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ON THE LAW OF THE PRESS IN INDIA
Author(s): Rajeev Dhavan

Source: Journal of the Indian Law Institute , JULY-SEPTEMBER 1984, Vol. 26, No. 3
(JULY-SEPTEMBER 1984), pp. 288-332
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43953869
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ON THE LAW OF THE PRESS IN INDIA
Rajeev Dhavan*
I Perceptions, controls and influences
THE INDIAN press suffers from a profound confusion about its funct
and role. It is subjected to pressure from its owners and the governm
It feels the need to follow certain cosmopolitan ideals which both assi
in its quest for self-definition and help to legitimise its claim to soci
status. It is pressurized by ¿he ideology of development and subjec
to rigorous pressures from the social and economic network within wh
it operates. Both the British and subsequent governments in Ind
looked on the press more as a nuisance than as a help. Press baro
have exercised considerable control over what they consider to be
"industry" rather than a "profession" and journalists lack the soc
political and economic power to strike an independent course of actio
Given all this, this paper will not concentrate on the imputed prefer
ideals which the press is supposed to service without looking at
status quo precipitated by social, political and economic comprom
entered into by the press within the formal legal framework in whic
operates. All this is not peculiar to India, but here the cumulative eff
of history deposits social paradigms which determine the style, percep
and fighting edge of the press and the government it deals with. In In
where competition for status is expressed in modern and traditional for
the press operates at some levels as the direct tool of socio-econo
power while at others it is left to its own devices, operating either a
profession or as an industry. The rural press has produced distinc
patterns of operation. The metropolitan press uses cosmopolitan id
to justify its existence. Although India's press, like its legal and polit
systems, is "palpably foreign",1 these transplants have become integra
in the social system. The internal and external rules which cont
the working of the press in India must be understood in view of its mu
dimensional role in the social system rather than on the basis of funct
* M.A. (Cantab), B.A., LL.B., (All.), Ph.D. (London), Advocate, High Court a
Allahabad, of the Middle Temple, Barrister; Reader, Department of Law, Bru
University, Uxbridge, Middlesex, U.K.
The author would like to express his gratitude to Pnina Lahav who made valu
editorial suggestions and Marc Galanter who is always a fund of many original i
This paper summarizes various aspects of R. Dhavan, Only the Good News : On the
of the Press in India (forthcoming).
1 . A phrase used by Marc Galanter, "The Displacement of Traditional Law in Mo
Law", 24 Journal of Social Issues 65 (1969).

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1984] LA W OF PRESS IN INDIA 289
attributed to the press generally.2

India's press has always had a very incho
function. This is amply shown by the li
early works convey exaggerated notion of
of the press.3 Later accounts synthesize in
correlate it to political trends,5 or consist
the government.6 Some material is partisa
playing the game and exhorting it to fall into
paid to the political framework within whi
study has been made of the social factors w
the role of the regional press has not yet b
Much post-Independence literature sees t
ing paralysis or stagnation"9 and under pr
ment ideologically distrustful of "a capital
2. Cf. T.I. Emerson, Towards a General Theory of

C.E. Baker, "The Scope of the First Amendment Fr
964 (1978). Much of the analytical literature on th
e.g., C. Sarkar (ed.), The Press and the Law (1968).
3. E.g., Leicester Stanhope, History and Influences
Stanford Arnof, History of the Indian Press (1829).
4. Note the significant articles by S.C. Sanyal on
Calcutta Review (1907 and 1908); Roper Lethbri
Barnes, The Indian Press (1940).
5. E.g., S. Natarajan, A History of Press in India
A less analytical account is that of Sushila Agraw
ment in India (1970); P.S. Khare, The Growth of th
1857-1918 (1964); M. Moitra, History of Indian
are more incisive undertakings which look at spec
more closely defined parameters, e.g., P. Narain, P
(1970).
6. E.g., J. Natarajan, History of Indian Journalism (1954) which formed part II of the
Report of the Press Commission (1954).
7. See Valentine Chirol, Indian Unrest (1910). Cf. Pat Lovett, Journalism in India
(1928) on some of the aspects of the inevitable influence of the national movement on
the press.
8. J.J.S. George, Provincial Press in India ; T.V. Parva(e, Marathi Journalism (1969);
G. Singh (ed.), Panjab Akhbars 1839-41 (1932); N. Kumar, Journalism in Bihar (1971)
(Supplement to Bihar State Gazetteer); R.B. Bhatnagar, Rise and Growth of Hindi
Journalism (1970). See also F.E. Keay, Hindi Literature (1933); P.N. Basu and H.W.B.
Moreno, Hundred Years of Bengali Press (1920); D.V. Gundappa, The Press in
Mysore (1940); K. Tripathi and P.D. Tandon, Patra aur Patrakar (1950); R.G. Ranade,
History of Marathi Periodicals 1832-1937 ; V.R. Joshi and K.L. Ramchandra, History of
Newspapers (1951); A.A. Nair, Peeps at the Press in South India : A Short Survey of the
Achievements of Editors and Publishers (1966); K.R. Seshagiri Rao (ed.), Studies in the
History of Indian Journalism (1968).
9. See D.R. Mankekar (ed.), What Ails the Indian Press (1970); Chanchai Sarkar,
The Changing Press (1967) and Challenge and Stagnation : The Indian Mass Media (1969)
attributing such stagnation to the lack of an adequate recognition of the right to know
and low thresholds of technological development in the media.
10. D.R. Mankekar, The Press Under Pressure 58 (1973).

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290 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 26 : 3
improvements include fresh expertise, better technology and eco

management, an upgraded correspondent network and better tra
The government asserts12 that the press is over-concentrated, con
little to the development of India,13 and is deficient in such
political roles as promoting unity.14 These charges are comp
by a strong emphasis on the socialistic nature of the press in a
planned economy.15 The political right, tracing the intellectual pedigree
of the press to John Milton's Areopagatica and Thomas Paine's Dissertation
on First Principles of Government 16 supports private enterprise, paints a
foreboding future for the liberal press17 and assails the government's adver-
tising control and active sponsorship of some newspapers.18 As a com-
promise, some have suggested the interposition of a trustee between
editors and owners.19
Perceptions of the press vary. Some describe the press as routine, dull,
without accountability or money,20 ambivalent about the government
and lacking a "well founded public or collegiate critique... [or] the art of
relevant or objective criticism."21 A prominent member of the Janata
Government attributes its fall to the severe exposure that government
had from the press.22 Repeated governmental attempts to regulate the
press during the sixties and seventies culminated in control of the press
during the Emergency (1975-77).23 The government's hostility to the press
continues and forms the prevailing official (both judicial and otherwise)
paradigm through which the press is perceived, restrained and controlled.
11. Chanchai Sarkar (ed.), Emerging Estate (1966). Note the suggestions of
Narasimhan on technology at 97-123, D.K. Rangnekar's on expertise at 124-38 and
Sarkar's on correspondent exchanges in Asia at 155-61. On correspondent exchanges, see
also the comments of L. Hoffman at 147-54 and Susman Ejire at 161.
12. E.g., I.K. Gujral in A.G. Noorani, (ed.), Freedom of the Press in India : Procee-
dings of a Seminar held in Srinagar 56-68 (1971).
13. E.g., L. Ayyangar, in Mankekar, supra note 10 at 2-6 and the Report of the Press
Commission of India (1983).
14. V.K. Narasimhan, Press , the Public and the Administration (1961) refers casually
to this. Shireen Mehdi of the Press Council has done some interesting research on how
the press reports on communal incidents (1979-80) (not yet published).
1 5. S.C. Jha, The Concept of a Planned Free Press 72, 77 ff (1958) setting up a Soviet
style press divided into a planned press run by a branch of the planning board and a party
press run by the public within planning allocations and with censorial functions.
16. Soli J. Sorabjee, Law of Press Censorship in India 3 (1976).
17. See contribution by M. Masani and S. Mulgaokar in Noorani, supra note 12.
18. C.R. Irani in id. at 100-15.
19. E.g., M. Chalapathi Rau m Sarkar, supra note 11 at 67-84.
20. See D.R. ManJceKar m ManKejcar, supra note y at 0-1/, asking ior eauonai
autonomy and better training. On the latter see also Chanchai Sarkar in Noora
note 12 at 1 16-33.
21. Manfred Lokmann in Noorani, id. at 96.
22. L.K. Advani, The People Betrayed (1980): ^Perhaps the most devastatin
about the Janata Government's failings came from the pen of supposedly pr
journalists. . . than from pro-Indira scribes.
23 . Discussed infra.

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Government control
A central characteristic of Indian press

mental control. This pattern was set by th
Independence.
The British policy towards the emerg
century included official harassment, ruin
editors. Regulations issued in 1797 require
of all newspapers under threat of depor
century the British alternated between tw
One approach assigned responsibility to
information regarding the owner, edito
Lord Hasting's Regulation of 1818, matu
present statutory basis in 4 1867.25 The se
comprehensive licensing system. This appli
Variations of this approach included the
deposit system, whereby the paper made a
be forfeited if it transgressed the law.
1878-82, 1908-21 and 1931-51. It continu
1951-57 and was revived during the Emerg
the Code of Criminal Procedure 1898 autho
publications prejudicing law and order or
to review by the High Courts.28 This pr
the Code of Criminal Procedure 1973, a ju
a person to execute a bond for good behav
finds sufficient grounds to proceed against
order offences, obscenity or defamatio
powers exist with the state governments3
order forfeiture in case of certain kinds o
order or violations of the law of obscen
provide reasons for its action, and the for
by a special bench of the High Court.32 T
dent of the normal judicial power to iss
magistrate's power to issue temporary p
24. See Natarajan, supra note 6 at 36-38.

