punishable with

imprisonment and fine.174

(viii) The Information Technology Act, 2000 makes the publication

and transmission in electronic form of „material which is lascivious or

appeals to the prurient interest or if its effect is such as to tend

to deprave and corrupt persons who are likely, having regard to

all relevant circumstances, to read, see or hear the matter

contained or embodies in it is‟ punishable with imprisonment

and fine.175

171 The Post Office Act, 1898, Section 20.

172 The Indecent Representation of Women Act, 1986, Section 2(c) of the Act defines the
'indecent representation of women' as, "the depiction in any manner of the figure of a woman,
her form or body or any part thereof, in such a way as to have the effect of being indecent, or
derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public
morality of morals".
173 The Indecent Representation of Women (Prohibition) Act, 1986, Section 3-6.
174 The Young Persons (Harmful Publications) Act, 1956, Sections 2(a) and 3-7.
175 The Information Technology Act, 2000, Section 67; Avinash Bajaj v. State, (2005) 3 Comp L J
364 (Del.).
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(ix) The Cable Television Networks (Regulation) Act, 1995 prohibits

the telecast of programmes on cable television, which offered

decency and morality and visits a contravention with

imprisonment and fine.176 In fact, Section 5 of the Cable

Television Networks (Regulation) Act, 1995 read with Rule 6(1)

(o) of the Cable Television Networks Rules, 1994 prohibits the

carriage of programmes that are not suitable for

„unrestricted public exhibition‟. The expression, „unrestricted public

exhibition‟ is found in Section 5-A read with Section 4 of the

Cinematograph Act, 1952 which provides for the examination

and certification of films by the Board of Film Certification

(CBFC). This effectively means that no adult film

(„A‟ film) or film which is suitable for public exhibition restricted to

members of any profession or any class of persons („S‟ film)

can be telecast on television by cable operators.177

vii) Restrictions on Offensive Advertisements

Article 19(2) of Constitution of India provides that the

Government can impose restrictions on the right to freedom of speech

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 expression to protect the country‟s sovereignty, integrity, security,

friendly relation with foreign states, public order, morality and

decency and to prevent contempt of court, incitement to an offence

and defamation.

Advertisers often view these rules and regulations as violating

their right to freedom of speech. Some advertisements, in particular,

were considered derogatory and banned by the Government such

178
as:


A deodorant advertisement that showed a man accompanied by
scantily clad women was banned by Government after several

complaints were received from viewers about advertisement

being offensive to family viewers.


A soft drink advertisement that showed a child bringing the
drink for Indian Cricket players was banned after complaints

from child labour activists.


Advertisements of two underwear ads were banned due to
vulgarity and indecency. Objectionable content in advertisement

is usually a reason for taking it off channels.

h) Contempt of Court

Contempt by „scandalising‟ the court owes its origin to the

medieval ages in Britain, when the courts were considered

representatives of the monarch and were called king‟s courts or Queen‟s

courts. Thus any imputation against the courts was

178 Available at: www.lawisgreek.com/Constitution-India-Advertisement-and-freedom-speech.

(Visited on June 27, 2012).
 127

considered an imputation against the sovereign and therefore

punishable. The United States has a more liberal dispensation, where

only something that presents a clear and present danger to the

administration of justice is considered contempt.179

i) Contempt of court under Indian constitution

The Constitutional right to freedom of speech and expression

(Article 19(1)(a)) does not allow a person to contempt of court. 180 The

expression contempt of court has been defined in contempt of courts

Act, 1971.181 The term contempt of court refers to civil contempt or

criminal contempt under the Act. The law of contempt of court is for

keeping the administration of justice pure and undefiled while the

dignity of the court is to be maintained at all costs, the contempt

jurisdiction which is of special nature should be sparingly used. 182

Judges do not have any general immunity from criticism of their

judicial conduct, provided that it is made in good faith and is a

genuine criticism, and not any attempt to impair the administration of

justice. In re Arundhati Roy183 the Supreme Court followed the view

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

taken in the American Supreme Court (Frankfurter, J.) in Penne

Kamp v. Florida,184 in which United States Supreme Court observed:

“If men, including judges and journalists, were angels,

there would be no problem of contempt of court. Angelic

judges would be undisturbed by extraneous influences

and angelic journalists would not seek to influence them.

