1

CHAPTER ONE

INTRODUCTION

“People demand freedom of speech as a compensation for the freedom of thought

which they seldom use.”

― Soren Kierkegaard

1.1: Freedom of Speech and Expression:

1.1.1: Article 19 and the Freedom of Speech and Expression:

Article 19 is an international human rights organization that focuses on

safeguarding and promoting the concept of freedom of expression worldwide. The
group enforces that this right is necessary to strengthen democracy and pre-empt
conflict and war. Article 19 enforces its principles in collaboration with several
national government and non-profit organizations. In fact, Article 19’s network is
spread in over 30 countries across Africa, Europe, Latin America, Middle East and
Asia, Latin America and the Middle East - to lead institutional, cultural and legal
change.

1.1.2: Understanding the Scope of Article 19:

Article 19 primarily monitors the threats to the freedom of expression across the
world and develops strategies to address them. Other key functions performed by the
organization are:

1) Standard-setting and establishing guidelines for different forms of media and

public broadcasting Analyzing existing laws on freedom of expression and
assisting governments in development of appropriate laws and standards for
protection of the right.
2) Litigation in courts on behalf of an individual or group whose freedom of
expression has been gravely violated.
 2

3) Providing legal training to the judiciary, NGOs and media to foster initiatives
that enforce the right.

1.1.3: Freedom of Speech and Expression in the Constitution of India:

The Constitution of India states that it is the right of every citizen to gather
information and express it to others, within as well as outside India. The Constitution
recognizes that the freedom of expression is not subject to any geographical
limitations. The freedom is, however, restricted in the following cases under Article
19 of the Indian Constitution:

1) If the expression jeopardizes the security of the State, such as probability to trigger a
war or external aggression
2) If it puts at risk India’s relation with a foreign State(s)
3) If it hampers public order, which entails peace and safety of the general public
4) If it is indecent, obscene or immoral in nature. It must be noted that the standard of
morality varies from place to place and time to time
5) If it is in contempt of court, for instance questioning a court’s judgment in public or
challenging the integrity of a judge
6) If it is in the nature of defamation, which injures another individual’s reputation
7) If it incites an offence or forces someone to commit a crime
8) If it challenges the integrity and sovereignty of India.

1.1.4: Basic of Freedom of “Speech and Expression”:

“Freedom of mind is the real freedom. A person, whose mind is not free though he
may not be in chains, is a slave, not a free man. One, whose mind is not free, though
he may not be in prison, is a prisoner and not a free man. One whose mind is not free
though alive, is no better than dead. Freedom of mind is the proof of one's existence.”

-Dr. B.R. Ambedkar.1

The fundamental right to freedom is guaranteed under Article 19 to 22 of the

Constitution. These Articles deals with the different aspects of the right to freedom.

1
Dr. B.R. Ambedkar, “Writings And Speeches”, available at
http://www.goodreads.com/author/quotes/618535.B_R_Ambedkar (visited on June 9, 2014)
 3

Article 19 guaranteed to every citizen of India the following six basic, fundamental
rights:

a) Freedom of speech and expression

b) Freedom to assemble peaceably and without arms
c) Freedom to form associations or unions
d) Freedom to move freely throughout the territory of India
e) Freedom to resite and settle in any part of the territory of India and
f) Freedom to practise any profession, or to carry on any occupation, trade or
business.2

Article 19(1)(a) guarantees to all citizens:“the right to freedom of speech and

expression”. Article 19(2) 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 interests of the sovereignty and
integrity of India, the security of the State, friendly relations with the foreign States,
public order, decency or morality, or in relation to contempt of court, defamation or
incitement to an offence”.3

Freedom of speech & expression means the right to express one’s own convictions
& opinions freely by words of mouth, writing, printing, pictures or any other mode. It
thus includes the expression of one’s idea through any communicable medium or
visible representation, such as, gesture, signs & the likes (Lowell v. Griffin).4 People’s
Union for Civil Liberties v. Union of India 5, when a person is talking on telephone, he is
exercising his right to freedom of speech and expression. It means to free propagate,
communicate or circulate one’s opinion r views. It is also means to lay what
sentiments; a free citizen pleases, before the public. It thus includes the freedom to
hold opinions without interference and to seek and receive and impart information and
ideas through any media and regardless of frontiers. It is held in Life Insurance Corpn. v.
Manubhai D. Shah.6

2
Prof Narendra Kumar, Constitutional Law of India, (Allahabad Law Agency, Faridabad, Haryana, 18th
edn, 2011), p.233
3
Ibid
4
(1939) 303 US 444
5
AIR 1997 SC 568
6
AIR 1933 SC 171
 4

1.1.5: Importance of Freedom of Speech and Expression:

The importance of free speech as a basic and valuable characteristic of a

democratic Society can’t be underestimated. As well as Emphasizing the value of free
speech, it is purposed an Evaluation of some of the traditional restriction on what
may be freely said or published, such as the definition law content of count, national
security and so on7. The approach in one which makes the one for free speech, since,
the world is now a place, where people’s unfettered freedoms are by and large in
retreat. One of the difficulties interest in describing freedom of speech is that it
obtained what libertarians often described as the paradox of freedom. The classical
exposition of this paradox was described by John Stuart Mill in his essay8.

". . . there ought to exist the fullest liberty of professing and discussing, as a matter of
ethical conviction, any doctrine, however immoral it might be considered."

In other words, unless we ensure to the enemies of freedom the liberties which they
are keen to abuse, then we deny the essence of what we ultimately stand for and are
therefore no better than those to whom we are opposed. Or as Voltaire has been
paraphrased,

"I disapprove of what you say, but I will defend to the death your right to say it."

On a move practical plane, freedom of speech serves many functions. One of its
most important functions is that discussion making at all level is preceded by
discussion and consideration of a representative range of views. A decision made after
adequate consolation is likely to be a better one which less imperfectly mirrors the
opinions, interest and needs of all concern, than a decision taken with little no
consultation. Thus freedom of speech is imported at all level in society. Yet it is most
‘It important for government A Government which does it knows what the: people
think and feel is in a dangerous position. The Government that muzzles free speech
runs a risk of destroying the creating instructs of its people.

7
Supra 4
8
“Essay -On Liberty in Utilitarianism Etc”, (London, 1910) at 83; available at
http://books.google.co.in/books?id=BhyiH5c3GKIC&pg=PA498&lpg=PA498&dq=Essay+-
On+Liberty+in+Utilitarianism+Etc:+%28London,
+1910%29&source=bl&ots=uZWeiE2_aY&sig=8dZSx2sKXfu0lDIRMpFfSdUApg0&hl=en&sa=X&e
i=m6vvU4T5C8fc8AWnqYHIBA&ved=0CBsQ6AEwAA (visited on May 20, 2014)
 5

Freedom of speech and Expression is also important to Government because

when criticisms of government are freely voiced, the government has the opportunity
to respond to answer to unfair comments and criticisms about its actions. On the other
hand, when the freedom of speech and Expression is restricted, rumours, unfair
criticism, comments and downright false hood are circulated by word of mouth. These
have a habit of spreading across the length and breadth of the country through
conversion and surreptitiously circulated writings. The government is in no position to
answer the views because they are not publicly started. It is in the government interest
to have criticism in the public arena, where it can answer its critic and correct it’s
must takes the Government gravely has access to Electronic and printing
communication for in access of individual and groups. It is able to present its view
only if the opposing views are in the open and known.

Finally, the freedom of speech & Expression is the simple most important
political rights of citizen although permanent properties are required for its operation.
Without free speech no political action is possible and no resistance to in justice and
apprehension is possible, without free speech election would have no meaning at all,
policies contestants become known to the public and become responsive to public
opinion only by virtue of free speech & Expression Between Election the freely
Express opinion of citizens help restrain oppressive rule without this freedom it is
fulfil to expect political freedom or consequently economic freedom. The sine is the
freedom of speech and Expression.

It is doubtless that freedom of speech and expression guaranteed by article

19(1) (a) is of the most precious liberties in our secular, socialist republic. Freedom of
Expression is a privilege to speak one’s open mind although not always in perfect
food taste of all institutions. Since it open up channels of open discussion, the
opportunity of speech and Expression should be afforded for vigorous advocacy, no
less than abstract discussion, Freedom of Expression Equally generates and
disseminates ideas and opinions; information of political equally generates and
disseminates ideas and opinions, information of political and social importance in a
free market place for peaceful social transformation under rule of law. The doctrine of
discovery of truth does require free Exchange of ideas and use of appropriate
language. The right to free speech is an integral aspect of right to self development
and fulfilment of person’s duties some of which are proselytized in part IV A of the
 6

constitution as fundamental duties. The end of the state is to source to the discovery of
truth and realization of human knowledge and human rights public discussion is
political liberty. The purpose of freedom of speech is to understand political issue so
as to protect the citizen and to participate effectively in the working of the democracy
in a representative from of government. Freedom of Expression would play a crucial
role in the formation at public opinion on social; political and Economic questions.

The natural law rights were meant to be converted into our constitutionally
recognized fundamental rights. The impact of Article 21 Constitution of India also
recognition and declaration of rights which inhere in every individual Their existence
does not depend on the location of the individual, The fundamental rights of
individuals, whether they be of citizens or non-citizens, the question as to where the
rights are to be exercised is not always material or even relevant, is not always 4
material or even relevant. If the persons concerned, on whom the law or purported
action under it is to operate, are outside the territorial jurisdiction of our country, the
action taken may be ineffective. But, the validity of the law must be determined on
considerations other than this. The tests of validity of restrictions impose upon the
rights covered by Article 19(1) will be found in clauses (2) to (6) of Art, 19. There is
nothing there to suggest that restrictions on rights the exercise of which may involve
going out of the country or some activities abroad are, excluded from the purview of
tests contemplated by Article 19(2) to (6).

In, Maneka Gandhi v. Union of India9 the rights under Article 19(1)(a) are rights
which inhere in Indian citizens, individuals concerned carry these inherent
fundamental constitutional rights with them wherever they go, in so far as our law
applies to them, because they are parts of the Indian nation just as Indian ships, flying
the Indian flag, are deemed, in International law, to be floating parts of Indian
Territory.

The expression “freedom of speech and expression” in Article 19(1)(a) has

been held to include the right to acquire information and disseminate the same. It
includes the right to communicate it through any available media whether print or
electronic or audiovisual, such as, advertisement, movies, article or speech, etc. This
freedom includes the freedom to communicate or circulate ones opinion without

9
AIR 1978 SC 597
 7

interference to as large a population in the country, as well as abroad, as is possible to

reach.

1.1.6: Reasonable restriction on Freedom of Speech and Expression:

Clause (2) of Article 19 specifies the purpose or grounds in the interest of which or
in relation to which reasonable restrictions can be imposed on the freedom of speech
& expression. It contains the grounds on which restrictions on the freedom of speech
and expression can be imposed:

a) Security of the state: Under clause (2) of Article 19, reasonable restrictions
can be imposed on freedom of speech and expression in the interest of security of the
State. In Romesh Thapper v. State of Madras10, The Supreme Court has occasion to
interrupt the meaning of the word “security of the State”. The court said that there are
different grades of offences against “public order”. Every public disorder cannot
amount to be regarded as threatening the security of the State. The Term “security of
the State” refers only to serious and aggravated forms of public disorder, e.g.,
rebellion, waging war against the State, insurrection and not ordinary breaches of
public order and public safety, e.g., unlawful assembly, riot, affray. State of Bihar v.
Shaibala Devi11, speeches or expressions on the part of an individual which incite to or
encourage the commission of violent crimes, such as murder are matters which would
undermine the security of the state.
b) Friendly relations with foreign states: This ground was added by the
Constitution (1st amendment) Act, 1951. The object behind the provision is to prohibit
unrestrained malicious propaganda against a foreign friendly State which may
jeopardise the maintenance of good relations between India and that state. No similar
provision is present in any other Constitution of the world. But the laws each country
have adequate provisions to safeguard peaceful relations with foreign States. In India,
the Foreign Relation Act (XII of 1932) provides punishment for libel by Indian
citizens against foreign dignitaries. Again, the Foreign Recruiting Act (IV of 1874)
empowers the executive to prohibit recruitment of any citizen of India to the army of
foreign State. But the interests of friendly relations with foreign States would not
justify the suppression of fair criticism of foreign policy of the Government.

10
AIR 1950 SC 124
11
AIR 1952 SC 329
 8

c) Public order: This ground was added by the Constitution (1st amendment) Act,
1951, in order to meet the situation arising from the Supreme Court’s decision in
Ramesh Thapper Case12. In that case it was held that ordinary or local breaches of
public order were no grounds for imposing restrictions on the freedom of speech,
expression guaranteed by the Constitution. The Supreme Court said that ;public order’
is an expression of wide connotation and signifies that state of tranquillity which
prevails among the members of political society as a result of internal regulations
enforced by the Government which they have established. In that case, the Supreme
Court struck down a law banning the entry of a journal in the State of Madras in the
interest of public order because Article 19(2) did not contain the expression ‘public
order’. It was held that restrictions could only be imposed on the grounds mentioned
in Article 19(2). As a result of this decision the expression ‘public order’ was added to
Article 19(2) as one of the grounds for imposing restrictions on the freedom of speech
and expression.
d) Decency of Morality: The words ‘morality or decency’ are words of wide
meaning. The word ‘obscenity’ of English law is identical with the word ‘indecency’
under the Indian Constitution. The test of obscenity is whether the tendency of matter
charged as obscene is to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands a publication of this sort is likely to fall.
Thus a publication is obscene if it tends to produce lascivious thoughts and arouses
lustful desire in the minds of substantial numbers of that public into whose hands the
book is likely to fall. This test is laid down in an English case of R. v. Hicklin.13
e) Contempt of court: Restrictions on the freedom of speech and expression can
be imposed if it exceeds the reasonable and fair limit and amounts to contempt of
court. The Contempt of Court Act, 1971, defines the expression ‘contempt of court’ as
follows: According to section 2, it may be either civil or criminal. Civil contempt
means wilful disobedience to any judgement, decree, direction, order, writ or other
process of a court or wilful breach of an undertaking given to a court. Criminal
contempt means the publication (whether by words spoken or written, or by signs or
bye visible representations or otherwise) or any matter or the doing of any other act
whatsoever.

1213
AIR 1950 SC 124
13
LR 3 QB 360
 9

f) Defamation: A statement which injuries a man’s reputation amounts to

defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt.
In India, Section 499 of the IPC contains the criminal law relating to defamation. It
recognises no distinction between the defamatory statement addressed to the ear or
eyes, i.e., slander and libel. Dr. Suresh Chandra v. Pandit Goala 14 These sections are
saved as being reasonable restrictions on the freedom of speech and expression. The
civil law relating to defamation is still uncodified in India and subject to certain
exceptions follows generally the English Law.
g) Incitement of an offence: This ground was also added by the Constitution (1 st
amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a
licence to incite people to commit offence. The word ‘offence’ used here is not
defined in the Constitution. It is, however, defined in the General Clauses act as
meaning “Offences shall mean any act or omission made punishable by any law for
the time being in force”. What constitutes incitement will, however, have to be
determined by the court with reference to the facts and circumstances of each case.
h) Sovereignty and integrity of India: This ground was added to clause (2) of
article 19 by the Constitution (16th amendment) Act, 1963. Under this clause, freedom
of speech and expression can be restricted so as not to permit to anyone to challenge
the integrity or sovereignty of India or to preach cession of any part of India from the
Union.

1.2: Copyright:

“The sweat of a man’s brows, and the exudations of a man’s brains, are as much own
property as the breeches upon his backside”.

-Laurence Strene, Tristam Shandy.

Copyright is a unique kind of intellectual property. The right which a person

acquires in a work, which is the result of his intellectual labour, is called his
copyright. The word copyright is derived from the expression ‘copier of words’ first
used in the context, according to Oxford Dictionary, in 1986. The word ‘copy’ is

14
AIR 1958 Cal. 176
 10

presumed to date back to circa (approximate date) 1485 AD & was used to connate a
manuscript or other matter prepared for printing.15

The statutory definition of copyright means the exclusive right to do or authorise

other(s) to do certain acts in relation to:

1) Literary, dramatic or musical works,

2) Artistic works,

3) Cinematograph films, &

4) Sound recording.

Section 14 of the Copyright Act, 1957 (hereinafter referred to as the act) defines
copyright as above.16 Copyright is a property right in an original work of authorship
fixed in any tangible medium of expression, giving the holder the exclusive right to
reproduce, adapt, distribute, perform and display the work.17 Entertainment Network
(India) Ltd. v. Super Cassette Industries Ltd. 18, Copyright is a property right to the right to
property under Article 300A of the Constitution and is subject to reasonable
restrictions.

1.2.1: Object of Copyright Law:

The law of copyright is intended to prevent plagiarism and unfair exploitation of

creative work. It is 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, be it in the form of a literary, dramatic, musical
or artistic work, a film or a sound recording.

Copyright protection and a guarantee of material benefit to the creator of an

original work in essential to ensure encouragement of creative work in all walks of
life so that society can make cultural progress. Absence of such protection would
demoralise creative artists and has a chilling effect on creative activity. Also, in cases

15
Dr. B.L. Wadela, Law Relating to Intellectual Property, (Universal Publishing Co., New Delhi,
5thedn, 2011), p.123
16
Ibid
17
S.14 of Copyright Act, 1957
18
(2008) 13 SCC 30
 11

like Ladbroke (football) Ltd. v. William Hill (football) Ltd, and Sumangalam R.
Jayalaksmi v. M Musicals,19 since copyright protection is afforded not only to authors
but to publishers and assignees of such work, if others were entitled to copy their
works and profit from their sale, such persons would be hesitant to invest their
resources in publishing and circulation original works.

1.2.2: A brief history of Copyright Laws:

The 1st law on the subject came to be enacted in 1914 as the Copyright Act, 1914
and was based on the English Copyright Act, 1911. India is a member of two
international conventions on copyright, namely, the Berne Convention for Protection
of Literary and Artistic Works (Paris Act, 1971) and the Universal Copyright
Convention Act, 1952. After independence, the Copyright Act, 1957 was enacted, to
give effect to the recommendations of these two conventions. The act was amended in
1983, 1984, 1992 and in 1999. In May 2012, both Houses of Parliament passed the
Copyright act (amendment) Bill, 2012. The Indian Copyright Act, 1957 is in
accordance with India’s obligations under the Agreement on Trade Related
Intellectual Property Rights 9TRIPS0. The Designs Act, 2000 came into force on 11
May 2001 and affords protection to new and original industrial designs. Copyright in
an industrial design is governed by the Designs Act, 2000. If a design is registered
under that Act, or capable of being so registered, no copyright in respect of that
design would subsist under the Copyright Act, 1957.20

1.2.3: Copyright versus the Freedom of Expression:

Seen from a different angle, copyright is not a positive right to do something but
confers a negative right which restricts others from copyright the original work of an
author. A right for one person is thus, a restriction on another. Since, the law of
copyright protects the right of one person and restrains another form exercising
corresponding rights, the question naturally arises as to whether the right of the
copyright owner infringes the freedom of expression of another under Article 19(1)(a)
of the Constitution or the freedom of business of another guaranteed under Article
19(1)(g). Unlike defamation, contempt, morality, decency, incitement to an offence
and the like, copyright is not one of the specified restrictions under Article 19(2).

19
AIR 2000 Mad 454
20
S.15, Copyright Act, 1957
 12

However, the law of copyright is an incident of the general law of property. In cases
like, Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., K.T.
Plantations Ltd. v. State of Karnataka 21, whatever, an individual produces by the
application of his labour, intellect or skill is his property. The law of copyright creates
a further statutory intangible right of property in respect of such work, if it is an
original work.22 The right to free expression of 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 whether tangible or intangible.

1.2.4: Rights of a Copyright owner:

There are two rights of a copyright owner, they are:

1) Economic rights: section 14, Copyright Act, 1957 which explains the meaning
of the term “copyright”, sets out the rights a copyright holder can exploit for his
economic benefit. The rights include reproducing the work, issuing copies of the work
(Penguin Books Ltd. v. Indian Book Distributors), 23 performing the work in public
(Duck v. Bates),24 making a cinematograph film or sound recording, translation or
adaption of the work.
2) Non-economic rights: The Copyright Act, 1957 also confers on a copyright
owner, non-economic rights called Moral Rights.25 These rights include four basic
rights:

a) Paternity rights which is the right to claim authorship of the work (Mannu
Bhandari v. Kala Vikas Pictures (P) Ltd26; and Neha Bhasin v. Anand Raj
Anand,).27

b) Right to protect honour and reputation, also called the integrity right.
c) The right to not have worked falsely attributed to a person.
d) Right against mutilation and distortion of the work (Amar Nath Sehgal v.
Union of India).28

21
AIR 2011 SC 343
22
S.13(1)(a), Copyright Act, 1957
23
AIR 1985 Del 29
24
(1884) 13 QBD 843 (CA)
25
S.57, Copyright Act, 1957
26
AIR 1987 Delhi 13, ILR 1986 Delhi 191
27
AIR 1987 Del 13
28
2005 (117) DLT 200
 13

1.3: Right to Share:

These Principles seek to establish a framework which can be used to ensure firstly,
that the right to freedom of expression and the ability to share knowledge and culture
are fully protected in the digital age; and secondly, that copyright interests do not
unduly restrict them. The Principles also seek to promote positive measures which
foster both the free flow of information and ideas and greater access to knowledge and
culture on the Internet and beyond.

The Principles were developed as a result of concerns that the fundamental human
right to freedom of expression, guaranteed in UN and regional human rights
instruments and nearly every national constitution, has been increasingly eroded on
the grounds of protecting copyright. The Internet has been at the centre of an alarming
expansion of copyright claims at the expense of freedom of expression and, more
generally, the protection of human rights. These Principles affirm that the right to
freedom of expression and the free flow of information and ideas cannot be seen as
marginal to such developments.

Freedom of expression– that is, the freedom of all people to seek, receive and
impart information and ideas of all kinds - is the foundation of diversity within
cultural expression, creativity and innovation. It is, therefore, an essential part of the
right to participate freely in the cultural life of society, enjoying the arts and sharing in
scientific advancement: the very benefits that copyright exists to promote.

The Internet has radically changed the way in which people exchange information
and ideas. It has also presented serious challenges to the way in which copyright and
related rights have traditionally been enforced: copies can be made available across
borders on an unprecedented scale and at minimal cost. Copyright laws need to adapt
to keep pace with digital technology; they need to adapt to consumer demand and
cultural practices in this global economy built on ideas and innovation. People have a
legitimate expectation that their fundamental right to receive and impart information
and ideas will be fostered rather than restrained by copyright.
 14

As we show in these Principles, international law provides a basis for resolving

these issues. The Principles we set out here offer a progressive interpretation of
international law and of best practice in individual States, as reflected, inter alia, in
national laws and the judgments of national courts.29

The licensing of digital information as ‘intellectual property’ is problematic in a

digital world. Article19 is monitoring the development of intellectual property rights
and their effect on freedom of expression.

Intellectual property is an increasingly expanding area of law being led by US

companies. It is changing from a model where a person buys something physical
(such as a book) and is free to pass it on to a model where a person only has a licence
to use the information (for example, digital music) by themselves and in certain ways.

Unlike hardcopy information like books, digital information has the potential to be
copied, modified and disseminated millions of times a second.

Changing intellectual property models has a significant impact on freedom of

expression and information. For example, musicians who re-sample sounds, a very
common practice over the past decade, could be prosecuted under intellectual
property laws, even if such music was created in their bedrooms and heard by only
five people.

People have responded to such attacks on digital creativity with new democratic
models of protection. Creative Commons, a widespread licensing system, is used by
many organisations- including Article 19- and on major websites like Flickr,
Wikimedia and YouTube.30

On the eve of the World Intellectual Property Day, Article 19 has launched The
Right To Share: Principles on Freedom of Expression and Copyright in the Digital
Age (Right to Share Principles), a ground-breaking document that aims to guide
policy makers, legislators, judiciary and civil society on how to balance the right to
freedom of expression and copyright.

29
“Freedom of expression”, available at http://www.article19.org/resources.php/resource/3716/en/
(visited on June 9, 2014)
30
“Right to Share”, available at http://www.article19.org/pages/en/right-to-share.html (visited on June
14, 2014)
 15

The Right to Share Principles– developed in cooperation with high-level experts

from around the world - seek to establish a framework, which can be used to ensure
that the right to freedom of expression and the ability to share knowledge and culture
are protected from increasing and excessive copyright interests in the digital age. The
Principles also seek to promote positive measures that foster the free flow of
information and ideas and allow greater access to information, knowledge and culture
on the Internet and beyond.31

“The tension between the right to freedom of expression and copyright is not new.
However, over the last ten years, we have seen an alarming expansion of copyright
claims at the expense of human rights protection. The Right to Share Principles show
that freedom of speech and the free flow of information and ideas should not and
cannot be marginalised by claims to property”

-comments Agnes Callamard, Executive Director of ARTICLE 19.

Callamard added32-

“As part of a series of recommendations, lawmakers should consider scrapping criminal

sanctions for non-commercial copyright infringement. It is entirely disproportionate that
millions of internet users worldwide face the threat of criminal punishment for personal use of
copyrighted material where they seek no commercial gain. Copyright law must keep pace
with technological and social change and not stifle creativity in the name of protecting it.”

Keeping in view the nature of problem analytical, descriptive, information and

evaluative methods have to been adopted to draw the necessary inferences and
conclusions. Materials for present study have been collected from both primary and
secondary sources in general. Journals, research articles, books and materials
available on website have been consulted. On the basic of information obtained the
hypotheses of present study have been verified.

CHAPTER TWO

“Right to Share”, available at http://www.article19.org/pages/en/right-to-share.html (visited on June

31

4, 2014)

32
Agnes Callamar, “Article19”, available at http://www.gn.apc.org/blog/right-share-principles-
freedom-expression-and-copyright-digital-age (visited on June 9, 2014)
 16

FREEDON OF EXPRESSION: NATIONAL AND

INTERNATIONAL PERSPECTIVE

"Give me the liberty to know, to utter, and to argue freely according to conscience,
above all liberties".

-John Milton.

2.1: Freedom of Speech and Expression:

Freedom of expression is a cornerstone of democratic rights and freedoms. In its

very first session in 1946, before any human rights declarations or treaties had been
adopted the UN General Assembly adopted resolution 59(I) stating "Freedom of
information is a fundamental human right and... the touchstone of all the freedoms to
which the United Nations is consecrated."

Freedom of expression is essential in enabling democracy to work and public

participation in decision-making. Citizens cannot exercise their right to vote
effectively or take part in public decision-making if they do not have free access to
information and ideas and are not able to express their views freely. Freedom of
expression is thus not only important for individual dignity but also to participation,
accountability and democracy. Violations of freedom of expression often go hand in
hand with other violations, in particular the right to freedom of association and
assembly.

Progress has been made in recent years in terms of securing respect for the right to
freedom of expression. Efforts have been made to implement this right through
specially constructed regional mechanisms. New opportunities are emerging for
greater freedom of expression with the internet and worldwide satellite broadcasting.
New threats are emerging too, for example with global media monopolies and
pressures on independent media outlets.
 17

The freedom of speech is regarded as the first condition of liberty. It occupies a

preferred and important position in the hierarchy of the liberty, it is truly said about
the freedom of speech that it is the mother of all other liberties. Freedom of Speech
and expression means the right to express one's own convictions and opinions freely
by words of mouth, writing, printing, pictures or any other mode. In modern time it is
widely accepted that the right to freedom of speech is the essence of free society and
it must be safeguarded at all time. The first principle of a free society is an
untrammelled flow of words in an open forum. Liberty to express opinions and ideas
without hindrance, and especially without fear of punishment plays significant role in
the development of that particular society and ultimately for that state. It is one of the
most important fundamental liberties guaranteed against state suppression or
regulation.

Freedom of speech is guaranteed not only by the constitution or statutes of various

states but also by various international conventions like Universal Declaration of
Human Rights, European convention on Human Rights and fundamental freedoms,
International Covenant on Civil and Political Rights etc. These declarations expressly
talk about protection of freedom of speech and expression.33

2.2: Why to protect freedom of speech and expression?

Freedom of speech offers human being to express his feelings to other, but this is
not the only reason; purpose to protect the freedom of speech. There could be more
reasons to protect these essential liberties. There are four important justifications for
freedom of speech:

1) For the discovery of truth by open discussion- According to it, if restrictions on

speech are tolerated, society prevents the ascertainment and publication of accurate facts and
valuable opinion. That is to say, it assists in the discovery of truth.

2) Free speech as an aspect of self- fulfilment and development- freedom of speech is an

integral aspect of each individual’s right to self-development and self-fulfilment. Restriction

33
“Freedom of Speech and Expression, India v. America -A study”, available at
http://www.indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html, (visited on May 10,
2014)
 18

on what we are allowed to say and write or to hear and read will hamper our personality and
its growth. It helps an individual to attain self-fulfilment.

3) For expressing belief and political attitudes- freedom of speech provides opportunity
to express one’s belief and show political attitudes. It ultimately results in the welfare of the
society and state. Thus, freedom of speech provides a mechanism by which it would be
possible to establish a reasonable balance between stability and social change.

4) For active participation in democracy- democracy is most important feature of

today’s world. Freedom of speech is there to protect the right of all citizens to understand
political issues so that they can participate in smooth working of democracy. That is to say,
freedom of speech strengthens the capacity of an individual in participating in decision-
making.

Thus we find that protection of freedom of speech is very much essential.

Protection of freedom of speech is important for the discovery of truth by open
discussion, for self- fulfilment and development, for expressing belief and political
attitudes, and for active participation in democracy. The present study is intended to
present the provisions of the American and Indian Constitution which recognize the
freedom of speech and expression, the basic fundamental rights of human being. It is
also to be examined that what is judicial trend in interpreting the freedom of speech
and expression provisions. The study also covers the comparison between the
approaches of both countries as far as freedom of speech is concerned.34

2.3: Right to Stake

(a) The right to freedom of expression and opinions

The right to freedom of expression upholds the rights of all to express their views
and opinions freely. It is essentially a right which should be promoted to the
maximum extent possible given its critical role in democracy and public participation
in political life. There may be certain extreme forms of expression which need to be
curtailed for the protection of other human rights. Limiting freedom of expression in

34
“Active Participation in Democracy”, available at http://civilrights.uslegal.com/freedom-of-speech-
and-expression/ (visited on May 15, 2014)
 19

such situations is always a fine balancing act. One particular form of expression
which is banned in some countries is “hate speech”.

There may be some views which incite intolerance or hatred between groups. This
raises the debate about whether such hate speech, as it is known, should be restricted.
An extreme example of this is the use of the mass media to promote genocide or
racially-motivated attacks, such as the role played by Radio-Télévision Libre des
Milles Collines in the Rwandan genocide in 1994. In some countries hate speech laws
have been introduced to outlaw such expression. There is a fine balance between
upholding the right to freedom of expression and protecting other human rights. The
success of such laws has often been questionable and one of the consequences has
been to drive hate speech underground. While it may be necessary to ban certain
extreme forms of hate speech and certainly to make its use by the state prohibited,
parallel measures involving the promotion of a pluralistic media are essential to give
voice to counter viewpoints.

(b) The right to seek receive and impart information and ideas

Restrictions on individual journalists: The freedom to impart information can

come under attack in a variety of ways and particularly impinge on the freedom of the
press. Pressure on journalists poses a very significant threat.

Informal censorship refers to a variety of activities by public officials - ranging

from telephone calls and threats to physical attacks - designed to prevent or punish the
publication of critical material. The right of journalists to protect their sources is also
important in ensuring the free flow of information on matters of public interest.
International and regional human rights mechanisms have asserted that journalists
should never be required to reveal their sources except under certain conditions (it is
necessary for a criminal investigation or the defence of a person accused of a criminal
offence; they are ordered to do so by a court, after a full opportunity to present their
case; necessary’ implies that the information cannot be obtained elsewhere, that it is
of great importance and that the public interest in disclosure significantly outweighs
the harm to freedom of expression from disclosure).
 20

Privacy laws can impede investigative reporting aimed at exposing corrupt and
illegal practices. Privacy laws, while important in protecting the private affairs of
individuals, should not be misused to deny discussion of matters of public concern.