25. Press and Registration of Books Act 1863, ss.
26. Press Act 1857.
27. See Press (Objectionable Matter) Act 1951; Prevention of Publication of Objec-
tionable Matter Act 1976; Prevention of Objectionable Matter (Repeal) Act 1977.
28. Code of Criminal Procedure 1898, ss. 95A-95G.
29. See Indian Penal Code 1860, ss. 124A, 153AB, 124, 153, 292, 293, 295.
30. Code of Criminal Procedure 1973, tCr. P.C., 1973) s. 95.
31. Supra note 29.
32. Cr. P.C. s. 96(3).
33. Id., s. 93.

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finds a danger to human life, health, safety or public order.34

The existing "normal" peace time pattern of control is con
the Press and Registration of Books Act 1867. Every owne
must register.36 Every newspaper must identify the owner, edi
of publication.36 Since both the British and Indian governmen
their subjects, extensive verification of the information is required
tration may be cancelled if another paper has a similar tit
change of printer or publisher, or on the violation of certain laws,
or false representation of a material fact.38 Penalties include fi
two thousand rupees and imprisonment for six months or m
is also a small fine for failing to supply the government with a
newspaper or for improper disclosure of certain relevant inform
The press registrar, established in 1954, is vested with powe
extensive information about the press. The registrar has
records, may enter, at reasonable times, any premises where re
be kept and inspect or take such records, and may ask question
to obtain information required by the Act.41 These powers m
primarily to identify those responsible for a paper and to prov
tion about newspapers for future analysis.42
This "normal" pattern of control is replaced by an extensi
of control during a constitutional emergency when the judici
fundamental rights is suspended.43 The first major Emergenc
34. Id., s. 144. The department of post office can intercept and for
pertaining to such offences, Post Office Act 1898, ss. 27B, 27 C and 2
Customs Act 1862, ch. 4A-4C.
35. Press and Registration of Books Act 1867, s. 4(1) (as amended by Act 55 ot
1955).
36. Id., s. 5.
37. Id., ss. 6 and 7; Koya v. Mutha Koya, A. I.R. 1979 S.C. 154 at 162. See also
State of Maharashtra v. R.B. Chowdhari , A. I.R. 1968 S.C. 1 10 at 111.
38. īd., ss. 8Band8C.
39. Id., ss. 12, 13, 14 and 15.
40. Id., ss. 15A, 16A and 16B.
41 . See supra note 20.
42. Copies of newspapers must be supplied to the government, presumably for the
archives. The forfeiture system was in effect prior to World War I [Newspaper (Incite-
ment to Offences) Act 1908] revived in 1931 [Press (Objectionable Matter) Act 1931]
and again from 1951-57 [Press (Objectionable Matter) Act 1951]. Fines were often as
high as Rs. 5,000 and 15 vernacular papers had to be closed, with a broad chilling
effect, on much of the press. See Report , supra note 6 vol II, 266-68.
43. Defence of India Act 1962, s. 3(2); Defence of India Act 1971 s. 3(2).
Censorship was enforced from 26 June 1975 to 22 March 1977. A comprehensive
system of control was instituted (Prevention of Publication of Objectionable Matter Act
1976); publication of parliamentary proceedings was controlled [Parliamentary
Proceedings (Protection of Publication) Repeal Act 1976]; and the Press Council was
abolished [Press Council (Repeal) Act 1976]. These three measures were repealed
by the Janata Government. See Prevention cf Publication of Objectionable Matter
(Repeal) Act 1977; Parliamentary Proceedings (Protection of Publication) Act 1977;
Press Council Act 1978.

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extended from the Chinese invasion (196

(1965), and resulted in the relatively mild c
the Press Advisory Unit and warning sys
Press Advisory Committee. Given the con
tions were imposed, the press was genera
The Emergency between 1975 and 197
revival of the forfeiture deposit system.
rapidly made deep inroads into editorial
incomplete picture of the control suggests
ted, seven expelled and 29 banned from I
periodicals were denied official advertis
advertisements were rejected. Two hu
underwent preventive detention. Radio an
to highlight news items and programmes at
This was a regime of total censorship, op
ment as essential to the future and progr
and politically sensitive had been impos
the Raj . Some buckled under; and som
patterns of investigative journalism in t
Apart from political control the governm
press as a business or industry.
As a business or industry, the press is
partnerships, companies and monopoly
attention to press monopoly the govern
curb it. In the sixties and seventies, the
price, size, advertising label and suppl
attempts were struck down by the Supr
of the press,46 but a price control sta
statute book.47
The press is subject to the Industrial D
44. See Chanchai Sarkar, "The Emergency and

45. White Paper on the Misuse of the Media an
46. The Newspaper (Price and Page) Act 1956
Page) Control Order 1960 were struck down i
A.I.R. 1963 S.C. 305. The Newsprint Control
Essential Commodities Act 1955, was struck dow
A.I.R. 1973 S.C. 106.
47. Newspapers (Price Control) Act 1972.
48. See, generally, Durga Das Basu, Law of the Press in India 128-350 (1980). The
Factories Act 1948 applies to presses employing 20 or more persons. The Industrial
Disputes Act 1947 covers the press. See Bombay Union of Journalists v. The Hindu
A.I.R. 1963 S.C. 318; Workmen v. Statesman , A.I.R. 1976 S.C. 758. Press establishments
fall within the Employees' State Insurance Act 1948. See The Hindustan Times v.
Workmen , A.I.R. 1963 S.C. 1332. The Payment of Wages Act 1936 also applies to the
press. See Searchlight Press v. Factories Inspector , A.I.R. 1960 Pat. 33, as do the
Payment of Bonus Act 1965, the Employees' Provident Fund and Miscellaneous Pro
visions Act 1952, the Workmen's Compensation Act 1923 and the Working Journalists

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between labour and management are subject to compulsory ad

The post-Independence press has seen an increase in strikes an
extensive use of industrial dispute resolution machinery. The
statute dealing with the conditions of service and economic s
journalists.49 The Supreme Court has upheld the broad purpos
legislation but dealt with the problem in such a way that the
straight jacketed within an industrial dispute machinery. The
it virtually impossible for such a system to function in any meani
by imposing impossible process and other requirements on the
authorities.50
It is really impossible to understand the relationship between

and the government without going back to the 18th century when
first emerged as a viable nuisance. By the 19th century, the g
came round to the view that the media was too powerful to be
set up its own information outlets. Developing impressive inf
outlets, the British also began rival newspapers like the Pi
the Civil and Military Gazette which were eclipsed by the supe
tise, efficacy and credibility of the private press. A cen
during the Emergency, Mrs. Gandhi used similar tactics b
taking over Nehru's old paper, the National Herald , and establ
magazines - like Maneka Gandhi's Surya. Journalistic attem
the government operates a huge Ministry of Information and B
which, inter alia, maintains a monopoly over radio and televisi
about the credibility of its own network, the government vir
over the operation of news agencies during the Emergency51 ov
continues to maintain an influence. Newspapers are forced into
by the denial of lucrative government advertising and the go
powers and influence loom large in the control of the inform
mechanisms that feed the press. It knows that the private press
growth and capacity. That the private press has survived is a tr
tenacity.
The government claims to do all this in the name of the small news-
papers. The courts thwarted these attempts to control the press through
price and page control (1962)52 and newsprint control (1975).53 But
the tension continues. Ironically, the small indigenous language
(Conditions of Service and Miscellaneous Provisions) Act 1975. Journalists and

management are very conscious of their statutory rights and relative bargaining
strength.
49. Working Journalists (Conditions of Service and Miscellaneous Provisions) Act
1975.
50. Express Newspaper Ltd. v. Union of Inaia, A.I.R. 1958 S.C. 578 at 600-03.
51 . See XXXI L.S.D. 4th series, col. 127-29, 5 Aug. 1969; XXIX L.S.D. 5th series,
col. 315-29, 3 Aug. 1973; XXX L.S.D. 5th series, col. 280-350, 17 Aug. 1975.
52. Sakal Papers . supra note 46.
53. Bennett Coleman , supra note 46.

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newspapers continue to thrive as int

lous - papers and contrast favourably with the English medium
national press. That the smaller papers reflect a symmetrical local power
relation is inevitable. Much of this political hostility was established by a
censorial British regime, is fed by an uneasy resistance by the bour-
geois press to the apparatus of economic planning and rests on a tension
between those in power and their supporters and opponets who control the
press. The ideological art form in which the confrontation is couched is
palpably false. But all this has reinforced a polarity between the govern-
ment and the press which is inimical to the supply of essential information
in, and to, a democratic society.54
Proprietor control
Faced with governmental hostility and linked to an incompletely

orchestrated political opposition, a significant proprietary and business
influence is exerted through direct control, in the appointment of editors
and through the control of advertising.55 Despite suggestions to the con-
trary,56 there is no real control of news-advertising ratios, and in all
probability, publishers probably bow to external pressure to exercise self-
censorship.57 Proprietor control feeds on the financial insecurity of jour-
nalists. The government's attempts to provide independence to journalists
by interposing a trust between publishers and editors have not taken root.
Future gains will depend upon the bargaining power of journalists to
assert a relative autonomy and finding a sensitivity to new emerging
relationships.
Pathology of press laws
Ultimately, it is the pathology of the operation of the law that deter-

mines its social and operational context. On paper, India's press laws
look archaic, oppressive and harsh. In fact, the press has been able to
make symbolic and other gains by making social and political capital out
of court cases and public advocacy campaigns. The trial process becomes
a vehicle for transforming restraints into possibilities. Contempt laws desig-
ned to protect the judiciary have been used to embarrass judges and liti-
gants.58 Defamation laws have been used to defame through judicial
54. See Report of the Committee ort News Agencies 28-38 (1977); White Paper on
Misuse of Mass Media during the Internal Emergency 43-50 (1977).
55. Supra note 6 at 320-24.
56. Report of the Fact Finding Committee on Newspaper Economics 119-39 (1972).
57. Supra note 6 at 314-20.
58. Rajeev Dhavan, Contempt of Court and the Press (1982).