The power to punish for contempt, as a means of

safeguarding judges in deciding on behalf of the

community as impartially as is given to the lot of men to

decide, is not a privilege accorded to judges. The power to

punish for contempt of court is a safeguard not for judges

as persons but for the function which they exercise.”

ii) Object of contempt of court

The object of contempt jurisdiction is to safeguard the interests

of the public which would be adversely affected if the authority of the

court is denigrated and public confidence in the administration of

justice is weakened.185

The public have a vital stake in effective and orderly

administration of justice. The court has the duty of protecting the

interest of the community in the due administration of justice and, so,

it is entrusted with the power to commit for contempt of court, not to

184 328 US 331 : 90 L Ed 1295 (1946)

185 Roshan Lal Ahuja, In Re (1993) Supp. (4) SCC 446; Aruhadhati Roy, In re (2002) 3 SCC 343.
 129

protect the dignity of the court against insult or injury but, to protect

and vindicate the right of the public so that the administration of

justice is not prevented, prejudiced, obstructed or interfered with186

c) Balance of free speech and public confidence

The right of criticism is a vital ingredient of any democratic

system and is integral part of the fundamental right to free speech and

expression guaranteed under Article 19(1)(a) of the constitution. The

judiciary, like any other institution does not enjoy immunity from

criticism. The right to criticize judgements has been recognised and

reiterated on a number of occasions. 187 Indian courts have quoted

with approval the observations of Lord Atkin in Andre Paul Terrence

Ambard v. Attorney-General of Trinidad and Tobago.

[No] wrong is committed by any member of the public who

exercises the ordinary right of criticising in good faith in

private or public, the public act done in the seat of justice.

The path of criticism is a public way; the wrong headed

are permitted to err there in: provided that members of

the public abstain from imputing improper motives to

those taking part in the administration of justice, and are

genuinely exercising a right of criticism and not acting in

malice or attempting to impair the administration of

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

justice, they are immune. Justice is not a cloistered virtue

: he must be allowed to suffer the scrutiny and respectful

even though outspoken comments of ordinary men.188

iv) Dividing line between criticism and contempt

The principal test applied by courts in India while deciding

matters of criminal contempt is the test of erosion of public

confidence. The courts have emphasised the distinction between an

attack on an individual judge which may be tantamount merely to

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

and denigrate the course of justice and is a wrong done to the

public.189

190
In D.C. Saxena v. Hon’ble The Chief Justice of India, this

distinction between contempt and criticism became blurred as the

Supreme Court held that libel against a judge can constitute criminal

contempt if the imputation is of such gravity that it erodes public

confidence in the system. The court held:

Any personal attack upon a judge in connection with the

office he holds is dealt with under law of libel or slander.

Yet defamatory publication concerning the judge as a

judge brings the court or judges into contempt, a serious

188 AIR 1936 PC 141.

189 Perspective Publications (P) Ltd. v. State of Maharashtra, AIR 1971 SC 221 and C.K.
Daphtary v. D.P. Gupta (1971) 1 SCC 626.
190 (1996) 5 SCC 216.
 131

impediment to justice and an inroad on the majesty of

justice. Any caricature of a judge calculated to lower the

dignity of the court would destroy, undermine or tend to

undermine public confidence in the administration of

justice or the majesty of justice.191

192
In Rajendra Sail v. M.P. High Court Bar Association, The

Supreme Court held that criticism must always be dignified and that

motives must never be attributed:

The judgments of courts are public documents and can be

commented upon, analysed and criticised, but in a

dignified manner without attributing motives. Before

placing before public, whether on print or electronic

media, all concerned have to see whether any such

criticism has crossed the limits as aforesaid and if it has

then resist every temptation to make it public. 193

The test based on erosion of public confidence is by itself a

flawed one. After all, it is only natural that serious allegations made

against an individual judge would undermine public confidence in the

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

191 Supra n. 190.

192 (2005) 6 SCC 109.
193 Ibid., p. 125.
 132

India. In the circumstances, the test of erosion of public confidence

has the effect of acting as a deterrent against genuine complaints

made against an individual judge. Ironically, although Article 124(4) of

the constitution provides for the removal of a judge for proved

misbehaviour, no one could offer proof of such misbehavior without

risking being sent to jail for contempt of court. This provision is now

rectified by an amendment to the contempt of courts Act, 1971 which

makes truth a raid defence to a charge of contempt.194

v) Contempt of court by media

With the coming into being of the television and cable channels,

the amount of publicity which any crime or suspect or accused gets in

the media has reached alarming proportions. Innocents may be

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

appears to be very little restraint in the media in so far as the

administration of criminal justice is concerned. If media exercises an

unrestricted or rather unregulated freedom in publishing information

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

prejudice to the accused. Other issues about the privacy rights of

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

individuals or defendants may also arise. After the judgement in R.