The media should be free to report on conflicts and public scrutiny in such
situations is essential to controlling humanitarian and human rights abuses. Exclusion
of the media is a very severe restriction on freedom of expression and information in
this regard and restrictions should only be placed where there are clear safety
concerns. Elections are other times when the freedom of the press to provide balanced
and impartial information becomes critical and more vulnerable to repression by
political actors.35

Structural restrictions on the press: These call into question whether the media are
free from political control at an institutional level. Restrictions can take the form of
press laws which allow for government interference in the media, or which impose
unwarranted restrictions on published content. All bodies with regulatory authority
over the media, print or broadcast, should be fully independent of government.
Processing of license applications should be open and transparent, with decisions
about competing applications being made on the basis of pre-established criteria in the
interest of the public’s right to know. In addition, the powers of broadcast regulatory
bodies should be limited to matters relating to licensing and complaints.

Media monopolies are another way in which the right to receive information from
a variety of sources is restricted. State broadcasting monopolies do not serve the
public interest but then in some smaller markets, a monopoly newspaper may be the
only way to provide access to local news. Rules on monopolies need to be carefully
designed to promote plurality of content, without providing the government with an
opportunity to interfere in the media.

Other examples of “structural censorship” i.e. use of economic measures by

governments to control information, include preferential allocation of government
advertising, government control over printing, distribution networks, or newsprint and
the selective use of taxes.

35
“Receive Information and Ideas”, available at http://www.civilrights.org/judiciary/whats-at-
stake.html (visited on May 20, 2014)
 21

Access to information held by public authorities is another aspect of the freedom of

information debate. International/regional human rights mechanisms have asserted the
public’s right to know and urged governments’ to adopt legislation along the
following lines: the legislation should be guided by the principle of maximum
disclosure; public bodies should be under an obligation to publish key information;
public bodies should actively promote open government; exceptions should be clearly
and narrowly drawn and subject to strict ‘harm’ and ‘public interest’ tests; individuals
should have the right to appeal against a refusal to disclose information to an
independent administrative body, which operates in a fair, timely and low-cost
manner; the legislation should provide protection for ‘whistleblowers’ who release
information on wrongdoing.

New technologies, such as the Internet, and satellite and digital broadcasting,
offers unprecedented opportunities to promote freedom of expression and
information. Action by the authorities to limit the spread of harmful or illegal content
through the use of these technologies should be carefully designed to ensure that any
measures taken do not inhibit the enormous positive potential of these technologies.
The application of rules designed for other media, such as the print or broadcast
sectors, may not be appropriate for the internet. Obviously, limitations on such
technologies will be a fine balancing act between defending the freedom of expression
and information and ensuring protection from abuses e.g. spread of child
pornography.

(c) These rights can only be restricted in certain circumstances: to protect the rights
and reputations of others or to protect national security, public order, public health or
morals.

Restrictions in the name of public order and national security can often be
excessively broad and vague. International and regional bodies have said that such
restrictions should only be imposed where there is a real risk of harm to a legitimate
interest meaning there is a significant risk of imminent harm; the risk is of serious
harm, that is to say violence or other unlawful action; there is a close causal link
 22

between the risk of harm and the expression; the expression was made with the
intention of causing the harm.36

Criminal sanctions accompany such restrictions. Often the expression in question

may not pose a clear risk of serious harm to public interest and still it is subjected to
penal sanctions, including imprisonment. International/regional human rights
mechanisms on freedom of expression have concluded that imprisonment should not
be imposed except in the very most extreme circumstances where there is intentional
incitement to imminent and serious lawless action.

Criminal defamation laws still exist in some states to protect public figures from
injury to their reputations. Such laws have a limiting effect on freedom of expression
and are frequently abused in cases where there is no public interest at stake.
International and regional human rights institutions have recommended that such laws
should be abolished and replaced with civil defamation laws.

Civil defamation laws can also be misused to censor criticism and debate
concerning public issues. International/regional human rights bodies have said that
civil defamation laws should observe the following principles: public bodies should
not be able to bring defamation actions; truth should always be available as a defence;
politicians and public officials should have to tolerate a greater degree of criticism;
publications regarding matters of public interest which are reasonable in all the
circumstances should not be considered defamatory; damage awards should be
proportionate to the actual harm caused and should take into account alternative
remedies such as apologies and corrections.

Courtroom restrictions: There are various laws falling under the contempt of court
rubric which restrict the flow of information in order to protect the administration of
justice. Some restrictions exist to ensure a fair trial and to avoid a “trial by the media.”
Other restrictions are more to do with protecting the court from being “scandalised”.
There are increasing questions about whether freedom to criticise the judiciary should
be limited in this way. Having cameras in the courtroom has become a lively area of
debate in recent years. Again, as with many other questions to do with the freedom of

36
“Freedom can only be restricted in certain circumstances”, available at
http://www.civilrights.org/judiciary/whats-at-stake.html (visited on May 20, 2014)
 23

expression, there is a fine balance to be struck between the desirability of opening up

the judicial system on the one hand and protecting the privacy of victims and their
families on the other.

2.4: International instruments for Protection and Promotion:

International legal instruments take the form of a treaty (also called agreement,
convention, or protocol) that binds the contracting states to the negotiated terms.
When negotiations are completed, the text of a treaty is established as authentic and
definitive and is "signed" by the representatives of states. A state can agree to be
bound to a treaty in various ways. The most common are ratification or accession. A
new treaty is ratified by those states that have negotiated the instrument. A state that
has not participated in the negotiations may, at a later stage, accede to the treaty. The
treaty enters into force, or becomes valid, when a pre-determined number of states
have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one
or more articles of the treaty, unless reservations are prohibited by the treaty.
Reservations may normally be withdrawn at any time. In some countries, international
treaties take precedence over national law; in others a specific law may be required to
give a ratified international treaty the force of a national law. Practically all states that
have ratified or acceded to an international treaty must issue decrees, change existing
laws, or introduce new legislation in order for the treaty to be fully effective on the
national territory.37

The following international instruments determine standards for the protection of

the right to freedom of expression:

2.4.1: United Nations:

1. Universal Declaration of Human Rights (1948) (article 19): The Universal

Declaration of Human Rights (UDHR) was adopted by the General Assembly of the

“International Instruments”, available at http://www.hrea.org/index.php?base_id=147 (visited on

37

May 20, 2014)

 24

United Nations on 10 December 1948 and provides human rights standards accepted
by all member states. The UDHR represents the normative basis that led to
formulating the standards for freedom expression. Article 19 states that “Everyone has
the right to the 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”.

2. International Covenant on Civil and Political Rights (1966) (article 19): The
International Covenant on Civil and Political Rights, also known by its abbreviation
ICCPR, entered into force in 1976. It elaborates the principles laid out in UDHR and
is legally binding on all states who have signed and ratified its provisions. Article 19
of the ICCPR stipulates that:

(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.

(3) The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions,
but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (order public), or of
public health or morals.

3. UN Special Rapporteur on Freedom of Opinion and Expression: The office of the

UN Special Rapporteur on Freedom of Opinion and Expression was established by
resolution of the UN Commission on Human Rights in 1993. The mandate of the
Special Rapporteur requires that information be gathered from governments, NGOs
and others on the discrimination, violence or harassment of persons, including
professionals, in the exercise of their right of freedom of opinion and expression. The
Rapporteur submits an annual general report plus country reports on site visits, and
 25

makes recommendations on the better promotion and implementation of these rights.

The Special Rapporteur focuses on both broad thematic issues as well as individual
cases in which he intervenes through urgent actions and communications. The
rapporteur is able to visit countries for on-site assessment at the invitation of the
government in question.

The guarantees of freedom of expression in the Universal Declaration and ICCPR

are very general and the Special Rapporteur has sought to clarify the precise nature of
this right, by making a number of statements and declarations, often in conjunction
with other human rights mechanisms, containing authoritative interpretations of these
articles.

4. Johannesburg Principles on National Security, Freedom of Expression and Access

to Information (1996): These principles were adopted by a group of experts in
international law and endorsed by the UN Special Rapporteur in his annual report of
1996.

5. Article 19, an NGO campaigning for the right to freedom of expression, has been
instrumental in coordinating the activities of international and regional mechanisms. It
has convened meetings to bring together the UN Special Rapporteur, the OAS Special
Rapporteur on Freedom of Expression and the OSCE Representative on Freedom of
the Media. These three institutions have made a number of joint declarations on the
issue of freedom of expression.

6. Convention on the International Right of Correction (1952): This treaty offers a

mechanism whereby states can clarify differences or problems arising from incorrect
or misleading news dispatches.

A number of UN treaties concerned with the rights of specific groups expressly or

implicitly protect their rights to freedom of expression. Such concerns have therefore
been raised with the bodies overseeing the implementation of these treaties:

7. International Convention on the Elimination of All Forms of Racial Discrimination

(1965) (article5): Racial and ethnic minorities equally should not be discriminated
against and have equal access to airing their views and sharing information of concern
 26

to them. Broadcasters also have a responsibility to promote a culture of tolerance and

ensure that their broadcasts do not become a vehicle for spreading hatred and
contempt of minority groups. Violations of the treaty can be raised with the
Committee on the Elimination of Racial Discrimination.

8. Convention on the Elimination of Discrimination against Women (1979) (article

3): Equal access to and representation of women in the media are crucial to ensuring
proper coverage of issues of concern to women and to enable their full participation in
public decision making. Effective measures need to be taken to combat discrimination
against women and to promote their access to the media. Breaches can be raised with
the Committee on the Elimination of Discrimination against Women.

9. Convention on the Rights of the Child (1989) (article 13): This treaty clearly
establishes not only children’s right to freedom of expression, but also their right to
have their views heard and to be given due weight in matters concerning them. States
should take positive measures to ensure that children are given effective opportunities
to provide input into public decisions affecting them, for example in the areas of
education, health and prevention of crime. Violations of these rights can be taken up
with the Committee on the Rights of the Child.

2.4.2: African Union (formerly organization of African unity, OAU)

African Charter on Human and Peoples' Rights (1981) (article 9): Article 9 of the
main African human rights treaty provides for freedom of expression 38. In November
2000, the African Commission on Human and Peoples' Rights (ACHPR), and Article
19 adopted a joint statement noting the importance of freedom of expression, and the
limited protection given to this important right by Article 9 of the Charter. A
Declaration of Principles of Freedom of Expression was adopted by the ACHPR in
October 2002.39

2.4.3: Council of Europe:

38
Available at http://pa.au.int/en/content/abant-forum-theme-%E2%80%9Cfreedom-expression-and-
respect-sacred%E2%80%9D (visited on June 13, 2014)
39
Available at http://en.wikipedia.org/wiki/Freedom_of_speech_by_country (visited on June 21, 2014)
 27

The Council of Europe is a regional intergovernmental organization consisting of

45 countries. It aims to defend human rights, parliamentary democracy and the rule of
law. All members of the European Union also belong to the Council of Europe.

1. European Convention on the Protection of Human Rights and Fundamental

Freedoms (1950) (Art.10): Freedom of expression is protected by article 10 of the
European Convention and has been the subject of a relatively large number of cases
before the court. The European Court of Human Rights has promoted the free flow of
information and ideas, established important precedents which limit state powers to
restrict freedom of expression, particularly in the areas of press and broadcasting
freedom, political expression, defamation, privacy, national security and
demonstrations. Some decisions of the court however have been widely criticised for
failing to uphold the right to freedom of expression and resettlement, whatever the
origin and nature of their disability."40

2.4.4: Organization of American States (OAS)

1. American Convention on Human Rights (1969) (article 13): The American

Convention on Human Rights, which entered into force in 1978, protects the right to
freedom of thought and expression, the right to receive and impart information and for
restrictions to be imposed on this right only for limited circumstances, reputations of
individuals, national security, public order etc.

2. OAS Special Rapporteur on Freedom of Expression: This institution was created by

the Inter-American Commission on Human Rights in October 1997 to strengthen the
implementation of the right to freedom of expression. The mandate of the Special
Rapporteur includes the collection of information, the preparation of annual and
thematic reports and country visits. It also covers immediate notification of serious
situations, or early warning, as well as promotional activities.

The Inter-American Commission on Human Rights established a Voluntary Fund

for Freedom of Expression, to which member states could contribute, to facilitate the
functioning of the office of the special rapporteur. Promotional activities have
included the development of declarations, networks, and technical support to states.

40
Ibid
 28

2.4.5: Organization for security and co-operation in Europe (OSCE):

The Organization for Security and Co-operation in Europe (OSCE) is the largest
regional security organization in the world with 55 participating States from Europe,
Central Asia and North America. OSCE was created by the 1975 Helsinki Final Act
which contained a provision to "respect … human rights and fundamental freedoms,
including freedom of thought, conscience and religion, and belief", as well as "equal
rights and self-determination of peoples"41.

The OSCE has been especially concerned with the freedom of the media which is
one aspect of the broader issue of freedom of expression. Such principles have been
reiterated in a number of OSCE documents e.g. 1990 Document of the Copenhagen
Meeting of the Conference on the Human Dimension of the CSCE (precursor to the
OSCE). The OSCE has now created a special institution to deal with these freedoms42.

1. OSCE Representative on Freedom of the Media: In 1997 the OSCE established a

Representative on Freedom of the Media following an OSCE Heads of State
declaration in 1996 that OSCE commitments to free press and media needed
strengthening. The OSCE Permanent Council set out the mandate of the
Representative by Decision 193 "to strengthen the implementation of relevant OSCE
principles and commitments [relating to a free, independent and pluralistic media] as
well as to improve the effectiveness of concerted action by the participating states
based on their common values."

The Representative is required to carry out a variety of activities including

observing media developments in OSCE states; and ensuring a rapid response to
serious problems such as obstruction of media activities in cooperation with the
concerned state and other parties.

The Representative reports to the Permanent Council frequently and other OSCE
bodies and makes recommendations. He/she may also make oral or written statements
on issues of urgent concern and interventions with particular OSCE states. He/she
also makes country visits some of which result in in-depth reports and is able to
receive information on violations from a variety of sources.
41
Available at http://www.osce.org/fom (visited on June 12, 2014)
42
Ibid
 29

Human rights observers say that the OSCE Representative operating in the more
close-knit structure of the OSCE has more political commitment and resources than
the UN Special Rapporteur, for example, and is also able to undertake promotional or
project activities e.g. holding conferences, producing publications, providing technical
support and advice to governments, financial and material assistance to set up
independent media outlets etc.43

2.5: National protection and service agencies:

Countries that have ratified these international and regional treaties have agreed to
meet their obligations under these conventions by implementing these provisions fully
at the national level. This should mean in the first instance reviewing their laws
relating to freedom of expression and adapting these to ensure they are in conformity
or adopting new laws to meet these requirements.

Implementation of the right to freedom of expression remains problematic in many

countries and governments in many cases are failing to fulfil their obligations.
Problems and concerns with implementation in individual countries is well
documented in reports of the Special Rapporteur of the UN, OAS and OSCE as well
as submissions to them by NGOs.

2.6: In advocacy, educational and training materials with 19(1) (a):

2.6.1: For advocates

1. The Virtual Freedom of Expression Handbook (Article 19): The book includes
cases and key documents in the main areas of restriction on freedom of expression:
broadcast/film regulation, concentration of ownership, content restrictions,
defamation, freedom of information, minorities, national security, print regulation,
privacy, protection of sources, public order, public service broadcasting.

43
Available at http://www.osce.org/ (visited on May 22, 2014)
 30

2.6.2: For journalists

1. Practical Guide for Journalists (Reporters sans frontièrs): This handbook is

intended to provide practical guidelines for journalists conducting investigations into
violations of freedom of expression and freedom of the press.

2. Reporting Human Rights and Humanitarian Stories: a Journalist's Handbook (Jo-

Anne Velin): This handbook aims to support journalists who report stories with human
rights or humanitarian components. It includes chapters on international human rights
law and international humanitarian law; topical chapters (disasters and war; migrants
and refugees; minorities and indigenous/tribal peoples; women and children); country
profiles with basic statistical data and a thesaurus.

2.6.3: For educators

Discovering the UDHR (Patrick Manson): By examining two real cases of human
rights abuses students are introduced to the contents and spirit of the Universal
Declaration of Human Rights (UDHR). The UDHR is presented as a document that
extends the ideas of tolerance and defending others to the areas religious and political
thought security of person, fairness and justice.

2.7: Freedom of Speech and India:

“The essence of free speech is the ability to think and speak freely and to obtain
information from others through publications and public discourse without fear of
retribution, restriction, or repression by the government. It is through free speech,
people could come together to achieve political influence, to strengthen their morality,
and to help others to become moral and enlightened citizens.”

-Dheerajendra Patanjali44.

Freedom of speech enjoys special position as far India is concerned. The

importance of freedom of expression and speech can be easily understand by the fact

44
Dheerajendra Patanjali, “Freedom of Speech and Expression India v America - A study”, available
at http://www.indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html (visited on July 3,
2014)
 31

that preamble of constitution itself ensures to all citizens inter alia, liberty of thought,
expression, belief, faith and worship. The constitutional significance of the freedom of
speech consists in the Preamble of Constitution and is transformed as fundamental
and human right in Article 19(1) (a) as “freedom of speech and expression”.
Explaining the scope of freedom of speech and expression Supreme Court has said
that the words "freedom of speech and expression" must be broadly constructed to
include the freedom to circulate one's views by words of mouth or in writing or
through audiovisual instrumentalities. Freedom of Speech and expression means the
right to express one's own convictions and opinions freely by words of mouth,
writing, printing, pictures or any other mode. It thus includes the expression of one's
idea through any communicable medium or visible representation, such as gesture,
signs, and the like.

Moreover, it is important to note that liberty of one must not offend the liberty of
others. Patanjali Shastri,J. in A.K. Gopalan case45, observed, “man as a rational being
desires to do many things, but in a civil society his desires will have to be controlled
with the exercise of similar desires by other individuals”. It therefore includes the
right to propagate one's views through the print media or through any other
communication channel e.g. the radio and the television. Every citizen of this country
therefore has the right to air his or their views through the printing and or the
electronic media subject of course to permissible restrictions imposed under Article
19(2) of the Constitution. In sum, the fundamental principle involved here is the
people's right to know. Freedom of speech and expression should, therefore, receive
generous support from all those who believe in the participation of people in the
administration. We can see the guarantee of freedom of speech under following
heads:

2.7.1: Freedom of Press:

Although Article 19 does not express provision for freedom of press but the
fundamental right of the freedom of press implicit in the right the freedom of speech
and expression. In the famous case Indian Express Newspapers, Bombay Pvt. Ltd46
court observed the importance of press very aptly. Court held in this case that-

45
AIR 1950 SC 27
46
AIR 1989 SC 190
 32

“In today’s free world freedom of press is the heart of social and political intercourse.
The press has now assumed the role of the public educator making formal and non-
formal education possible in a large scale particularly in the developing world, where
television and other kinds of modern communication are not still available for all
sections of society. The purpose of the press is to advance the public interest by
publishing facts and opinions without which a democratic electorate (Government)
cannot make responsible judgments. Newspapers being purveyors of news and views
having a bearing on public administration very often carry material which would not
be palatable to Governments and other authorities.”

The above statement of the Supreme Court illustrates that the freedom of press is
essential for the proper functioning of the democratic process. Democracy means
Government of the people, by the people and for the people; it is obvious that every
citizen must be entitled to participate in the democratic process and in order to enable
him to intelligently exercise his right of making a choice, free and general discussion
of public matters is absolutely essential. This explains the constitutional viewpoint of
the freedom of press in India.

In Virendra v. State of Punjab 47, the Supreme Court held that banning of
publication in the newspapers of its own views or the views of correspondents about
the burning topic of the day was “a serious encroachment on the valuable and
cherished right to freedom of speech and expression.

2.7.2: Obscenity:

Freedom of speech, though guaranteed, is not absolute in India. Unlike the U.S.
Constitution, the text of India's Constitution clearly sets out restrictions on free
speech. The freedom of speech guarantee under Article 19(1) (a) can be subject to
reasonable state restriction in the interest of decency or morality. Obscenity in India is
defined as "offensive to modesty or decency; lewd, filthy and repulsive." It stated that
the test of obscenity is whether the publication, read as a whole, has a tendency to
deprave and corrupt those whose minds are open to such immoral influences, and
therefore each work must be examined by itself.

With respect to art and obscenity, the Court held that "the art must be so

47
AIR 1957 SC 896
 33

preponderating as to throw obscenity into a shadow or the obscenity so trivial and

insignificant that it can have no effect and may be overlooked." The Court concluded
that the test to adopt in India, emphasizing community mores, is that obscenity
without a preponderating social purpose or profit cannot have the constitutional
protection of free speech.

2.7.3: Right to Information:

Right to know, to information is other facet of freedom of speech. The right to

know, to receive and to impart information has been recognized within the right to
freedom of speech and expression. A citizen has a fundamental right to use the best
means of imparting and receiving information and as such to have an access to
telecasting for the purpose. The right to know has, however, not yet extended to the
extent of invalidating Section 5 of the Official Secrets Act, 1923 which prohibits
disclosure of certain official documents. Even, Right to Information Act-2005, which
specially talks about peoples’ right to ask information from Government official,
prohibits discloser of certain documents under u/s 8 of the Act. These exceptions are
generally the grounds of reasonable restrictions over freedom of speech and
expression under Article 19(1) of Constitution of India. One can conclude that 'right
to information is nothing but one small limb of right of speech and expression.

2.8: Reasonable restrictions on Freedom of Speech and Expression:

The freedom of, speech and expression does not confer an absolute right to
express without any responsibility. Article 19(1)(a), while guaranteeing some of the
most valued phases or elements of liberty to every citizen as civil rights, provides for
their regulation for the common good by the State imposing certain “restrictions” on
their exercise . The phrase “reasonable restriction” connotes that the limitation
imposed on a person in enjoyment of the right should not be arbitrary or of an
excessive nature, beyond what is required in the interests of the public. The word
“reasonable implies intelligent care and deliberation, that is, the choice of a course
which reason dictates. Legislation which arbitrarily or excessively invades the right
cannot be said to contain the quality of reasonableness and unless it strikes a proper
 34

balance between the freedom guaranteed in article 1 9(l)(g) and the social control
permitted by clause (6) of article 19, it must be held to be wanting in that quality48.

Court while considering the reasonableness must take into consideration

duration and the extent of restrictions, the circumstances under which and the manner
in which, the imposition has been authorized and the manner in which, the imposition
has been authorized and the nature of the right infringed and the object of the
Legislature for imposing such restriction and the extent and the urgency of the evil
sought to be remedied thereby and the prevailing conditions during the material time
when such restrictions were imposed. No general standard of test as to reasonability
of restriction can be laid down and each case has to be considered on its own merit49.

Absolute or unrestricted freedom of speech and expression wholly free from

restraint would amount to uncontrolled licence which would tend to lead to disorder
and anarchy. It is for this reason that Constitution has attempted to strike a proper
balance between the various competing social interests. It has imposed reasonable
restrictions on this right to serve the larger collective interest of the nation as a whole.
They are essential for integrated development of egalitarian, progressive lines of any
peace loving civilized society.

Commitment of freedom of expression demands that it cannot be suppressed

unless the situations created by allowing the freedom are pressing and the community
interest is endangered. The two interests cannot be balanced simply as if they are of
equal weight. The anticipated danger should not be remote, conjectural or far-fetched.
It should have proximate and direct nexus with the expression. The expression of
thought should be intrinsically dangerous to the public interest, In other words, the
expression should be inseparably locked up with the action contemplated like the
equivalent of a “spark in a powder keg”?

Any speech or action which would result in ostracization of communal

harmony would destroy all those high values which the Constitution aims at. Welfare
of the people is the ultimate goal of all laws, and State action and above all the
Constitution. They have one common object that is to promote wellbeing and larger

48
Available at http://infochangeindia.org/agenda/freedom-of-expression/reasonable-restrictions-and-
unreasonable-speech.html (visited on June 20, 2014)
49
Available at http://infochangeindia.org/agenda/freedom-of-expression/reasonable-restrictions-and-
unreasonable-speech.html (visited on June 20, 2014)
 35

interest of the society as a whole and not of any individual or particular groups
carrying any names.

The fundamental freedom under article 19(1) (a) can be reasonably restricted
only for the purposes mentioned in article 19(2) and the restriction must be justified
on the anvil of necessity and not the quickened of convenience or expediency. Open
criticism of government policies and operations is not a ground for restricting
expression. Practice of tolerance to the views of others must be appreciated.
Intolerance is as much dangerous to democracy as to the person himself.

The test of reasonableness, wherever prescribed, should be applied to each

individual statute impugned, and no abstract standard or general pattern of
reasonableness can be laid down as applicable to all cases. The nature of the right
alleged to have been infringed, the underlying purpose of the restrictions imposed, the
extent and urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at the time, should all enter into the judicial
verdict. In evaluating such elusive factors and forming their own conception of what
is reasonable in all the circumstances of a given case, it is inevitable that the social
philosophy and the’ scale of values of the judges participating in the decision should
play an important part, and the limit to their interference with legislative judgment in
such cases can only be dictated by their sense of responsibility and self-restraint and
the sobering reflection that the Constitution is meant not only for people of their way
of thinking but for all, and that the majority of the elected representatives of the
people have in authorizing the imposition of the restrictions, considered them to be
reasonable .

The reasonableness of a restriction depends upon the values of life in a

society, the circumstances obtaining at a particular point of time when the restriction
is imposed, the degree and the urgency of the evil sought to be controlled and similar
others . Our Constitution has no provisions like the Eighth Amendment of U S
Constitution nor are we at liberty to apply the test of reasonableness with the freedom
with which the judges of the U.S. Supreme Court are accustomed to apply “the due
process” clause.

The law providing reasonable restriction on the exercise of the right conferred
by article 19 may contain substantive provisions as well as procedural provisions.
 36

While the reasonableness of the restrictions has to be considered with regard to the
exercise of the right, it does not necessarily exclude from the consideration of the
Court the question of reasonableness of the procedural part of the law.

The reasonableness of restriction is to be determined in an objective manner

and from the standpoint of the interests of general public and not from the standpoint
of the interests of the persons upon whom the restrictions are imposed or upon
abstract consideration. A restriction cannot be said to be unreasonable merely because
in a given case, it operates harshly and even if the persons affected be petty traders.

If an Act strikes a reasonable balance between the exercise of the fundamental

rights and reasonable restrictions in the interest of the general public, it would be
valid. The court is to see whether the test of reasonableness is satisfied by considering
the question in the background of factual circumstances under which the order came
to be made, taking into account the nature of the evil that was sought to be remedied
by law, the ratio of the harm caused to the individual citizens by the proposed remedy,
the beneficial effect reasonably expected to the general public and whether the
restraint caused by the law was more than necessary in the interest of the general
public . In examining the reasonableness of a statutory provision, whether it violates
the Fundamental Rights guaranteed under article 19, one cannot lose sight of the
Directive Principles of State Policy contained in Chapter IV of the Constitution. If law
is made to further socio-economic justice it is prima facie reasonable and in public
interest. In other words, if it is in negation, it is unconstitutional.

It is true that even for imposing reasonable restriction on the fundamental right
guaranteed under article 19(1), the restriction is to be imposed under a valid law, be it
a statutory law or a statutory regulation, and not by any executive instruction of the
Government. The possibility of abuse of a statute otherwise valid does not impart to it
any element of invalidity. The converse must also follow that a statute which is
otherwise invalid as being unreasonable cannot be saved by its being administered in
a reasonable manner. The constitutional validity of the statute would have to be
determined on the basis of its provisions and on the ambit of its operation as
reasonably construed; if so judged it passes the test of reasonableness, possibility of
the powers conferred being improperly used is no ground for pronouncing the law
itself invalid and similarly if the law properly interpre1ed and tested in the light of the
 37

requirements set out in Part III of the Constitution does not pass the test it cannot be
pronounced valid merely because it is administered in a manner which might not
conflict with the constitutional requirements. It is not to be understood as laying down
that a law which might operate harshly but still be constitutionally valid should be
operated always weight harshness or that reasonableness and justness ought not to
guide the actual administration of such laws.

2.8.1: The following principles are clearly discernible50:

(1) While considering the reasonableness of the restrictions, the court has to keep
in mind the directive Principles of State Policy.

(2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond

the requirement of the interest of the general public.

(3) In order to judge the reasonableness of the restrictions, no abstract or general

pattern or a fixed principle can be laid down so as to be of universal application and
the same will vary from case to case as also with regard to changing conditions,
values of human life, social philosophy of the Constitution, prevailing conditions and
the surrounding circumstances.

(4) A just balance has to be struck between the restrictions imposed and the social
benefit envisaged by clause (6) of article 19.

(5) Prevailing social values as also social needs which are intended to be satisfied
by restrictions have to be borne in mind.

(6) There must be a direct and proximate nexus or a reasonable connection

between the restrictions imposed and the object sought to be achieved. If there is
direct nexus between the restrictions and the object of the Act, then a strong
presumption in favour of the constitutionality of the Act will naturally arise.

It is a patent fact that the Constitution has confined all the rights mentioned in
article 19(1) to citizens. It is equally clear that restrictions on those rights are to a
limited extent at least open to judicial review. The very same question which is raised
in regard to article 19(1) (d) will arise with regard to most of the other sub-clauses. A

50
“Principles of Restrictions”, available at http://infochangeindia.org/agenda/freedom-of-
expression/reasonable-restrictions-and-unreasonable-speech.html (visited on June 15, 2014)
 38

citizen has the right to assemble peaceably and without arms, to form associations or
unions and so on. If there is any law imposing unreasonable restrictions on any of
these rights, that law will not be good law so far as citizens are concerned, but it may
be good law so far as non-citizens are concerned. Similar situation arising with regard
to the right granted under sub-clause (d) should not be stated to be anomalous. So far
as the right of free movement is concerned, a non-citizen has been granted certain
protections in articles 21 and 22. If a citizen has been granted certain other additional
protections under article 19(1)(d), there is no anomaly involved in the discrimination.
It is conceivable that a certain law may be declared to be void as against a citizen but
not against a non-citizen. Such a result however should not affect our mind if it is
found to have been clearly within the contemplation of the framers of the
Constitution51.

If imprisonment were to be regarded as a “restriction” of the right mentioned

in article 19(1) (d), it would equally be a restriction on the rights mentioned by the
other sub-clauses of clause (1), with the result that all penal laws providing for
imprisonment as a mode of punishment would have to run the gauntlet of clauses (2)
to (6) before their validity could be accepted. For instance, the law which imprisons
for theft would, on the view, fail to be justified under clause (2) as a law sanctioning
restriction of freedom of speech and expression. Indeed, article 19 may be construed
as covering cases of deprivation of personal liberty and law authorizing preventive
detention be found to infringe right to freedom of speech and expression, and its
validity judged by the reservations in clause (2) to declare it unconstitutional and
void.

In order to determine the reasonableness of the restriction regard must be had

to the nature of the business and the conditions prevailing in that trade. It is obvious
that these factors must differ from trade to trade and no bard and fast rules concerning
all trades can be laid down. It can also not be denied that the State has the power to
prohibit trades which are illegal or immoral or injurious to the health and welfare of
the public. Laws prohibiting trades in noxious or dangerous goods or trafficking in
women cannot be held to be illegal as enacting a prohibition and not a mere

51
Available at http://infochangeindia.org/agenda/freedom-of-expression/reasonable-restrictions-and-
unreasonable-speech.html (visited on June 15, 2014)
 39

regulation. The nature of the business is, therefore, an important factor in deciding the
reasonableness of the restrictions.”

2.8.2: Proof reasonableness:

The burden of proof for establishing the reasonableness of a restriction one the
state. The state must be able to show how the legislation or executive act which is
violates the fundamental rights guaranteed by the clauses of article 19(1) is within the
permissible limits of restrictions allowed by clauses (2) to (6) of the same article 19.