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trial in the knowledge that the process, not the outcome, is the pu
Conversely, the Press Council, supposedly created to protect t
been used to curb press freedom. An important point emerges
Press laws in India cannot be gauged from an analytical assessm
severity or lenience. Enmeshed in the social structure, the In
the local and regional than the cosmopolitan - is resourceful, a
vious to legal restraining and capable of using its skills to se
political battles by using litigation to aid and abet its effort
press consists of a loose collection of people who seek to serv
poses including status mobilization and personal advancement
there is a considerable talent in the Indian press, this is not en
it afloat as an independent corps. All these pressures give a n
to press laws in India by extensively transferring the social me
black letter law in which such provisions are couched.
II The constitutional position
Article 19 of the Constitution of India reads:
(1) All citizens shall have the right

(a) to freedom of speech and expression;...
(2) Nothing in sub-clause (a) of clause (1) shall affect the o
any existing law, or prevent the State from making
insofar as such law imposes reasonable restrictions on th
of the right conferred by the said sub-clause in the interes
sovereignty and integrity of India, the security of the Stat
relations with foreign states, public order, decency or m
in relation to contempt of court, defamation or incite
offence.59
The makers of the Indian Constitution did not pay much attention to
freedom of the press. The Constitution refers only to freedom of speech
and expression.60 Living in the shadow of tremendous political upheaval,
the framers sought to introduce the apparatus of controls wielded by the
British into the new constitutional structure:
59. Following the Supreme Court decisions in Romesh Thappar v. State of Mahara-
shtra, A.I.R. 1950 S.C. 124 and Brij Bhushan v. State of Delhi, A.I.R. 1950 S.C. 129,
reasonable restrictions in favour of "public order" were added by the Constitution
(First Amendment) Act 1951. In 1963, following the war with China, reasonable
restrictions in the interests of the ^sovereignty and integrity of India" were added by
the Constitution (Sixteenth Amendment) Act 1963.
60. B. Shiva Rao, The Framing of India's Constitution (1965-68) m tour volumes ana
A Study volume (hereinafter cited as Shiva Rao). See "Minutes of the Sub-Committee
on Fundamental Rights." II Shiva Rao 119-21.

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The recent happenings in different pa

more than ever, that all the fundamen
the Constitution must be subject to
safety though such a provision may to
effect of the fundamental rights guar
tion.61
Likewise, the Indian Supreme Court did not see the constitutional
rights of the press as going beyond those of ordinary individuls : "no privi-
lege attached to the position of the press as such, that is to say, as distinct
from the right of the citizen."62 As a result, the rights which journalists need
to perform their functions effectively have never been adequately considered
by the courts. The courts recognize that the press performs an important
function in a democracy but are ambivalent about the criteria for the validity
of legislation challenged as violating the Constitution, and about the sub-
stantive rights of journalists. In Express Newspapers 63 certain provisions of
the Working Journalists Act 1956, aimed at ameliorating the conditions of
working journalists were challenged as unconstitutional. The Supreme
Court upheld the Act over the objection of the newspapers that the law
would increase their financial burden and thereby restrict the dissemination
of information. At the same time* the court refused to let the Wage Board,
designed to protect working journalists, exercise power. The court hinted
that a tax on advertisement would be invalidated if designed to limit the
circulation of information which was seen as part of guaranteed fundamental
right.64 However, there was no clear statement of the rights the press is
constitutionally entitled to (e.g., advertising, circulation, business autonomy,
et at). Instead, the court concentrated on the effect required before legis-
lation would be deemed to violate the freedom of speech provisions. After
proposing a multitude of tests the court observed:
Unless [the restrictions of press freedom] were the direct or inevit-

able consequences of the measures enacted in the impugned Act
it would not be possible to strike down the legislation as having
that effect and operation.65
It would appear that the court would recognize a direct and inevitable
effect only where the adverse effect on the press is formally stated in the
61. Id. at 143.

62. Arnold v. Rex , [1914] 41 I. A. 149, 169 cited with approval by the Supreme
Court many times.
63. Supra note 50 at 578.
64. Id. at 615 and 616, relying on Grosjeanv. American ťress Co., ¿97 U.a. lòò
(1935).
65. Id. at 620.

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298 JOURNAL OF THE INDIAN LA W INSTITUTE (Vol. 26 : 3
statute. This test seems to have been modified by later cases

court emhasized the necessity to protect the core of press free
ever, confusion in this area was restored in 1978 when Justic
(speaking for the majority) upheld the direct and inevitable te
Gandhi v. Union of India.*1 The case, a cause celebre , arose d
emergency and involved the petition of Mrs. Gandhi's daug
for permission to travel abroad. Did the government's wit
Maneka's passport abridge freedom of speech or the rights of
Unable to identify the legitimate bounds of journalistic freedom
distinguished between the right to free speech and "peripheral
tant right which facilitated the exercise of a named fundamen
and held that fundamental rights to free speech did not includ
to travel abroad. The case itself was settled when the Attorne
agreed to reconsider Maneka Gandhi's request for a passport.
Following a cautious political line, the courts have taken
making technical constitutional declarations. The Supreme Co
defined the institutional entitlement of the press nor evolved
social and economic regulations. The constitutional mandate that the
court should inquire into a large number of factors when determining the
reasonableness of governmental action has been considerably diluted by
the tests used to evaluate such action. The court has accepted control over
working conditions of journalists despite resulting financial burdens on the
press, rejected price and page control and forms of newsprint controls, and
allowed some latitude in withholding passports from journalists. But it
has not adequately explained the rationale underlying the permissible con-
trols. It has neither considered the governmental power to regulate materi-
als, prices and other market conditions to provide equal opportunity in
using the press, nor stated that such questions should be left to market
forces.
The Supreme Court has taken two seemingly contradictory positions

in interpreting the "reasonable restrictions"69 on the press permitted by the
Constitution. In State of Madras v. V. G. Rao,70 applying an ad hoc
balancing test to determine the question whether the statute constituted
reasonable restriction of freedom of association, the court stated:
The nature of the right alleged to have been infringed, the under-
lying purpose of the restrictions imposed, the extent and urgency
of the evil sought to be remedied thereby, the disproportion of
66. See supra note 46.

67. A.I.R. 1978 S.C. 597.
68. Citing All India Bank Employees v. National Insurance Tribunal , A.I.R. 19
S.C. 171.
69. Constitution of India, art. 19(2).
70. A.I.R. 1952 S.C. 196.

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the imposition, the prevailing conditi

enter into the judicial verdict.71
On the other hand, the courts denied

test to broad classes of legislation. On this
to obscenity, contempt and defamation
without any discussion of the reasona
nexus between the legislation and the en
This approach is most clearly marked
the Lady Chatterleys Lover's case.71" Lad
be obscene. But the only controvers
order.72 The court, anxious to perm
incitement of public disorder, left inta
used by the British against India's natio
hesitation, the court has permitted prep
ensure "quick decision and swift and eff
condition that an indefinite prohibit
without a processual concession to rep
hold that the power to impose restrictio
could not include the power to limit the
order,"74 it gave the government consid
fact that the rights, not the restrictions, w
The evasiveness of the Supreme Court
three cornered dispute between the leg
privileges), the courts (protecting fund
ding journalistic freedom). Wavering be
giving total protection to the legislat
freedom,77 the Supreme Court faced thi
ing its own jurisdiction whilst leavin
virtually at the mercy of the legislature by
powers.770 So courts have beeen unable
relative demands of the three organs of
From all this, one thing is clear. In co
attention is paid to the institutional ne
71. Id. at 200.

71 a. Ranjit D. Udeshi v. State of Maharashtra , A.I.R. 1965 S.C. 881.
72. See supra note 60 at 143.
73. Virendra v. The State of Puni ab. A.I.R. 1957 S.C. 896.
74. The Superintendent , Central Prison v. Dr. Ram Manohar Lohia , A.I.R. 1960
S.C 633; see Ramjilal Modi v. State of Uttar Pradesh, A.I.R. 1957 S.C. 620; see gene-
rally, Madhu Limaye v. S.D.M.. Monghyr. A.I.R. 1971 S.C. 2486.
75. In re, under art. 143 , Constitution of India , A.I.R. 1965 S.C. 745.
76. M.S.M. Sharma v. Shri Krishna Sinha , A.I.R. 1959 S.C. 395.
77. Gunupati Keshavram Reddy v. Nafisul Hasan, A.LR. 1954 S.C. 636.
IIa. Supra note 75.