195
Rajagopal v. State of Tamil Nadu, public figures, with slender rights

against defamation are more in danger and more vulnerable in the

hands of the media.

In Saibal v. B.K. Sen,196 the Supreme Court said, “It would be

mischievous for a newspaper to systematically conduct an

independent investigation into a crime for which a man has been

arrested and to publish the results of the investigation. This is

because, trial by newspaper, when a trial by one of the regular

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.”

In Rao Harnarain v. Gumori Ram197 the Punjab High Court

stated that “Liberty of the press is subordinate to the administration

of justice. The plain duty of journalist is the reporting and not the

adjudication of cases.”

In Bijoyananda v. Bala Kush198 the Orissa High Court observed

that “the responsibility of the press is greater than the responsibility

of an individual because the press has larger audience. The freedom of

press should not degenerate into a licence to attack litigants and close

the door of justice nor can it include any unrestricted liberty to

damage the reputation of responsible persons.”

195 (1994) 6 SCC 632.

196 AIR 1961 SC 633.
197 AIR 1958 Punjab 273.
198 AIR 1953 Orissa 249.
 134

In Harijai Singh v. Vijay Kumar199 the Supreme Court stated

that press or journalists enjoy no special right of freedom of

expression and the guarantee of this freedom was the same as

available to every citizen. The press does not enjoy any special

privilege or immunity from law.

200
In State of Maharashtra v. Rajendra Jawanmal Gandhi, the

Supreme Court held that a trial by press, electronic media or by way

of a public agitation is the very anti-thesis of rule of law and can lead
to miscarriage of justice.

i) Defamation

He that filches from me my good name, Fobs me of that,

which not enriches him, and makes me poor indeed. 201

Every individual has a right to claim that his reputation shall

not be disparaged by defamatory statements made about him to a

third person, without lawful justification/excuse. Reputation is an

integral and important aspect of the dignity of an individual. 202 The

right to preservation of one‟s reputation is acknowledged as a right in rem, a

right good against all the world.

i) Constitutional aspect

The law of defamation is a culmination of a conflict between

society and the individual. On one hand lies the fundamental right to

199 1996 (6) SCC 466.

200 1997 (8) SCC 386.
201 William Shakespeare : Othello, (1604-1605), III, ii.
202 In State of Bihar v. Lal Krishna Advani (2003) 8 SCC 361, The Apex Court held right to
reputation is a facet of the right to life. Where any authority in discharge of its duties traverses
into the realm of personal reputation it must provide a chance to the person concerned to have
a say in the matter.
 135

freedom of speech and expression enshrined under Article 19 (1) (a) of

the Indian Constitution, on the other is the right of the individual to

have his reputation intact. The law of defamation seeks to attain a

balance between these competing freedoms and is a reasonable

restriction under Article 19 (2) on the fundamental right to freedom of

speech and expression guaranteed by Article 19(1)(a).

ii) What is defamation?

The wrong of defamation consists in the publication of a false

and defamatory statement about another person without lawful

justification or excuse. A statement is said to be „defamatory‟ when it injures

the reputation of the person to whom it refers and „exposes him to hatred,

ridicule and contempt‟ or which causes him to be

shunned or avoided or which has a tendency to injure him in his

office, profession or calling.203

iii) Libel and slandar

Defamation could take one of two forms : libel or slander. Libel

consists in the publication of a defamatory statement expressed in

some permanent form for instance by writing, printing, pictures,

statute, waxwork, effigy etc. where on the other hand defamation is

oral, or by gestures or in some other transient form, it constitutes the

tort of slander.204

203 Nevill v. Fine Arts and General Ins., (1897) AC 68.

204 Supra n. 37, p. 86.
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iv) Defamation under civil and criminal law

Defamation is an injury to a person‟s reputation which is

regarded as a part of his property. It constitutes an actionable wrong

and give rise to the civil remedy of damages. It also constitutes a

criminal offence under section 499 of Indian Penal Code, 1860. For

civil remedy courts apply corresponding rules of English common law,

which are based on principles of justice, equity and good

conscience.205 Under English common law, the essence of the crime of

private libel is its tendency to cause a breach of peace. Hence, even

where the defamatory matter is not published to a third party, it will

support an indictment if it is likely to cause breach of peace. 206 In

India, on the other hand, publication is an essential condition for a

criminal offence under Section 499 of IPC, as in an action for

damages.