2.8.3: Preventive detention:

It seems obvious that preventive detention amounts to a complete deprivation

of the right guaranteed by article 19 (1) (d). It will be highly technical to argue that
deprivation of a right cannot be said to involve restriction on the exercise of the right.
Having regard to the context in which the word “restriction” has been used, there is no
antithesis between that word and the word Restraint on the right to move can assume
a variety of forms and restriction would be the most appropriate expression to be used
in clause (5) so as to cover all those forms ranging from total to various kinds of
Partial deprivation of freedom of movement.

Punitive detention is essentially different from preventive detention. A person

is punitively detained only after a trial for committing a crime and after his guilt has
been established in a competent Court of justice. A person so convicted can take his
case to the State High Court and sometimes bring it to the Supreme Court also; and he
Can in the course of the proceedings connected with his trial take all pleas available to
him including the plea of want of jurisdiction of the Court of trial and the invalidity of
the law under which he has been prosecuted The final judgment in the criminal trial
will thus constitute a serjo5 obstacle in his way if he chooses to assert even after his
Conviction that his right under article 19(1)(d) has been violated. But a person who is
preventively detained has not to face such an obstacle whatever other obstacle may be
in his way.

Deprivation (total loss) of personal liberty, which inter alia includes the right
to eat or sleep when one likes or to work or not to work as and when one pleases and
several such rights sought to be protected by the expression personal liberty” in article
21, is quite different from I restriction (which is only a partial control) of the right to
 40

move freely (which is relatively a minor right of a citizen) as safeguarded by article

19(1) (d). Deprivation of personal liberty does not have the same meaning as
restriction of free movement in the territory of India. This is made clear when the
provisions of the Criminal Procedure Code in Chapter VIII relating to security of
peace or maintenance of public order are read. Therefore article (19(5) cannot apply
to a substantive law depriving a citizen of personal liberty.

When the subject of preventive detention is specifically dealt within the

Chapter on Fundamental Rights it is not proper to consider a legislation permitting
preventive detention as a conflict with the rights I mentioned in article 19 (1) .

Any law which deprived a person of such power of locomotion was a direct
invasion of right mentioned in sub-clause (d), whereas it interfered only indirectly and
consequentially with the rights mentioned in the other sub-clauses. It cannot therefore,
be said that deprivation of personal liberty is an infringement of the right conferred by
sub-clause (d) alone but not of the others It is perfectly logical that the constitutional
validity of a law providing for deprivation of personal liberty or imprisonment must
be judged by the tests laid down not only in clause (5) of article 19 but also in the
other clauses including clause (2).

The heads specified in clause (2) of article 19 are several and are intended to
cover the entire area within which the absolute freedom to say anything which the
speaker may like would not extend, in keeping with the standards of a civilized
society, the corresponding rights n others in an orderly society, and the constitutional
scheme .

Permissible restrictions, albeit reasonable, are all the same restrictions on the
exercise of the fundamental right under article 19(1) (a), such restrictions are bound
to be viewed as anathema, in that, they are in the nature of the curbs or limitations on
the exercise of the right and are, therefore, bound to be viewed with suspicion,
thereby throwing a heavy burden on the authorities that seek to impose them to show
that the restrictions are reasonable and permissible in law.

2.8.4: Meaning of ‘Public Order52:

52
“Public Order”, available at http://arc.gov.in/speechcpr.htm (visited on June 15, 2014)
 41

It is self-evident and common place the freedom of speech is one of the

bulwarks of a democratic form of Government. It is equally obvious that freedom of
speech can only thrive in an orderly society. Clause (2) of article 19, therefore, does
not 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 of
freedom of speech in the interest of public order, among others. The expression
‘public order’ had a very wide connotation. Order is the basic need in any organized
society. It implies the orderly state of society or community in which citizens can
peacefully pursue their normal activities of life. The expression had not been defined
in the constitution, but it occurs in List II of its Seventh Schedule and is also inserted
by the Constitution (First Amendment) Act, 1951 in Cl. (2) of article 19. The sense in
which it is used in article 19 can only be appreciated by ascertaining how the article
was construed before it was inserted therein and what was the defect to remedy which
the Parliament inserted the same by the said amendment .

Two propositions have been established, viz.,

(i) Maintenance of public order is equated with maintenance of public tranquillity;

and

ii) The offences against public order are divided into two categories, Viz.,

(a) Major offences affecting the security of the State, and

(b) Minor offences involving breach of purely local significance.

Under article l9(2) the wide concept of “public order” is split under different
heads. It enables the imposition of reasonable restriction on the exercise of the right
to freedom of speech and expression in the interests of the security of the state,
friendly relations with foreign states, public order, decency or morality, or in relation
to contempt of defamation or incitement to an offence. All the grounds mentioned
therein can be brought under the general head “public order” in its most
comprehensive sense. But the juxtaposition of the different grounds I indicates that,
though sometimes they tend to overlap, they must be I ordinarily intended to exclude
each other. “Public order” is therefore something which is demarcated from the
others. In that limited sense, particularly in view of, the history of the amendment, it
 42

can be postulated that “public order” is synonymous with public peace, safety and
tranquillity.

There is difference between public Order and security of the state. Every
breach of public order will not necessarily affect the security of the state. Disorder is
no doubt prevented by the maintenance of law and order also but disorder is a broad
spectrum which includes at one end small disturbances and at the other the most
serious and cataclysmic happenings. Does the expression “public order” take in every
kind of I disorder or only some? The- answer to this serves to distinguish “public
order” from “law and order” because the latter undoubtedly takes in all of them.
Public order if disturbed, must lead to public disorder. Every breach of the peace does
not lead to public disorder. When two drunkards quarrel and fight there is disorder but
not public disorder. One has to imagine three concentric circles. Law and order
represents the largest circle within is the next circle representing public order and the
smallest circle represents security of state. It is then easy to see that an act may affect
law and order but not public order just as an act may affect public order but not
security of the state.

2.8.5: In the interest of sovereignty and integrity of India53:

Under article 19(4) of the constitution, the state can impose reasonable
restrictions, inter alia, in the interest of sovereignty and integrity of the country. The
prevention of Terrorism Act, 2002 (POTA) is enacted to protect sovereignty and
integrity of India from the menace of terrorism. Imposing restriction under article
19(4) of the constitution also includes declaring an organization as a terrorist
organization as provided under POTA. li the peculiar background of terrorism it may
be necessary for the Central Government to declare an organization as terrorist
organization. At the same time under section 19 of POTA, the aggrieved persons can
approach the Central Government itself for reviewing its decision, if they are not
satisfied by the decision of the Central Government they can subsequently approach
the Review Committee and they are also free to exercise their constitutional remedies.
The post-decisional remedy provided under POTA satisfies the Audi alteram pattern
requirement the matter of declaring an organization as a terrorist organisation

“Sovereignty”, available at http://indiankanoon.org/search/?formInput=%22sovereignty%20and

53

%20integrity%22 (visited on June 21, 2014)

 43

Therefore, the absence of pre decisional hearing cannot be treated as a ground for
declaring section 18 as invalid .

2.8.6: In the interest of public order:

It will be noticed that the language employed in the amended clause is “in the
interest of’ and not” for the maintenance of’ the expression “in the interests of’ makes
the ambit of the protection very wide. A law may not have been designed to directly
maintain public order and yet it may have been enacted in the interests of public
order. If therefore, certain activities have a tendency to cause public disorder, a law
penalizing such activities as an offence cannot but be held to be a law imposing
reasonable restriction “in the interests of public order” although in some cases those
activities may not actually lead to a breach of public order.

In order to be reasonable, ‘restrictions’ must have reasonable relation to the

object which the legislation seeks to achieve and must not go in excess of that object
The restriction made “in the interests of public, order” must also have reasonable
relation to the object to be achieved, i.e., the public order. If the restriction has no
proximate relationship to the achievement of public order, it cannot be said that the
restriction is a reasonable restriction within the meaning of the clause. The limitation
imposed in the interests of public order to be a reasonable restriction, should be one
which has a proximate connection or nexus with public order, but not one far-fetched,
hypothetical or problematical or too remote in the chain of its relation with the public
order .

In considering the scope of clause (4) of article 19, it has to be borne in mind
that the rule must be in the interests of public order and must amount to a reasonable
restriction. The words “public order” occur even in clause (2), which refers, inter alia,
to security of the state and public order, There can be no doubt that the said words
must have the same meaning in both clauses (2) and (4). So far as clause (2) is
concerned, security of the state having been expressly and specifically provided for,
public order cannot include the security of state, though in its widest sense it may be
capable of including the said concept. Therefore, in clause (2), public order is
virtually synonymous with public peace, safety and tranquillity. The denotation of the
said words cannot be any wider in clause (4).
 44

It is necessary to enquire as to what is the effect of the words “in the interests
of" in clause (4). This clause cannot be interpreted to mean that even if the connection
between the restriction and the public order is remote and indirect, the restriction can
be said to be in the interests of public order. Restrictions can restriction and the public
order is proximate and direct. Indirect or far-fetched or unreal connection between the
restriction and public order would not fall within the purview of the expression “in the
interests of public order.” This interpretation is strengthened by the other requirement
of clause (4) that, by itself the restriction ought to be reasonable. It would be difficult
to hold that restriction which does not directly related to public order can be said to be
reasonable on the ground that its connection with public order is remote or far-
fetched.

2.8.7: Decency or morality54:

“Decency or morality” does not relate to sexual morality alone. Indecency is

not confined to sexual indecency; indeed it is difficult to find any limit short of saying
that it includes an3lthing which an ordinary decent man or woman would find to be
shocking, disgusting and revolting. The dictionary meaning of ‘decency’ is “correct
and tasteful standards of behaviour as generally accepted; conformity with current
standards of behaviour of propriety; avoidance of obscenity; and the requirements of
correct behaviour, “conformity to the prevailing standards of propriety, morality,
modesty, etc.: and the quality of being decent”. Thus, the ordinary dictionary meaning
of ‘decency’ indicates that the action must be in conformity with the current standards
of behaviour or propriety, etc.

The provision in section 292 of IPC dealing with obscenity is not amount to
unreasonable restriction on the freedom of press and was constitutionally valid. It was
in the interest of public decency and morality and was a reasonable restriction.

The words “public decency and morality” of the second cause of the article,
as the dictionaries tell us, denotes the quality of being obscene which means offensive
to modesty or decency; lewd, filthy and repulsive. There is some difference between
obscenity and pornography in that the latter denotes writings, pictures etc. intended to
arouse sexual desire while the former may include writings etc. not intended to do so

54
M.P. Jain, Indian Constitutional Law (Wadhwa & Co., Nagpur, 5th edn., 2005), p.301
 45

but which have that tendency. Both, of course, offend against public decency and
morals but pornography is obscenity in a more aggravated form.

Condemnation of obscenity depends as much upon the mores of the people as

upon the individual. It is always a question of degree or as the lawyers is accustomed
to say, of where the line is to be drawn. It is, however, clear that obscenity by itself
has extremely “poor value in the propagation of ideas, Opinions and information of
public interest or profit.” When there is propagation of ideas, opinions and
information public interest or profit, advancement of human knowledge, the approach
to the problem may become different because then the interest of society may tilt the
scale in favour of free speech and expression. It is thus that books on medical science
with intimate illustrations and photographs though in a sense immodest, are not
considered to be obscene but the same illustrations and photographs collected in book
form without the medical text would certainly be considered to be obscene.

Section 292, Indian Penal Code, manifestly embodies such a restriction

because the law against obscenity, of course, correctly understood and applied, seeks
no more than to promote public decency and morality. It cannot thus be said to be
invalid in view of the second clause of article 19. The important question is whether
the test of obscenity squares with the freedom of speech and expression guaranteed
under our constitution, or it needs to be modified and, if so, in what respects. It may,
however, be said at Once that treating with sex and nudity in art and literature cannot
be regarded as evidence of obscenity without something more. It is not necessary that
the angels and saint Michelangelo should be made to wear breeches before they can
be viewed. If the rigid test of treating with sex as the minimum ingredient were
accepted hardly any writer of fiction today would escape the fate Lawrence had in his
days.

The court has to judge whether the public display of a film, in the given time
sand clime, so breaches public morals or depraves basic decency as to offend the
penal provisions statutory expressions are not petrified by time but must be and
evolve as community conscious enlivens and escalates.

2.8.8: Contempt of Court55:

55
P.M. Bakshi, The Constitutional Law of India, (Universal Law Publishing Co. Pvt. Ltd., 2005), p.211
 46

The law of contempt Stems from the right of tile courts to punish by
imprisonment or fines persons guilty of words or acts which either obstruct or tend to
obstruct the administration of justice. This right is exercised in India by all courts
when contempt is committed in facie curiae and by the superior courts on their own
behalf or on behalf or on behalf of courts subordinate to them even if committed
outside the courts. Formerly, it was regarded as inherent in the powers of a Court of
record and now by the constitution of India, it is a part of the powers of the Supreme
Court and the High Courts. There are many kinds of contempt. The chief forms of
contempt are insult to judges, attacks upon them, comment on pending proceedings
with a tendency to prejudice fair trial, obstruction to officers of courts, witnesses or
the parties, abusing the process of the court, breach of duty by officers connected with
the court and scandalizing the judges or the courts.

2.8.9: Scandalising Court:

Punishment for an offence of scandalizing the court per se protects the

administration of justice and is reasonably justified and necessary in a democratic
society. It is not only an offence under the Contempt of Courts Act, 1971 but is sui
generis. The court has regarded with particular seriousness allegations of partiality or
bias on the part of a judge or a court. Criticism of a judge’s conduct, or of the conduct
of a court even if strongly worded, is, however, not contempt, provided that the
criticism is fair, temperate and made in good faith and is not directed to the personal
character of a judge or to the impartiality of a judge or court .

Scandalising the judges or the courts occurs, generally speaking, when the
conduct of a person tends to bring the authority and administration of the law into
disrespect or disregard. In this conduct are included all acts which bring the court into
disrepute or disrespect or which offend its dignity, affront its majesty or challenge its
authority Such contempt may be committed in respect of a single judge or a sing1
court but may, in certain circumstances, be committed to respect of the whole of the
judiciary or judicial system .

The attack on a judge is a wrong done to the public and if it tends to create
apprehension in the minds of the people regarding the integrity, ability or fairness of
the judge and to deter actual and prospective litigants from placing complete reliance
upon the court’s administration of justice or if it is likely to cause embarrassment in
 47

the mind of the judge himself in the discharge of his judicial duties, it would be
scandalizing the court and be dealt with accordingly.

Prayer for prosecution of the Chief Justice of India under the Prevention of
Corruption Act is an assault on the majesty of justice, an affront to authority of law,
the gravest contumacious conduct and scurrilous canalisation of the vilification of a
judge constituted contempt under section 2(c)(i) of the Act.

2.8.10: Administration of Justice56:

Purely administrative acts, like recruitments, transfers and postings, routine

disciplinary action again subordinate staff, executive acts in running the establishment
and ministerial business ancillary to office-keeping merely because they relate to the
judicial wing of government cannot enjoy a higher immunity from criticism. The
basic public duty of a judge in is judicial capacity is to dispense public justice in
Court and anyone who obstructs or interferes in this area does so at his peril.

2.8.11: Obstructing course of justice:

A lawyer obstructing the course of justice by trying to threaten and overawe

the court by Using insulting and disrespectful language and issuing notices and also
launching criminal prosecution against judges of Supreme Court is guilty of Contempt
of court.

Freedom of speech and expression is a sine Uqa none of the functioning of a

democratic polity. Democracy means a government by persuasion and unless there is
freedom for discussion of political as well as other matters, the polity could not be
termed democracy. And, as a natural corollary, the term includes freedom of the mass
media and right to know. Reasonable limits or restrictions can be imposed on the
exercise of the right to freedom of speech under article 19(2) in the interests or on the
grounds of:

(i) Security of the State,

(ii) Friendly relations with foreign countries,

“Administration of Justice”, available at http://www.google.co.in/url?

56

sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CBsQFjAA&url=http%3A%2F
%2Fen.wikipedia.org%2Fwiki
%2FAdministration_of_justice&ei=qv7uU6G5Kcnq8AW__ILICg&usg=AFQjCNEOOq4B-
YfcxqrZQnxuFDfdzgLKMQ&sig2=-nuw5Y8qIjQUG27cp0vs0A(visited on July 2, 2014)
 48

(iii) Public Order,

(iv) Decency and morality,
(v) Contempt of court,
(vi) Defamation,
(vii) Incitement to offence, and
(viii) Sovereignty and integrity of India.

Subject to these restrictions Article 19(1) (a) of constitution of India guarantees to

every Indian citizen the right to freedom of speech and expression.

2.9: India and America- A Swot Analysis

Two great democracies of world America and India very aptly recognizes the right
of freedom of speech and expression. The United States and India almost have similar
free speech provisions in their Constitutions. Article 19(1) (a) of Indian constitution
corresponds to the First Amendment of the United States Constitution which says,
“congress shall make no law… abridging the freedom of speech or of the press”4.
However, the provisions in the US Constitution have two notable features, I.E.,
freedom of press is specifically mentioned therein, No restrictions are mentioned on
the freedom of speech57.

As far as India is concerned, Supreme Court of India has held that there is no
specific provision ensuring freedom of the press separately. The freedom of the press
is regarded as a “species of which freedom of expression is a genus”. Therefore, press
cannot be subjected to any special restrictions which could not be imposed on any
private citizen and cannot claim any privilege (unless conferred specifically by law),
as such, as distinct from those of any other citizen.

In the famous case, Express Newspapers (Private) Ltd. v. Union of India 58, Justice
Bhagwati stated, "[that] the fundamental right to the freedom of speech and
expression enshrined in our constitution is based on (the provisions in) Amendment I

“India and America- A Swot Analysis”, available at http://www.google.co.in/url?

57

sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CBsQFjAA&url=http%3A%2F
%2Framadeva2.wordpress.com%2Fswot-analysis-of-india%2F&ei=_f7uU-
qGGMrl8AXP5YKwAQ&usg=AFQjCNH8oIkL1FfL8BKIgdNpPRVOsptY6A&sig2=b34tiuzReDy0m_
JmBawH0w (visited on June 17, 2014)
58
AIR 1986 SC 872
 49

of the Constitution of the United States and it would be therefore legitimate and
proper to refer to those decisions of the Supreme Court of the United States of
America in order to appreciate the true nature, scope and extent of this right in spite of
the warning administered by this court against use of American and other cases.”
Despite similarities in their constitutional provisions, the United States and India have
their own unique jurisprudence on freedom of speech. Consequently, they differ as to
what is and what is not acceptable free speech. As mentioned, the real difference in
freedom of speech enjoyed in the United States and India is a question of degree. This
difference in degree is attributable to the reasonable restrictions provision and the
moral standard of the communities. India has progressed from an authoritarian system
of control and is now attempting a legislative model of control, quite similar to that of
the United States.

Free speech is meaningless unless it has space to breathe. It is important to note

that false statements made honestly are equally a part of freedom of speech. The
supreme court of India applied the famous doctrine of New York Times v Sullivan
standard of American constitutional law against public officials. Accordingly,
statements made against persons in the public eye cannot be considered defamatory
unless they were made with “actual malice”. The reason for this is very simple,
democratic governance mandates the strict scrutiny of public official duties.

The consequence of this very high degree of constitutional protection to freedom

of speech in the United States is that ideas most Americans consider very repugnant,
and that may be hurtful to some people, such as racial hatred, can be expressed freely.
At the same time, the expansive protection to freedom of speech under the First
Amendment ensures robust debate on all public issues and the widest dissemination of
all ideas. As stated above, under the First Amendment, there is no such thing as a "bad
idea," and the remedy for bad speech is said to be "more speech, and not enforced
silence. It is part of our culture that people are "free to speak their mind" and need not
fear that they will be sanctioned for saying something that is offensive or unpopular.
The government is not required to and, more importantly, is not permitted to make
decisions about what ideas may be expressed and what ideas may not be expressed.
The constitutional guarantee of freedom of expression under the First Amendment
then means freedom of expression in the fullest sense. For better or worse, this is the
American way.
 50

However in the case of India constitutional provisions have been widely influenced
by the moral standard of the society. Constitution has tried to adapt and embody those
freedom and restrictions enjoyed by the Indian people from long time. The provision
of freedom of speech and restrictions are the result of that way of thinking, and this is
the Indian way.

2.10: Basic Guarantees of Freedom of Expression:

Expression through speech is one of the basic guarantees provided by civil society.
However in modern world Right to freedom of speech and expression is not limited to
express ones’ view through words but it also includes circulating one's views in
writing or through audiovisual instrumentalities, through advertisements and through
any other communication channel. It also comprises of right to information, freedom
of press etc. It is a right to express and self realization. Two big democracies of world
i.e. America and India have remarkably protected this right. As far as India is
concerned, this important right is mentioned in Article 19(1) (a), which falls in
fundamental right category. Indian courts have always placed a broad interpretation
on the value and content of Article 19(1)(a), making it subjective only to the
restrictions permissible under Article 19(2).

The words 'in the interest of public order', as used in the Article 19 include not
only utterances as are directly intended to lead to disorder but also those that have the
tendency to lead to disorder. There should be reasonable and proper nexus or
relationship between the restriction and achievement of public order. Initially, the
American constitution was not having any provisions directed to protection of
freedom of speech and expression. It was inserted in the constitution vide first
amendment of the constitution. The First Amendment has been drafted in broad and
sweeping terms, and for this reason, the text of the First Amendment does not contain
any standard for determining permissible restrictions on freedom of speech. The
restrictions that are permissible now are those that have been developed by the
Supreme Court in its interpretation of the First Amendment.

The United States has a complex First Amendment jurisprudence that varies the
protection offered free speech according to form. Similarly, India developed its own
 51

free speech jurisprudence that applies a "reasonable restrictions" test based on eight
mentioned restrictions. The real difference in freedom of speech enjoyed in the United
States and India is a question of degree. This difference in degree is attributable to the
reasonable restrictions provision and the moral standard of the communities.

2.11: Cases on Article 19(1)(a):

In Ramesh Thapar v. State of Madras 59, Patanjali Sastri, Cj, observed: Freedom of
speech and of the press laid at the foundation of all democratic organization, for
without free political discussion no public education, so essential for the proper
functioning of the process of popular government, is possible.
In S. Rangarajan v. P. Jagjivan Ram, 60 the democratic form of government, itself
demand its citizen’s active and intelligent participation in the affairs of the
community. The public discussion with people’s participation is a basic feature and a
rational process of democracy, which distinguishes it from all other forms of
government.
In the cases like, Printer (Mysore) Ltd. v. Asst. Commercial Tax Officers, 61 S.
Khushboo v. Kanniammal62, LIC of India v. Manubhai D. Shah 63, it is observed that:
“Every free citizen has an undoubted right to lay what sentiments he pleases before
the public. Freedom to air one’s views is the lifeline of any democratic institution and
any attempt to stifle, suffocate or gag this right would sound a deathknell to
democracy and would help usher in autocracy or dictatorship.

In Secretary, Ministry of I. & B. V. Cricket Association Bengal 64, The Supreme

Court referred to the following justification given by David Feldman in his book,
“Civil Liberties and Human Rights for and limits of freedom of expressions: The
liberty to express one’s self freely is important for a of reason.
Firstly, self expression is a significant instrument of freedom epistemology.
Secondly, freedom of expression enables people to contribute to debates about
social and moral values....
59
AIR 1950 SC 124
60
(1989) 2 SCC 574
61
(1994) 2 SCC 434
62
AIR 2010 SC 3196
63
AIR 1993 SC 171
64
AIR 1995 SC 1236
 52

Thirdly, the freedom of expression allows political discourse which is necessary in

any country.
And lastly, it facilitates artistic scholarly endeavours of all sorts.
The freedom of speech and expression, guaranteed under Article 19(1)(a), means the
right to speak and to express one’s opinions by words of mouth, writing, printing,
pictures or in any other manner. People’s Union for Civil Liberties v. Union of India 65,
when a person is talking on telephone, he is exercising his right to freedom of speech
and expression.
In the cases like: Union of India v. Association for democratic Reforms 66,
Secretary, Ministry of Information & Broadcasting v. C.A.B.67 & Essar Oil Ltd. V.
H.U. Samiti68; it is observed that the concept of an open government is said to be the
direct emanation from the right to know which seems to be implicit in the right of free
speech and expression guaranteed under Article 19(1)(a).
Further that in K. Ravikumar v. Bangalore University 69, the citizens have the right
to decide by whom and by what rules, they shall be governed and they are entitled to
cal on those who govern on their behalf, to account for their conduct. So said, a
citizen, prepared to pay requisite fee, is entitle to ask for copies of public documents,
to the inspection of such documents.
In, Reliance Industries Ltd. v. Gujarat state Information Commission 70, the act
provides for furnishing information by the public information officer, on request from
the person desirous of obtaining it, on payment of the prescribed fee.
In Union of India v. Association for democratic Reforms 71 the freedom of speech
and expression includes the right to educate, to inform and to entertain and also the
right to be educated, informed and entertained.
In Ozair Hussain v. Union of India72 it also includes the right of the consumer to be
apprised of the ingredients of food products, cosmetics and drugs, so that he may
make a right choice as per his beliefs and opinions.

65
AIR 1997 SC 568
66
AIR 2002 SC 2112
67
AIR 1995 SC 1236
68
AIR 2004 SC 1834
69
AIR 2005 Kant.21
70
AIR 2007 Guj 203
71
AIR 2002 SC 2112
72
AIR 2003 Delhi 103
 53

In the case of Secretary, West Bengal Council of Higher Secondary Education v.

Ayan Das73 the Apex Court held to be in the public interest that the results of public
examinations, when published, should have some finality attached to them.
In Pritam Rooj v. University of Culcutta 74, the Culcutta High Court has ruled that
denial of the inspection of answer scripts to examinee would amount to violation of
the examinee’s constitutional right to expression and information available under
Article 19 read with the right to information act, 2005.
In Union of India v. M.L. Kapoor75 THE Apex Court reiterated that: it is not
expedient the horizon of natural justice involved in the audi alteram partem rule to the
twilight zone of mere expectations, however, great they might be.
In H.P.P.S.C. v. Mukesh Thakur 76, The Apex Court ruled that in the absence of any
provision for re-evaluation of answer-books in the relevant rules, no candidate in the
examination could have got any right whatsoever to claim or ask for re-evaluation of
his marks. It being a task of statutory authorities could not be performed by the courts.
In Peoples Union for Civil Liberties (PUCL) v. Union of India 77, contending that
the changes introduced were not in accordance with what had been declared by the
Apex Court in Union of India v. Association for Democratic Reforms.78
In Union of India v. The Motion Pictures Association 79, it has been ruled that when
a substantially significant population body is illiterate or does not have easy access to
ideas or information, it is important that all available means of communication,
particularly audio-visual communication, are utilised not just for entertainment but
also for education, information, propagation of scientific ideas and the like.
In Bijoe Emmanuel v. State of Kerala80, The Supreme Court held that no person
could be compelled to sing the national anthem “if he has genuine conscientious
objection based on his religious belief”.
The Calcutta High Court, in Moulana Mufti Syed Md. Noorur Rehman Barkati v.
State of West Bengal81 , held that Article 19(1)(a) protected the citizens against
excessive sound. Upholding the restriction on the use of microphone and loud
73
AIR 2007 SC 3098
74
AIR 2008 Cal 118
75
AIR 1994 SC 87
76
AIR 2010 SC 2620
77
AIR 2003 SC 2363
78
AIR 2002 SC 2112
79
AIR 1999 SC 2334
80
AIR 1987 SC 784
81
AIR 1999 Cal. 15
 54

speakers at the time of giving azan, the Court said that no one could under Article
19(1)(a), claim an absolute right to suspend other rights or it could disturb other basic
human rights and fundamental rights to sleep and leisure.
The imposition of restrictions has been held not violative of the right under
article25 in Bijayananda Patra v. District Magistrate Cuttack82.
In M. Hassan v. Government of Andhara Pradesh83, The AP High Court held that
refusal of journalists and videographers seeking interview with condemned of
prisoners amounted to deprivation of citizens fundamental right to speech and
expression under Article 19(1)(a).
Unlike the American Constitution, Article 19(1) does not specifically or
separately provide for liberty of the press. The omission was explained by Dr. B.R.
Ambedkar in Brij Bhushan v. State of Delhi 84 that the press has no special right which
are not to be given or which are not to be exercised by the citizen in is individual
capacity. The editor of a press or the manager is merely exercising the right of the
right of the expression, and, therefore, no special mention in necessary of the freedom
of the press.
It is thus settled law that the right to freedom of speech and expression in article
19(1)(a) includes the liberty of the press in Sakal Papers (P) Ltd. v. Union of India85.

82
AIR 2000 Orissa 70
83
AIR 1998 AP 35
84
AIR 1950 SC 129
85
AIR 1962 SC 305
 55

CHAPTER THREE

FREEDOM OF EXPRESSION AND ISSUES OF COPYRIGHT

“The right to freedom of speech and expression is a development of the political

philosophy regarding t he form of the government in any country. The nature of the
polity implies clearly by or by expressed words signals t he role of freedom of speech
and expression. A democracy or a democratic form of state is synonymous with the
existence right to freedom speech and expression. The true significance of the
freedom of speech and expression for the democrat lies in the fact that thousands of
martyrs have shed their blood in defences of those liberties and the modern citizen
who breathes the air of democracy should consider those liberties as sacred and
invaluable and try to preserve them. In fact the very essence of democracy lies in free
debate and free discussion. Without them it is impossible to build up an opinion. This
could only be done by conferring on the citizens the right to freedom of speech and
expression, which is the basic importance in a democratic way of life. It is
characteristic of democracy that it should provide the fullest opportunity to the
 56

citizens to develop their personality in any way they choose and they must be free to
propagate their views without fear.”

-Dr. Sreenivasulu N.S. and Somashekarappa.