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300 JO U RN AL OF THE INDIAN LA W INSTITUTE [Vol . 26 : 3
weight is assigned to the governmental interests that justify sup

The courts have echoed the government's anxiety about law and
applied the strictures of contempt, defamation, official secrecy
like mechanically and claimed a nodding acquaintance with the a
consensual choices of the people. It is possible that to expect mo
them would ignore their own social and political fragility
III The executive and official secrecy
The laws designed to protect the executive in India can be tr

the colonial period. The initial British strategy was to deal with
matters internally through a series of administrative circulars placing an
absolute ban on the dissemination of official information and allowing
only senior officials to explain government policy. As soon as official
secrecy legislation was enacted in Britain in 1889, 78 it was duplicated in
India.79 In 1923, over the protest in Indian legislature, India was given
its current Official Secrets Act.80 Presented as "a purely consolidating
measure" the Act was really a "catch all" enactment to prevent the
disclosure of any information rather than deal with either spying or state
security. Further amendments in 1967 - in the aftermath of the Indo-
Pakistan war- failed to liberalize the law; but in turn increased penalties
and facilitated prosecution.81
Official secrets legislation in India is wide ranging. Section 3 of the Act
prohibits approaching, inspecting, passing over or entering in the vicinity of
a prohibited place.82 It is also an offence to obtain, collect, record, publish
or communicate to any other person these items, or any "other document
or information which is calculated to be or might be or is intended to be,
directly or indirectly, useful to an enemy or which relates to a matter the
disclosure of which is likely to affect the sovereignty and integrity of
India, the security of the State or friendly relations with foreign States."83
The section's basic premise is that even if the case against the accused is
not proven, "his conduct or his known character as proved" could create
a presumption that his action was prejudicial to the safety or interests of
the state.84 As in British courts, "enemy" has been interpreted to
78. For historical background, see D.G.T. Williams, Not in the Public Interest
(1968).
79. Indian Official Secrets Act 1889. See S. Maheshwari, Secrecy in Government m
India . 25 I.J.P.A. 1101 (1979).
80. See Report of the Select Committee on the Bill to Assimilate the Laws of British
India relating to Official Secrets to the Law in Force in the United Kingdom (1922).
81. [The Indian] Official Secrets (Amendment) Act 1967.
82. Or making a sketch, plan, model or note useful to an enemy. Id ., ss. 3(l)(a)
and (b).
83. Id s. 3(l)(c).
84. Id ., s. 3(2).

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1984] LAW OF PRESS IN INDIA 301
include "potential enemy".85 Section

foreign agents or any person reasonabl
A person is presumed to have commu
visited the address of such an agent o
of such an agent.86 The terms "for
broadly defined so that a person woul
himself did not know that a foreign
reasonable objective grounds for suspi
Section 5 is a catch-all provision. It
cation, uses, retention or failure to ta
which has been entrusted in confid
office, or which he has obtained or w
his position.89 The voluntary receptio
information is also an offence, if the
to believe that such information is communicated in contravention of the
Act.90 This section has been interpreted widely to cover, for example,
budget leaks.91
Section 6 prohibits admission, or assisting others to gain admission to
prohibited places, and makes it an offence to retain, communicate and
manufacture any secret code, password or any officiai document if it is to
be kept for any purpose objectively determined to be prejudicial to the
safety of the state.92 Magistrates have the power to issue general search
warrants when there are reasonable grounds of suspicion,93 and a general
power of arrest is given to the police.94 The offence can be tried at the
accused's option by high level magistrates or the court of session,95 and
the court may exclude the public from the proceedings.96
There is very little reported case law on this statute. The efficacy of the
statute rests on its presence as a symbolic statement and a warning. The few
cases concern themselves with the substantive provisions of the Act. The
Karanjia case97 was concerned with the legality of a forfeiture deposit
on a newspaper which asked informants to leak official information to it.
85. Kutbuddin v. State of Rajasthan , A.l.R. 1967 Raj. 257.

86. [The Indian] Official Secrets (Amendment) Act 1967, s. 2 (a) fi) and (ii).
87. Id., s. 4 (2) (b).
88. Id ., s. 4 (2) (c).
89. Id., s. 5 (2).
90. Id ., s. 5 (2).
91 . Nand Lal More v. The State, 1 Cr. L. J. 392 (1965).
92. [The Indian] Official Secrets (Amendment) Act 1967, s. 6 (1) and (2).
93. Id., s. 11 (1).
94. Id., s. 11 (2). x
95. Id., s. 13(1) and (2).
96. Id., s. 14. See also Superint
Bengal v. Anthony Atten Fletcher
97. R.K. Karanjia v. Emperor ,

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302 JO U RN AL OF THE INDIAN LA W INSTITUTE [Vol. 26 : 3
The legitimacy of the forfeiture deposit system was reinforced b

rences to the broad sweep of the Official Secrets Act. This approa
affirmed in the Budget Proposals case98 which found a pre-publicat
of budget details to fall within the general "catch all" provisions o
Act.
No other case under the Act concerns the press. This suggests that
the press does not conduct many investigations into the government.
Gossip and conjecture are substituted for investigative reporting. There
are sufficient rumours to whet the appetites of journalists and readers. At
the same time clumsy government control over official secrets has led to
the free availability of sold or leaked information, even if it is not used
publicly. Military secrets, however, generally remain secure.
Under Indian law, Commissions of Inquiry have power to compel dis-
closure of information." Journalists are subject to these provisions, and
any plea of confidentiality is balanced against the public interest.100
How does the government operate its policy of official secrecy? Under
the Constitution the President has the power to make "rules for the more
convenient transaction of the business of the government...."101 These
rules cannot transgress other parts of the Constitution, and freedom of
expression can only be infringed upon by reasonable restrictions.101* A
shroud of secrecy seem to surround the rules promulgated by the President.
Published until 1973, these rules are themselves classified.102 This was
understandable during the Emergency of 1975-77, when the Indian Consti-
tution was amended to prevent courts from having access to these rules,103
but that amendment has been repealed.104
The government maintains an extensive system of official secrecy which
divides documents into "classified" and "unclassified". Even unclassified
material cannot be communicated to anyone outside the government without
permission. All communications to the press are handled through the
Press Bureau. Classified papers are designated "top secret", "secret",
"confidential" and "personal - not for publication". While "top secret"

99. Commission of Inquiry Act 1952, ss. 4 and 6 bar use of statements made by
witnesses in certain circumstances in civil and criminal proceedings for giving false
evidence.
100. This was dealt with in part by the Delhi High Court in Indira Gandhi case of
1979 (unreported judgment by Chawla J.). See, for important English cases, Att. Gen.
v. Clough, (1963) 1 All E.R. 420; Att . Gen. v. Mulholland , (1961) 1 All E.R. 767.
101. Constitution of India, art. 77 (2). See S.N. Jain, Official Secrecy and the Press
(1982).
101«. Id.t arts. 19 (1) (a) and 19 (2).
102. See Government of India (Allocation of Business) Rules 1961.
103. Constitution (Forty-second Amendment) Act 1976, adding art. 77(4) to the
Constitution.
104. See Constitution (Forty-fourth Amendment) Act 1978, deleting art. 77(4)
fro mthe Constitution*

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is reserved for military and related dat

categories inter-mix and present a form
within the government. All documents
thereafter only non-confidential materia
of people.105
Official secrecy has not been a major issue in India. The literature on
it is sparse. The Janata Government was committed to examining the issue
but let it drop after an inter-ministerial committee reported in 1977 that
such legislation was essential.106 This view echoed the position of Press
Laws Inquiry Committee (1948)107 and the First Press Commission, which
felt that the Official Secrets Act was being administered in a fair
manner.108
In a recent report to the Press Council109 the Indian Law Institute
rejected the premise that secrecy is needed for all government activity and
preferred an approach which would allow secrecy in the specific areas of
defence, foreign relations, cabinet proceedings and documents, maintenance
of law and order, private information given to the government in confidence,
trade secrets and information which through premature disclosure can pro-
vide opportunities for unfair financial gain by private interests. It sugges-
ted that a public interest plea be allowed in defence to prosecutions in
these areas, and called for freedom of information in certain areas.1090 It
also proposed that prosecutorial discretion should be vested in a powerful
committee consisting of the Attorney-General, the Chairman of the Press
Council and another member of the Press Council nominated by the
same.1096 Although accepted by the press,110 these suggestions are unlikely
to be translated into official policy.
There is an irony about official secrecy in India. Although informa-
tion is available through a variety of sources, gossip appears as news and
investigative journalism is frowned upon. The Official Secrets Act stands
as a colossus, and enables the government to successfully use social psycho-
logy to entrench traditional attitudes and discourage public probing about
the government's business. Informal controls and the timidity of a weak
press do the rest. Except when motivated by imitative, cosmopolitanism
or a unique sense of individual initiative, the Indian press is neither bothe-
red by official secrecy nor concerned about open government.
105. See S.N. Jain, supra note 101 at 21; the 30 year rule is stated in the Archives
Policy Resolution of 22 December 1972.
106. See S. Maheshwari, ''Secrecy in Government in India" in T.N. Chaturvedi
(ed.), Secrecy in Government 126 (1980).
107. Report of the Press Laws Enquiry Committee (1951).
108. Supra note 55 at 339-401.
109. S.N. Jain, supra note 101.
109*. Id. at 33-34.
109*. Id. at 36.
110. See A.G. Noorani, "Secrets Act: And Anachronism", Indian Express (15 July
1981); S. Sahay, "A Close Look: Official Secrecy and the Press", Statesman (16 July
1981).