In a civil action, the intention of the defendant is immaterial and it

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

reason to believe that such imputation will harm‟. Good faith

on the part of the defendant is thus a good defence in a criminal

prosecution but nor in a civil action.

205 Gulabchand v. State of Gujarat, AIR 1970 Guj 171.

206 R. v. Adams (1882) 22 QBD 66.
 137

v) Essential of defamation

a) The Statement must be defamatory

The test of the defamatory character of a statement is that of the

reasonable man, the right-thinking man. To write or say of a man

something that will disparage him in the eyes of a particular section of

the community but will not affect his reputation in the eyes of the

average right-thinking man is not actionable under the law of

defamation.207

Defamatory statements by Media: The difficulties facing news editors

and other publishers is compounded by the fact that statements true

of their intended target may nevertheless be unforeseeably defamatory

of another.
208
In Newstead v. London Express Newspapers Ltd., the Daily

Express described a prisoner in a trial for bigamy as „Harold Newstead, 30-

year-old camberwell man‟. Coincidentally, the plaintiff fitted that

description and was successful in a defamation action. The fact that

here the defendant had taken due care was quite irrelevant. This

difficulty which common law presented for media persons was rectified

by Section 2 of English Defamation Act, 1996. This provisions applies,

interalia, to publications in which the defendant neither knew nor had

reason to know that the statement referred to the plaintiff or was

likely to be so understood. This provision requires the defendant to

offer to print a correction and an apology and to pay compensation

and costs as agreed or as determined by the court.

207 Tolley v. Fry (1930) 1 KB 467, p. 479, Per Green LJ.

208 (1940) 1 KB 377.
 138

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

publisher. In T.V. Ramasubba v. A.M. Ahmad Mohideen209 it was held

that since the publishers, when he published the news item did not

know of the existence of the plaintiff and had later published a

correction in his paper, he was not liable for defamation.

b) The Statement must refer to the Plaintiff

In every action for defamation, the plaintiff must prove that the

statement refers to him. That is to say that the plaintiff must be

identified as the person to defame. In Knupffer v. London Express

Newspapers,210 Viscount Simon, L.C. Observed:

“It is an essential element of the cause of action in

defamation that the words complained of should be

published of the plaintiff”211

The plaintiff may be identified by name, by description or any

reasonable inference. It is not necessary that there should be any „peg

or pointer‟ in the defamatory words, nor is it necessary to even show

that the defendant intended it to refer to the plaintiff. It is enough for

the plaintiff to show that any person to whom the statement was

published reasonably thought that the plaintiff was the person

referred to.212 It is irrelevant that the defendants did not intend to

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

In Cassidy v. Daily Mirror Newspapers Ltd.214 The defendants

published in their newspaper photographs of the Plaintiff‟s husband

with an unnamed lady announcing that they were engaged. Even

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.

c) The Statement must be published by the defendant

The law of defamation seeks to protect the reputation of persons

in the eyes of their fellows. Therefore, for an action for defamation to

lie, it is necessary that the words complained of must have been

published to a person or persons other than the person defamed. If

the words complained of are communicated to the plaintiff alone, and

not to any third party, there is no defamation since although the

words may injure his self-esteem, they cannot injure his reputation.

Thus, where the words are communicated to the defendant in a sealed

letters there is no defamation. But, where copies of such a letter are

sent to third parties, there is defamation. The requirement of

„publication‟ in the present context means no more than

„communication‟, even to single other person and a „publisher‟ is one who

communicates the defamatory words to a third party.

213 Supra n. 212..

214 (1929) 2 KB 331.
 140

215
In Slipper v. British Broadcasting Corporation, the plaintiff, a

retired police officer claimed he had been portrayed as an

„incompetent buffoon‟ on a television programme which traced

attempts to bring back an escaped train robber back from Brazil to

Britain. Based on a preview of the programme shown by the

defendants to the press and television journalists, a number of review

appeared in newspapers and magazines which portrayed the plaintiff

in a negative light. In addition to being held liable for their defamatory

portrayal of the plaintiff, the defendants were also held liable for the

foreseeable repetition of that defamation by other persons in the

media.

vi) Defamation through electronic media

The internet is a medium of instantaneous, global and long

distance communication. It makes communication with a million

people or more and is no more difficult than with a single person. It

knows no geographical or jurisdiction boundaries. The availability of

internet as a medium of expression opens up new channels for

circulation of information. This also means that faster and far-

reaching means are available for propagating defamatory material. The

growth of news groups, electronic bulletin boards and electronic

mailing lists developed for the exchange of views and the

dissemination of information have facilitated the spread of defamatory

material.216

215 (1991) 1 QB 283.