3.1: Introduction:
In a country like India, U.S.A or U.K. there are different political parties
professing different political ideologies and economic philosophies. Each of those
parties must have full freedom to express themselves, despite the views conflicting
with those of others. They must be given the fullest opportunity of secure the
acceptance of the majority of citizens, by means of healthy persuasion and free
argument. This demonstrates the true significance of the freedom of speech and
expression. The liberty to express one’s self freely is important for a number of
reasons.86 First, self expression is a significant instrument of freedom of conscience
and self-fulfilment. Secondly, it enables people to contribute to debates about social
and moral values. Thirdly, free expression is that it allows the political discourse,
which is necessary in any country, which aspires to democracy. Fourthly, freedom of
expression facilitates artistic and scholarly endeavour of all sorts. Hartals and
Satyagrahas became quite a common form of peaceful constitutional agitation for the
cause of civil liberties. The congress in its session at Calcutta (1917) reiterated its
strong protest against the wide and arbitrary powers conferred by the Press Act. Even
in 1917, order of internment had been passed against Tilak and B.C.Pal, from the
Punjab and Delhi. But popular agitation continued vigorously. In August 1918, Tilak
was served with an order as per which he had to take the permission of the District
Magistrate to deliver a lecture. 87 This shows the pitiable plight of the freedom of
speech at that time. The resolution of the 19 th August, 1918 session of the Indian
National Congress at Bombay is significant. The resolution said; “that subject to a
declaration of rights of the people of India (a) guaranteeing to them to them liberty of
person, property, association, free speech and writing, except under sentence of an
ordinary court of justice as a result of lawful and open trial. 88 Though it has a long
86
David Feldman; Civil Liberties and Human Rights in England and Wales, (Clarendon Press, Oxford
1993), pp.547-548
87
Dr Pattabhisitaramayya, History of Indian Natinal Congress, (Vol.1, Indian Congress Working
Committee, Allahabba, 1935), pp.260-261
88
C.K.N.Raja, Freedom of Sppech and Expression, under the Constitution of India and the United
State, (Karnataka University, Dharwzd, 1979, 6thedn.), p.52
 57

history in the Europe from the Greek time, A then & Sparta city states (B.C.735-
715)89 to the Magna Carta the beginning of thirteenth century. After renaissance in
Europe and the French revolution, American independence, the right to freedom of
expression is got very concrete shape. Freedom of expression has four broad social
purposes to serve; i) it helps an individual to attain self fulfilment, ii) it assists in the
discovery of truth, iii) it strengthens the capacity of an individual in participating in
decision-making and iv) it provides a mechanism by which it would be possible to
establish a reasonable balance between stability and social change.90 Indian Express
News Paper v. Union of India91, all members of society should be able to form their
own beliefs and communicate them freely to others. The Universal Declaration of
Human Rights, the European Convention, the Indian Constitution and various other
International Human Rights Organs enshrine the right to freedom of expression and
access to information. Declaration of Human Rights adopted by United Nations
General Assembly92 indicates; “Everyone has the 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 regardless of
Frontiers...” After a detailed discussion on the Constituent Assembly, the Indian
Constitution came into force with effect from 26 th January, 1950. Article 19(1)(a) and
Article 19(2) of this Constitution deal with the freedom of speech and expression and
the restrictions laid on that freedom respectively. The text of Article 19 pertaining to
freedom of speech and expression is given below; Article 19(1) all citizen shall have
the right (a) to 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 impose reasonable restrictions on the exercise
of the right conferred by the said sub-clause in the interests of the security of state,
friendly relations with foreign states, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an offence. Famers of the
Constitution have shown importance of this right in the preamble of the Constitution
“to secure its entire citizen LIBERTY of thoughts, expressions, beliefs, faith and
worship.” Here the freedom of thought and expression gets to fast priority, freedom of

89
Enclopedia Britannica 1968 (Vol 20 )p.1143
90
The Law Lexicon, (Vol3) pp.27, 96
91
(1985) 1 SCC 641
92
Quoted in Dr Sreenivasulu N.S.; Human Rights, Many sides to a coin, (Regal Publications, New
Delhi, 2008), p.182
 58

speech and expression is the bulwark of the democratic government, this freedom is
regard as the 1st condition of liberty.93 It occupies a prominent place in the hierarchy
of liberties in the preference to all other freedoms, it has been truly said that it is the
mother of all other liberties. 94 Article 19 (1)(a) guarantees to all citizen the right to
freedom of speech and expression which includes the right to expression one’s views
and opinions at any issue through any medium, e.g., by words of mouth, writing,
printing, pictures, film, music, movies etc., freedom of expression is an essential
proceeds of advancing knowledge and discovering truth. The values and functions of
the freedom of expressions in democratic polity are obvious. Freedom of expression is
essential as a meaning of assuring individual self-fulfilment. The proper end of the
man is the realisation of his character and potentialities as a human being. For the
achievement of this self- realisation the mind must be free. Human expression finds
utterance not merely in speech, but in publication of books and pamphlets, in art and
architectures, in histrionic talent by the way of dram, cinema and television or internet
or in publication of news papers. Human personality finds it maximum development
in an atmosphere of free speech and expression. 95 National Bank of Canada v.
R.C.U.96, Freedom of expression is also including the right not to express. This right
plays a crucial role in the formation of expression, just as a equality clause and
guarantee of the life and liberty has been very broadly construed by the Supreme
Court right form 1950. The Supreme Court of India has attached important to the
freedom of speech and expression.
Patanjali Sastri, C.J.m, delivering the majority judgement in the case of Ramesh
Thappar v. State of Madras97 observed- “There can be no doubt that freedom of
speech and expression includes freedom of propagation of ideas and that freedom is
ensured by the freedom of circulation. Indeed without circulation there publication
would be of little value.” Brij Bhusan v. State of Delhi, 98 Freedom of speech is
consider as one of the most valuable right guaranteed to a citizen by the Constitution 99
and the courts considered it their duty to jealousy guard it.

93
M.P.Jain, Constitutional Law (6th edn, Vol 1, 2010), p.235
94
2nd Press Commission Report (Vol 1, 34-35 quoted in Indian constitutional Law by M.P. Jain, 6th edn.
Vol.1, 2010), pp.9-12
95
C.K.N.Raja, Freedom of speech and expression, under the Constitution of India and United State,
(Karnata University, Dharwad, 1979,5th edn.), p.9
96
1984 (1) SCR
97
AIR 1950 SC 124
98
AIR 1950 SC 129
99
Ibid
 59

In Maneka Gandhi v. Union of India 100 Bhagwati, J., has emphasised “the
significance of the discussion, for that is the only corrective of government action in a
democratic setup. If the democracy means the government of people by the people, it
is obvious that every citizen must be entitled to participate in the democratic process
and in order to enable him to intelligently exercise his right of making a choice, free
and general discussion of the public matter is absolutely essential.”

In Vishram Singh Raaghubanshi v. State of UP101 the Supreme Court held that the
liberty of free expression is not confounded allegation against an institution, must less
than judiciary.

In Bhagwandass v. State102 (popularly known as honour killing case) the Supreme

Court interpreted the right to freedom of expression includes “right to marry a person
of one’s choice”. The Apex Court held,” Honour killing have became common in
many parts of a country, particularly in Haryana, UP and Rajasthan. Often young
couple who fall in love have to seek shelter in the police lines or protection home to
avoid the wrath of kangaroo Courts. Honour killings are nothing but barbaric and
brutal murders by the bigoted person with feudal mind. Lata Singh v. State of UP 103
Right to marry a person of one’s choice is a personal liberty under article 21 and
freedom of expression under article 19(1) of the Constitution.”

In Centre for Public Interest Litigation v. Union of India 104 the Supreme Court held
that telephone tapping unless it comes with the ground of restrictions under Article
19(2) is violate of Article 19 (1) of the Indian Constitution. Talking about the 1 st
amendment to the US Constitution which guarantees freedom of speech in the USA.
The US Supreme Court has observed (Associated Press v. U.S.); 105 “It is the purpose
of 1st amendment to preserve an uninhibited market place of ideas in which the truth
will be ultimately prevail, rather than to countenance monopolisation of that market
whether it be by the government itself or in private licence” The US Constitution
states; the Congress shall have the power to promoted the progress of science and
useful arts, by securing limited time to authors and inventors the exclusive right to

100
AIR 1978 SC 597
101
AIR 2011 SC 2275
102
(2011) SCC 6
103
(2006) 5 SCC 475
104
(2011) 1 SCC 560
105
326 US 1
 60

their representatives writings and discoveries.106 In order to find what is right and
what is not right, why and which idea is acceptable and how a policy should be
framed ultimately what should be enacted as law. It is impossible to imagine
meaningful working of a democratic government without the right of thought and
expression. Very existence of the political parties, the parliamentary system of
government would not be possible or without the right to freedom of expression these
would become a foss. Maneka Gnadhi v. Union of India 107, the Supreme Court on
innumerable occasions has discussed the significance of these rights.

In Sakal Papers v. Union of India108, The Supreme Court has held that even
indirect impediment to right of freedom of speech and expression is not permitted.
Expert during the emergency 1975-77 Indian democracy can differently boost that it
has enjoyed this freedom of expression in an appreciable manner. The ultimate goal of
every democratic state is that “no idea should go unheard”. The beauty of freedom of
speech is not in every idea express as the right expression, but can discover the myth
in any idea express so that the truth ultimately found. Strictly speaking this right is
true manifestation of all the democratic freedoms like the right to freedom of speech
and expression, assembly, association, movement, residence and settlement and
profession, occupation trade or business.

3.2: IPR and Freedom of Speech and Expression:

Hence, from above discussion it is clear that copyright is a fundamental right under
Article 19(1)(a) of the Constitution of India. The law of copyright is the extension of
right of freedom of speech and expression, which means that if an individual has
freedom of speech and expression that person, will naturally het a right to protect that
intellectual work as a property. Almost 300-A of the Constitution of India, right to
property is provided which says that no person shall be deprived of his property save
by authority of law. It ensures that a person cannot be deprived of his property
without any law. Deprivation of property of property can only be done of according to
law. Intellectual property is also a property, hence protected by Article 300-A of the
106
Dr. Sreenivasulu N.S. & Raju C.B, Biotechnology and Patent Law, Patenting Living Beings (1st edn.
Manupatra Delhi, 2008, p.20)
107
AIR 1978 SC 597
108
AIR 1962 SC 305
 61

Constitution of India. Technological revolutions, innovations developed through

intellectual accomplishment demands protection of their product against misuse.
Intellectual property is the tangible outcome with commercial value. This is outcome
of intellectual labour. Property right form interfaces between law and social sciences
especially economies, political science as well as sociology. With Globalisation and
privatisation, the interface between law and economics is the major divider for
property rights. Intellectual property rights are essentially private rights. Different
types of terminologies are in practice to protect intellectual property rights. They are
copyright, patent right, trademark or design etc., the march of civilisation is the march
of reason and communication of such reason from an individual to the community or
to the world at large.109 It is part of the man’s irresistible urge to express oneself
hence, communicate it to others. If that creative instinct of man is not expressed, no
communicate is possible. Again, the type of communication, various forms of
communication are dependent upon progress of the society. When a man was a simple
hunter, alone, there was no need for communication. As the man became more and
more a social animal, the pattern of the society became varied. Communication in
each group was a regional growth, hence, different languages. Language itself is a
great invention of man. What is conveyed in communication became symbolic of
group living. Some nomads, tribes, even today do not have language written of their
own. From primitive age man because he is indivisible part of the society, developed
script and then printing was invented, the circulation became important and easy
means of communication. The printing and circulation did give an advantage, but at
the same time piracy became easy. So around 15th and 16th century in Europe the
original authors, the printers, (publishers) felt the need of a protective legal frame
work. In England also, charters were issued for that effect, in other countries of
Europe codes were framed for the protection of authors and the printer’ rights. With
the development of democratic society the right to freedom of expression became an
important political right. Intellectual property rights protect some of the finer
manifestations of human achievement. It is the most interesting branch of law with
international acceptance and importance. After so many conventions, deliberations,
the comity of nations has acknowledged and accepted that intellectual property is also
tangible and could be made corpus of proprietary right for the original creator. There
are certain basic concepts common to all intellectual property. E.g. patents law is all
109
Herold J. Laski, A Grammer of Politics George Allen & Unwin Ltd. (London, 1970), p.95
 62

about concept of novelty, the design law on originality of design, the trademark on the
concept of distinctiveness and the copyright on the concept of originality. Today is
built around intangible incorporate property. Yet, a group of rights are created 110 to
the advantage of the owner. Patents give temporary protection to the technological
inventions for mass produced goods. Copyright give longer lasting rights in literary,
artistic and musical creations. Trademarks are protected against imitations. All these
put together can be classified as intellectual property rights. The objective of IPR is to
control the activities of the competitors and licensees. Intellectual property rights
protect application of ideas and information that are of commercial value. The fund of
exploitable ideas become sophisticated and hopes for a successful economic future
depended increasingly upon the superior corpus of new knowledge and fashionable
conceits. Various types of manifestation ideas are now being protected all over the
world, for instance the new plant varieties, the circuit of silicon chips etc., it is in fact,
not possible to confer on the creator of an idea of perpetual in it against imitators. The
political and economic implications of such a complete protection will before
reaching. However, a set of limited forms of protection of accorded against some
types of exploitation by others. The objective is to achieve a balanced approach to the
needs of the country with a justifiable reason.111

3.3: Copyright and Freedom of Speech and Expression:

Copyright is one of the most important aspects of the intellectual property.

Copyright means as intangible incorporeal right, granted to the author or originator of
certain literary, artistic dramatic, musical production. Copyright gives rise to a form
of property that can be dealt with just as with any other property and which can be
assigned, mortgaged and licensed. Copyright is exclusive right of the author to derive
economic benefits from his writing, performance or creative work. The copyright law
provides an incentive to creative activity, after lapse of period that becomes the
property of the public. The laws of copyright enhance the value of such speech and
expression, because it gives an effective protection to the creative speeches and
expressions like poetry, criticism etc., from bring reproduced without a license,

110
P. Narayan; The Law of Expression (Eastern Law House, Kolkata, 1st edn.,2007), p.2
111
Dr. Madabhushi Sridhar; The Law of Expression ;(1stedn., Asia Law House, Hyderabad, 2007) p.764
 63

copyright law cannot be viewed as an obstruction or restriction on the freedom and

expression, because the freedom is available to expression his own views and views
of others also, but not to express views of other as his own. The most important
feature of copyright is the proprietor or owner may use his property as he wishes.
Copyright law is concerned with rights; the copyright is a right to do certain things
such as making copies of a work of art and correlative duty is duty owned by all
others not to infringe it. The moral basis of protection of copyright afforded against
plagiarism can be stated in the words of 8 th Commandment of Mosaic Law “Though
shall not steal”.112 It is the basic of copyright law, which means that no man shall what
belongs to others. Copyright is confined to the expression of ideas and does not
extend to the ideas themselves.113 Per Lindley L.J. Hollinrake v. Truswell114, copyright
does not extend to ideas or schemes, or systems or methods, it confined to their
expression or methods. Being a species of property – copyright has all the
characteristic features of property. Copyright implies the existence of bundle of rights
such as right to own, sue, transfer, exploit, copy, translate or adopt the copy righted
work.115 The copyright law in each country was developed according to the needs of
that country. But one common notion that ran through all laws of all the countries was
the original author could be protected, but at the same time, that creative work or
ideas in that creative work as expression cannot be held of imprison for all time. If
ideas are restricted, the society cannot advance. In order to strike a compromise, the
proprietorship given to the author was restricted to a period. It was for some time
16years, or during the lifetime of the author and during life or some period after the
death of the author. In the 19th century several international conventions were held116
to protect copyright of an author not only in their own country but also for their own
countrymen, in foreign countries. This type of international understanding through the
conventions, continued in 20th century and also in 21st century. One of the main causes
for the development of copyright law was the invention of the printing press by
Gutenberg in 1436, which significantly increased the rate at which authors’
manuscripts could be copies but also paved the way for piracy of these manuscripts.
112
Adesh Kumar; Protection of Copyright with special reference to film and music industry (IJR 2008
(2),p.25
113
Pramanatha Aiyar’s The Major Law Lexicon (LexisNexis 2010, Vol.3, 4th edn.), p.1535
114
Ibid
115
Dr. Sreenivasulu N.S., Intellectual Property Rights (Regal Publication, New Delhi, 2011, 2nd edn.),
pp.73-74
116
Barne Convention 1886, Rome Convention 1964, Geneva Convention 1971, Brussels Conventions
1974, Universal Copyright Conventions 1971
 64

Pirate booksellers would copy books that had already been legitimately published and
they would sell these copies books at lower prices since they could avoid paying for
the authors’ manuscripts. This motivated booksellers to lobby their respective
governments for some form of protection, resulting in the enacted of national
copyright laws.117

3.4: Copyright Law in India:

In ancient days the only property which was believed to be the most secured
property was intellectual property. This was reason for this beliefs, intellectual
property could not be stolen like the material property, because things were intangible
and not corporeal. However, once its intellectual expression comes out of the
originator it could be abused by unauthorised use of that intellectual accomplishment.
It could be a book, a painting, music composition or design. With the advance in
communication in it became easy to commit piracy. When any original work
expressed, it is as good as opening it or making it available to the community, country
and world at large. Before independence, the Copyright Act, 1911 of England was
extended in India. The Indian legislature passed the Copyright Act, 1914 to solve the
problems. In 1957, a new Copyright Act was legislated by Indian parliament repealing
the Copyright Act, 1914. The Act called for certain amendments due to new and
advanced means of communications like broadcasting, lithography etc. The
amendments made adequate provisions for fulfilment of international obligation in the
field of copyright. The word copyright was not used expressly in Constitution of
India. But it does not mean that Constitution framers were not aware of this concept.
Before independence, we were governed by Copyright Act, 1914 so the issue of the
copyright was not new to our Constitution framers. The copyright is protected in our
Constitution in the preamble and Fundamental chapter. 118 Brief explanation of the
provisions of Copyright Act, 1957 so far as they relate to freedom of speech and
expression and its judicial interpretations are as follows:

117
Aaron D. White, Crossing the Elecytronic Border, Free speech protection for the Intellectual
Internet (58 DePaul L Rev.491)
118
Article 19(1)(a)
 65

3.5: Subject of Copyright:

The underlying principle of copyright protection is that specific creative

expressions are protected but not the ideas behind them. Copyright comes into
existence as soon as a work is created. The law does not permit one to appropriate to
him what has been produced by the labour, skill and capital of another. This is very
the work and varies from copyright law.119 Copyright in a work means the exclusive
right to make certain uses of the work and varies from work to work as indicated
below;120

a) Literature, it is a form of expression through literature

b) Drama, the expression through the performance
c) Musical Work, the expression by way of communication to public by loudspeaker
d) Artistic Work, expression through reproduce in any material form
e) Cinematograph film, communicate by broadcast
f) Record, communicate the recording by broadcast

3.6: News Media Freedom of Expression and Copyright:

The newspaper, television channel, movie, the computer software, the music listen
in our system etc., as different forms of expression are all copyrighted. There is
paradigm shift from viewing copyright as a monopoly that the public is willing to
tolerate in order to encourage innovation and creation of news works to viewing
copyright as a significant asset to country’s economy.121 Nothing can be more
properly described as a man’s property than the products of his mind, and over the
years a system of law has been established to protect the ideas patents for inventions,
copyright for literature and art, and so on. The intellectual property system has served
us well by encouraging creativity and innovation and the spread of ideas. Without
copyright law, the publishing and record industries would scarcely operate. With its
enormous writing and printing activity, the media may confront several copyrights
issues. Whether it is a letter to the editor or a contribution form a free lance journalist,
or a commissioned interview or a photograph purchased or a story sought for
119
P. Narayana, Intellectual Property Law, (Eastern Law House, Kolkata, 2007, 3rd edn.), p.254
120
Section 2(a)
121
Dr. Madhabushi Sridhar, The law of expression: (Asia Law House, Hyderabad 2007, 2nd edn.), p.791
 66

magazine section or an investigative report sent by staff correspondent, the publisher

is concerned with the ownership and other related rights regarding that creative
writing. A film script, but not the actual film or its sound track, will normally count as
a dramatic work, dramatic work includes a work of dance features films, dramatic
works.122 Broadcast also can be copyrighted. It is defined as a transmission by
wireless telegraphy visual images; sounds or other information which is capable of
being lawfully received by members of the public or it’s transmitted for presentation
to members of the public.123

3.7: Privacy of Individual and news reporting:

The man must have own way of living. Privacy man’s copyright in his own self,
where the publication of the most worrying factor than imitation. Imitation of a
particular life would be emulation and emulated derive the pleasure. 124 It is not
possible to have satisfactory definition for the privacy. Black explained it as the right
of an individual to without himself and his property from public scrutiny and
unwarranted publicity.125 R. Rajagopal v. State Of Tamil Nadu 126, it is further
explained by Indian Apex Court in R.R.Gopal Case; A citizen has a right to safeguard
the privacy of his own, his family, marriage, procreation, motherhood, child bearing
and education amongst others. None can publish anything concerning the above
matters without his consent- whether truthful or otherwise, and whether laudatory or
critical. This kind of publication not protected under Article 19(1)(a) of the
Constitution. If he does so, he would be violating the right to privacy of the person
concerned and would be liable in action for damages.

3.8: Identity of Rape victims; a frequent intrusion of privacy by media:127

122
Journal of Intellectual Property Rights Jan.2011 at 53-54: available at www.indianexpress.com,
(visited on May30, 2014)
123
Sreenivasulu N.S., Human Rights: many sides to coin: (Regal Publications, New Delhi, 1st edn.,
2008), pp.181-192
124
Dr. Madubhushi Sridhar, The Law of Expression (Asia Law House, Hyderabad, 2007, 1st edn.),
p.796
125
Black’s Law Dictionary
126
AIR 1995 SC 264
127
Sreenivasulu NS., Human Rights, Many sides to coin, (Regal Publications, New Delhi, 1st edn.,
2008), pp.181-192
 67

Publication of rape-victim’s name affects the victim further. If a newspaper

published or motion picture is made alleging that particular woman was raped, it was
held to be defamatory publication of the victim, reason is the social atmosphere and
the stigma attached to a helpless woman suffering the wrong and consequences
thereto. Recently the Supreme Court, in State of Karnataka v. Puttaraja, 128 observed
rapist not only causes physical injuries but more indelibly leaves a scar on the most
cherish possession of a women i.e., her dignity, chastity, honour and reputation. The
deprivation of such animals in human form reaches the rock bottom of morality when
they sexually assault children, minors and like the case at hand, a woman in the
advance stage of pregnancy. A similar protection, of course, is not available to the
accused; he has no right to seek non-disclosure of identity as a matter of right. The
accusation of a criminal charge deprives him of his right to privacy and even the
reputation to some extent. However the report in press cannot extend the accusation
beyond the prima facia basis as available for prosecution. If the media gives
unnecessary allegations and detailed without any basis and fail to prove the truth of
the narration would have to pay for invasion Supreme Court as a new violation of
right in Visakha and other v. State v. State of Rajasthan and others 129,case offers a
judicial protection to protection to privacy of working women. Indirect protection for
privacy is available through the enforcement of rights and interests in land, such as
trespass to land nuisance.

In Autoshankar case (R.Rajagopal v. State of Tamil Nadu)130 the state pleaded

privacy on behalf of the prisoner and sought to restrain the Nakheeran from
publishing his autobiography, written in prison and given to the Petitioner-editor of
that magazine, alleging involvement of the police and jail authorities. It was held that
privacy was an individual right of the concerned person and no other had any domain
over other’s privacy even though such person was a prisoner.

In Hyde Park Residence Ltd. v. Yelland, 131 (popularly known as Diana case) a
newspaper published still photographs taken on a security camera when Princes of
Wales Diana, and her frind Dodi Fayed Visited Villa Windsor in Paris, on the day
prior to their deaths in a car accident. The photographs were stolen by a security guard
128
AIR 2004 SC 433
129
(1997) 6 SCC 241
130
AIR (1995) 264
131
AIR (2001) Ch.143
 68

and sold to the newspaper, which published them more than a year later. Hyde Park
had sought summary judgement at the 1st instance relying on breach of copyright. The
defendant relied on the defence of fair dealing for the purpose of relying on breach of
copyright. The defendant relied on the defence of fair dealing for the purpose of
reporting current events. The judge upheld it as fair use. However, it was reversed
appeal.

3.9: Selling stories of private lives:

In 1998, in Pro Sieben Media AG v. Carlton UK Televsion Ltd. 132, the Caltaon UK
TV had broadcast a current affairs programmed, which critically analysed the issued a
cheque book journalism, and the sale of stories about people’s private lives to the
media.133 The programme included a 30 seconds sequence taken from an interview,
which was the broadcast of the plaintiff Pro Sieben with Mandy Allwood, a woman
who was notorious at the infringement of his copyright and the defendant pleaded the
fair use defence for criticism or review. The trial judge refused to accept the defence
of fair use and held there was no sufficient acknowledgement of the author of original
programme. The court of appeal reversed the decision finding that there had been
sufficient acknowledgement. The court explained that the exemptions under doctrine
of fair use had achieved proper balance between protection of the rights of a creative
author and the wider public interest and that the free speech is a important part of that
wider public interest.

3.10: Constitutional rights and the Copyright Law:

The recent amendment that has been proposed to the Copyright Act has sparked
deliberations on its compatibility in terms of upholding the spirit of the constitution.
In particular, it has been argued by the opponents of the bill that the proposed
amendment bill violates the constitutional guarantees of equality 134, since it
discriminates between those blind persons who know Braille and other print disabled
persons (including the blind) who do not. Even otherwise by falling to institute a
132

133
N.S. Sreenivasulu, Human Rights, Many sides to a coin: (Regal Publications, New Delhi, 1st edn.,
2008), pp.181-192
134
Article19 of the Indian Constitution mandates that the State shall treat the individual equally and the
law shall be applied equally among all.
 69

meaningful copyright exception that would enable access to reading materials by the
print disabled, the state will continue to fail in its duty to guarantees a meaningful
right to life. Millions of Indians are unable to read printed materials due to disabilities.
The state must appreciated that it has a constitutional duty to provide a decent
standard of living to all its citizens. Such a right to life would also include the right to
read as a fundamental right (especially educational materials) and participate more
meaningful in society.135 The provisions of the Indian Copyright Act, 1957 does not
permit conversion of books into accessible formats for the benefits of persons with
print impairment. An international convention to which India is a signatory
specifically requires amending its copyright laws for the benefit of persons with
disabilities and making available information and materials to persons with
disabilities on an equal basis as other. Technologies are in place which can help then
read printed matter if the material gets converted into alternate formats such as large
print, audio, Braille or other electronic formats. Publishers to do not make books
available in accessible formats as which less than 0.5 percent of books are available in
accessible formats in India. As a result, persons with print impairments get excluded
from the education system and this has a big impact on their career choices. 136 Hence,
it is necessary that, we accelerate change in the copyright law with a holistic approach
for facilitating the enjoyment of rights by one and all including those who are visually
challenged. In this concern, there is a need to raise public awareness on the issue of
access to reading for the print-impaired, by make availability of books in all formats.
In these direction members of disability rights Organisations, lawyers and others who
have interest in these issues have been campaigning for the amendment to be
modified to ensure that:137

1. Legal formalities prove not to be an obstacle for the progress in the right direction.
The bill has to be modified on a humanitarian ground to enable the challenged people
to get to know what is happening around them and in particular enable them to excel
in learning and progressing.
2. The produce for granting compulsory license by the Copyright Board is simplified.

135
Hemanth Kumar and Sreenivasulu N.S., “Nuts and Bolts of Copyright amendment Bill”: (2010,
Manupatra Intellectual Property Reports, Vol.II, part.I, April 2011)
136
“Right to read Compaign- Kolkata, are port on this Compaign”, (Times of India, November 7, 2009)
137
Ibid
 70

3. The conversion of books into all formats that can be used by persons with print
disabilities depending on their disability and comfort.
4. All stakeholders including Organisations, educational institutions and the persons
with disability are allowed to undertakes the conversion; and
5. The conversion of reading materials into accessible formats is not subject to red-tape
and there is no delay in their availability.

3.11: Copyright and the right to freedom of speech and expression cannot
go together:

Sometimes it looks like an anomaly that proprietorship of Copyright and the right
to freedom of speech and expression cannot go together. Right to freedom of speech
and expression is a very broad right, a varied right, whereas a copy right is an
exclusive right of the creator. This exclusion of using any work of an artist or a
creator prima facia restricts the right to freedom of expression. But it is made very
clear a copy right is given to originator for its explicit form. Eg: a play, a music
composition, but not for the idea. The love is the most universal content of literary
works all over the world. When the idea of love takes shape, a form it can be become
a novel, short story, a play, even a painting, sculpture and no one would be foolish
enough to claim copyright for the idea of love. Similarly there are endless ideas, so, a
copyright in its essentials is not an infringement right to freedom of expression, but
only to use a particular use. There are several instances even in science the same idea
found expression by more than one scientist at the same time. Eg. Darwin theory of
evolution was the finding of Darwin. There was another scientist also who had hit
upon evolution, but not known to the world as Darwin known. The right to freedom of
expression gets a Philips by providing an incentive to the original author to enable
him obtain economic benefit. This is again a great motivator for similar efforts on the
part of innovators, original thinkers. So let there not be any doubt, that a copy right is
extension of freedom of expression at the same time incentive to innovators and
authors of original ideas, and defend different forms of expression. With the
development mass communication like TV, Computer technology, (technology
information) in the absence of copyright, there can be lot of confusion about the
authorship. In fact it might be good move to free from the protection of copyright, but
 71

then very fruitful incentive would be lot. It is not only a economic gain, but it is a kind
of recognition to the original innovator and that makes the all the difference. A
Thomas Alva Edison, A Marcony, a Grahambell and many others renowned scientists
have been protected, not only the interest of the author, but encouraging similar
contributions in the vast field of literature, science, arts, designs and in all spheres.

CHAPTER FOUR

FREEDOM OF SPEECH AND EXPRESSION:

LEGISLATIVE PERSPECTIVES

“The new freedom of expression brought by the Internet goes far beyond politics.
People relate to each other in new ways, posing questions about how we should
respond to people when all that we know about them is what we have learned through
a medium that permits all kinds of anonymity and deception.”

-Peter Singer.

4.1: The One Hundred and First Report of the Law Commission:

The One Hundred and First Report of the Law Commission focused on Freedom of
Speech and Expression under Article 19 of the Constitution and Recommendation to
extent it to Indian Corporations.

Article19(1) of the Constitution of India guarantees to citizens, certain freedoms.

Of these, the first was the right to “freedom of speech and expression”. It was found
from a study of judicial decision on the subject that the use of the word “citizen” in
Article19 had the effect of leaving corporate bodies out of the scope of the article.
This, in the opinion of the Commission, created a serious anomaly as numerous
organizations and institutions needed the freedom of speech and expression-
 72

companies owing newspapers, companies owing magazines and companies producing

and distributing films were a few illusions.

As there was a vast variety of organizations and institutions whose activities often
led to their involvement in situations where freedom of speech and expression was
necessary, the Commission was of the view that granting freedom noted above to such
bodies would become of great practical importance. So, it took up, suo motu, the
question whether the fundamental right of freedom of speech and expression as
guaranteed by the Constitution should be made available to companies, corporations
and other artificial persons, and if so, subject to what conditions. The Law
Commission presented its Report on May 28, 1984.

4.2: Right to Information Act, 2005: Freedom of Speech and Expression:

“Awareness is a process of becoming fully conscious. Awareness can trickle into the
corners of your mind slowly, as you clean out the cobwebs, or it can dawn suddenly
the moment you become cognizant of your rights and begin to see yourself
objectively.”

-Sheela R. Chandran.138

The Right to Information Act 2005 provides effective access to information for
citizens of India, which is under the control of the public authorities. It promotes
transparency and accountability in the working of every public authority. It extends to
the whole of India except the state of Jammu and Kashmir. In order to ensure greater
and more effective access to information, it was decided to repeal the Freedom of
Information Act, 2002 and enact another law for providing an effective framework.
To achieve this object, the Right to Information Bill was introduced in the Parliament
and was passed by the Lok Sabha on 11th May, 2005 and by the Rajya Sabha on 12th

138
Sheela R. Chandran, “Right to Iinformation Act, 2005: A Denovo Dimension to Freedom of Speech
and Expression”, available at https://www.google.co.in/url?
sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CBsQFjAA&url=http%3A%2F
%2Frti.img.kerala.gov.in%2FRTI%2Felearn%2FSheelaChandran.doc&ei=zGKhU- , (visited on June
18,2014)
 73

May, 2005 and it received the assent on 15th June, 2005. It came on the Statute Book
as THE RIGHT TO INFORMATION ACT, 2005 (22 of 2005).139

Right to Information is a part of fundamental rights under Article 19(1) of the

Constitution. Article 19 (1) says that every citizen has freedom of speech and
expression. The Supreme Court of India has held in several cases that RTI is implicit
in the constitutionally enshrined rights. It empowers citizens to secure access of
information from public authorities in order to ensure transparency and accountability
in Government administration. Access to information ensures a participatory
democracy, tackles the malaise of corruption, strengthens people’s trust in the
government, supports equitable, just and people – centric development. Freedom of
information lies at the root of the rights discourse. Failure of the State to provide
access to information to the realization of rights as well as effective democracy, which
requires informed participation by all.140

Information adds some new flavor to awareness. It enables one to assimilate on

what we may be conscious of, but may not be aware of or to build something new.
Here information is for democratization of communication. Human beings need
information in order to realize their full social – political and economic potential.
Information entails a spectrum of knowledge about various issues and involves
different stakeholders from market to Government. It leads to awareness which in
turn brings true and quality education. Information is a key that helps in decision
making. Sharing of information helps a nation to build strong cadre of informed
citizenry who can participate meaningfully in the democratic process and would fulfill
their responsibility effectively. Information is a public resource collected and stored
by government in trust of people.

Today, ‘Information at Finger Tips’ is a reality Computers, fax machines, cell

phones, digital cameras, satellite communications etc. have revolutionalized the
information age.