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IV The judiciary and contempt of court
The law of contempt affects the press by punishing those

lize judges, violate gag orders, refuse to disclose information
or interfere with the due administration of justice. The sum
of judges to punish contempt can be traced to the introductio
style Courts of Records which automatically possess the pow
for contempt. This basis for contempt law is incorporated in
tion even though the law of contempt is derived from legis
ment.
The early law of contempt was developed as judges felt the pressure of
indigenous insult during the 19th century. Initially, this novel summary
jurisdiction was used to protect the dignity of the court from irreverent
outrage.111 The first press case, against the English owned newspaper,112
was followed by cases involving most Indian leaders who challenged the
integrity, status or decisions of British Indian courts.113 Some cases invol-
ved legitimate complaints about judicial corruption and inefficiency.114
There was a disparity in the way Indians were treated, and doubts soon
arose concerning the summary nature of the power115 and about the power
of the High Courts to protect the lower judiciary.116
The British, anxious to give the courts the protection accorded to the
executive by the sedition laws, enacted the Contempt of Courts Act 1926, 117
111. Chat too Singh v. Raj Kissen Singh , (1842) I Ind. Decisions (Bengal) 660;
Sreemutty Ranee Hurrosoondry Dossee v. Cowar Kistonath Roy , (1842) I Ind. Decisions
693 (Bengal); Rammohwi Nullick v. Nubkissore Sen , (1839) I Ind. Decisions 1068.
1 12. In the Matter of William Taylor , A.I.R. 1918 Cal. 713.
113. In re Narashina Chintaman Kelkar , 33 I. L.R. Bom. 240 (1903); In re Mohandas
Karamchand Gandhi, A.I.R. 1920 Bom. 175.
1 14. Surendra Nath Banerjee v. The Chief Justice and Judges of the High Court at
Fort William in Bengal , XI.L.R. Cal. 109 (1882) relying on Bainey v. Justices of Sierra
Leone , 8 Moore's I. A. (N.S.) 466; In the Matter of William Taylor , supra note 1 12.
115. In re Moti Lal Ghose and others , 45 1. L.R. Cal. 169 (1918); Emperor v. Balkrishna
Govind Kulkarni, A.I.R. 1922 Bom. 52.
116. The Madras, Bombay and Allahabad High Courts upheld such power, while
the Calcutta High Court did not. See In the matter of K. Venkat Row, 12 Cr. L.J. 525
(191 1); In re Mohandas Karamchand Gandhi , supra note 113;/» re Hadi Husain v. Nas ir
Uddin , A.I.R. 1926 All. 623; Government of Bengal v. Moti Lal Ghosh , 41 I.L.R. Cal.
117(1967).
117. Lord Minto's Government, after consulting all the provincial governments in
1901-09 prepared a Bill in 1911, penalising contempt of authority of courts of justice.
This Bill, as revised in the light of comments received, was introduced in the Legisla-
tive Council on 18 March 1914. But the consideration of the Bill was postponed on
account of the outbreak of the First World War. After further consideration, the
government finally abandoned the 1914 Bill and decided in favour of introducing
legislation on the line of Sir Tej Bahadur Sapru's suggestions; see Sanyal Cummittee
Report 5, 6 (1963).

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which was re-enacted in 1952.118 It gave

the lower judiciary and set the maximum
rupees and imprisonment for six month
Chief Commissioners Courts in 1950.120
The press was dealt with quite severely by judges who often failed to
distinguish between fair and unfair criticism. While this type of jurisdic-
tion was being phased out in other parts of the world,122 the Indian docket
of cases of scandalizing the judges was growing.122 The contempt power
had become part of the litigation strategies of private parties. Disgruntled
litigants who lost a case would take the issue to the local press in the hope
that they would be invited back to court to answer charges for contempt.123
The pathology of Indian litigation transformed the contempt jurisdiction
into a possible strategic weapon for the press.
The advent of India's Constitution made little impact. Discussion in
the Constituent Assembly was vague.124 The courts have upheld contempt
of courts legislation as a reasonable restriction on freedom of expression,125
although counselling restraint in the use of this "sensitive and suspect"
power.128 During parliamentary discussion of the Contempt of Courts Act
1971, the law minister took the position that reform in this area required
amending the clear constitutional statement that the Supreme Court and
High Courts have power to punish for contempt.12' The affirmation of this
view by the Supreme Court has cast a shadow on the possibility of future
reform.128
Between the promulgation of the Constitution and the Contempt of

Courts Act 1971, the bulk of cases before the Supreme Court concerned
the offence of scandalizing judges.129 For example, the court punished a
118. (1950) I P.D. pt. II. col. 1504-10 (28 Feb. 1952); see Contempt of Courts Act
1952.
119. In re Lala Harkishan Lal, A.I.R. 1937 Lah. 497 led to this amendment in the
Contempt of Courts Act 1937.
120. (1950) II P.D. pt II 930, col. 1297-1304: see Contemot of Courts Art to^n
121. For the decline of this jurisdiction outside India, s ec McCleod v. St. Aubyn
[1899] A.C. 549; Ahband v. Attorney General of Trinidad and Tobago , (1936) 1 All E.K.
704; R. v. Metropolitan Police Commissioner, (1968) 2 All E.R. 319
122. See Rajeev Dhavan, The Supreme Court of India : A Social-Legal Analysis of
Its Juristic Techniques 390-99 (1979).
123. E.g., President, Municipal Boa>d , Fatehpur v. Raghubir Sahai, A.I R 1958 All
436.
124. Ill C A.D. 441 (20 April 1947). VII C.A.D. 711-87 (1 Dec. 1949) while discuss-
ing the Draft Constitution circulated on 21 Feb. 1948; see also IV Shiva Rao, granóte
60 at 40; X C.A.D. 394-401.
125. Arts. 19(1) (a) and 19(2), Constitution of India; see E.M.S. Namboodiripad v.
T.N. Nambiar, A.I.R. 1970 S.C. 2015.
126. Baradakanta v. Registrar, Orissa H.C. , A.I.R. 1974 S.C 710 at 7?R
127. Sec State of Karnataka v. Shiradeva , 1976 Cr. L.J. 1958.
128. Board of Revenue , U.P. v. Vinay Chandra , A.I.R. 1981 S.C 723 at 79*
129. E.g., Baradakanta , supra note 126; Ram Partap v. Daya Nand, A.I.R. 1977 S C
809; In re Sham Lai , A.I.R. 1978 S.C. 489; In re S. Mulgaokar t A.I.R. 1978 S.C. 727 .

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Marxist politician for making the statement that judges suffere

bias.130 The court has not attempted to extend the law to cove
on pending cases. That part of the law was clarified by the Co
of Courts Act 1971. 131
A more representative sample of judicial conflict with the press
in the cases before the High Courts. The bulk of these involve i
with the due administration of justice rather than scandalizing
scandalizing cases stem from allegations of corruption or badly
criticism.132 while the cases of comments on pending or imm
often have either a national or local political flavour. These in
laudatory or deprecatory remarks about Communist affiliation,133
ments by politicians concerning rape cases134 or riots.135 Many
against politicians were dismissed by the courts136 - sometim
late Prime Minister Nehru's case.136« This was not because the
politically vulnerable to manipulation; much rather, it was because
were aware that the jurisdiction was being used to harass politic
than protect the judicial process.
Throughout this period the courts introduced few innovat
punished severely in some cases and in others let the newspaper
warning, costs and an apology.137 In cases such as the Statesm
the court suggested that mildly inaccurate reports which wer
130. Namboodiripad , supra note 125.

131. Contempt of Courts Act 1971, s. 3.
132. E.g., State of Rajasthan v. Shyam Narain , 1973 Cr. L.J. 1340.
133. Bankim Chandra v. Anand Bazar Patrika , A.I.R. 1950 Cal. 129; Government
Pleader v. M. Manjooran , A.I.R. 1959 Ker. 266.
134. Crown v. Brish Bhan , A.I.R. 1950 Pepsu 9.
135. E.g., K.P. Noordeen v. A.K. Gopalan , A.I.R. 1968 Ker. 301.
136. E.g., Leo Roy Frey v. R. Prasad , A.I.R. 1958 Punj. 377.
136a. E.V. Ramaswami v. Jawaharlal Nehru, A.I.R. 1958 Mad. 558.
137. A classification of the case law on the basis of punishment would be as follows:
Imprisonment was given in The Crown v. Amin-ud-din Sahrahi, A.I.R. 1949 Lah. 266;
State v. Faqir Chand, A.I.R. 1957 All. 657; State v. Radha Krishna, A.I.R. 1961 Punj.
113; State of Bihar v. Gorakh Prasad, A.I.R. 1961 Pat. 360; State v. D.K. Dass Vidhi,
1973 Cr. L.J. 1271.
Apologies were accepted and reprimands and warnings given (whether with or without
a costs order) in Mohd. Ibrahim v. Bhopal Singh, A.I.R. 1948 Oudh 131; Crown v.
Brish Bhan, supra note 134 (costs); Surutulal v. Yeshwantsingh, A.I.R. 1951 M.B. 98
(costs); Sukhdeo v. Brij Bhushan, A.I.R. 1951 All. 667 (costs); Wasudeoraoji v. A.D.
Mani, A.I.R. 1951 Nag. 26 (costs); Bijoyananda v. Balakrushna, A.I.R. 1953 Ori. 249;
J.C. Medhi v. Frank Moraes , A.I.R. 1954 Assam 201; State of H.P. v. Raghunandan Lai,
A.I.R. 1954 H.P. 70 (costs); State v. Editors etc . of Matrubhumi, Krushak, A.I.R. 1954
Ori. 149 (costs); Harekrishna Mahatab v. Balkrishna Kar, A.I.R. 1954 Ori. 57 (costs);
The State v. Padma Kant Malviya, A.I.R. 1955 All. 377; R.K. Garg v. S.A. Azad, A.I.R.
1957 All. 37 (costs); Rahmat Ali v. Beni Madho , A.I.R. 1957 All. 457 (costs); Leo Roy
Frey v. R. Prasad, supra note 136; In the matter of Basudev Prashad, A.I.R. 1961 Pat.
437; District Magistrate v. Madhava Rao, A.I.R. 1961 Mys. 12; State of Bihar v. Shankar
Lai, A.I.R. 1962 Pat. 2; Rev. Fr. Sebastian v. Karunakaran, A.I.R. 1967 Ker. 177.