216 Supra n. 37. p. 109.
 141

In the context of online defamation, the following questions

arise: When does a publication take place? How does a publication

take place? Where does the publication take place? Who is liable for

the publication?217

vii) Defamation on social networking websites

Social Networking Websites (SNW), one side provide an easy to

use, convenient and cost effective way of networking and on the other

hand provide for mushrooming “Cyber-defamation” or virtual defamation.

The Internet has made it easier than ever before to spread a huge

amount and variety of information worldwide. SNW like Orkut,

Facebook etc. are, at a grassroot level, a medium for exchanging

information between people. SNWs allow any person to write any

statement, including the defamatory one, on their own or on a third

person‟s virtual profile. In this scenario the question which naturally

arises is “who can be sued by the person against whom such

defamatory statement has been made?”

Cyber defamation is not different from conventional defamation

except the involvement of virtual medium e.g. the E-mail. Account of

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

217 Supra n. 216.

218 Tr. Syed Umarhathab, "Types of Cyber Crime- An Overview", Criminal Investigation
Department Review, Tamil Naidu, January 2008.
 142

219
In Prof. Imtiaz Ahmad v. Durdana Zamir, the Delhi High Court

observed that “under the laws of defamation, the test of defamatory

nature of a statement is its tendency to incite an adverse opinion or

feeling of other persons towards the plaintiff. A statement is to be

judged by the standard of the ordinary, right thinking members of the

society at the relevant time. The words must have resulted in the

plaintiff to be shunned or evaded or regarded with the feeling of

hatred, contempt, ridicule, fear, dislike or disrespect or to convey an

imputation to him or disparaging him or his office, profession, calling,

trade or business.”

In the context of the internet, publication occurs when the

contents of the publication, oral, spoken or written are seen, heard

and comprehended by the reader or the hearer. Every email message

which has been received and is capable of being understood by a

recipient other than the person defamed, it has been published. Every

message posted on a bulletin board and every web page which is

accessible to and accessed by computer users has been published.220

An electronic publication could take place through the email,

online bulletin board messages, chat room messages, music

downloads, audio files, screaming videos, digital photographs and so

on. Section 499 of the Indian Penal Code, 1860 expressly provides

that defamation could take place not only by words but also by signs

219 IA No. 10367/2007 in CS (OS) 569/2006.

220 Matthew Collins, The Law of Defamation and the Internet 137 (Oxford University Press,
Australia, 2001).
 143

or visible representations. This would mean that even dissemination of

defamatory material through the SMS, MMS, photographs and videos

or mobiles phones would constitute an actionable claim. 221

viii) Place of publication and jurisdiction

An online defamatory statement can be published anywhere in

the world where internet is available. This raises jurisdictional issues.

Since technically, a suit would be maintainable in any jurisdiction in

the world where the statement has been accessed. Therefore, a

defendant could be dragged to any jurisdiction where the statement is

accessed notwithstanding where he had posted the information. The

place of publication, the place where the material is read, heard or

seen is the basis of the cause of action for defamation. In Australia,

the fact of publication within the jurisdiction of the Court should be

enough to justify the exercise of jurisdiction.

222
In Dow Jones and Company Inc v. Gutnick, the High Court of

Australia approved the trial court‟s assertion of jurisdiction over Dow

Jones and Company Inc. based on its online publication of an

allegedly defamatory article. The article appeared in Barron’s Online,

the online version of Dow Jone‟s print publication. Barron’s Online, was

available to subscribers of wsj.com. Joseph Gutnick, a resident of the

Australia state of Victoria, brought a defamation action against Dow

Jones in a Victoria Court. Dow Jones argued that the Court

221 Supra n. 220.

222 (2002) HCA 56 (Austl).
 144

should decline jurisdiction under the doctrine of forum non

conveniens, which would be applicable if the Victoria Court was

“clearly inappropriate forum”. Dow Jones argued that Barron’s Online was

published in New Jersey, the location of the servers hosting the

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

make the Victorian Court a clearly inappropriate forum. Thus in this

case the decision hinged on where the article was deemed to be

published.