Information is indispensable for the functioning of true democracy. People have to

be kept informed of the current affairs and broad issues – political, social and

139
Right to Information; available at http://shaktivahini.org/initiatives/right-to-information, (visited on
June 18, 2014)
140
“Right to Information”; available at http://shaktivahini.org/initiatives/right-to-information,( visited
on June 18, 2014)
 74

economic. Free exchange of ideas and free debate are essentially desirable for the
government of a free country.

It may be mentioned here that RTI existed in Sweden to India for transmission
from an opaque system to governance, legitimized by the Colonial Official Secrets
Act, 1923 to one where citizens can demand right to information. Right to
Information Act, 2005 marked a step towards bringing transparency in working of
public authorities. Transparency, accountability and containing corruption are the
three main objectives of the enactment. It is high time to analyze how far the Act in
helpful to the most ordinary citizen and to what extent the people are educated about.
The law reinforced its democratic foundation. By and large India’s experiment has
proved to be successful.

The right to information is derived from the concept of freedom speech and
expression guaranteed under Article 19(1)(a) of the Constitution of India, though not
absolute. The concept of open Government is the direct emanation from the right to
information which seems to be implicit in the right of free speech and expression.
Therefore, disclosure of information must be the rule and secrecy an exception
justified only where strictest requirement of public interest so demands. The
approach of this cardinal legislation is to attenuate the area of secrecy as much as
possible consistent with requirement of public interest, bearing in mind all the time
that disclosure also serves are important aspect of public interest.

The RTI Act is the reflection of a liberal and resurgent India that shifts the power
of knowledge to the hands of common man, the real stakeholders. Information is a
necessary input for knowledge and truth, but they are wider and more profound
concepts. To ensure the availability of a right that has been given becomes a duty; a
duty will performed is its own moral reward. Section 4 of the Act imposes that duty
on the public authorities by enumerating in 17 manuals and also requiring to take
constant endeavor to take steps to provide as much as information suo moto to the
public at regular intervals through various means of communication including
internet, so that public have maximum resort to the use of the law to obtain
information.

Section 3 of RTI Act, says - all citizens shall have the right to information’, subject
to certain exceptions u/s. 8 and 9 and partially u/s. 10 and 11 and absolutely u/s. 24.
 75

Thus the right to know is assumed rather than guaranteed. In fact, this right is deemed
from government’s correlative duty of accountability and answerability to the people.
Therefore, no Government should think that people must be told only that much
which it thinks to be good for the people and safe for itself. Thus, despite some
limitations, the RTI Act is guaranteeing the right to information, ensuring
participatory developmental process in the country.

This development is, no doubt, healthy for ensuing good governances and curbing
corruption. Each and every decision of the government has now become available for
public scrutiny and those in decision making process have to be very cautious as also
judicious while exercising their powers. Though the Act has crossed its infancy, it is
bound to have effect only when the contents of the enactment reach the people in the
remote village of India.

RTI became a fundamental civil right much later because we were obsessed with
the British legacy. Art. 19(1)(a) of our Constitution indicate citizens right to know
but one or more clauses which give an overwhelming authority to the state to abridge,
distort and deny the right. The reasons for such denial under Article 19(1)(a) include
public order, public morality, incitement etc.

The effort of the Central Vigilance Commission in this connection to make a

fundamental right has to be acknowledged. It is, however, apt to be pointed out that
there is nothing new in this right except that the provisions have been consolidated
and the people given an opportunity to know everything they want, simply by writing
to the Public Information Officer. The Official Secrets Act, 1923 has been cut into
size and except for specified areas; no information can be withheld from the public.
The legislature cannot be denied any information and now the citizens have been
bestowed with similar powers.

RTI, strictly speaking was embedded in Art. 19(1)(a) and now RTI Act gave a new
dimension to the freedom of speech and expression. Art 19(1)(a) gives the freedom to
express one’s convictions and opinions freely, by word of mouth, writing, printing,
pictures or electronic media or in any other manner. It would then include not only
the freedom of the press, but the expression of one’s ideas by visible representation.
This freedom can be properly exercised only by an informed citizen for that stands the
RTI Act 2005 in a specific, elaborated and consolidated form.
 76

Any restriction imposed on freedom of speech and expression is prima facie

unconstitutional, unless it can be justified under the limitation clause. i.e. clause (2) of
Act 19. This clause authorizes the State to impose restrictions upon the freedom of
speech only on certain specified grounds so that it, in any case, the restrictive law
cannot rationally be shown to relate to any of their specified grounds, the law must be
held to be void.

Clause (2) of Art.19, as amended, enable the legislature to impose restrictions upon
freedom of speech and expression, on the following grounds:-

(i) Sovereignty and integrity of India.

(ii) Security of the State.
(iii) Friendly relations with foreign states.
(iv) Public order.
(v) Decency and morality.
(vi) Contempt of Court.
(vii) Defamation
(viii) Incitement to an offence.
While looking into the exempting provisions i.e., sections 8 and 9 of the RTI Act,
we can see that the law makers went a little more forward with a new dimensions of
19(2). Law makers gave representation to the three pillars of the Constitution viz.
legislature, executive and judiciary. In Section 8(1)(c), 8(1)(i) and 8(1)(b)
respectively. Section 8(1)(a) provides an additional clause than those in clause (2) of
Article 19 i.e. Strategic, scientific and or economic interests of the State. Along with
contempt of court, those information which has been expressly forbidden to be
published by any court of law or tribunal is also made exempted from disclosure u/s.
8(1)(b). Though decency and morality and defamation were grounds in Art. 19(2),
the disclosure of information which would cause breach of privilege of the legislature
is added giving respect to parliamentary democracy. Commercial confidences, trade
secrets, Intellectual Property Rights, fiduciary relationship, personal information are
new incitements of RTI Act when compared to Art. 19(2).
Copy right and other forms of IP protection are granted in some jurisdictions to
public authorities for their works. The law makers decided to protect the works
produced by public entities because of the tradition or to achieve national economic
and cultural objectives in the light of costs and benefits and hence S. 9 of the RTI act.
 77

Doctrine of severability as provided in S. 10 of RTI Act is a well accepted

constitutional doctrine.

The right to information set out to Indian citizens u/s. 3, impliedly provides the
right to be informed whether the information requested is held by the public authority
concerned and if so the right to have that information communicated to him. But this
right is subject to other provisions of the Act. Section 8 and 9 and section 24 provide
for circumstances under which a public authority may refuse a request. Section 24
absolutely exempts the information relating to certain intelligence and security
organizations where as the other two provide only for qualified or class exemptions.

Freedom of speech and expression is the bulwark of democratic government. This

freedom is essential for the proper functioning of democratic process and is regarded
as the first condition of liberty. It occupies a preferred position in the hierarchy of
liberties giving protection to all other liberties. It has been truly said that it is the
mother of all other liberties. That liberty includes the right to acquire information and
disseminate the same. It includes the right to communicate it through available media
without interference to as large a population of the country, as well as abroad, as is
possible to reach. Right to know is the basis right of the citizens of a free country and
Art. 19(1)(a) protects that right. Right to receive information springs from Art 19(1)
(a). The freedom to receive and to communicate information and ideas without
interference is an important aspect of the freedom of speech and expression. Without
adequate information a person cannot form an informed opinion. Thus RTI Act
opened a new arena a wider arena to free speech and expression.

Information is the currency that every citizen requires to participate in the life and
governance of the society. In any democratic polity, greater the access, greater the
responsiveness and greater the restrictions, greater the feeling of powerlessness and
alienation. Information is not private property- it is national property. Thus
government and public officials, who are supposed to serve the people on payment
from public purse are none else than trustees of this national resource – information.
Besides moral and legal obligation, it is their constitutional obligation based on
philosophical foundation of freedom of speech and expression under Art. 19(1)(a) of
the Constitution. As transparency is the culture required for good governance,
secrecy directly means disempowerment and hence, RTI stands for empowerment on
 78

the substratum of free speech and expression giving a denomo dimension to the
fundamental freedom.

In a government of responsibility like ours, all agents of the public must be

responsible for their conduct; there can be but few secrets. Right to Information Act
is a means, not an end, for change, equity activism, citizen participation and good
governance.141

4.3: Right to Know:

The expression “freedom of speech and expression” in Article 19(l)(a) has been
held to include the right to acquire information and disseminate the same. It includes
the right to communicate it through any available media whether print or electronic or
audiovisual, such as, advertisement, movies, article or speech, etc. This freedom
includes the freedom to. Communicate or circulate one’s opinion without interference
to as large a population in the country, as well as abroad, as is possible to reach.
Democracy expects openness and openness is concomitant of a free society and the
right to know is a best disinfectant.

The Supreme Court has given a broad dimension to Article 19(1) (a) by laying
down the proposition that freedom of speech involves not only communication, but
also receipt, of information. Communication and receipt of information are the two
sides of the same coin. Right to know is a basic right of the citizens of a free country
and Article 19(1) (a) protects this right. The right to receive information springs from
the right to freedom of speech and expression enshrined in Article 19 (1) (a). The
freedom to receive and to communicate information and ideas without interference is
an important aspect of the freedom of speech and expression. Without adequate
information, a person cannot form an informed opinion.

The Supreme Court has held that Article 19(1) (a) not only guarantees
freedom of speech and expression, it also ensures and comprehends the right of the

“Right to Know”; available at http://www.thehindu.com/features/metroplus/the-right-to-

141

know/article5882907.ece (visited on June 18,2014)

 79

citizens to know, the right to receive information regarding matters of public concern
(State of Uttar Pradesh v. Raj Narain142.

4.4: Constitutional provisions on the Freedom of Speech and Expression:

The freedom of speech and expression has been described as the mother of all
liberties. In Ramlila v. Maidan Incident,143 the Supreme Court held:

The freedom of speech and expression is regarded as the 1st 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 the mother o all other liberties.
Freedom of speech plays a crucial role in the formation of public opinion on social,
political and economic matter. It has been described as a ‘basic human rights’, a
natural right’ and the like. With the development of law in India the right to freedom
of speech and expression has taken within its ambit the right to receive information as
well as the right of press (Ramlila Maidan Incident144)

The preamble to the Constitution of India resolves to secure for the citizens of
India, liberty of thought, expression and belief.145

Constitutional status of the media: The media derives its right from the right to
freedom of speech and expression available to the citizen. Thus the media has 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:

“The freedom of journalist is an ordinary part of the freedom of the subject and to
whatever lengths the subject in general may go, so also may the journalist, apart from
the statute law, his privilege is no other and higher...No privileges attaches to his
position.”

142
AIR 1975 SC 865
143
(2012) 5 SCC 1
144
(2012) 5 SCC 31
145
Constitution of India, Preamble
 80

The framework for analyzing media rights remains much the same in post-
independence in India. In M.S.M. Sharma v. Sri Krishna Sinha 146 (searchlight), 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 a citizen and that no
privileges attaches to the press as such, that is to say, a s distinct from the freedom of
citizen. In short, as regards citizens running a newspaper, the position under our
Constitution is the same as it was when the judicial committee decided and as regards
non citizens the position may even be worse.147

In other words, the media enjoys no special immunity or elevated status compared
to the citizen and is subject to the general laws of the land, including those relating to
taxation. However, in post-independent India both the citizen and citizen-owned
media enjoy a constitutional guarantee that hitherto absent.

4.5: Comparison with the US Constitution:

Article 19(1)(a) finds its roots in the 1 st Amendment to the US Constitution, the 1 st
Amendment reads,

Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof, or abridging the freedom of speech, or of the press, or of the
right of the people peaceably to assemble and to petition the government for a redress
of grievance.148

Unlike the 1st amendment to the US Constitution, the Indian Constitution does not
make a specific or separate provision for the freedom of the press. Further, Union of
India v. Naveen Jindal149, while the restrictions on the right to freedom of speech and

146
AIR 1959 SC 395
147
Ibid
148
US Constitution, 1st Amendment, Art.1
149
AIR 2004 SC 1559
 81

expression are expressly spelt out in Article 19(2), this is not so under the 1 st
amendment. Ministry of Information and Broadcasting, Govt. of India v. Cricket assn.
of Bengal,150 the US Supreme Court has read into the rights of the press certain
implicit restrictions which are, in principle, no different from Article 19(a). However,
generally, from a judicial and social standpoint, the freedom of the press in America is
far more robust than the corresponding Indian guarantee.

The question of whether or not to insert in the Indian Constitution a separate right
for the press, as distinct from that of that of the ordinary citizen, was extensively
debated by the members of the Constituent Assembly. The Constituent Assembly
came to the conclusion that such a provision was not necessary. Dr. B.R. Ambedkar,
chairman of the Constituent Assembly’s drafting committee argued:

The press is merely another way of stating an individual or a citizen. The press has
no special rights which are not to be given or which are not to be exercised by the
citizen in his individual capacity. The editors of a press or the manager are all citizens
and therefore when they choose to write in newspaper, they are merely exercising
their right of expression and in my judgment therefore no special mention is necessary
of the freedom of the press at all.

Although no special provision was made safeguard the rights of the press, the
courts have time and again confirmed that the rights of the press are implicit in the
guarantee of freedom of speech and expression under Article 19(1)(a) of the
Constitution (Brij Bhusan v. State of Delhi)151 In fact, successive judgments of the
Supreme Court of India have struck down laws that abridge the freedom of the press
and have echoed the sentiment Expressed in the 1st amendment.

Romesh Thappar v. State of Madras 152, amongst the earliest cases to be decided by
the Supreme Court, involved a challenge against an order issued by the Government
of Madras under Section 9(1A).

4.6: Judicial approach regarding Freedom of Speech and Expression:

150
AIR 1995 SC 1236
151
AIR 1950 SC 129
152
AIR 1950 SC 124
 82

The present position as to the applications of article 19(1)(a) of the Constitution to

various categories of persons may be stated in the form of propositions, as under:

(a) Article 19(1)(a) of the Constitution being confined to citizens, foreigners

cannot claim any right there under (Anwar v. State of J & K)153.

(b) A corporation cannot claim citizenship. (Barium Chemicals v. Company Law

Board)154, and cannot therefore claim any right (Amritsar Municipality v. State of
Punjab)155 under Article 19(1)(a), as it stands at present.

(c) This is so, even though the corporation is a company whose shareholders are
citizens of India156.

(d) But the shareholders of a company can challenge the constitutional validity of
a law on the ground of infringement of article 19, if their own rights are infringed
(R.C Cooper v. Union of India)157, and in such a proceeding the company may be
joined as a party (Bennet Coleman v. Union of India)158.

In free world freedom of speech and expression is the heart of social and
political intercourse. The freedom of speech and expression has now assumed the role
of the public educator making formal and non-formal education possible in a large
scale particularly in the developing world, where television and other kinds of modem
communication are not still available for all sections of society. The purpose of the
freedom of speech and expression is to advance the public interest by publishing facts
and opinions without which a democratic electorate cannot make responsible
judgments. Newspapers being purveyors of news and views having a bearing on
public administration very often carry material which would not be palatable to
governments and other authorities. The authors of the articles which are published in
newspapers have to be critical of the actions of government in order to expose its
weaknesses. Such articles tend to become an irritant or even a threat to power. Over
the years governments in different parts of the world have used diverse methods to
keep press under control. They have followed carrot-stick methods. Secret payments

153
AIR 1971 SC 337
154
AIR 1967 SC 295
155
AIR 1965 SC 1100
156
Ibid
157
AIR 1970 SC 564
158
AIR 1973 SC 106
 83

of money, open monetary grants and subventions, grants of lands, postal concessions.
Government advertisements, conferment of titles on editors and proprietors of
newspapers, inclusion of press or media barons in cabinet and inner political councils
etc. constitute one method of influencing the mass media. The other kind of pressure
is one of using force against the press and mass media. Enactment of laws providing
for pre-censorship, seizures, interference with the transit of newspapers and
demanding security deposit, imposition of restriction on the price of newspapers, on
the number of pages of newspapers and the area that can be devoted for
advertisements, withholding of Government advertisements, increase of postal rates,
imposition of taxes on newsprint, canalization of import of newsprint with the object
of making it unjustly costlier etc. are some of the ways in which Governments have
tried to interfere with freedom of press and mass media. It is with a view to checking
such malpractices which interfere with free flow of information, democratic:
constitutions all over the world have made provisions guaranteeing the freedom of
speech and expression laying down the limits of interference with it. It is therefore,
the primary duty of all the national Courts to uphold the said freedom and invalidate
all laws or administrative actions which interfere with it contrary to the constitutional
mandate.

4.6.1: Right to Silence

Right to silence has been pronounces by the Honorable Supreme Court in the
National Anthem case (Bijoe Emmanuel v. State of Kerala)159 the Supreme Court has
held that no person can be compelled to sing the National Anthem, “if he has genuine
conscientious objections based on his religious faith” In this case, the three children
belonging to Jehovah’s witnesses were expelled from the I school for refusing to sing
the national anthem. The circular issued by the Director of Public Instructions Kerala
had made it obligatory for respectfully when the national anthem was being sung at
their school but they did not join in singing it. They refused to sing the national
anthem as according to them it was against their religious faith which does not permit
them to join in any rituals except if be in their prayer to Jehovah, their God. They
challenged the validity of their expulsion before the Kerala High Court which uphe1d
their expulsion as valid on the ground that it was their fundamental duty to sing the

159
(1986) 3 SCC 615
 84

national anthem. On appeal, the Supreme Court held that there was no law under
which their fundamental right under Article 19(l)(a) could be curtailed. The right
under Article 19(l)(a) can only be regulated by law and on the grounds mentioned in
the Constitution and not by executive instructions. They did not commit any offence
under the Prevention of Insults to National Honour Act, 1971, because they stood up
respectfully when the national anthem was being sung. Accordingly, it was held that
the children’s expulsion from the school was a violation of their fundamental right
under Article 19(1)(a) which also includes the freedom of silence. The judgment of
the Court will have far reaching consequences. It is likely to be interpreted as a
licence by all to disregard the national anthem which is the symbol of our national
unity in the name of religion. Freedom of speech and expression had nothing to do
with a person refusing to sing the national anthem. A review petition is pending in the
Supreme Court against this decision.

Voters have right to know about their candidates:

In a landmark judgment in Union of India v. Association for Democratic

Reforms160, a three Judge bench comprising Justice M.B. Shah, P.V. Reddy and D.M.
Dharmadhikari held that the amended Electoral Reforms Law passed by Parliament is
unconstitutional as being violative of a citizen’s right to know under Article 19(1)(a)
of the Constitution. In this case the petitioners for Democratic Reforms field a PIL
and requested the Court for a direction to implement the recommendation made by the
Law Commission in its 1 70th Report. On May 2, 2002 the Supreme Court delivered a
judgment and directed the Election Commission to issue a notification making it
compulsory for those who contest elections to make available information about their
education, assets, liabilities and criminal antecedents for the benefit of voters. The
Election Commission acted upon the order of the Court and issued the notification
making it compulsory to provide above information before filing their nominations
for contesting elections. Thereafter, Parliament amended the Electoral Law
(Representation Peoples Act) and negative the court’s judgment and Electoral
Reforms Law as being violative of a citizen’s right of information under Article 19(1)
(a) of the Constitution. Section 33 of the amended RPA provided ‘notwithstanding
anything contained in any judgment of any court or any order of the Election
Commission ‘no candidate shall be liable to disclose or furnish any such information,
160
AIR 2002 SC 2112
 85

in respect of his election, which is not required to be disclosed or furnished under this
Act or the rules made there under’. Thus, the amended RPA provided that only
candidates who are elected were required to give details of their assets and liabilities
to the concerned presiding officers of the Houses, and not the MPs who are not
elected.

Government has no monopoly on electronic media:

In a historic judgment in Secretary, Ministry of I & B v. Cricket Association

of Bengal (CAB)161, the Supreme Court has considerably widened the scope and
extent of the right to freedom of speech and expression and held that the Government
has no monopoly on electronic media and a citizen has under Article 19(1) (a) a right
to telecast and broadcast to the viewers/listeners through electronic media Television
and Radio any important event. The Government can impose restrictions on such right
only on grounds specified in Clause (2) of Article 19 and not on any other ground
State monopoly on electronic media is not mentioned in Clause (2) of Article 19. The
Court directed the Government to set up an independent autonomous broadcasting
authority which will free Doordarshan and Akashvani from the Shackles of
Government control and ensure conditions in which the freedom of speech and
expression can be meaningful and effectively enjoyed by one and all.

Part of freedom of speech and expression:

In a significant judgment in Tata Press Ltd. v. Mahanagar Telephone Nigam

Ltd.162, three Judges Bench (Kuldip Singh, B.L. Hansuria and S.B. Majumdar, J.J.)
has held that commercial speech (advertisement) is a part of the freedom of speech
and expression granted under Article 19(1) (a) of the constitution. It can only be
restricted on the grounds specified in clause (2) of Article 19, such as, in the interest
of the security of State, friendly relations with foreign states, public order, decency or
morality, or in relation to contempt of court’ defamation or incitement to an offence.
The Court however, made it clear that the commercial advertisements which are
deceptive, unfair, misleading and untruthful could be regulated by the government. In
this case the facts were as follows. The Mahanager Telephone Nigam is a government
company controlled by the Government of India. The Nigam is a licensee under the

161
(1995) 2 SCC 161
162
(1995) SCC 139
 86

Act and as such is required to establish, maintain and control the telecommunication
service within the territorial jurisdiction of the Union Territory of Delhi and the
Municipal Corporations of Bombay, New Bombay and Thane. Till 1987 Nigam used
to publish and distribute the telephone directory itself consisting of white pages only.
However, from 1987 the Nigam started to entrust the publication of its telephone
directory to outside contractors. The Nigam permitted such contractors to raise
revenue for themselves, by procuring advertisements and publishing the same as
“yellow pages” appended to the telephonic directory. Thus, the telephone directory
published and distributed by the Nigam consists of the “white pages” which contain
list of Telephone subscribers and also “yellow pages” consisting of advertisements
procured by the contractor to meet the expenses incurred by the contractor in
publication of the “Tata Press Yellow Pages”. The Nigam and the Union of India field
a civil suit before Civil Court at Bombay for a declaration that they alone have the
right to print’ publish the list of telephone subscribers and Tata Press Ltd. have no
right to print or publish ‘without its permission as it was violative of the Indian
Telegraph Act and they should therefore, be restrained by permanent injunction from
publishing the ‘yellow pages’. The City Civil Court dismissed the suit. But a Single
Judge of the Bombay High Court allowed the appeal. Tata’s Letters Patent Appeal
was dismissed by the Division Bench of the High Court. Tatas filed an appeal in the
Supreme Court. The Supreme Court held that the Union Government and the Nigam
have no right to restrain the appellant Tata Press Ltd. from publishing “Tata Yellow
Pages” comprising paid advertisements from businessmen traders and professionals
The Court said that the advertisement as a “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 is
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 the 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”.
 87

In Hamdard Dwakhana v. Union of India 163, Advertisement is undoubtedly a

form of speech. But every form of advertisement is not a form of speech or expression
of ideas. Advertisement when it takes the form of commercial advertisement no
longer falls within the concept of freedom of speech for the object of such
advertisement is not the proportion of ideas — social, political or economic or
furtherance of literature or human thought. An advertisement of commercial nature is
not protected under Article 19(l)(a). Such advertisements have an element of trade
and commerce.

Invasion on right to privacy:

In a judgment of far reaching importance in People’s Union for Civil Liberties

v. Union of India164 the petitioner, Peoples Union for Civil Liberties a voluntary
organization filed a petition under Article 32 of the Constitution by way of public
interest litigation highlighting the incidents of telephone tapping in recent years.
Telephone tapping also violates Article 19(1) (a) unless it comes within grounds of
restrictions under Article 19(2). The freedom means the right to express one’s
convictions and opinions freely by words of mouth, writing, painting, picture, or in
other manner. When a person is talking on telephone he is exercising his right to
freedom of speech and expression. Telephone tapping unless comes within the
grounds of restriction under Article 19(2) would violate Article 19(1)(a) of the
Constitution.

Calling for and holding “Bundh” illegal and unconstitutional being violative of
fundamental Rights of Citizens.

In a judgment of far reaching importance in Communist Party of India (M) v.

Bharat Kumar and others165, a three Judge bench of the Supreme Court, upholding the
Full Bench judgment of the Kerala High Court, held that calling for and holding of
‘Bundh’ by political party or organization is unconstitutional and is hence illegal as it
violates the fundamental right of the citizens guaranteed by Articles 19(1 )(a) and 21
of the Constitution in addition to causing national loss, In this case two citizens
belonging to Kerala Chambers of Commerce field a writ under Article 226 in the
High Court for a declaration that the calling for and holding of a Bundh by a political
163
AIR 1960 SC 554
164
AIR 1997 SC 568
165
AIR 1998 SC 184
 88

party to be unconstitutional and illegal activity as it deprives other citizens from

enjoying their fundamental rights. The petitioners contented that by holding a Bundh
citizens are prevented from attending their avocations and traders are prevented from
keeping their business activities and workers are prevented from attending to work in
the factories. The right of political parties to hold demonstration or to show protest
cannot extend to preventing citizens from exercising their fundamental rights of
attending to their business, their studies and their avocations. It was said that neither
the Stationer the police force take any step to prevent violence and coercion. So that
whenever a Bundh is called a citizen out of fear of his life and his property, is forced
to remain indoors. On the other citizen out of fear of his life and his property, is
forced to remain indoors. On the other hand, the Communist Party of Indian (M)
claimed that the right to call for a Bundh is the fundamental right of a political party
under Article 19(1) (a) and (b) of the Constitution.

Territorial extent of freedom:

There are no geographical limitation to freedom of speech and expression

guaranteed under Article 19(l) (a), and this freedom is exercisable not only in India
but outside and if State action sets up barriers to its citizens’ freedom of expression in
any country in the world, it would violate Article 19(1) (a) as much as if it inhibited
such expression within the country. In Maneka Gandhi v. Union of India 166, the Union
of India contended that the fundamental rights guaranteed by the constitution were
available only within the territory of India. How could the fundamental rights be
intended to be operative outside the territory of India when their exercise in the
foreign territory could not be protected by the State? The Supreme Court rejected
these contentions and held that the right to freedom of speech and expression has no
geographical limitations, Freedom of speech and expression carries with it the right to
gather information as also to speak and express oneself at home and abroad and to
exchange thoughts and ideas with others not only in India but also outside.

4.6.2: Freedom of the Press:

The fundamental right of the freedom of the press implicit in the right the
freedom of speech and expression is essential for political liberty and proper
functioning of democracy. The American Press Commission has said, “Freedom of
166
AIR 1978 SC 597
 89

the press is essential to political liberty. When man cannot freely convey their
thoughts to one another, no freedom is secured, where freedom of expression exists
the beginning of a free society and means for every retention of liberty are already
present. Free expression is therefore, unique among liberties (Brij Bhushan v. State of
Delhi)167. The Indian Press Commission has also expressed a similar view. It says that
“Democracy can thrive not only finder the vigilant eye of its Legislature, but also
under the care and guidance of public opinion and the press is par excellence, the
vehicle through which opinion can become articulate.” Unlike the American
Constitution, Article 19(1) (a) of the Indian Constitution does not expressly mention
the liberty of the press but it has been held that liberty of the press is included in the
freedom of speech and expression. The “press has no special rights which are not to
be given or which are not to be exercised by the citizen in his individual capacity. The
editors of a press for the manager are merely exercising the right of the expression,
and therefore, no special mention is necessary of the freedom of the press168.

` “The liberty of the press” as defined by Lord Mansfield, “consists in printing

without any license subject to the consequences of law.” Thus the liberty of the press
means liberty to print and publish what one pleases, without previous permission. The
freedom of the press is not confined to newspapers and periodicals. it includes also
pamphlets and circulars and every sort of publication which affords a vehicle of
information and opinion (Lowell v. Griffi; Sakal Papers Ltd. V. Union of India)169.

In Indian Express Newspapers v. Union of India 170, speaking about the utility
of freedom of press the court observed:

“The expression “freedom of the press” has not been used in Article 19 but it
is comprehended within Article 19 (1) (a). The expression means freedom from
interference from authority which would have the effect of interference with the
content and circulation of newspapers. There cannot be any interference with that
freedom in the name of public interest. The purpose of the press is to advance the
public interest by publishing I facts and opinions without which a democratic
electorate cannot make responsible judgments. Freedom of the press is the heart of

167
AIR 1950 SC 129
168
Dr.Ambedkar’s Speech in Constitutional Assembly Debate, (Vol.VII) at 980
169
AIR 1962 SC 305
170
(1985) 1 SCC 641
 90

social and political intercourse it is the primary duty of the courts to uphold the
freedom of the press and invalidate all laws or administrative actions which interfere
with it contrary to the constitutional mandate”171.

In Ajai Goswami v. Union of India172 a petition was filed to seek protection

from the Court to ensure that minors are not exposed to sexually exploitative
materials, whether or not the same is obscene or within the law. The real objective is
to restrain freedom of press or any censorship prior to the publication of article or
other materials. The Court held that in order to shield minors and children should not
forfeit that the same content cannot be offensive to the sensibilities of adult men and
women. Where art and obscenity are mixed, what must be seen is whether the artistic,
literary or social merit of the work in question outweighs its “obscene” content? The
test for judging a work should be that an ordinary man of common sense and
prudence and not an out of the ordinary or hypersensitive man. The blanket ban on
publication of obscene materials or article in order to shield juvenile innocence cannot
be imposed. No news item should be viewed in isolation. Publication must be judged
as a whole. Firlete imagination of anybody especially of minors should not be agitated
in Court of law. However, the Court suggested the Press Council to amend provisions
of Act.

Pre-Censorship invalid:

The imposition of censorship on a journal previous to its publication would

amount to an infringement of Article 19(1)(a). The question of validity of censorship
came up for consideration in the case of Brij Bhushan v. State of Delhi 173. In that case
the Chief’ Commissioner of Delhi, in pursuance of Section 7 of the East Punjab
Safety Act, 1949, issued an order against the printer, publisher, editor of an English
Weekly of Delhi, called the Organizer, directing them to I. submit for scrutiny in
duplicate before publication till further orders, all communal matters and news and
views, about Pakistan including photographs and cartoons other than those derived
from official sources or supplied by the news agencies. The Court struck down the
order, observing: “....... the imposition of pre-censorship of a journal is a restriction on
the liberty of the press which is an essential part of the freedom of the speech and

171
AIR 1997 SC 73
172
AIR 2007 SC 493
173
AIR 1950 SC 129
 91

expression declared by Article 19(1)(a).” Similarly, in Virendra v. State of Punjab,174

prohibiting newspaper from publication of its own views or the views of
correspondents about the burning topic of the day is a serious encroachment on the
valuable right of freedom of speech and expression.

In Express Newspapers v. Union of India175, the Supreme Court held that a law
which imposes pre-censorship or curtails the circulation or prevents newspapers from
being started or require the Government to seek Government aid in order to survive
was violative of Article 19(l)(a). In dim, this case, the validity of the Working
Journalists Act, 1955, was challenged. The Act was enacted to regulate conditions of
service of persons employed in newspaper industry, e.g. payment of gratuity, hours of
work, leave, fixation of wages etc. It was contended that the Act would adversely
affect financial position of newspaper which might be forced to close down and
would curtail circulation and thereby narrow the scope for dissemination of
information and hence violative of Article 19(1 )(a). The Court held the Act valid. It
said that press was not immune from laws of general application or ordinary forms of
taxation, or laws of industrial relations. The Act was passed to ameliorate the service
conditions of workmen in the newspaper industry and, therefore, impose reasonable
restriction on the right guaranteed by Article 19(1)(a).