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misleading be treated as technical contemp

newspaper if the latter offered an apology.
The Contempt of Courts Act 1971 was en
parliamentary debate and was based on the
would require a constitutional amendme
categories of civil contempt (involving wil
tempt involving publication (by words or s
represented) of any matter which tend to
lower the authority of any court, prejudic
course of any judicial proceeding; or interfere
tration of justice.140
The Act declares that civil proceedings comm
plaint; and criminal proceedings with the filin
(broadly defined) takes cognizance of procee
and distributors who should have had reason to believe that court
proceedings were pending,142 and allows fair and accurate reporting of
court proceedings (except where prohibited)143 and fair comment on cases
subsequent to a final decision by the court.144
The Act attempts further reform through many procedural innovations.
The maximum sentence remains at a fine of two thousand rupees and
imprisonment for six months145 with imprisonment barred unless "the con-
tempt is of such a nature that it substantially interferes, or substantially
tends to interfere with the due course of justice."146 There is a limitation
period of one year.147 Initiation of contempt proceedings is limited to the
higher judiciary,148 special benches are required in certain cases149 and
139. B.B. Das Gupta introduced a Bill to amend and consolidate the law of contempt
of court in the Lok Sabha on 1 April 1960; see also Report of the Committee on Con
tempt of Court (1963); the Bill was introduced in the Lok Sabha on 1 April 1968, 41
L.S.D. second series col. 9187. Report of the Joint Committee on the Contempt of
Court Bill 1968: Government of India Gazette , Extraordinary pt. II sec. 2 (23 Feb.
1970); Report of the Joint Committee on the Contempt of Court Bill 1978 pr. 16, com-
ment on cl. 3. For the Law Minister's assertions see 78 Raj y a Sabha Debates (herein
after cited as R.S.D.) no. 4 (18 Nov. 1971) cols. 203-56; no. 6 (22 Nov. 1971) cols.
1040-63.
140. Contempt of Courts Act 1971, s. 2 (b) and 2 (c).
141. Id ., s. 3, explanation.
142. Id ., S.3.
143. Id S.7.
144. Id., S.5.
145. Id., s. 12(1).
146. Id., s. 13.
147. id., s. 20.
148. Id ., ss. 14 and 15.
149. Id., s. 18; cases on criminal contempt would be heard by a Bench of not les
than two judges except in respect of a judicial commissioner.

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appeals are provided for.150 It was also made clear that judg
officers could themselves be guilty of contempt.151
Despite these extensive revisions, the Act states that no ne
are created,152 nor any defences eliminated153 - implying th
really changed. The courts have responded by ignoring the w
statute, with the Supreme Court even allowing a defence of f
although publication took place while the case was still pendin
The declining status of the courts has led to flouting of ju
and repeated accusations of judicial bribery and corruption.
the courts have attempted to use the contempt jurisdiction a
tions of drunkenness,154 bribery, both monetary and sexual,155
influences on a magistrate by a politician.156 Contempt has a
to punish essentially political reporting by the press includ
unfair distribution of jurisdiction among regional bench
Pradesh,157 improper influences of election petitions,158 repo
by the Chief Justice to influence the local press,159 and pre-judg
of the famous Election case160 in 1975 which decided that Mrs. Gandhi
should be unseated from Parliament.
Despite such a wide range of cases the courts have not clearly defined
the permissible limits of criticism. The best opportunity for the Supreme
Court to clarify the situation was presented by the Chief Justice Appoint-
ment cases in 1978.161 These involved assertions that certain Supreme
Court judges were unfit to be appointed as Chief Justice because of their
judicial decisions during the Emergency. Although the charges were
dropped - presumably because of their controversial political nature -
Krishna Iyer J. attempted to lay down seven guidelines, which provided a
general policy of restraint but failed to define the limits of permissible
speech.162
150. Id.a S.19.

151. Id.. s. 16.
152. Id ., S.9.
153. Id ., ss. 8 and 22.
154. State of Rajasthan v. Shyam Narain , supra note 132.
155. The courts have demanded a qualified apology at an early stage and have,
therefore, eaten into the purpose for which the concept of a "qualified apology" was
introduced in section 12 of the Contempt of Courts Act 1971 (see In re District Magis-
trate , Raj nandgaon, 1975 Cr. L.J. 1976; The High Court v. S.K. Mathur , C.I.T. , (1975)
101 I.T.R. 180. The apology provisions were very harshly interpreted in State v. S.N.
Dikshity 1973 Cr. L.J. 1211; Manik Chandra Gupta v. Virendra Kumar , 1979 Cr.
L.J. 412, see also State v. Rama Chandra Mohapatra , I.L.R. (1975) Cut. 604.
156. State v. D.K. Dass Vidhi , supra note 137.
157. G.N . Verma v. Hargovind Day al, A.I.R. 1975 All. 52.
158. Mohd. Osman Shaheed v. Mohd. Bagur , 2 A. P.L.J. 763 (1979).
159. Registrar , High Court v. Baradakanta Mishra , 1976 Cr. L.J. 405.
160. Rakesh Dwivedi v. Indira Gandhi , (1979) All Cr. K. ¿II.
161. In re Shamlal and In re Mulgaokar, supra note lzy.
162. Ibid.

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Another opportunity was presented b

involving charges that a magistrate was
legitimacy of the court system in rura
dant to make a plea of fair comment (t
reduced the punishment to a fine of on
the court relies more on intuition than on
contempt of scandalizing the judges.
Although anxious to prevent che stif
matters of public importance, the cour
permissible range of comments. Discuss
ment of a new Chief Justice167 or the cu
distinct jurisprudence in this area has y
tolerate irresponsible statements about th
stand the broader conflict perspective o
The contempt jurisdiction has also
principled comment for journalists. Th
duced compromises between the compet
press, and enforcing a ritualistic respe
standards of the behaviour, similar to
emerged.
Further reform through constitution
too risky. The courts, vulnerable to cr
the potential power of the contempt j
press has learned to manipulate the co
The most difficult problems concern p
lower judiciary. The present writer has
by the High Courts before such allega
record of the press in this area reflects
delicately without affecting the viabil
tion.
V Parliament and its privileg
The original Constitution extended t

privileges identical to those of the Hou
163. Rama Dayal v. State ofM.P., A.I.R. 197

164. Id. at 928.
165. Ibid.
166. Ibid.
167. Anil Kumar Gupta v. K. Suba Rao , I.L.R. 1974 Del. 1.
168. Y. V. Hanumantha v. K.R. Pattabhiram9 A.I.R. 1975 A. P. 30.
169. Supra note 58.
170. It is not one of the issues earmarked for special discussion in the questionnaire
issued by the constitutional adviser; see II Shiva Rao, supra note 60 at 441-47; see, how-
ever, art. 35 of a proposed draft clause of Union Constitution; IV Shiva Rao, supra
note 60 at 511; 544 and 661; arts. 85 (3), 169 (3), Draft Constitution 1948, II Shiva Rao

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including control of internal procedures171 and legislative

in respect of anything said or done in Parliament or publicized
authority.172 Indian practice rather than British tradition guide
pretation of these provisions.173
Although fair and accurate reporting of parliamentary proce
immunized in 1956, 174 restricted access to the courts in such m
the privileges committees of the various legislatures the exclu
appealable forum in cases alleging newspaper breaches of privi
free hand given to legislatures against the press led the Press C
to conclude that the press had been unjustly treated.175 Parlia
privilege has been manipulated by legislators to attract public
conduct vendettas and embarrass opponents. Most cases have n
significance than attempts by politicians to attract favourable
and/or embarrass opponents. Apologies are often utilized to r
cases, with either imprisonment176 or reprimand with loss of crede
being imposed on journalists only if they refuse to apologize.
The most fertile areas for conflict between press and P
are inaccurate reporting of legislative proceedings, publication o
material, violation of the legislative position as the primary f
discussion of certain matters, and attacks on the integrity of Pa
its members, ministers or Speaker. The way in which these in
handled reflect the inevitable tension between formal recogniti
freedom and parliamentary sensitivity to criticism.
Although lack of mala fide intent is a defence,178 there is
inquiry into intent.179 Absence of mala fide intent is assume
cases, and intent is not really examined in other cases.180 The
546; IV Shiva Rao 102, 124 (Per A.C. Gupta). For the discussion in the C
Assembly see VIII C.A.D. 145-56 (19 May 1949) 578-84 (3 June 1949); X
(16 October 1949). The Constitution included those privileges in arts. 105 and 194
whereas the reference to the privileges of the House of Commons is in arts. 105(3) and
194 (3) respectively.
171. Constitution of India, arts. 105 (1) and 194 (1).
172. Id. y arts. 105 (2) and 194 (2).
173. Ss. 21 and 34, Constitution (Forty-second Amendment) Act 1976.
174. Parliamentary Proceedings (Protection of Publication) Act 1956. This Act
was repealed by the Parliamentary Proceeding (Protection of Publication) Repeal Act
1976, which was itself repealed and replaced by the Parliamentary Proceeding (Protec-
tion of Publication) Act 1977.
175. Supra note 55 at 418 and 424.
176. Janagarjana case, XI Privileges Digest (hereinafter cited as Priv. Dig.) 17 (196$)
(Goa, Daman and Diu Legislative Assembly),.
177. E.g., Nagirk case, XXVI Priv. Dig ., no. 1, 19 (1981) (Tnpura Legislative
Assembly).
178. See Indian Express case, XXIV Priv. Dig ., no. 2, 48 (1979) (Jammu and
Kashmir Legislative Assembly).
179. Alai Osai case, XVIII Priv. Dig., no. 2 29 (1973) {Raj y a Sabha ).
180. E.g., supra note 178; see Times of India cast, XXIV Priv . Dig., no. 2, 44 (197?)
( Lok Sabha).