The Court held, contrary to Dow Jones‟s contention that

publication of a defamatory statement is „a bilateral act in which the

publisher makes it available and a third party has it available for his

or her comprehension.‟ Therefore, the article was published, with

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

people with Australian credit cards. It was not ascertainable how

many of these users were Victorian but it was agreed that „several

hundred‟ downloads had taken place in Victoria. For these reasons,

the Court held that the defamation occurred in Victoria, and that

Victorian law governed. „It is where that person downloads the

material that the damage to reputation may be done. Ordinarily then,

that will be the place where the tort of defamation is committed‟. Since
 145

jurisdiction in Victoria was proper and Victorian law applied, the

Victorian Court was not an inappropriate forum, and there was no

basis for declining jurisdiction.

In the United Kingdom, the fact of publication within the

jurisdiction of the court is a highly relevant consideration. Other

relevant considerations are whether the plaintiff has a reputation to

protect the United Kingdom, the extent to which publication has

occurred in other countries where the plaintiff has a reputation and

the location of the parties and their witnesses. 223

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

were allegedly sent to the top management of SMC Pneumatics by the

defendant, who has since been restrained by the Delhi High Court for

sending any form of communication to the plaintiff. The order of Delhi

High court assumes tremendous significance as this is for the first

time that an Indian court assumes jurisdiction in a matter concerning

cyber defamation and grants an ex-parte injunction restraining the

defendant from defaming the plaintiff by sending derogatory,

defamatory, abusive and obscene emails either to the plaintiff or their

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

Another important question which arises is who is liable for the

publication of defamatory material – the internet service provider or

the website promoter? An internet service provider may provide a

variety of services – it may act merely as an information distributor or

as an information publisher. An „information distributor‟ merely acts

as a carrier of information without examining its content. An

„information publisher‟ on the other hand is under a duty to examine

content and take reasonable care in relation to all its publications. 225

These challenges thrown up by online defamation are yet to be

decided by courts in India. Because of the delays in the legal system,

defamation suits drag on for years on end and people are

understandably reluctant to adopt legal remedies. The most common

method adopted by the person defamed in response to a defamatory

publication is to publish a counter story defaming the person

responsible. With the growth of the media, defamation both in the

print and the electronic media is likely to proliferate. There is a

pressing need for quicker and more effective redress through courts as

well as self regulatory bodies within the media.

ix) Dividing line between defamation and contempt

Although contempt of court may include defamation of an

individual judge, an offence of contempt is something more than mere

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

Supreme Court held:

When an act of defaming a Judge is calculated to obstruct

or interfere with the due course of justice or proper

administration of law, it would certainly amount to

contempt. The offence of contempt is really a wrong done

to the public by weakening the authority and influence of

courts of law which exist for their good.

A defamatory statement attacking the integrity of a judge may

not in the circumstances of a particular case amount to contempt at

all, although it may be the subject matter of a libel proceeding. 227 The

object of contempt proceedings is not to afford protection to judges

personally but to protect the public interest which would be adversely

affected if the authority of the court were to be lowered. If a judge is

defamed in a manner that does not impair the administration of

justice, he has the choice of invoking the ordinary remedies for

defamation.228 But a scurrilous, offensive, intimidatory or malicious

attack on a judicial officer or authority beyond condonable limits

amounts to scandalizing the court and is amenable not only to

conviction for contempt but also for libel.229

226 AIR 1952 SC 149.

227 In Re, Arundhati Roy, (2002) 3 SCC 343.
228 Brahma Prakash Sharma v. State of U.P., AIR 1954 SC 10.
229 U.P. Sales Tax Service Assn. v. Taxation Bar Assn., Agra (1995) 5 SCC 716.
 148

Till recently in India, neither truth nor good faith were defences

against contempt action. This caused serious difficulties by deterring

genuine complaints against an errant judge. Although under Article

124(4) of the Constitution, a judge may be removed for misbehaviour,

ironically no one could provide proof of such misbehaviour without

risking being sent to jail for contempt of court. The Contempt of

Courts (Amendment) Act, 2006 seeks to rectify this position by

making truth a defence to contempt action.230

230 The Contempt of Courts (Amendment) Act, 2006, Section 2 substitutes Section 13 of the
Contempt of Courts Act, 1971.