In Romesh Thapper v. State of Madras, 176 a law banning entry and circulation
of journal in a State was held to be invalid. The petitioner was printer, publisher and
editor of a weekly journal in English called “Cross Road” printed and published in
Bombay The Government of Madras, in exercise of their powers under Section 9(1-
A) of the Maintenance of Public Order Act, 1949, issued an order prohibiting the
entry into or the circulation of the journal in that State. The Court said that there can
be, no doubt, that freedom of speech and expression includes freedom of propagation
of ideas, and that freedom is ensured by the freedom of circulation. Liberty of
circulation is an essential to that freedom as the liberty of publication. Indeed, without
circulation the publication would be of little value. Restrictions on freedom of speech
and expression can only be imposed on grounds mentioned in Article 19(2) of the
Constitution. A law which authorizes imposition of restrictions on grounds of ‘public

174
AIR 1957 SC 896
175
AIR 1958 SC 578
176
AIR 1950 SC 124
 92

safety’ or the ‘maintenance of public order’ falls outside the scope of authorized
restrictions under clause (2) and therefore void and unconstitutional177.

In Sakal Papers Ltd. v. Union of India, 178 the Daily Newspapers (Price and
Control) Order, 1960, which fixed a minimum price and number of pages which a
newspaper was entitled to publish was challenged as unconstitutional by the petitioner
on the ground that it infringed the liberty of the press. The petitioners were required to
increase the price of their newspaper without increasing the pages. An increase in
price without any increase in number of pages would reduce the volume of
circulation. On the other band, any decrease in the number of pages would reduce the
column, space for news, views or ideas, The order, therefore, acted as double-edged
knife. If cut circulation by a price rise or publication or dissemination of news, ideas
and knowledge by restricting column space consequent to decrease in the number of
pages. The State justified the law as a reasonable restriction on a business activity of a
newspaper in the interests of the general public. The Court struck down the order
rejecting the State’s argument. It said that the\ right of freedom of speech and
expression cannot be taken away with the object of placing restriction on the business
activity of a citizen. Freedom of speech can only be restricted on the grounds
mentioned in clause (2) of Article 19. It cannot, like the freedom to carry on business,
be curtailed in the interests of the general public.

In Bennet Colman and Co. v. Union of India 179 the validity of the Newsprint
Control Order which fixed the maximum number of pages (10 pages which a
newspaper could publish was challenged as violative of fundamental rights
guaranteed in Article 19 (1) (a) and Article 14 of the Constitution. The Government
defended the measure on the ground that it would help small newspapers to grow and
to prevent a monopolistic combination of big newspapers. The Court held that the
newsprint policy was not reasonable restriction within the ambit of Article 19(2). The
newsprint policy abridges petitioner’s right of the freedom of speech and expression.
The newspapers are not allowed their right of circulation. They are not allowed right
of pages growth. The common ownership units of newspapers cannot bring out
newspapers or new editions. The newspapers operating above 10 pages level (and
newspapers operating below 10 pages) have been treated equally for assessing the
177
AIR 1950 SC 124
178
AIR 1962 SC 305
179
AIR 1973 SC 106
 93

needs and requirements of newspapers which are not their equals. Once the quota is
fixed and direction to use the quota is in accordance with the newsprint policy made
applicable, the big newspapers are prevented any increase in page number. Both page
number and circulation are relevant for calculating the basic quota and allowances for
increase. In the garb of distribution of newsprint the Government has tended to
control the growth and circulation of newspapers. Freedom of the press is both
quantitative and qualitative. Freedom lies both in circulation and in content. The
newsprint policy which permits newspapers to increase circulation by reducing the
number of pages, page area and periodicity, prohibits them to increase the number of
pages, page area and periodicity by reducing circulation. These restrictions restrict the
newspapers in adjusting their page number and circulation.

The Government also sought to justify the reduction in the page level on the
ground that the big dailies devote high percentage of space to advertisements and
therefore, the cut in pages will not be felt by them if they adjusted their advertisement
space. The Court held that the fixation of page limit will not only deprive the
.petitioners of their economic viability but also restrict the freedom of expression by
compulsive reduction of page level entailing reduction of circulation and the area of
coverage for news and views. If as a result of reduction in pages the newspaper will
have to depend on advertisement as their main source of income they will be denied
dissemination of news and views. That will also deprive them of their freedom of
speech and expression. On the other hand, if as a result of restriction on page limits
the newspapers Wi1 have to sacrifice advertisements and thus weaken the link of
financial strength, the organization will crumble. The loss of advertisement may not
only entail the closing down but also effect the circulation and thereby infringe on
freedom of speech and expression. These features were rightly said by the petitioners
to be not newsprint control but newspapers control in the guise of equitable
distribution of newsprint.

Government cannot impose prior-restraint on publication of defamatory material

against its officials:

In a historic judgment in R. Rajagopal v. State of T.N. 180 the Supreme Court

has held that the Government has no authority in law to impose a prior-restraint upon

180
(1994) 6 SCC 632
 94

publication of defamatory material against its officials, Public authorities who

apprehend that they or their colleagues may be defamed could not prevent the Press
from publication of such material, could take action for damages after the publication
of such material if they prove that the publication was based on false facts. The Court
held that not action could be initiated against the press if the publication was based on
public records including court records.

Test for determining whether legislation infringes fundamental right:

The test in determining the question whether a legislation or executive action

infringes the fundamental right is to examine its ‘effect’ and not its object or subject
matter. In Bennet Coleman’s case the direct and inevitable effect of the rationing of
newsprint was to control newspapers. It was contended on behalf of the Government
of India that the subject- matter of the newsprint policy was to regulate and control
the newsprint and not to control newspapers. In other rewords, it was urged that the
test to be applied to ascertain whether a law violates Article 19(1)(a) is to look into
the subject matter of a law and not its effect on a particular right. The Supreme Court
rejected this contention and approved the “effect’ test viz., whether the “effect” of the
impugned law is to abridge a fundamental right. The Court held that if the direct
effect of the impugned law is to abridge a fundamental right, its object or subject-
matter will be irrelevant. In the instant case, the Court held that although the subject-
matter of the newsprint policy was different, its direct effect was newspaper control
and hence violative or Article 19(l)(a).

‘Although the freedom of the press is implicit in the freedom of speech’ it

does not stand on higher footing than the freedom of speech and expression of a
citizen. It is subject to some limitations as are imposed by Article 19(2) of the
Constitution. In Express Newspaper’s case181, the Supreme Court while upholding the
validity of the Working Journalists Act observed. “The press was not immune from
ordinary forms of taxation for the general support of the Government or from the
application of general laws relating to industrial relations or laws regulating the
payment of wages".

4.6.3: Demonstration or “Picketing” & Film Censorship:

181
AIR 1958 SC 578
 95

Demonstration or picketing is visible manifestation of one’s ideas and in effect a

form of speech and expression, violent and disorderly (Kameshwar Singh v. State of
Bihar182, O.K. Ghosh v. E.X Joseph) 183. It has been held that there is no fundamental
right to resort to strike. Right to strike is not included within the ambit of freedom of
speech (O.K. Ghosh v. E.X Joseph184, Radhey Shyam v. P.M.G Nagpur185).

Film Censorship valid:

In K.A. Abbas v. Union of India186 and Life Insurance Corporation of India v.

Mahnu Bhai D. Shah187 are the first cases in which the question whether prior
censorship of films is included in Article 19(2) came for the consideration of the
Supreme Court of India. The petitioner had challenged the validity of censorship as
violative of his fundamental right of freedom of speech and expression as according
to him it imposed unreasonable restriction. Under the Cinematograph Act, 982, films
are divided into two categories, i.e. ‘U’ films and ‘A’ films. ‘U’ films are meant for
unrestricted exhibition while ‘A’ films can be shown to adults only. The petitioner’s
film “Tale of Four Cities” was refused ‘U’ certificate. He also contended that there
were other forms of speech and expression besides the films and none of them were
subjected to any prior restraint in the form of pre-censorship and claimed equality of
treatment with such other forms. The Court, however, held that pre-censorship of
films was justified under Article 19(2) on the ground that films have to be so treated
separately from other forms of art and expression because a motion picture was able
to stir up emotions more deeply than any other product of art. Hence classification of
films between two categories, i.e. ‘A’ (for adults only) and ‘U’ (for all) was held to be
valid.

In Bobby Art International v. Om Pal Singh Hoon188 popularly known as

“Bandit Queen Case”. The respondent field a writ petition in the court for quashing
the certificate of exhibition given to the film “Bandit Queen” and restraining its
exhibition in India. The film “Bandit Queen”, is the story of a village child (Phoolan
Devi) exposed to from an early age to the brutality and lust of men. Phoolan Devi was
182
AIR 1962 SC 1166
183
AIR 1963 SC 812
184
Ibid
185
AIR 1965 SC 311
186
AIR 1971 SC 481
187
(1992) 3 SCC 637
188
(1996) 4 SCC 1
 96

married to a man old enough to be his father. She was beaten and raped by him. The
village boys made an advance which was repulsed by her but the village Panchayat
found her guilty of the enticement of a village boy because he was of high class and
she had to leave the village. She was arrested by the police and I subjected to
indignity and humiliation in the police station Those who stood bail for her did not to
satisfy their lust She was kidnapped by dacoits and raped by their leader, Babu Singh
Gujjar Another member of the gang, Vikram Mallah, shot Babu Gujjar dead while be
assaulting Phoolan Devi and she found an allay in her secure With his assistance she
took revenge from her husband. Her rescuer Vikram Mullah was shot dead by the
leader of a gang of Thakur who made advances to her and was spurned. He killed
Vikram Mallah and she was gang raped by him and his accomplices and humiliated
her in the sight to the village stripped naked and made to fetch water from the village
well under the gaze of the villagers but no one came to her rescue. To take revenge
from her prosecutors she joined a dacoit’s gang headed by Babu Mustkin and killed
twenty thakurs of the village of Bahmain. Ultimately, she surrendered and was in jail
foil a number of years.

“The story of the film is a serious and sad story of a village born female child
becoming a dreaded dacoit. The film levels dacoit. The film levels an accusing finger
at the members of society who compelled her to become a dreaded dacoit. The scene
where she is humiliated stripped, naked, paraded, made to draw water from the well
within the circle of hundreds men, the exposure of her breasts and genitals to those
men is intended by those who strip her to demean her to try. This does not arose the
cinema goes lust but to arouse in him sympathy for the victim and disgust for the
perpetrators. Nakedness does not always arouse the baser instinct. “Bandit Queen”
tells a powerful human story and to that story the scenes of Phoolan Devi’s enforced
naked parade is central. It helps to explain why Phoolan Devi became what she did,
her rape and vendetta against the society that had heaped indignities upon her, The
rape scene also helps to explain why Phoolan Devi become what she did. It shows
what a terrible and terrifying effect rape and lust can have upon the victim.

Right to Fly National Flag:

 97

In the Naveen Jindal case189 the Honorable Court has stated that a person can
fly the National Flag freely with the respect. The prohibition imposed by virtue of the
Flag infringement of the fundamental right guaranteed under Article 19(1) (a)
Constitution that gives all citizens, the right to freedom of speech and expression.

Right to express own views:

In the recent case famous film actress S. Khushboo has stated the comments
on ‘pre-marital sex’. On this comment of actress Khushboo there was 22 criminal
filed against her. This is not the end for politicians filing criminal complaints for
political mileage or for upholding the moral values of our society. The honorable
Supreme Court hold that the Khushboo having right to express her view as under
Article 19(1)(a) of Constitution of India and quashed the all criminal complaints
against her (S. Khushboo v. V.G. Kathikeyan)190.

Thus, by various judicial pronouncement of honorable Supreme Court and

High Court it is clearly effective that the freedom of speech and expression is not
confined only to express only ones view and feeling by way of speech, painting etc.
but it also include the freedom of press and media. The honorable Supreme Court in
various judgment has declare that Article 19(1) (a) of Constitution of India having a
very widely scope.

It is also interlink with Article 14 and 21 of Constitution of India (Maneka

Gandhi v. Union of India)191, The Supreme Court has stated the liberal interpretation
should be given to the right of freedom of speech and expression guaranteed by
Article 19(1)(a). Freedom of express is prepared right which is always very zealously
guarded-by the court.

189
AIR (2004) SC 1559
190
SLP (Crime) 7052/2008
191
AIR 1978 SC 597
 98

CHAPTER FIVE

COPYRIGHT AND ITS LEGISLATIONS AND JUDICIAL

OPINIONS

“I think art is the only thing that's spiritual in the world. And I refuse to force to
believe in other people's interpretations of God. I don't think anybody should be. No
one person can own the copyright to what God means.”

-Marilyn Manson.

“I think copyright is moral, proper. I think a creator has the right to control the
disposition of his or her works - I actually believe that the financial issue is less
important than the integrity of the work, the attribution, that kind of stuff.”

-Esther Dyson.

5.1: Copyright:

The Copyright Act, 1957 came into effect from January 1958. This Act has been
amended five times since then, i.e., in 1983, 1984, 1992, 1994, 1999 and 2012. The
Copyright (Amendment) Act, 2012 is the most substantial. The main reasons for
amendments to the Copyright Act, 1957 include to bring the Act in conformity with
WCT and WPPT; to protect the Music and Film Industry and address its concerns; to
address the concerns of the physically disabled and to protect the interests of the
author of any work; Incidental changes; to remove operational facilities; and
enforcement of rights. Some of the important amendments to the Copyright Act in
2012 are extension of copyright protection in the digital environment such as penalties
for circumvention of technological protection measures and rights management
information, and liability of internet service provider and introduction of statutory
licences for cover versions and broadcasting organizations; ensuring right to receive
royalties for authors, and music composers, exclusive economic and moral rights to
 99

performers, equal membership rights in copyright societies for authors and other right
owners and exception of copyrights for physically disabled to access any works.

5.2: Copyright Office:

Section 9 of the Copyright Act requires for establishment of an office to be called

the Copyright Office for the purpose of the Act. The Copyright Office is to be under
the immediate control of a Registrar of Copyrights to be appointed by the Central
Government, who would act under the superintendence and directions of the Central
Government. The Copyright Office is currently located at the following address:

4th Floor, Jeevan Deep Building

Parliament Street

New Delhi - 110001

Telephone No.: +91-11-23362436

5.3: Work in which Copyright subsists:

According to Section 13, Copyright Act, 1957, copyright subsists in the following
works:

1) Original, literary, dramatic, musical and artistic work,192

2) Cinematograph film,193
3) Sound recording.194

5.4: Conditions for subsistence of Copyright:

The conditions necessary for the subsistence of copyright are:195

192
A report of selected passages from a non-copyright work may be an original literary work
1932.
Sec.2(f), Copyright Act, 1957
194
Substituted for ‘record’ by S.2, Copyright (Amendment) Act, 1994, w.e.f. 10-5-1995
195
S.13, Copyright Act, 1957
 100

1) Where the work is published,196 the work must be 1st published in India, or
where it is 1st published outside Indian, the author must be a citizen of India at the
data of publication, or in a case where the author was dead at the date of publication,
he was a citizen of India at the time of his death (Polyester Ltd. v. Telelink)197.
2) Where the work is unpublished, the author must be a citizen of India or
domiciled in India at the date of making of the work. This does not apply to works of
architecture.

If the work is one of joint authorship, the conditions above must be satisfied by each
of the author of the work. These conditions do not apply to foreign works or works of
international organisations.198

Copyright does not subsist in reproductions. It subsists only in original work and
not in an idea, subject-matter, theme, information, news, plots, and stock characters,
historical or legendary facts. The Supreme Court held in Eastern Book Co. v. D.B.
Modak199, “The copyright act is not concerned with the original idea but with the
expression of thought. Copyright has nothing to do with originality or literary merit.
Copyright material is that what is created by the author by his own skill, labour and
investment of capital, maybe it is a derivative work which gives a flavour of
creativity. The copyright work which comes into being should or arrangement of pre-
existing data containing in the work, a work somewhat different in character is
produced by the author.”200

In cases like, R.G.Anad v. Delux Films 201, Barbara Taylor Bradford v. Sahara
Media Entertainment Ltd.202, Zee Telefilms Ltd. v. Sundial Communications (P)
Ltd.203, violation of copyright is confined to the form, manner, arrangement and
expression of the idea by the author. There is no copyright in news or information
itself nor is there any copyright in an event which has actually taken place (Indian
Express News Papers (Bombay) (P) Ltd. v. Jagmohan Mudhara).204 What is protected

196
S.3, Copyright Act, 1957
197
AIR 1989 Bom 331
198
S.40, Copyright Act,1957
199
AIR 2008 SC 809
200
(1987) 2 SCC 112
201
AIR 1978 SC 1613
202
AIR (2004) 28 PTC 474 (Cal)
203
AIR (2003) 5 Bom CR 404 (DB)
204
AIR 1985 Bom 229
 101

is not the original thought but the expression of the thought in a concrete form. Since
there can be no copyright in ideas or information, it is not infringement of copyright
to adopt the ideas of another or to publish information derived from another provided
there is no copyright of the language in which those ideas have, or that information
has been previously embodied (Florence A. Deeks v. H.G. Wells 205, Eastern Book Co.
v. D.B. Modak206, Academy of General Education v. B. Malini Mallya 207). Copyright
may subsist in an abridgment. To abridge in the legal sense is to preserve the
subsistence and the essence of the work in language suited to such purpose but in
language substantially different from that of the original. An abridgment requires the
exercise of mind and labour, skill and judgement (MacMillan & Co. Ltd. v. K. and J.
Cooper).208

5.5: Ownership of Copyright:

It is necessary to identify the owner of a copyright in order to know who has the
right to license use of the copyright, whose rights are to be protected and who has the
power to take action for infringement. The author of a work is the 1st owner of the
copyright.209 There are, however, exceptions, as for instance, when the author is an
employee and authors a literary, dramatic or artistic work in the course of his
employment. In such cases, the proprietor of the newspaper, magazine or periodical,
with whom the author has a contract of service or apprenticeship, will be the owner.
In the case of journalists, authors of literary and dramatic works or artistic, those who
are employed by the proprietor of a newspaper, magazine or periodical under a
contract of service or apprenticeship, it is the proprietor of the newspaper, magazine
or periodical, as the case may be, who is the 1 st owner of the copyright, insofar as the
publication of the work is concerned and its reproduction for the purpose of
publication. In all other respects, however, the author is the 1 st owner of the copyright
(Khemraj Shrikrishnadass v. Garg & Co.210, Grama Prasad v. Nabahash Goswami211,

205
AIR 1933 PC 26
206
AIR 2008 SC 809
207
AIR 2009 SC 1982
208
AIR 1924 PC 75
209
S.17, Copyright Act, 1957
210
AIR 1975 Del 130
211
AIR 1967 A&N 70
 102

Amir Raza Husain v. Cinevistaas Ltd. 212) “Author” in relation to literary or dramatic
work is the author of the work; in relation to musical work;213 it is composer;214 in the
case of artistic wok other than a photograph, the artistic; in relation to a photograph,
the person who takes the photograph; in relation to a cinematograph film r a sound
recording, the producer; in relation to computer generated work whether literary,
dramatic, musical or artistic, the person who causes the work to be created. For
example in cases like Donoghue v. Allied Newspapers Ltd.215, Najma Heptulla v. Co.
Ltd. v. Golf Agency216, Black (A and C) Ltd. v. Claude Stacey Ltd.217, the author is the
person who actually writes, complies, composes or draws the work in question,
although the idea of the work may have been suggested by another. 218 In the case of
judgements of the Supreme Court, the government is the 1 st owner of the copyright
therein as judgements are “government work” under Section 2(k) in Eastern Book Co.
v. D.B. Modak.219 Copyright also subsists in a work of joint authorship. A work of
joint ownership is a work produced by the collaboration of two or more authors in
which the contributed of one author is not distinct from the contribution of the other
author or authors.220

In Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures

Assn.,221 it was held that once the author of the a lyric or a musical work parts with a
portion of his copyright by authorising a film producer to make a cinematograph film
in respect of his work and thereby to have his work incorporated or recorded on the
sound track of a cinematograph film, the letter acquires by virtue of Section 14(1(c)
on Completion of the film, a copyright which gives him the exclusive right of
performing the work in public including having the acoustic portion comprising of a
lyric work to be heard in public without any further permission from the composer.
Such an act would not amount to infringement of the composer’s rights. The
composer cannot restrain the owner of the film from causing the acoustic portion of
film being heard in public. The composer, however, does retrain the right to perform
212
AIR (2003) 3 Bom CR 827
213
S.2(p), Copyright Act, 1957
214
S.2(ffa), Copyright Act, 1957
215
(1937) 3 All ER 503
216
AIR (1907) 23 TLR 370
217
AIR (1929) 1 Ch 177
218
Halsbury’s Laws of England, (Vol.9 4th edn.), at.548
219
AIR 2008 SC 809
220
S.2(z), Copyright Act, 1957
221
AIR 1977 SC 1443
 103

his work in public for profit otherwise than as part of the cinematograph film. By an
amendment to the Copyright Act in 2012, voice the Copyright (amendment) Act,
2012, the legislature sought to remedy the perceived unfairness to composers by
introducing a proviso to Section 17 that has the effect of retaining the position of a
composer as the 1st owner of the copyright. Amendments made to Section 19 indicate
that even an assignment of copyright by an author in favour of the producer of film
does not affect the right of the author to claim an equal share of royalties.

In State of A.P. v. Nagoti Venkatarammana 222, South Indian Film Chamber of

Commerce v. Entertaining Enterprises223, a person publishing a video film is required
to display the name and address of the person who has made the video film and a
declaration that he obtained the necessary license or consent from the owner of the
copyright.224

Ownership of copyright may also arise through assignment. The 1 st or any

subsequent owner of the copyright may assign his copyright to another person, in
which case, the copyright vests in the assignee. The assignment may be whole or
partial, general or subject to limitations, for the full term of the copyright or for any
part of it. The author of literary or musical work incorporated into a cinematograph
film cannot assign or waive the right to receive royalties to be shared on an equal
basis with the assignee. Any agreement to the contrary shall be void. No assignment
of copyright in any work to make a cinematograph film or any work to make a sound
recording which is not part of a cinematograph film shall affect the right of the author
to claim an equal share of royalties (Khemraj Shrikrisnadass v. Garg & Co.)225 and
consideration payable (Deshmukh & Co. (Publishers (P) Ltd. V. Avinash Visnu
Khandekar226) for any utilisation of work in any form.227 The assignment takes effect
only after the copyright comes into existence.228 For an assignment to be valid, it must
be in writing signed by the assignor or his duly authorised agent. It must identify the
work, the rights assigned, the duration and territorial extent of the assignment, the
royalty payable etc. The assignment of copyright in any work contrary to the terms

222
(1996) 6 SCC 409
223
(1995) 2 SCC 462
224
S.52-A, Copyright Act, 1957
225
AIR 1975 Del 130
226
AIR (2005) 3 All MR 33;
227
S.18(1) Copyright Act, 1957
228
S.18(1), Copyright Act, 1957; amended by the Copyright (Amendment) Act, 2012, S.17 & S.19
 104

and conditions of the rights already assigned to a copyright society in which the
author of the work is a member shall be void. 229 An existing and further right of a
music composer and lyricist in their respective works is capable of assignment,
subject to the conditions under Section1 18 and 19 (Indian Performing Right Society
Ltd. v. Eastern Indian Motion Pictures Assn. 230, Eurokids International (P) Ltd. v.
Indian Book Distributors Egmont Books Ltd.). 231 Where the assignee fails to exercise
the rights assigned to him within one year from the date of assignment, the
assignment is deemed to have lapsed.232 An assignment of copyright may be revoked
by the Copyright Board.233 The Copyright Board is also empowered to settle disputes
relating to assignment upon an application by the assignor (K.A.Venugopala Setty v.
Suryakanta U. Kamanth).234

In cases of transmission of copyright in a manuscript of a literary, dramatic or

musical work, or an artistic work by testamentary disposition which was unpublished
before the testator’s death, in the absence of a contrary intention by the testator, the
transmission would be construed to include the work in respect of which the testator
was the owner immediately before his death. 235 An author may relinquish his rights in
the copyright by notice to the Registrar of Copyrights by way of public notice.236

An owner retains certain special rights in his creative work even after he has
assigned the copyright in his work. These rights include the right to claim authorship
of the work and to restrain or claim damages in respect of any distortion, mutilation or
modification of the work carried out before the term of the copyright expires, in such
act prejudices his honour or reputation.237

5.6: Compulsory Licensing:

229
S.19(1) to (10), Copyright Act, 1957
230
AIR 1977 SC 1443
231
AIR (2005) 6 Bom CR 198
232
S.19(4), Copyright Act, 1957
233
S.19-A, Copyright Act, 1957
234
AIR 1992 Kant 1
235
S.20, Copyright Act, 1957
236
S.21, Copyright Act, 1957
237
S.57, Copyright Act, 1957
 105

The law of copyright involves the balancing of competing interests. While the
rights of copyright owners must be protected, it is also in the public interest that
creative work is not unreasonably withheld from the public domain. Under Section
30, the owner of a copyright in any existing work or the prospective owner of the
copyright in any future work may grant a licence in writing in respect of any interest
in the copyright. But where the owner of a copyright has refused to allow a public
performance of his work and the work is, thereby, withheld from the public, the
Copyright Board may, on a complaint by an aggrieved party, direct that the
complainant be granted a licence to republish the work, or perform the work in public,
or broadcast the work on payment of compensation to the copyright owner as
determined by the Board.238 Compulsory licences are an exception to the general
freedom of the copyright owner to contract (Entertainment Network (India) Ltd. v.
Super Cassette Industries Ltd.).239

In 1999, the Government of India invited tenders for the purpose of granting
licences for establishing private FM broadcasting service in 40cities across the
country. These organisations, which were granted licences by the Government,
approached one Photographic Performance Ltd. for grant of a copyright licence in
sound recording. The parties could not agree on a licence fee with the result that the
government licences field complaints under section31 of the act for grant of a
compulsory licence. From an order of the Copyright Board granting such a licence,
the copyright holder filed an appeal in the Bombay High Court on the ground, inter
alia, that the Board had no jurisdiction to entertain the complaint when the work in
question had not, in fact, been withheld from the public and that the licence fee was
unreasonably low. The court held that clause (b) of Section 31(1) was narrower than
clause (a) in that the former dealt specifically with broadcasting, while the latter dealt
with all modes of communication to the public other than by the broadcast. While in
the case of clause (a) of Section 31(1), it was necessary to establish that the work has
been withheld from the public, in the case of broadcasting, i.e. clause (b) of Section
31(1), it was not necessary to do so. It was enough under clause (b) to show that
copyright holder had unreasonably refused permission for broadcast. The court,
however, remanded the matter back to the Copyright Board for re-determination of

238
S.31, Copyright Act, 1957
239
(2008) 13 SCC 30
 106

the licence fee/compensation on relevant grounds (Phonographic Performance Ltd. v.

Music Broadcast (P) Ltd.).240

In the appeal before the Supreme Court (which also entertained appear from the
Delhi High Court arising from common issues), the short question was whether
unreasonable terms could be construed as implied refusal. The respondent pleaded
that it had already voluntarily granted licences to other parties and could not, by virtue
of Section 31(2), be direction to grant compulsory licences under Section 31(1)(b).
The Supreme Court, held allowing the Appeal that an offer made on unreasonable
terms may amount to a refusal on the part of the owner of the copyright as the parties
are in an unequal bargaining position. An unreasonable demand, if succumbed to
refusal to allow communication to the public. The amount of compensation must be
laid down by the Copyright Board taking into the facts and circumstances of each case
(Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd.).241

Section 31-A provides for the compulsory licensing of both published and
unpublished work where the author is no more or cannot be traced. Where a licence in
respect of such work is granted, the Copyright Board may direct a deposit of royalty
for the owner or his heirs as the case may be. Under Section 31-B, compulsory
licences may be granted for the benefit of the disabled. Section 31-C provides for
statutory licences for cover versions. Section 31-A provides for stator licences for
broadcasting of literary and musical works and sound recordings.

Rights of broadcasting Organisation and of Performers: The 1994 Amendment, to

the Copyright Act conferred specula rights on broadcasting organisation and on
performers. Broadcasting organisations enjoy a special “Broadcasting Reproduction
Right” in respect of its broadcasts which subsists for 25 years. 242 During this period,
any person who in the absence a licence of the owner re-broadcast. In Asia Industrial
Technologies Ltd. v. Ambience Space Seller Ltd. 243, the broadcast, causes the
broadcast to be heard or seen in public on the payment of charges, makes a sound or
visual sound recording of the broadcast, or makes any reproduction of such sound or
visual recording, or rents such sound or visual recording, infringes the broadcaster’s

240
(2004) 29 PTC 282 (Bom)
241
(2008) 13 SCC 30
242
Ss. 37(1) and (2), Copyright Act, 1957
243
AIR (1997) 5 LJ 685
 107

reproduction right.244 There would be no infringement, however, where the recording

is for the private use of the person making the recording or is for bona fide teaching or
research.245 Similarly, use of excerpts of a broadcast in the reporting of current events,
for bona fide review, teaching or research also would not amount to infringement.246

A performer is conferred with a special right in relation to his performance known

as the “Performer’s right”.247 This right subsists for a period of 50years. 248 Similar in
Khemraj Shrikrishadass v. Garg & co.,249 exceptions to infringement apply as in the
case of broadcast reproduction right.250 The Central Government is given the power to
apply chap. VIII to broadcasting organisations and performer in foreign countries.251
The Government has the power to extend copyright to foreign work.252

Registration of Copyright: it is not compulsory for a copyright owner to register

his copyright with the copyright office. There is no provision under the act which
deprives an author of his rights merely for no-registration of his copyright (Nav
Sahitya Prakash v. Anand Kumar).253 The registration of a work is neither compulsory
nor a condition precedent to sue for damages for infringement of copyright (Asian
Paints (I) Ltd. v. Jaikishan Paints & Allied Products). 254 The copyright exists whether
registration is done or not and the registration is merely a piece of evidence as to
when a certain author started claiming a copyright in a particular work (Glaxo
Operations UK Ltd. v. Samrat Pharmaceuticals).255

5.7: Term of copyright:

244
S.37(3), Copyright Act, 1957;
245
S.39(a), Copyright Act, 1957
246
S.39(b), S.52 read with S.39(c), Copyright Act, 1957
247
S.38(1), Copyright Act, 1957
248
S.38(2), Copyright Act, 1957
249
AIR 1975 Del 130
250
S.39, Copyright Act, 1957,
251
S. 40-A, Copyright Act 1957
252
S.40, Copyright Act
253
AIR 1981 All 200
254
AIR (2002) 6 Bom. CR 1
255
AIR (1984) Del 265
 108

The determination of the term of a copyright, i.e., the period during which rights
in the work in question subsists, involves the balancing of to commentating public
interest; the 1st is to ensure protection to the creator of the work for the longest
possible time. The 2nd is to bring the work into the public domain. Prior to the 1992
amendment to their copyright act, the term of the copyright in the case of literacy,
dramatic, musical or artistic work other than a photograph published within the
lifetime of the author lasted 50 years after the death of the author. Pursuing to the
enactment of the copyright (Amendment) Act, no.13 of 1992, it has been extended to
60 years.256 In the case of a work of joint authorship, the period of 60years would be
calculated from the death of the last serving author. In the case of post humours
works, which have not been published during the author’s lifetime, the term of
copyright is 60years from the 1st publication of the work.257 In case of anonymous or
pseudonymous work, the term of copyright is 60 years from the 1st publication of the
work.

5.8: Copyright societies:

The creation of illiteracy, artistic, dramatic or musical work requires dedicated

investment of creative and intellectual effort. Such investment can be facilitated only
when the individual engaged in such created work is spared the trouble of marketing
his work, managing monetary affairs and guarding against infringement of his work.
The copyright society is a legal entity which safeguards the interest of the owners of
the work in which copyright subsists. The author of a creative work is assured of
commercial management of his work by these societies before the copyright
(amendment) Act, 1994 came to affect, Section 33 to 36 of the Copyright Act dealt
with performing rights societies which were concerned only with the grant of licences
for performance in India for any work in which copyright subsists. These performance
right societies had a limited field of co-operation confined to the grant of licences.
The 1994 amendment provided for the establishment of copyright societies which are
authorised not only to issue licences in respect of a public performance of the work
but also in respect of all rights relating to any class or work in which a copyright

256
S.22, Copyright Act, 1957
257
Copyright Act, 1957
 109

subsists. Copyright societies grant licences of the copyright for reproduction,

performance or communication to republic, collect and distribute licence amongst
owners of the right, locate instances of infringement of copyright and institute action
against infringement a copyright society may also liaise with a foreign society
carrying out similar functions for administration of rights in a foreign country. Giving
the rampant piracy of Indian films and film music board, copyright societies could
play useful roles in taking action against infringement through co-operation with
foreign societies and organisations. The copyright (amendment) act, 2012 introduced
changes to the copyright act, requiring, inter alia, that licences in respect of literary,
dramatic, musical and artistic work in a cinematograph film or sound recording may
be carried out only through a registered copyright society. The amendment requires
that registration granted to a copyright society must be renewed every 5years and
further that societies already registered prior to the amendment would require re-
registration within 1year of the amendment. Authors and owners are sought to be
given equal representation in the administration of societies. The 2012 amendment
also introduced a provision under Section 33-A to provide for publication to tariff
schemes by copyright societies.