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1984] LA W OF PRESS IN INDIA 31 1
the parties before the House181 and fut

newspaper are important factors in dete
Publication of corrections,182 apologies
to dispose of most cases.
Many cases involving careless reportin
the exaggerated sensitivity of legislator
Such cases are either ignored,185 settled
with an apology and/or correction.18
allegations of misconduct of legislators
reports of attacks by legislators upon ea
resolved by apology and/or the printing of
Other cases in this area involve independ
Although some legislatures decline the
criticism of legislator's activities outside
that insulting or libellous statements co
in the absence of mala fide intent.192 Defe
are usually not allowed, and decisions
J 81 . E.g., Indian Express case, XII Priv. Di

sometimes, an undertaking is taken that futur
case, XXII Priv . Dig., no. 1, 18 (1979) (West Be
182. Indian Nation case, XVI Priv. Dig., no. 1,
183. Indian Observer case, XI Priv. Dig., 27 (
184. E.g., the omission of the word "too" in t
IX Priv. Dig., 3 (1965) ( Lok Sabha)', an allege
Minister, Times of India case, IX Priv. Dig., 6 (1
All India Radio case, XXIII Priv. Dig , no. 1,10 (
the speaker dealt with an adjournment motion
49 (1975) (Kerala Legislative Assembly); whe
House, Indian Express case, IX Priv. Dig., 1 (196
politician had asked the Prime Minister to spea
2 (1965) ( Lok Sabha)', omission of a name fro
debate Indian Express case, XII Priv. Dig., no.
186. See Statesman case, XII Priv. Dig., no. 1
187. See supra notes 181 and 182.
188. E.g., criminality, All India Radio case
Sabha); lack of national loyalty, Assam Tribune
no. 2, 40 (1961) (Assam Legislative Assembly);
Organiser case, VIII Priv. Dig., 1 (1964) (Rajya
XXII Priv. Dig., (no. 2, 48 (1977) (Rajya Sabha
189. E.g., Times of India case, XII Priv. Dig.,
190. E.g., accusation of misbehaviour, Indian
26 (1973) (Lok Sabha)', telling lies, Blitz case
Sabha)', being prejudiced, New Age case, V Pr
unprincipled, Economic Times case, XXV Pri
or in the pay of a foreign government Jugant
(Lok Sabha).
191. Patriot case, XIX Priv. Dig., no. 2, 39 (
192. Blitz case, V Priv . Dig., no. 2, 28 (1961)

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political strengths and moods. Such approaches are also presen

involving cabinet ministers,193 although a less harsh approach
when the Speaker is criticized.194
As in other areas there has been no definition of the bounds
mate criticism. Arun Shourie, a distinguished journalist, at
force such a definition when he proved that a minister had m
House and invited contempt proceedings against himself or th
Parliament declined the gambit.195
A second area of privilege cases involves material which sh
have been published. Such offences include publishing expung
or confidential reports of committees, selling unauthorised r
publishing Bills as if they were enacted as statutes.196 There
definitive resolution of questions such as the extent to which
can make reports confidential or copyright its documents.197
been settled that the privilege jurisdiction is the appropriate m
enforce such copyrights. In cases involving publication o
material a policy of demanding immediate, unconditional a
correction has developed.198
Guidelines are also sorely lacking to govern resolution of c
between the role of the press as a medium for discussion of p
and the rights of Parliament to be the primary forum through
issues are discussed. Most cases arise when ministers discuss p
with the press before reporting to Parliament.199 Although s
have held that this is not a breach of privilege,200 the dominan
such cases is that these issues should first be discussed before the House as
a matter of courtesy.201
In all areas of privilege the defences available to the press are uncjear.
Beyond the statutory defence of fair and accurate reporting of Parlia-
mentary proceedings, emphasis is on social and political intent rather than
truth or fair comment. Further, in light of the fact that a large amount
of news is supplied by news agencies, clarification is needed regarding
193. Bhrashtachar Nirodh case, XXII Priv. Dig., no. 1, 12 (1977) (Bihar Legislative
Council).
194. Some Speakers have been very hostile to criticism, e.g., Prabhat case, I Priv.
Dig., no. 3, 17 (1957) (Punjab Vidhati Sabha ); others have ignored criticism, e.g., Indian
Express case, IX Priv. Dig., 1 (1965) {Lok Sabha).
195. Indian Express case, (1981) (unreported).
196. Leaders Committee case, XX Priv. Dig., no. 2, 44 (1975) ( Lok Sabha).
197. Pratipaksha case, XXI Priv. Dig., no. 2, 34 (1974) {Lok Sabha).
198. Hindustan Times case, XII Priv. Dig., no. 1, 35 (1967) C Lok Sabha).
199. E.g., Statesman case, (1966) XXII Priv. Dig., no. 1, 27 (1967) {Lok Sabha ,
discussion with press about political policy towards saboteurs).
200. P.T.I . case, XII Priv. Dig., no. 1, 10 (1967 Lok Sabha)', (discussion of negotia-
tions with World Bank before informing Parliament).
201. Nehru case, VIII Priv. Dig., 2 (1967) {Lok Sabha). Nehru held a press conference
on the United States Seventh Fleet before making a statement in Parliament).

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liability for news items supplied to new

Privilege cases have developed an i
number of cases both cosmopolitan an
been careful enough. In other cases th
of access to the courts has subjected th
legislature. This has resulted in the in
guise of keeping the record straight.
learned to play the game and give fu
political mischief that are a backdrop t
VI Public order and morality
A. Offences related to public order
The British system of press cont

tools of registration, censorship and t
discussed in part I above. These were s
tion designed to deal with public order
This system continues today and has i
called "national emergencies."
The omission of such offences in th
later described as "an unaccountable mistake."203 The British believed
that the Indian press skilfully and deliberately "misrepresented the facts"
to wean away the loyalties of the Indian people.204 The specific offence
system was introduced as a liberal alternative to the rigorous forfeiture
deposit system in use against the vernacular press. The initial offence of
sedition205 was joined during the British rule by promoting enmity
between classes206 and outraging religious feelings.207 Since Independence
the federal statute book includes the offence of causing ill-will between
communities and affecting national integration208 and the spreading of
false and malicious rumours.209 These general offences are supplemented
by many other specific offences under both state and central statutes.210
202. See Indian Express , Times of India , U.N.I, case, XtKPriv. Dig., no. 2, 40 (1974)
( Lok Sabha).
203. See W.R. Donough, The History of the Law of Sedition (2nd ed., 1914).
204. Id. at 183.
205. I.P.C., s. 124a.
206. Id., s. 153a.
207. Id., s. 295A.
208. Id s. 153B.
209. Id., s. 505.
210. E.g., Criminal Law Amendment Act 1961, prescribing threatening the safety,
security or integrity of India, or the circulation of prejudicial rumours in notified areas.
A large number of other statutes deal with the public order, e.g., Assam Maintenance
of Public Order (Autonomous Districts) Act 19 ; 3; Bihar Maintenance of Public
Order Ordinance 1949.

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The original provisions on sedition made it an offence to a

incite feelings of disaffection against the government by "w
representations or otherwise."211 Violations were punishab
portation for life, imprisonment, including upto three years of
and fines. An Explanation stated that comment on governmen
with the intent of exciting only disapprobation of the govern
supporting its lawful authority is not an offence, provide
arouses the feelings mentioned in the main section nor tries
anything by unlawful means. Courts have ruled that intent c
from the articles, considering their probable effects on read
disaffection has been held to include "disloyalty and all
enmity"213 and absence of goodwill and not necessarily the in
rebellion or forcible resistance.214 With an amendment maki
to "attempt to bring into hatred or contempt ... the Governm
law of sedition has retained its basic form since the end of the last cen-
tury.
In addition to prescribing incitement of armed insurrection216 and
anarchy,217 the law of sedition has been used to repress a wide variety of
political activity. These include charges that the government is reac-
tionary,218 dishonest,219 partial to landlords,220 biased against the working
classes,221 or responsible for creating communal disharmony222 and disa-
bilities among village folks.223 Anti-government versions of history224 and
reports of freedom fighters convicted of murder225 have been held
seditious, while pleas for a change of government226 and urging people to
fight for independence,227 boycotting of goods228 or refusal to pay
211. Supra note 205 .

212. Queen-Empress v. Jogendra Chunder Bose, XIX I.L.R. Cal. 35 (1890).
213. Queen-Empress v. Amba Prasad, XX I.L.R. All. 55 (1898).
214. Bal Gangadhar Tilak v. Queen-Empress , XXII I.L.R. Bom. 528 (1898).
515. See Explanation III to s. 24A, I.P.C.
216. Parmanand v. Emperor , A.I.R. 1941 All. 156.
217. AnandKishore v. Emperor , A.I.R. 1930 Lah. 306.
218. In re Ananda Bazar Patrika , A.I.R. 1932 Cal. 745.
219. Ibid.
220. Narayan Vasudev Phadke v. Emperor , A.I.R. 1940 Bom. 379; Thakin Lay Ma
v. The King , A.I.R. 1939 Rang. 169.
221. Marinjan Das v. Emperor , A.I.R. 1931 Lah. 31.
222. Gopal Lai Sanyal v. King-Emperor , A.I.R 1927 Cal. 751 .
223. V.S. Dandekar v. Emperor , A.I.R 1930 All. 324.
224. Satyendra Nath Mazumdar v. Emperor , A.I.R 1931 Cal. 337; see also, Lacnm
Singh v. Emperor , A.I.R. 1930 Lah. 156.
225. Kirpal Singh v. Emperor , A.I.R. 1931 Lah. 106.
226. Hanumanthaiya v. Government of Mysore, 52 Mys. H.C.R. 265 (1947); Manu
Tribhov andas Patel v. State of Gujarat , 1972 Cr. L.J. 373.
227. V. Bhusan Roy v. Emperor , 6 Cr. L.J. 297 (1907).
228. V.D. Chidambaram Pillai and Subramanian Siva v. Emperor, 32 A.I.R. Ma
(1909).