5.9: Indian Copyright Act Amendments give Music Artists Ownership

Rights:

The long-debated amendments, for which the late Robin Gibb had also
campaigned with the Indian government, give copyright ownership to artists replacing
the earlier work-for-hire system where film producers held that right.

In what is seen as a major victory for songwriters, composers and musicians

working in the Indian film industry, revised amendments to the Copyright Act now
give them better ownership control of their works. Considering India's film industry is
dominated by songs, the amendments – which aim at updating existing laws with
international and WIPO (World Intellectual Property Organization) norms - can have
bigger implications on how royalty rates are decided and shared in future.

5.10: The Copyright Act (Amendment) Bill 2012:

 110

In May, 2012, Parliament unanimously passed the Copyright Act (Amendment)

Bill, 2012 which make some welcome changes to the Copyright Act, 1957. The bill
received the President’s assent on 4-6-2012. The Copyright (Amendment) Act, 2012
was brought into force on 21-6-2012.

One of the amendments gives independent rights to authors of literary and musical
works in cinematograph films. New provisions have been introduced to ensure that
authors retain their right to receive royalties and the benefit enjoyed through copyright
societies. Provisions have been introduced to provide royalties to performers, authors
and composers in non-film music and sound recordings. Producers will no longer be
allowed to appropriate all the royalties to songs, lyrics or other works of art. Royalties
will now have to be shared with the artist who created them. An amendment to
Section 18 of the act provides that authors of literary or musical works featured in
movies shall “receive royalties to be shared on an equal basis” with others who have
copyright over the work (such as producers). It is unclear whether “equal basis”
means 50percent or whether it depends on the number of people with whom the
royalties are shared. The changes have been welcome by lyricists and composers of
Bollywood music who have long lobbied for rights to overcome the unclear
bargaining position they have been it. However, practical difficulties in sharing
royalties and in the structuring of commercial arrangements are foreseen.

The existing performer’s rights under Section 38 of the Act are enhanced by
introducing exclusive rights to performers to make it complete with the WIPO
Performers and Phonograms Treaty (WPPT). Protection for the moral rights of
performers is also proposed in conformity with the WPPT. The amendment makes it
possible for the legal representatives of an author to claim authorship on his behalf.
Further, the right against distortion is available even after the term of the copyright
has expired.

Section 38-A makes a “Performer’s Right” an exclusive right and transforms it

significantly from the status of a mere negative right to restrain 3 rd parties from
making use of the performance without the consent of the performer. Performers have
been given economic rights to claim royalties, as also moral rights under Section 38-B
identified as the performer and to prevent distortion or mutilation of the work.
 111

The amendment introduces tighter regulations on cover versions, including a

clause that rises the time period after which covers are legally allowed from years to
5years. These restrictions have been criticised as being excessive and ignoring present
day realities. Several popular numbers are covered countless times and the producers
and singers of those unlicensed versions could be jailed under the existing law.

The new Act removes copyright requirements for Braille or for other works of art
adapted for people with disabilities. This is a welcome and progressive change.

While the 1957 Act dealt with fair dealing rights only in relation to “literary,
dramatic, musical or artistic works”, the amendment covers all works (except
software). Now sound recordings and video are covered by fair dealing rights, which
will assist those making personal copies of songs and films, making of s\copies for
research and making of film clips for classrooms.

Under the amendment, compulsory licensing has been extended to foreign works
in addition to Indian works, thus enabling foreign works to be compulsory licensed
and made available to the public.

Another change is that the term of copyright for photographs has been extended
from 60years from publication to 60years from the dealt of the photograph.

The Amendment Act requires broadcasting organisations, desirous of

broadcasting or performing a literary or musical work, or sound recording which has
already been published, to do so by way of a statutory licence. The broadcasting
organisation will be required to give prior notice of its intention to broadcast the
work, the duration and territorial coverage thereof. Royalties are required to be paid to
the owner of the copyright in the works at the rate fixed by the Copyright Board.

The fair dealing exception has been extended to the reporting of current events and
the delivery of lectures in public. Some more new exceptions have been introduced
and these have set out earlier in the chapter. Some new provisions have also been
introduced to tackle piracy by introducing penalties for circumventing technological
measures applied to protect rights of copyright owners and by empowering the
Customs Commissioner to take action in respect of the import of infringement copies.
 112

The Copyright Act (Amendment) Bill 2012, which now awaits final Presidential
approval to become law - was passed in India's Lower House of Parliament and is
aimed at correcting an imbalance in the country's copyright law which was seen as
favouring film producers and record labels rather than the song creators.

Historically, Indian film producers have worked on a work-for-hire basis,

employing songwriters, composers and singers for a fixed fees, which denied them
revenues from other sources such as cover versions and especially ringtones, which
have become increasingly lucrative.

The revised bill now declares authors or song creators as owners of the copyright,
which cannot be assigned to the producers, replacing the earlier system. The
amendments also specify that it will now be mandatory for broadcasters – both radio
and TV – to pay a royalty to the owners of the copyright each time a work of art is
broadcast.

The amendment also specifies that a cover version of any literary, dramatic or
musical work can only be allowed after five years from the first recording of the
original creation.

The amendments had been supported by CISAC - the International Confederation

of Societies of Authors and Composers - whose president, the late Robin Gibb (co-
founder of super group the Bee Gees) had also appealed to the Indian government.

“Movie music in India is a big business and it’s unacceptable that the composers
and lyricists who make the music don’t benefit from the success of their works
because of an outdated system. Indian producers and record companies clearly don’t
want to share their royalties with creators, but the Indian Parliament needs to know
that this is not the norm elsewhere,” Gibb said in a 2010 statement. Gibb became
aware of the issue after he heard acclaimed Bollywood lyricist and screenwriter,
Javed Akhtar, speak at the World Copyright Summit. Akhtar, a member of India's
Upper House of Parliament, has been instrumental in lobbying for the amendments.
 113

India's Minister for Human Resources Development, Kabil Sibal, who supervised
the bill's amendments, said the new law will “most benefit those artists who were
reduced to poverty in their old age.”

“India's historic day in art and music... It's the beginning of big change in India. So
many great musicians, writers, composers will bless this era even from heaven,” said
a Twitter message from well-known Bollywood singer Kailash Kher.

“This Amendment is an extremely positive move and we are very supportive of

this bill. We are delighted that going forward the composers and lyricists will get a
share in royalties. This was long awaited and we believe this will help the overall
artist development and align us with global practices. We now need to wait for the
law to be signed by the President and then begin the process of interpreting and
implementing the new developments in a broad and consensual manner to develop
healthy new practices. The only thing that we are disappointed with is not much has
been done about the piracy issue that we all are struggling with and also the issue of
statutory license for broadcasters. This is a matter between two businesses and should
be negotiated between them,” Sony Music, president - India and Middle East,
Shridhar Subramaniam said in a statement.

“The amendments will benefit every creative person in India... who has hitherto
been deprived of his/her due so far. With this bill, the creators' rights are upheld and
respected and the amendments are a positive step in the right direction,” said a
statement from the Indian Broadcasting Foundation (IBF)258.

5.11: Infringement of Copyright:

Section 51, Copyright Act, 1957 lays down various acts, the doing of any of which
without a licence from the owner of the copyright or the statutory authority, or in
contravention of the terms of such a licence would constitute an “infringement of the
copyright” in a work. Section 52 enumerates various acts, the commission of which

258
Indian Copyright Act Amendments Give Music Artists Ownership Rights by Hollywood Reporter;
available at http://www.hollywoodreporter.com/news/indian-copyright-act-amendments-329624
(visited on June 14, 2014)
 114

would not constitute such infringement. These are in the nature of exceptions to the
exclusive rights conferred upon the right owner and also serve as defence in an action
for infringement. The remedies for infringement are laid down under Section 54 to 58
of the act.

On a combined reading of Section 51 and 52, the following acts amounts to acts of
infringement of copyright when committed by a person, not authorised by licence
from the owner or the competent authority under the Act:

1. If the defendant reproduced the work in any material form (otherwise than by
way of a ‘fair dealing’ for the purposes of private use, including research, criticism or
review, or for the purpose of reporting current events) in a newspaper, magazine or
similar periodical, or by broadcast, in a cinematograph film or by means of
photographs.
2. If the defendant makes a cinematograph film by reproducing or converting a
substantial portion of the plaintiff’s novel or drama.

In R.G. Anand v. Delux Films 259 Fazal Ali J laid down the following tests for
infringement:

1. There can be no copyright in an idea, subject-matter, themes, plots or

historical or legendary facts and violation of the copyright in such cases is confined to
the form, manner and arrangement and expression of the idea by the author of the
copyright work.
2. Where the same idea is being developed in a different manner, it is manifest
that source being common, similarities are bound to occur. In such a case, the courts
should determine whether or not the similarities are on fundamental or substantial
aspects of the mode of expression adopted in the copyright work. If the defendant’s
work is nothing but a literal imitation of the copyright work with some variations here
and there it would amount to violation of the copyright. In other words, in other to be
actionable the copy must be a substantial and material one which at once leads to the
conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been
a violation of copyright is to see if the reader, spectator or the viewer after having
259
AIR 1978 SC 1613
 115

read or seen both the works is clearly of the opinion and gets an unmistakable
impression that the subsequent work appears work appears to be a copy of the
original.
4. Where the theme is the same but is presented and treated differently so that the
subsequent work becomes a completely new work, no question of violation of
copyright arises.
5. Where however apart from the similarities appearing in the two works there
are also material and broad dissimilarities which negative the intention to copy the
original and the coincidences appearing in the two works are clearly incidental no
infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by
clear and cogent evidence after applying the various tests laid down by the case-law
discussed above.
7. Where, however, the question is of the violation of the copyright of stage
played by a film producer or a Director the task of the plaintiff becomes more difficult
to prove piracy. It is manifest that unlike a stage play a film has a much broader
prospective, wider field and a bigger background where the defendants can by
introducing a variety of incidents give a colour and complexion different from the
manner in which the copyrighted work has expressed the idea. Even so, if the viewer
after seeing the film gets a totality of impression that the film is by and large a copy of
the original play, violation of the copyright may be said to be proved (Zee Telefilms
Ltd. v. Sundial Communications (P) Ltd260, Star India (P) Ltd v. Leo Burnett (India)
(P) Ltd.)261.

Copinger, a leading international author on the subject, describes the necessary

ingredients of a case for infringement thus:

“In any case of infringement the plaintiff has to establish not only that the work in
respect of which the complaint is made in fact so nearly resembles his as to be capable
of being an infringement, but also that it has in fact been produced by the use of those
features of his works which by reason of the knowledge, skill and labour employed in
their production constitute an original copyright work... There is no infringement

260
AIR (2003) 5 Bom CR 404 (DB)
261
AIR (2003) 2 Bom CR 655
 116

unless it is established the plaintiff’s work and has been produced by a direct or
indirect use of those features of the plaintiff’s work in which copyright subsists.”

It is sufficient for the plaintiff to establish some chain of causation, linking the
plaintiff’s copyright work with the defendant’s infringing copy. The copying need not
be direct but may be indirect. It is necessary; however, to show that the defendant has
in making his copies appropriated the labours of the plaintiff. There would be no
infringement if another author- compiler produces a substantially similar result by
independent labour, without copying (Ladbroke (Football) Ltd. v. William Hill
(Football) Ltd.262, Comlin (P) Ltd. v. National Pencil Industrial263). That copying has
taken place is for the plaintiff to establish and prove as a matter of fact. The beginning
of the necessary proof normally lies in the establishment of similarity combined with
proof of access to the plaintiff’s production (L.B. (Plastic) Ltd. v. Swish Products
Ltd.).264

Since there is no copyright in an idea, a person cannot be held liable for

infringement, if he has used only the essential idea of the work even if the idea is
highly original, if he gives expression to the idea in his own way (Cherian P. Joseph
v. K. Prabhakaran Ltd.).265

In Weatherby & Sons v. International Horse agency and Exchange Ltd. 266 And
Performing Rights Society Ltd. v. Hawthorns Hotel ( Bournemouth) Ltd. 267,
Copyright is a proprietary right and according its infringement is actionable without
proof of damage or likelihood of damage. Once infringement is established, there is
no need to consider whether the defendant’s work is likely to compete with the
plaintiff’s work.

What amounts to a copy is a question of facts (King Features Syndicate Inc. v. O.

and M. Kleeman Ltd )268 and when the copy is not exact, the court must determine the
degree of resemblance.269 In order to constitute a copy, in Hansfstaengl v. Bains &
262
(1964) 1 All ER 465 HL
263
AIR 1986 Del 444
264
AIR 1967 Ker 234
265
AIR 1979 RPC 551 (HL)
266
AIR(1910) 2 Ch 297, 304-05
267
(1933) All ER Rep 268
268
AIR(1941) 2 All ER 403 (HL)
269
Ibid
 117

CO.270, Cunniah & Co. V. Bairaj & Co.271, K.R. Venugopala Sarma v. Sangu
Ganesan272, Pidilite Industries Ltd. v. S.M. Associates (P) Ltd. 273, there must be such a
degree of similarly as would lead one to say that alleged infringement is a copy
reproduction of the original, having adopted its essential features and substance.

Since reproduction has been interpreted to mean “making a copy” (Ladbroke

(Footbal) Ltd. v. William Hill (Footbal) Ltd.),274 it would follow that unless the
defendant has work is a colourable imitation, such as a parody, would not make it an
infringement. If the imitation or parody is the defendant’s own version of the
plaintiff’s idea which the defendant has achieved by his own labour and subjected the
idea to such revision and alteration as to produce an original result, it would itself be
entitled to copyright protection (Joy Music Ltd. v. Sunday Pictorial Newspaper
Ltd.).275

Exhibiting video films through rent or sale requires the mandated particulars under
Section 52-A of the Copyright Act. In State of A.P. v. Nagoti Venkataraman 276, South
Indian Film Chamber of Commerce v. Entertaining Entertainment277, to follow those
requirements would amount to infringement of copyright.

5.12: Exceptions and Defences to an action for infringement:

In Katar Singh Giani v. Ladha Singh 278, Blackwood and Sons Ltd. v. A.N.
Parasuraman279, Section 52, Copyright Act, 1957 lays down various acts which do not
amount to infringement. These constitute statutory defences to an action for
infringement and are broadly summarised below:

1. Fair dealing with any work280 reproduced for the purpose of

270
AIR1895 AC 20
271
AIR 1961 Mad 111
272
(1972) Cr LJ 1098 (Mad)
273
AIR (2003) 5 Bom CR 295
274
AIR (1964) 1 WLR 273
275
(1960) 1 All ER 703
276
(1996) 6 SCC 409
277
(1995) 2 SCC 462
278
AIR 1934 Lah 777
279
AIR 1959 Mad 410
280
S.52(r)(a), Copyright Act 1957
 118

1) Private or personal use including research.281

2) Criticism or review.282
3) Reporting current events or current affairs, including the reporting of a lecture
delivered in public.283

The storing of any work in any electronic medium for the purposes mentioned in
this clause, including the incidental storage of any computer programme which is not
itself an infringement copy, does not constitute infringement. 284 In considering the
question of fairness, relevant factors include the extend of the quotation, the
proportion of the quotation to the comment, whether the work is unpublished and if
so, the extent to which the work has been circulated (Hubbard v. Vosper).285

Also relevant is whether the infringement copy is likely to enter into completion
with the original work, whether its motive is to make profit, leak out confidential
information and whether the criticism or comment is written in a manner that may
substitute the demand for the original work (Walter v. Steinkoff).286

2. Reproduction of any work for the purpose of judicial proceedings or reports of

judicial proceedings.287
3. The reproduction or publication of any work prepared by the Secretariat of a
legislature or where the legislature consists of two houses, by the Secretariat of either
house, exclusively for the use of members.288
4. The reproduction of any work in a certified copy made or supplied in
accordance with accordance.289
5. The reading or recitation in a public of extract of literary or dramatic work.290

281
S.52(1)(a)(i), Copyright Act 1957
282
S.52(1)(a)(ii), Copyright Act, 1957
283
S.52(1)(a)(iii), Copyright Act, 1957
284
S.52(1)(a) Explanation, Copyright Act, 1957
285
(1972) 1 All ER 1023 (CA)
286
AIR (1892) 3 Ch 489
287
S.52(1)(d), Copyright Act 1957
288
Ibid, S.52(1)(c)
289
Ibid, S.52(1)(f)
290
Ibid, S.52(1)(g)
 119

6. The reproduction of any work by a teacher or a pupil in the course of

instruction (Academy of General education v. B. Malini Mallya) 291 or as part of
questions to be answered in an examination or in answers to such questions.292
7. The Publication in a collection, of mainly non-copyright matter, bona fide
intended for instructional use and so described in the title and any advertisement, of
short passage from published literary or dramatic works.293

The following new exceptions have been added to Section 52 vide the Copyright
(Amendment) Act, 2012:

1. The transient and incidental storage of work or performances purely in the

technical process of electronic transmission or communication to the public.
2. The Transient and incidental storage of a work or performance for the purpose
of providing electronic links, access or integration where such links, access or
integration has not been expressly prohibited by the right holder, unless the person
responsible has reasonable grounds to believe that such storage is of an infringing
copy.
3. The storage of a work in any medium by electronic means by a non-
commercial public library, for preservation of the library, for preservation if the
library already posses a non-digital copy of the work.
4. The making of a three-dimensional object from a two-dimension artistic work,
such as a technical drawing for the purpose of industrial application.
5. The adaption, reproduction, issue of copies or communication to the public of
any work in a format, including sign language, specially designed for the use of the
persons suffering from a visual, aural or other disability.
6. The importance of copies of any literary or artistic work such as labels,
company logos or promotional or explanatory material that is purely incidental to
other goods or products imported lawfully.

In addition to the statutory defences set out in the preceding paragraphs, further
defences may be available to a defendant in an action for infringement on these
grounds:

291
AIR 2009 SC 1982
292
S.52(1)(i), Copyright Act, 1957
293
S.52(1)(h), Copyright Act, 1957
 120

1. That no copyright subsists in the work claimed to be original.

2. That the work is not original.
3. That the defendant’s work is independent and is not copied from the plaintiff’s
work.
4. That there is consent or acquiescence by the plaintiff to the use of its work by
the defendant. The grant of a licence under Section30, Copyright Act, 1957 would be
a complete defence to an action for infringement.
5. Where the infringement is infringement in innocent, the plaintiff is not entitled
to damages except a decree for profits made by the defendant on the sale of
infringement.294

The following are, however, not defences to an action for infringement:

1. Innocence of the defendant: The law of copyright is statutory. An infringement

is in the nature of an invasion of a right to property in the plaintiff’s work, and the
defendant becomes liable as soon as the statutory requirements of infringement are
established, irrespective of the intention of the defendant (Blackstone and sons Ltd. v.
A. N. Parasuraman295 and Mansell v. Valley Printing Co.)296 The innocent of the
defendant is, thus, no defence to an action for infringement (Performing Right Society
Ltd. v. Urban District Council of Bray).297
2. Likewise, the absence of knowledge of the defendant as to subsistence of
copyright in the work is also not a defence. In an action for infringement, the plea of
honest and concurrent user is not a valid defence (Power Control Appliances v.
Sumeet Machines (P) Ltd.).298
3. Any custom or usage sanctioning the infringement, for instance, the practice
of one newspaper copying from other newspaper (Blackstone and Sons v. A.N.
Parasuram299 and Walter v. Stenkoff)300

294
S.55(1) proviso and S.58 proviso, Copyright Act, 2012
295
AIR 1959 Mad 410
296
AIR (1908) 2 Ch 441 (CA)
297
AIR 1930 PC 314, S.55(1), Copyright Act, 1957
298
AIR (1994) 2 SCC 448
299
, AIR 1959 Mad 410,
300
AIR (1892) 3 Ch 489
 121

5.13: Title:

Titles are titles of books, journals, newspapers, plays and films entitled to
copyright protection? Titles do not usually qualify as “literary work” because they are
not sufficiently substantial, consists only of a few common words and are lacking in
the requisite degree of originality to qualify for copyright (Dciks v. Yates).301

In Francis Day & Hunter Ltd. v. Twentieth Century Fox Corpn. Ltd, 302 it was held
that, in general, a title is not by itself a proper subject matter of copyright. As a rule, a
tile does not involve literary composition and is not sufficiently substantial to justify a
claim to protection. But in particular cases, a tile may be on a scale extensive enough
and of so important a character so as to be protected. Where the theme of a film is
different from that of a song whose tile has been adopted for the film, there is not
ground in copyright law to justify prevention of the use of the title of a song in so
different a connection as a film. The two things are so different and incapable of
comparison in any reasonable sense to sustain an action for passing off.

In two Australian cases, injunctions were granted against a production of one play
under the same name as another. In Broad Hurst v. Nicholas, 303 the court of new South
Wales granted to the producers of a comedy, titled “The Wrong Mr. Wright”, an
injunction against a different play titled “The Wrong Mrs Wright”. Likewise, in
Meynell v. Pearce,304 the producer of a play titled “The Fatal Wedding”, were granted
an injunction against another play advertised as “The Fatal wedding Day”, with
“Day” appearing inconspicuously.

In Raleiegh v. Kinematograph Trading Co., 305 the authors and owners of the
copyright in a play called “Sealed orders” brought an action against the defendants to
restrain them from using and advertising a picture film play under that title.

The title of a film can be entitled to protection under the law of copyright, if it is
distinctive. In Twentieth Century Fox Film Corpn. v. Gala Film Distributors Ltd., 306

301
AIR (1881) 18 CH D 76 (CA)
302
(1939) 4 All ER 464
303
(1903) 3 SR (NSW) 147
304
(1906) VLR 447
305
(1914) 31 RPC 143
306
(1957) 39 RPC 105
 122

the producer of a film based on the play “Anastasia” objected to the production of a
film by the defendants with the title including the name “Anastasia”.

In Houghton v. Film Booking Offices Ltd., 307 the plaintiffs failed to establish of
sufficient reputation in the name “A Younger Generation” to restrain a film appearing
under the same name. It was found that 3 unrelated films, with the very same title, had
been shown over the years without evidence or any conclusion and that the title had
also been used for other works.

In O’Gorman v. Paramount Film Service Ltd., 308 it was held that the public was
unlikely to think that “Irish and Proud of It” was a film version of a musical play by
the same name which had been produced 13 years before.

In Francis Day and Hunter Ltd. v. Twentieth Century Fox Corpn. Ltd. 309 the privy
council held that there was no passing of in naming a film “The Man who Broke the
Bank at Montecarlo,” since the song and film were much too different to be
compared.

In Emap national Publications Ltd. v. Security Publications Ltd.Magazines Ltd. v.

MGN Ltd.310 the cover of a magazine or newspaper could be protected by copyright in
the “artistic work”. The University of Oxford obtained an injunction preventing
Pergamon Press from Publishing the Pergamon Oxford dictionary of perfect spelling
(Oxford University v. Pergamon Press Ltd.). 311 In practice, it is not east to obtain an
injunction in respect of even the same title, unless it is shown that it would create a
sufficient risk of confusion or amount to representation. It is difficult to establish an
effective monopoly in ordinary English words and even very minor differences may
be enough to prevent the injunction (Baylis & Co. (the Maidenhead Advertiser) v.
Derlenko).312

In Bravado Merchandising Services Ltd. v. Mainstream Publishing (Edinburgh

Ltd.),313 the defendants published a book called “Sweet Little Mystery- Wet Wet Wet-
307
(1931) 48 RPC 329
308
(1937) 2 All ER 113
309
AIR (1940) AC 112
310
(1997) FSR 891
311
(1977) 121 SOL JO 758 (CA)
312
(1974) FSR 284
313
(1996) FSR 205
 123

The inside Story”. The band, which had a registered trademark in respect of its name
were unsuccessful in preventing the publishers using the protected name in the title of
a book. The defendants established that they were using the mark to indicate the
contains of the book and not its origin.

In Cable news Network Lp, Lllp (Cnn) v. Cam News Network Ltd. 314 it was held
that the defendant who published a monthly magazine by the name, “Cam News
Network Today”, abbreviated to “CNN” had infringed the registered trademark of the
plaintiff who owned “CNN International” and was dishonestly trying to pass off as
the plaintiff. The defendant’s contention that the plaintiff could not be permitted to
assume monopoly over “CNN”, since all the three words constituting the name, i.e.,
“Cable”, “News”, and “Network”, are generic and descriptive words was rejected.
The plaintiff had no objection with the defendant using words such as “News”,
“Network” and “Today” as a part of its trade name but its only objection was with
respect to the use of the mark “CNN” on the cover of the magazine.

In Kanungo Media (P) Ltd. v. RGV Film Factory, 315 the plaintiff sought an
injunction agains the use by the by defendants of the titled “Nishabd” produced by
defendant no.1 on the ground that the plaintiff had already produced an award-
winning film under title “Nishabd”. The High Court held that the title by itself of the
literary work cannot be protected by Copyright Law. Thus copyright in respect of the
literary work would not encompass the exclusive right to use the title of any work. In
Warner Bros v. Entertainment INC v. Harinder Kohli, 316 the plaintiffs who owned the
registered trademark Harry Potter sought to be restraining the defendants from release
of their film Harry Putter- A Comedy of the Terrors. The defendant’s title was
registered in India with the Indian motion Pictures Producers Associations and the
film and television producers’ guild of India Ltd. the plaintiff’s case was based on the
phonetic and structural similarities between the two titles which according to them
indicate that the defendants were seeking to benefit from the popularity of the
plaintiff’s trademark. The injunction was refused on the ground that the assuming any
structure or phonetic similarity in the titles , the Harry Potter films were targeted at
and exclusive and elite audience that was capable of discerning the difference

314
(2008) 36 PTC 255 (Del)
315
(2007) 138 DLT 312
316
(2008) 38 PTC 185 (Del)
 124

between a film based on the Harry potter Series and a Punjabi Comedy film, the chief
protagonist of which was one Hariprasad Dhoonda. There was no question of any
confusion in the mind of the audience. Besides, the defendants had invested enormous
a sums of money and entered into several commercial agreements with third parties in
relation to the film. Delay and acquiescence also disentitled the plaintiffs to restrain
the release of the film.

In Biswaroop Roy Choudhary v. Karan Johar,317 the plaintiff sought to restrain the
defendant from using the title “Kabhi Alvida Naa Kehna” (KANK) in respect of
which the plaintiff held a registered trademark. Neither of the parties could claim to
have conceived or authored the title since they were part of the lyrics of a highly
popular song of an old film. Further, the defendant had completed production of the
film and was ready to release it for commercial exploitation while the plaintiff was
still a long way from completion. Delay in approaching the court was also a strong
factor which persuaded the court to refuse relief. The court viewed the suit as
malafied and held that if a title is not effectively exploited, the court could not assists
“The Squatter” in blackmailing or coercing another into settling the plaintiff’s claim
for money by initiating litigation.

5.14: Parodies and Burlesque:

The question has arisen as to whether a parody or burlesque can amount to an

infringement. Some measure of latitude may be granted to the making of parodies of
copyright works. For a parody to be effected it must cause the audience to conjure up
the original or the point of parody will be lost.

In Berlin v. E.C. Publications Inc., 318 it was observed that as a general proposition,
parody and satire are deserving of substantial freedom, both as entertainment and as
form of social and literary criticism. Parody or satire is a form of criticism and may,
therefore be entitled to the defence of fair dealing. In Schweppes Ltd. v. Wellingtons

317
(2006) 131 DLT 458
318
(1929) F 54
 125

Ltd.319 and Williamson Music Ltd. v. Pearson Partnership 320, 1987 FSR 97 The
resemblance is unavailable for the reason that parody must necessarily be based on
the original work. However, even here, the test is whether the parodist’s work
reproduces the original work or a substantial part of it. The fact, which the parodist
has attempted to parody or burlesque the original work, is not by itself a relevant
consideration. If the parody does not substantially copy from the original work, there
will be no infringement.321 The defence of fair dealing in a case of parody has been
held not to be available unless there has been a “sufficient acknowledgement”
involving the identification of the original work and its author.

In Glyn v. Weston Feature Film Co., 322 (Glyn), the plaintiff’s book Three Weeks
was an infamously sensuous novel about a man who had an affair in Switzerland with
a very aristocratic and sophisticated woman which lasted three weeks. It was alleged
that the copyright in this book was infringement by a film called pimple’s Three
Weeks (without the option). The film was roughly based on the book but most of it
depicted incidents which did not figure in the book. Those incidents which were based
on the book were heavily parodied. For instance, the aristocratic lady was shown as a
common vulgar scold and her meeting place with her lover was not a snobbish
Lucerne hotel but a cheap coffee house. It was held that the plaintiff’s copyright had
not been infringement. It was doubted whether the plaintiff could claim any copyright
at all in what was found to be a work of immoral tendency (Carlton v. Martimer 323,
Francis Day & Hunter v. Feldman & Co.324, Williamsons Music Ltd. v. Pearson
Partnership325, Twentieth Century Fox Film Corpn. v. Gala Films Distributors Ltd. 326,
Schweppes Ltd. v. Wellingstons Ltd.327).

In Francis, Day & Hunter v. Feldman & Co., 328 the question was whether the
defendant’s “reply” song called “You didn’t want to do it- But you did” which
parodied the popular the popular song by McCarthy, “You made me love you (Don’t
319
(1984) FSR 210
320
1987 FSR 97
321
AIR (1916) 1 Ch 261
322
AIR (1916) 1 Ch 261
323
AIR (1917-23) Mac GCC 194
324
AIR (1914) 2 Ch 728 (CA)
325
AIR 1987 FSR 97
326
AIR 1957 RPC 105
327
AIR 1984 FSR 210
328
AIR (1914) 2 Ch 728 (CA)
 126

want to do it) amounted to an infringement of the latter. The similar between the two
songs was alleged to have been obvious from the choruses of the two songs. The trial
court’s ruling that defendant’s songs was a colourable imitation of the original was
rejected by the court of appeal.

In Joy Music Ltd. v. Sunday Pictorial Newspapers Ltd., 329 the plaintiffs were
aggrieved by alleged infringement of their copyright in their highly successful rock
‘n’ roll song. They claimed that in their genre of music, rhythmic effect was of the
essence and that according to them had been copied by the defendants. The
defendant’s parody was part of a newspaper article which attracted critics of Prince
Philip. The music was not reproduced in the parody. It was held that the purpose and
intention of the defendant’s version must be taken into account and that the same was
sufficiently original not to amount to an infringement.

In Williamson Music Ltd. v. Pearson Partnership 330 (Williamson), the plaintiffs

were the owners of the copyright in a musical “South Pacific”, in which the song
“There is nothing like a dame” was featured. The defendants who wished to advertise
their coach service with facilities similar to those found in an aircraft, including the
services of a female attendant (represented by “Elaine”) used a song which they
claimed was a parody of the plaintiff’s song. On a motion for an interlocutory
injunction, it was held that there was an arguable case of infringement of the
copyright, not in the words, but in the music.

In AGL Sydney Ltd. v. Shortland Country Council, 331 the plaintiffs were the
owners of a copyright in a television advertisement which promoted the use of gaps.
The persons who featured in the advertisement were a young couple and a builder.
The wife was vivacious and excited, the husband quieter but participating in the
discussion about the new home. She was dressed casually in a shirt and trousers while
he was dressed in his office attire. The builder was a crummy old character carrying
with him, his plans and a note book. The defendants brought out a reply advertisement
had all the elements of the elements of the earlier advertisement with the exception
that the builder was persuaded by the couple to the merits of electricity as opposed to
gas. On top of the other similarities, the defendant had gone to the extent of securing
329
AIR (1960) 2 QB 60
330
AIR 1987 FSR 97
331
(1989) 17 IPR 99 (Aust)
 127

the services of the very same actor to play the part of the builder. The defence that
extent needed to conjure up the original, were rejected by holding that the
advertisement reproduced a substantial part of the original.

In Glyn,332 younger J observed, it certainly is remarkable that no case can be found

in the books in which a burlesque even of a play has been treated as an infringement
of copyright, although burlesque, frequently more distinguished than the thing
burlesqued, is as old as Aristophanes... further, the test to consider the infringement
was whether in the work complained of, the marker had bestowed such mental labour
upon what he had taken from the burlesqued work and subjected it to such revision
and alteration so as to produce an original result.

5.15: Musical Works:

In Austin v. Columbia Gramophone Co. Ltd., 333 it was held, “Infringement of

copyright in music is not a question of note a question of note for note comparison,
but of whether the substance of the original copyright work is taken or not. It falls to
be determined by the ear as well as the eye (William Music Ltd. v. Pearson
Partnership).334

In matters of piracy of musical tracks, the judgement of the Bombay High Court in
Ram Sampath v. Rajesh Roshan335 is instructive. The plaintiff filed a suit seeking an
injunction restraining release of the film “Krazzy 4” containing the sound track with
the song “Krazzy 4”, “break free” and remixes of these songs. The plaintiff alleged
that these tracks contained copies of the plaintiff’s musical work, “The thump”.
Borrowing from Copinger and Skone James, the High Court held the test for
infringement of copyright in a musical work.

5.16: Aggregation:
332
AIR (1916) 1 Ch 261
333
(1971-23) MCC 398
334
(1987) FSR 97
335
AIR (2009) 2 Mah LJ 167
 128

News aggregation is a practice under which a website collects news from other
sources either manually or with the use of algorithms in a single location for easy
viewing. While the area of news aggregation is growing, there in increased opposition
from established newspapers on the linking of their content with a news aggregation
website. Newspapers may lose revenue in the process but news aggregators argue that
their services and revenues are not to do with the amalgamation of content which
provides personalised news feed to subscribers.

News aggregation may come into conflict with the copyright in literary works
contained in newspapers as well as broadcasters’ right. Under the Copyright Act,
1957, the literary works are covered under Chapter VIII which covers “Right of
Broadcasting Organization and Performers”.336 The headlines of a news article can be
protected as a literary work.

In Shetland Times Ltd. V. Wills, 337 it was held that although headlines are used for
the purpose of indicating the subject-matter of the news articles they relate to, they
can be protected as literary works, since they are designed in a way so that impart the
information intended. In determining whether the use of headlines, updates and news
clips come within the scope of fair dealing, one of the tests used is whether the two
works are likely to compare with each other so as to reduce the demand for the
original work (Weatherby & Sons v. International Horse Agency and Exchange
Ltd.).338

Fair dealing connotes the use of works as a basis for comment, criticism or
reviews. If the work is used to convey the same information as the author for a rival
purpose, that may be unfair. In considering the defence of fair dealing, the proportions
of the extracts used must be considered. It has been held that taking long extracts and
attaching short comments may be considered unfair. However, short extracts and long
comments would pass the muster of fair dealing (Hubbard v. Vosper). 339 If the fair
dealing is for the purpose of criticism, that criticism must be strongly expressed.
However, in the case of news aggregation, the purpose is not criticism but reporting of
current events.

336
S.37, Broadcast reproduction right, Copyright Act, 1957
337
AIR 1997 SC 316
338
AIR (1910) 2 Ch 297
339
(1972) 1 All ER 1023 (CA)
 129

In Pro Sieben Media A.G. v. Carlton U.K. Television Ltd., 340 the expression
“reporting current events” was interpreted broadly by the Court of Appeal. The case
concerned the telecast of a 30 seconds extract from a German television programme
broadcast by Carlton. Reversing the judgment of the trial judge, the Court of Appeal
held that telecast passed the test of fair dealing.

Following this approach, the Court of Appeal found that a ‘News of the World’
story about the relationship between Dodi Fayad and Princess Diana constituted a
current event, even one year after their death (Hyde Park Residence Ltd. v.
Yelleand).341 Similar was the case of Ashdown v. Telegraph Group Ltd., 342 where a
story about a secret meeting between Tony Blair and Paddy Ashdown to discuss a
coalition, published two years after the event, was for the purpose of reporting current
events. However, the court found that the newspaper had not acted fairly in that it had
quoted too extensively from the leaked note about the meeting written by Ashdown,
something which could have been the subject-matter of serialization rights.

Among the other judgments which may be of some relevance are Newspaper
Licensing agency Ltd. V. Marks and Spencer Plc.343 Here the question whether the
copyright subsisted in individual articles or only in the arrangement of the whole
newspapers and whether extract copied formed substantial part of the protected work.
The House of Lords upheld the decision of the Court of Appeal which held that the
typographical arrangement copyright subsisted only in the newspapers as a whole and
that none of the individual cutting was regarded as a substantial part of the
newspapers from which it came. A copy of an article on a page, which gave no
indication of how the rest of the page was laid, was not a copy of a substantial part of
a published edition constituted by the newspaper as reproduced the layout of a page so
as to amount to a substantial part of its typographical arrangement, there was no
breach of that copyright.

The test laid down by the Indian Supreme Court is that to claim copyright in a
compilation, the author must produce material with exercise of his skill and judgment
which need not be creativity in the sense that it is not novel or non-obvious, but at the

340
AIR (1999) 1 WLR 605 (CA)
341
AIR 2000 RPC 604
342
AIR 2002 Ch 149
343
AIR (2003) 1 AC 551
 130

same time, it is not the product merely of labour and capital (Eastern Book Co. v.
D.B. Modak).344 Therefore, the intellectual input must also be apparent, in Mac Millan
& Co. Ltd. V. K. and J. Cooper,345 it was held that a reprint of selected passages from
a non-copyright work may be an original literary work.

5.17: Civil Remedies for Infringement:

The civil remedies available to the owner of copyright346 for infringement include:

1. In R. G. Anand v. Delux Flims 347 Damages for the loss suffered by the
plaintiff by reason of the infringement.348
2. Damages for conversion by the defendant of the infringement copies. All
infringement copies of any work in which copyright subsists, and all plates used or
intended to be used to produce infringement copies, are deemed to be the property of
the possession of these copies or for conversation. A plaintiff would not be entitled to
any remedy for conversation, if the defendant is able to establish that copyright
subsisted in the work in question or that he had reasonable grounds for believing that
copies or plates in question did not involve any infringement.349
3. A injunction restraining the defendant from further selling any copy of the
offending prints (Associated Publishers (Madras) Ltd. v. K. Bashyam350 and Maganlal
savani v. Rupam Pictured (P) Ltd.351and from passing off the goods in any manner
(Prem Singh v. Cream Auto Industries)352.
4. An order directing the defendant to render to render an account of all profits
made by him through sale of the infringement copies. 353 Damages and accounts are
alternative and mutually exclusive remedies (Pillalamarri Lakskmikantham v.
Ramakrishna Pictures).354 Infringement of copyright is a tort or a civil wrong to
344
AIR 2008 SC 809
345
AIR 1924 PC 75
346
For the definition of “owner of copyright” for the purpose of the Copyright Act, 1957; chap.XII
(Civil Remedies), See S.54
347
AIR 1978 SC 1613
348
S.55(1), Copyright Act, 1957;
349
Ibid, S.58
350
AIR 1990 Del 233;
351
AIR 2000 Bom 416
352
AIR 1990 Del 233
353
AIR 1978 SC 1613
354
AIR 1981 AP 224
 131

property for which the plaintiff seeks to be compensated through damages (Caxton
Publishing Co. Ltd. v. Southerland Publishing Co.). 355 He may, however, condone the
infringement and instead demand an enquiry into the profits reaped by the defendant
by the use of dsdhis work and recover that amount. Damage is a legal remedy while
an account is in nature of an equitable remedy (De Vitre v. Betts). 356 The plaintiff
must, therefore, elect as to whether he would claim damages or accounts for
infringement for he cannot have both (Caxton Publishing Co. Ltd. v. Southerland
Publishing Co.).357 The remedies for infringement of copyright and for damages for
conversion are distinct and are founded on separate cause of action. In a claim for
damages for infringement, the measure of damages will be the loss suffered by the
plaintiff on account of the act of infringement. The estimated loss of profit of the
plaintiff, i.e. the profit which he could have earned but for the defendant’s wrong or
the profit made by the defendant by sale of the infringing copies would be taken into
account (Srimagal and Co. v. Books (India) (P) Ltd.). 358 On the other hand, damages
for conversion are based on a wrongful denial by the defendant of the plaintiff’s
property title to the goods and the conversion of the plaintiff’s property by the
defendant to his own use by making the infringing copies. Such damages are based on
the presumption that the infringing copies…shall be deemed to be the property of the
owner of the copyright who accordingly may take proceedings…in respect of the
conversion thereof.359 The measure of damages for conversion is based on the gain to
the defendant by sale of the infringing copies and not by reference to the loss suffered
by plaintiff (Mishra bandhu Karyalaya v. Shivratanlal Koshal).360
5. An order directing the defendant to deliver to the plaintiff, the unsold copies
off the offending prints.361
6. Prohibition of import of infringing copies: Under section 53 of the Copyright
Act, 19577, in Gramophone Co. of India Ltd. V. Birendra Bahadur Pandey 362 the
Registrar o Copyright may, on an application by the owner of the copyright, order that
infringing copies made out of India Shall not be imported into the country.363
355
AIR 1978 SC 1613
356
(1873) LR 6 HL 319
357
AIR 1939 AC 178
358
AIR 1973 Mad 49
359
S,58, Copyright Act, 1957
360
AIR 1970 MP 261
361
S58, Copyright Act, 1957
362
AIR1894 SC 667
363
Ss51 and 53, Copyright Act, 1957
 132

5.18: Pre-Emptive action against infringement suit:

In Exphar Sa v. Eupharma Laboratories Ltd. 364, person who is threatened with legal
proceedings or liability for alleged infringement of copyright, may institute a
declaratory suit, seeking a declaration that there was no infringement by him and may
also obtain an injunction against the continuation of the threats and recover damages
sustained on account of such threats.365 Such a suit would not, however, be
maintainable, if the defendant had commenced and prosecuted, with due diligence, an
action for infringement of copyright.366

Where there are several rights in a copyright owned by different persons, the
owner of any of those rights shall be entitled to the remedies in respect of that right
and may individually enforce the same in a suit, action or other proceedings without
making the owner of any other right party to the suit.367 Where the suit or proceeding
is instituted by an exclusive licensee, the owner must, in the absence of directions to
the contrary issued by the court, be impleaded as a defendant and the latter would, in
such a proceeding, be entitled to dispute the claim of the exclusive licence. 368 Where
such suit or proceeding filed by an exclusive licence is successful, any action by the
owner in respect of the same cause of action would be barred.369

5.19: Jurisdiction:

A suit for infringement of copyright would lie in the District Court having
jurisdiction over the matter (Everest Pictures Circuit v. S Karuppannan370, George v.
C. Cheriyan371, P.M. Diesels Ltd v. Patel Field Marshal Industries 372, Wiley Eastern
Ltd. v. Indian Institute of Management373, Smithkline Beecham Consumer Healthcare

364
195: AIR 2004 SC 1682
365
S.70, Copyright Act,
366
AIR 1994 Del 237
367
S.56, Copyright Act, 1957
368
S.61(1), Copyright Act, 1957
369
S.61(2), Copyright Act, 1957
370
AIR 1982 Mad 244; K.I
371
AIR 1986 Ker 12, 15
372
AIR (1996) 16 PTC 174 (Del)
373
AIR (1995) 15 PTC 375 (Del)
 133

v. Hindustan Lever Ltd.374 Zee Telefilms Ltd. v. New Television (India) (P) Ltd. 375).376
An action under Section 60, Copyright Act, 1957 based on a cease and desist notice
would lie in the District Court within whose jurisdiction, the notice was received
(Exphar Sa v. Eupharma Laboratories Ltd.).377 However, a composite suit for
infringement and passing off cannot be filed at the place where the plaintiff resides or
carries on business in terms of Section62, Copyright Act, 1957 (Dabur India Ltd. v.
K. R. Industries).378

5.20: Criminal Prosecution:

In order t lunch a criminal prosecution under the Copyright Act, 1957, it would
have to be established that the accused has knowingly infringed or abetted the
infringement of a copyright in a work or any other right conferred under the Act. Such
a person is punishable with imprisonment for a term of a minimum of six months and
a maximum of three years and be fined between Rs.50,000 and Rs.2,00,000. 379 In a
criminal proceeding, it is not enough for the prosecution to prove that the accused
knowingly printed or published a work in which there exist copyright; it must further
be proved that he did it with knowledge that his act constitutes an infringement of
copyright. In other words Sheo Ratan Upadhya v. Gopal Chandra Nepall 380, a bona
fide belief that he had a right to print or publish the work would constitute a valid
defence (Mukharjee v. State).381

In Sk. Zaharul Islam v. Umakanta Khadiratna 382, the police are given the power of
seizure of infringing copies and plates used for making such copies where there has
been an infringement of copyright or where infringement is likely to be committed. 383
A person having interest in copies of the work or the plates can make an application
for restoration to the Magistrate before whom the work or the plates have been

374
AIR (2003) 2 Bom LR 547
375
(1999) 2 Cr LJ 657
376
S.62(1), Copyright Act, 1957
377
AIR 2004 SC 1682
378
AIR 2008 SC 3123
379
S.63, Copyright Act, 1957
380
AIR 1965 All 274
381
1994 PTC 202 (Del)
382
1992 Cr LJ 1869 (Ori)
383
S.64(1), Copyright Act, 1957
 134

produced.384 A person, who knowingly makes or has in his possession any plate for
the purpose of making infringing copies of any working which copyright subsists,
shall be punishable with imprisonment up to two year and fine, 385 The court trying an
offence under the Copyright Act, 1957 may, whether or not the alleged offender is
punished, order all copies of the work or plates in the possession of the alleged
offender which appear to it to be infringing copies or plates for making infringement
copies to be delivered up to the owner of the copyright. 386 The act also provides
penalties for making of false entries in the register of copyrights and/or making false
statements for the purpose of delivering or influencing any authority or officer under
the act.387

Where an offence is committed by a company or firm, the directors, manager,

secretary or any other person who was, at the time of the offence, in charge and
responsible for the conduct of business may be prosecuted (Ghurey Lal v. State 388,
J.N. Bagga v. All India Reporter Ltd 389)390 All offences are to be tried by a court not
inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the 1 st class.391
Appeals lie before the court to which appeals from the court making the order would
ordinarily lie.392

The 2012 amendment penalises the circumvention of technological measures

applied to protect the rights of copyright owners under Section 65-A and the removal
or alteration of rights management information under Section 65-B. The 2012
Amendment also empowers, under Section 53, the Commissioner of Customs to take
action in respect of the import of infringement copies.

5.21: Tackling Piracy:

384
S.64(2), Copyright Act, 1957
385
S.65, Copyright Act, 1957
386
S.66, Copyright Act, 1957
387
S.67, 68, Copyright Act, 1957
388
AIR 1965 All 206
389
AIR 1969 Bom. 302
390
S.69, Copyright Act, 1957
391
S.70, Copyright Act, 1957
392
S.71, Copyright Act, 1957
 135

While the preceding sections of this chapter set out the various legal remedies for
infringement, given the magnitude and dimension that piracy has attained in recent
times, the only effective solution would be by consolidated action through self-
regulation. Measures that could be taken to clamp down on piracy of films and music,
both in India and abroad etc.

Advanced technology has facilitated piracy and it has, therefore, become necessary
to provide measures to tackle the circumvention of technology. Section 65-A
introduced by the 2012 Amendment punishes anyone who circumvents an effective
technological measure applied for the purpose of protecting rights conferred by the
Copyright Act, 1957. The Commissioner of Customs has also been empowered to
take action in respect of import of infringement copies under Section 53. Section 65-B
penalises the removal or alteration of rights management information as also the
distribution, imports for distribution, broadcast or communication to the public
without authority of work or performance, knowing that electronic rights management
information has been removed.

CHAPTER SIX

CONCLUSION AND SUGGESSTIONS

The right to freedom of speech and expression is one of the most important
fundamental rights. It includes circulating one’s views by words or in writing or through
audiovisual instrumentalities, through advertisements and through any other communication
channel. It also comprises of right to information, freedom of mass media etc. This
fundamental right has a vast scope.
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The natural law rights were meant to be converted into our constitutionally recognized
fundamental rights. Article 19(1)(a) Constitution of India are rights which inhere in Indian
citizens, individuals concerned carry these inherent fundamental constitutional rights with
them wherever they go, in so far as our law applies to them, because they are parts of the
Indian nation just as Indian ships, flying the Indian flag, are deemed, in International law, to
be floating parts of Indian territory. The expression “freedom of speech and expression” in
Art. 19(1)(a) has been held to include the right to acquire information and disseminate the
same. The people of India declared in the Preamble of the constitution, which they gave into
themselves their resolve to secure to all the citizens liberty of thought and Expression. This
resolve is reflected in Article 19(1)(a) Constitution of India which is one of the articles found
in part III of the constitution, which enumerates the Fundamental Rights.

Every one has the right to freedom of Speech and Expression; the right includes
freedom to hold opinion without interference and to seek and receive and impart information
and ideas through any media and regardless of frontiers. This aspect has been declared for the
all nation by the UNO. In the Constitution of India under Article 19(1)(a) guaranteed the
freedom of expression to the citizen of India.

The discussed Principles seek to establish a framework which can be used to ensure
firstly, that the right to freedom of expression and the ability to SHARE knowledge and
culture are fully protected in the digital age; and secondly, that copyright interests do not
unduly restrict them. The Principles also seek to promote positive measures which foster both
the free flow of information and ideas and greater access to knowledge and culture on the
Internet and beyond.
The Principles were developed as a result of concerns that the fundamental human right to
freedom of expression, guaranteed in UN and regional human rights instruments and nearly
every national constitution, has been increasingly eroded on the grounds of protecting
copyright. The Internet has been at the centre of an alarming expansion of copyright claims at
the expense of freedom of expression and, more generally, the protection of human rights.
These Principles affirm that the right to freedom of expression and the free flow of
information and ideas cannot be seen as marginal to such developments.
Freedom of expression – that is, the freedom of all people to seek, receive and impart
information and ideas of all kinds - is the foundation of diversity within cultural expression,
creativity and innovation. It is, therefore, an essential part of the right to participate freely in
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the cultural life of society, enjoying the arts and SHARING in scientific advancement: the
very benefits that copyright exists to promote.

As we discussed the Principles, international law provides a basis for resolving these
issues. The Principles offer a progressive interpretation of international law and of best
practice in individual States, as reflected, inter alia, in national laws and the judgments of
national courts.

The Internet has radically changed the way in which people exchange information and
ideas. It has also presented serious challenges to the way in which copyright and related
rights have traditionally been enforced: copies can be made available across borders on an
unprecedented scale and at minimal cost. Copyright laws need to adapt to keep pace with
digital technology; they need to adapt to consumer demand and cultural practices in this
global economy built on ideas and innovation. People have a legitimate expectation that their
fundamental right to receive and impart information and ideas will be fostered rather than
restrained by copyright.

In India, freedoms of mass media i.e. press and media is implied from the freedom of
speech and expression guaranteed by Article 19(1)(a). There is no specific provision ensuring
freedom of mass media as such. The right flowing from the freedom of speech, the freedom
of mass media in India stands on higher footing than the freedom of speech and expression of
a citizen, and the mass media enjoys no privilege as such distinct from the freedom of the
citizen. The Court has always placed a broad interpretation on the value and content of
Article 19(1)(a), making it subjective only to the reasonable restrictions permissible under
Article 19(2). Efforts by intolerant authorities to curb or suffocate this freedom have always
been firmly repelled, more so when public authorities have betrayed autocratic tendencies.
The press enjoys the fundamental right of free speech on par with individual citizen; it
is more powerful than that of ordinary citizens because it is organized. The press rightly
enjoys the free speech right. But there are also certain negative aspects, which cannot be
ignored. As it has already been pointed out, the press instead of being a noble profession is
largely being considered a business. Openness is a concomitant of a free society. Men in
power try to control and corrupt the mass media because they would not like anything to be
known by the people, which would detract from the respect, the acclaim and adulation to
which they think they are entitled. This creates a conflict between rulers and bureaucrats who
are keepers of secrets and the press who are the tellers of tales.
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The freedom of speech and expression has also been included in the right to know.
This aspect has been protected by the mass media in this era. The concern government has a
duty to protect journalists and not to prosecute them in an effort to control the free flow of
information. A free mass media is not only beneficial for the democracy but necessary in a
free society. If mass media freedom is attacked, it will result in the jeopardizing of human
rights because press and media reports on human rights violations of authorities and powerful
sections of the society. Free press does not mean that the State shall not intervene in its
functioning; it shall intervene when the situation warrants. This intervention should only be in
the interest of the public at large. But in the name of legal intervention, the State shall not
impede the free flow of information that will go a long way in protecting and promoting
human rights.

The right of Freedom of speech and Expression is important to the democratic

Government because when criticisms of government are freely voiced, the government has
the opportunity to respond to answer to unfair comments and criticizing about its actions.
Another aspect is when the freedom of speech and expression is restricted; rumours, unfair
criticism, comments and downright false hood are circulated by the people to gain unfair
advantage and oblique motive. These have a habit of spreading across the length and breadth
of the country through freedom of speech and expression and surreptitiously circulated
writings. Concern government is in no position to answer the views because they are not
publicly started. It is in the government interest to have criticism or in the public arena, where
it can answer its critic and correct it must take the concern Government gravely and have
access to Electronic and printing communication for in access of individual and groups. It is
able to present its view only if the opposing views are in the open and known.

In this era the role of mass media explosion, one cannot simply remain confined to the
boundaries of the traditional mass media. The mass media world has expanded its dimensions
by encompassing within its orbit, the widening vistas of cyber media etc. A person aware of
the various important legislations affecting the various branches of Media Communication,
making him aware of his rights arid facilitating him to exercise them within the framework of
law existing in India and in the end furthering the cause of freedom of speech and expression.

The efforts to promote the freedom of expression among the mass media are basic
exercise for the human rights and democratic citizenship. The challenge is within the
commitment of the people into the reality that acknowledges the opportunity to participate
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regardless of the barriers. People should understand that the right to freedom of speech and
expression is the most ftndamenta1 social process, one of the basic human needs and the
strong foundation of the social organization. Therefore, everyone is encourages to participate
and enjoy their rights.

A balance must be struck between the ability of individual to be unrestricted in the

free expression of thoughts and ideas, and the need to ensure that governments are able to
efficiently carry out their function of administration, law and order, and preserving the rights
of individual vis-a-vis each other.

The mass media is an extremely powerful force, which can reap great benefits for
nation or society if used positively and can be very damaging not used property. it is like
nuclear energy, which if used well has great benefit for humanity but there may be some who
might want to use it for the wrong reasons with vested interest.

The licensing of digital information as ‘intellectual property’ is problematic in a digital

world. ARTICLE 19 is monitoring the development of intellectual property rights and their
effect on freedom of expression.

Intellectual property is an increasingly expanding area of law being led by US companies.

It is changing from a model where a person buys something physical (such as a book) and is
free to pass it on to a model where a person only has a licence to use the information (for
example, digital music) by themselves and in certain ways.

Unlike hardcopy information like books, digital information has the potential to be copied,
modified and disseminated millions of times a second.

Changing intellectual property models has a significant impact on freedom of expression

and information. For example, musicians who re-sample sounds, a very common practice
over the past decade, could be prosecuted under intellectual property laws, even if such music
was created in their bedrooms and heard by only five people.

People have responded to such attacks on digital creativity with new democratic models of
protection. Creative Commons, a widespread licensing system, is used by many organisations
- including ARTICLE 19 - and on major websites like Flickr, Wikimedia and YouTube.

BLASPHEMY AND PROTECTION OF PUBLIC MORALS:

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The Supreme Court ruled that directions to the film review board for determining
when a film should be banned as offensive to public morals were flawed in that they did not
direct the board to consider artistic or social merit. In so ruling, the Court stated: Our
standards must be so framed that we are not reduced to a level where the protection of the
least capable and the most depraved amongst us determines what the morally healthy cannot
view or read. ... In our scheme of things, ideas having redeeming social or artistic value must
also have importance and protection for their growth.
Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially
obscene or even indecent or immoral Accordingly, Chief Justice Hidayatullah, writing for the
Court, ruled that a film was entitled to a certificate for unrestricted viewing, even though it
included a brief scanning shot of Bombay's red light district showing prostitutes wearing
short skirts.
Thus, the right of freedom of speech and expression in the constitutional peripheries
of India under Article 19(1)(a) does not confined only the right of speech and expression but
its include the right of mass media i.e. press and media and right to know also. The right of
freedom of speech and expression includes the right to communicate it through any available
mass media whether print or electronic or audio-visual, such as, advertisement, movies,
article or speech, etc. The right of freedom of speech and expression is not absolute in itself
but subject to reasonable restriction as per the Constitution of India under Article 19(2).
Freedom of speech and expression having the origin of every democracy. The freedom of
speech and expression has been truly said that it is the mother of all other liberties.

From the research it can be easily concluded that right to freedom of speech and
expression is one of the most important fundamental right. It includes circulating one's views
by words or in writing or through audiovisual instrumentalities, through advertisements and
through any other communication channel. It also comprises of right to information, freedom
of press etc. Thus this fundamental right has a vast scope as the research has already
discussed in the previous chapters.

From the research and analysis it is evident that the Court has always placed a broad
interpretation on the value and content of Article 19(1)(a), making it subjective only to the
restrictions permissible under Article 19(2). Efforts by intolerant authorities to curb or
suffocate this freedom have always been firmly repelled, more so when public authorities
have betrayed autocratic tendencies.
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It can also be comprehended that public order holds a lot of significance as a ground
of restriction on this fundamental right. But there should be reasonable and proper nexus or
relationship between the restriction and achievement of public order. The words 'in the
interest of public order' include not only utterances as are directly intended to lead to disorder
but also those that have the tendency to lead to disorder.

6.1 SUGESSIONS:

Freedom of speech and expression is the mother of all liberties and freedom of press
can be regarded as the very business of a democratic form of government. Richard M.
Schmidt has rightly said “our freedom depends in large part, on the continuance of a free
press, which is the freedom of speech and expression of individual or press”. But it is not
unfettered. Such freedoms are subjects to reasonable restrictions and one such restriction is
censorship. Article 19 (2) of the constitution of India provides basis for imposition of
restrictions in the form of censorship. Consequently so many laws have been enacted which
provides for censorship viz. the press council of India Act,1978., the Press (objectionable
matters) Act, 1951., the Indian Cinematographic Act, 1952 etc. These laws are of such a
nature that if they will not be used with caution, may led to total deprivation of freedom of
speech and expression. Thus, it becomes incumbent upon the judiciary to strictly scrutinise
restrictions in the form of censorship and allow such restrictions only in a situation where
there is no other option left with the Courts. Often the grounds on which censorship is
imposed are of vague in nature. So, Courts should give narrow interpretation to those terms.
By doing so it may be able to protect such a noble and cherished value like freedom of speech
and expression.

The freedom of speech and expression under Article 19(1)(a) of the Constitution
being confined to citizens, foreigners cannot claim any right there under. A corporation
cannot claim citizenship, and cannot therefore claim any right as it stands at present but the
shareholders of the company are having the right. The shareholders of a Company can
challenge the constitutional validity of a law on the ground of infringement of article 19(1)(a)
if their own rights are infringed under Constitutional peripheries. The research is of the
opinion that the freedom of speech and expression should be given to the corporate which is
owned by citizen of India also subject to reasonable restriction thereof.
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A lot of people or political parties or organizations are given to violent speeches and
derogatory and unfounded comments on a particular religion or race. Some people may try to
spread nonsensical propaganda in the shed of freedom of speech and expression. The political
parties and organization like ‘SIMI’ and ‘Shiv Sena’ in the shed of freedom of speech and
expression try to destroy the integrity of India. The ‘SIMI’ which is belonging to the one of
the religion tries to induce the person in the name of religion to doing: antisocial activities as
indicated in various investigation regarding different crimes. The ‘Shiv Sena’ which is
representing its self to one of the religions, in the shed of freedom of speech and expression
tries to induce the individuals in the name of language i.e. Marathi and by violent speeches
provoke the Marathi against the other languages or states individuals. This kind of activities
should be strictly banned by the concern government by making appropriate law. The right of
freedom of speech and expression does not confer any political party or organization to give
violent speeches and derogatory which destroys the democratic system of country. This kind
of activity is not matter of concerned state government but also matter related to central
government on account whereof in view this research the central government may make strict
law to prohibit these kinds of antisocial and antinational activities in the name of freedom of
speech and expression.

The right of freedom of speech and expression of mass media has been governed in
the constitutional peripheries of India under the Article 19(1)(a).The people of India have
become aware about their right through mass media i.e. press and media. The mass media
however is a unique weapon in the hands of people to find out the transparency of
government. The press and media became more powerful as the communication through T.V.
and cable or satellite has been reached to every part of not only in India but also all over the
world.

There was monopoly of government in media but after reforms lot of changes have
come in the field of mass media. After reforms number of news channels have increased that
are being viewed on the T.V. through satellite and cable. The mass media sector has been
commercialised day by day however they are doing their responsibility for the society. Some
of the mass media has gain cheap popularity and more money through advertisements has
forgone their responsibility towards society and nation.

Some of the mass media is interfering to the personal life of celebrity to gain cheap
popularity. The mass media in the sensitive case like rape victim girl cases has highlights
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their photo a lot many number of times in a very dramatic manner, which destroys the moral
and emotional value of victim. In opinion of this research central government should make
some strict laws for prohibiting the mass media to interfere unnecessarily in the personal life.

In the case of commercialisation of press, some papers sometimes indulge in what is

known as trial by press even before the alleged offenders are brought before the court.
Sometimes some newspapers, photo journalists through the keyholes, spy cams and sting
operations etc. invade the privacy, especially the privacy of celebrities. Such publications by
the media lead to infringement of privacy and sensationalising of issues to increase the
readership / viewership. This is not conducive to public interest. Though there is Press
Council of India, which insists on a moral code of conduct for journalists, often
commercialisation, politicisation and other selfish interests of individuals gain upper hand.
This kind of activities should be banned; Mass media should have the self monitoring of their
acts or behaviours while dealing with the freedom of individuals, which does not deal with
any matter of the public interest. In opinion of this research the central government for that
case must make stricter laws along with strict regulations so that the guilty are given severe
punishments.

A common justification for the restrictions upon the liberty of individuals is the
supposedly overriding interests of efficient government and the public benefit. It is
conveniently overlooked that what constitutes "efficient government" and "public benefit" are
subjective concepts, the interpretation of which will be in the hands of legislators, bureaucrats
and judges with human failings and feelings, lack of vision, imperfect knowledge and
understanding, subjective views and personal prejudices. However, while public benefit is an
important factor, the test for allowing further restrictions upon free speech should strive to be
somewhat more stringent. Legal restraints upon individual freedom of speech should only be
tolerated where they are absolutely necessary to prevent infliction of actual harm or to secure
the liberties of others. A more or less remote possibility that someone will be harmed or
unbiased claims that the stability of society will be undermined is not sufficient justification
for legal prohibition.

A balance must be struck between the ability of individuals to be unrestricted in the free
expression of thoughts and ideas, and the need to ensure that governments are able to
efficiently carry out their function of administration, law and order, and preserving the rights
of individuals vis-a-vis each other.
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