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land revenues229 have been found not

requirement in the Explanation tha
governmental measures was not by it
legally inconsistent with the Penal Co
- rest on a judicial intuition about
criticism and the lengths to which th
be questioned.230
Wide ranging use of the law of sedit
democratic society in which freedom
government inevitable.231 The stat
criticisms of police officers232 or subo
Allahabad High Court was prepared
when used to stifle criticism of cabin
rejected by the Supreme Court.235
Federal Court ruling that an essential
must "either incite to disorder or ... s
[its] intention or tendency."236 Thi
accord with a recommendation of Pre
it leaves mluch uncertainty in this
urged the rep acement of the present
overthrow of the government by v
is much too happy with the potential
put - symbolically and otherwise - t
reform.
The British statute proscribing the pro

was widely worded to cover words, si
attempted to promote enmity or hatr
Majesty's subject.239 It was used to pr
India and civil servants, and applied to
and Muslims. As it happens these prov
hostilities, as rival groups used the cou
229. Om Prakash v. The Crown , 9 Cr. L.J.

230. No clear legal approach is discernible
at the natural and probable consequences
defendant.
231. Debi Soren v. The State , A.I.R. 1954 Pa
232. Satya Ranjan Bakshi vģ Emperor, A.I.
Emperor , A.I.R. 1948 Nag. 71.
233. Sagolsem Indramani Singh v. State of M
234. Ram Nandan v. State , A.I.R. 1959 All.
235. Kedar Nath v. State of Bihar, A.I.R. 19
236. Niharendu v. King Emperor , A.I.R. 1
237. The Press Law Enquiry Committee Rep
238. Supra note 6, esp. ch. XX.
239. I.P.C., s. 153A.

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pûtes. Such uses of this provision were curtailed by the imposit

to show deliberate intent240 and by restrictive judicial definit
constitutes a class.241 The major groups held to be classes wer
Muslims, Indians and Europeans.242 There was enough uncertai
decisions to allow litigants to continue using the provisions to
critics. The preliminary need for the government or a magistr
sion to launch a prosecution restricted, but did not wholly pre
of these provisions to further social animosities.
These provisions were broadened in 1961 to include en
hatred between religious, racial or language groups or castes o
ties, and to punish acts prejudicial to the maintenance of har
ween such groups or likely to disturb the public tranquility.2
enmity or hatred had to be caused, deliberate intent was not n
good faith was not a defence. The use of this section in politi
persisted, including one unsuccessful attempt to prosecute a n
calling for an election boycott.244
During the 1971 war with Pakistan a new offence proscribe
tions [and] assertions prejudicial to national integration."24
a violation to question the truth or allegiance of any relig
language or regional group or caste or community to the Cons
advocate that any such group, caste or community be de
their rights or cause "feeling of enmity or hatred or ill-w
such members and other persons."246 These provisions do
deal with disturbances of the public order, and are jus
Supreme Court decision that the Constitution allows restricti
interest of the public order and not solely for its maintenan
lack of objective criteria defining ill-will, enmity or hatred m
section available for a wide range of purposes.
In 1927 - following certain court decisions248 - the British
240. M.L.C. Gupta v. Emperor , A.I.R. 1936 All. 314. Cf., Harnam Da
Uttar Pradesh , A.I.R. 1957 All. 538.
241. Groups held not a class include capitalists ( Maniben Liladhar Kara
A.I.R. 1933 Bom. 65 at 67-69, "Non-Bengalis" (In re Paschim Banga Patrika , 1
I.L.R. Cal. 235 (1951); Christian missionaries (Joy Chandra Sarkam v. Emperor , 38 I.L.R.
Cal .214(191 1); stockholders or employees of a company (Thakin Lay Maung v. The King ,
supra note 220); landlords (Emperor v. Banomali Maharana , A.I.R. 1943 Pat. 382) and
political parties (The State v. Sadat Jehan Begum , I.L.R. Hyd. 889(1956).
242. See Jaswant Raj v. Emperor, 5 Cr. L. J. 439 (1907); Zaman v. Emperor , A.I.K.
1933 Cal. 139; Chida Nand w. Emperor , A.I.R. 1920 Lah. 350.
243. Act XLI of 1961 . Punishment thresholds were raised by the Criminal and
Election Laws Amendment Act 1969.
244. S iv Kumar Mishra v. State of Uttar Pradesh , 1978 Cr. L.J. 701.
245. I.P.C., s. 153B.
246. Ibid.
247. Ramii Lal Modi v. State of Uttar Pradesh , A.I.R. 1957 S.C. 620.
248. Ra) Paul v. Emperor , A.I.R. 1927 Lah. 590.

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offence to outrage the religious feelings of

attempt to insult the religion or religious
rate and malicious intent was required
the circumstances.250 Although telling
a community is permissible, a strong a
tending to degrade members in the ey
fall within this section,251 and truth wou
certain ambiguity is present in decisions in
this section has served as a vehicle for a
the court decided against the complainant, th
Journalists are also affected by the offe
facts and rumours conducive to public mis
this offence one of strict liability requirin
allowed was the showing of reasonable gro
by showing that due inquiry was made befo
This section concerns publications likely
of duty in the armed forces, or fear or al
inducive to offences against the state or p
class or community against another.256
to cause the proscribed effects.257 Prai
this section,258 but pamphlets about th
did not.259
Courts have emphasised the public orde
check prosecutorial attempts to use this s
for a wide area including stifling of polit
the provisions about public meetings th
overload.
249. I.P.C. 1860 s. 295 A, inserted by the Criminal Law Amendment Act 1927, s. 2.
250. See Baba Khalil Ahmad v. State , A.I.R. 1960 All. 715, In re Ramaswami, 2 Cr.
L.J. 140(1962).
251. Harnam Das v. State of Uttar Pradesh , supra note 240; State of Mysore v .
Henry Rodrigues, 1962 Cr. L.J. 564; The King v. Nga S hive Hpi, A.I.R. 1939 Rang. 99.
252. Problems arise when a person alleges exercise of the right to reply, e.g., Shiv
Ram Dass Udasin v. Punjab State , A.I.R. 1955 Punj. 28; (right of reply not bona fide),
accord, Baba Khalil Ahmed v. State , A.I.R. 1960 Ail. 714, or asserts that the real aim
was to shock people into reform, The King v. Nga Shive Hpi , ibid, (defence allowed),
but, see contra , State of Mysore v. Henry Rodrigues, 2 Cr. L.J. 564 (1962).
253. One case ensued when the owner of a bull previously dedicated to the Lord
Shiva punctured its nose and used it for ploughing. This section provided a vehicle for
the hurt feelings of the Hindu community. Mukand Ram v. State , A.I.R. 1952 All. 26.
254. I.P.C., s. 505.
255. W.R. Donough, supra note 203 at 170-71.
256. Criminal and Election Laws Amendment Act 1969.
257. In the matter of Nandir , 3 C. W.N. 1 (1899).
258. Gangadhar v. State of Uttar Pradesh, I.L.R. All. 449 (1963).
259. Kalicharan Mohapatra v. Srinivas Sahu, I.L.R. Cut. 584 (1959).
260. Supra note 257; also Kedar Nath v. State of Bihar , A.I.R. 1967 S.C. 955 at 970.

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Recently there has been a vast controversy over the Biha

which made publication of grossly indecent or scurrilous matt
justifying arrest without warrant and denial of bail subject
discretion of a magistrate. Modelled on earlier legislation fro
of Tamil Nadu and Madhya Pradesh, this bill gave the executive
unparalleled powers. It was fought by the press in a massive public
campaign.261
The law relating to public order leans heavily in favour of the govern-
ment. The courts have given the government considerable latitude,
requiring only that restraints be connected with the public order and not
just law and order,262 and that the executive should not have untrammelled
and arbitrary power.263 The jurisprudence in this area lacks a sensitive edge
and has permitted a careless extension of pre-publication censorship in the
name of public order. This can be traced in part to the fact that there
was, and is, a considerable amount of unrest in India. It can also be
explained on the basis that due deference is paid to giving the government
a free hand in making its authority and discharging its traditionally accep-
ted function of maintaining law and order. That this means supporting a
"law and order" society in the name of the rule of law seems to be ignored
in the general tour de force of an establishment consensus on this
subject.
B. Offences related to public morality
Constitutionally permissible restrictions in favour of public morality264

have been held to permit more than the usual common law restrictions of
free speech. Iadian obscenity legislation adopts the Victorian definition
of obscenity as that which would deprave and corrupt those into whose
hands it is likely to fall.265 Yet while the English law includes material
dealing with violence and drugs,266 Indian obscenity law is concerned with
sex. Since some religious beliefs and practices depict sex267 and hold the
phallus to be an object of worship,268 an exception covers such
religious depictions, while denying protection to those publishing selected
261. See India Today 110-17 (31 August 1982); the campaign against the Bill ulti-
mately prevailed. See "Bill on 'Cutter Press' Dropped in New Delhi," New York Times
A6, col. 8 (21 March 1983).
262. The Supdt , Central Prison v. Dr. R.M. Lohia , A.I.R. 1960 S.C. 633.
263. See Virendra v. State of Punjab, A.I.R. 1957 S.C. 896.
264. Constitution of India, art. 19 (2).
265. See R. v. Hicklin, (1868) 3 Q.B. 367 at 371; Obscene Publications Act 1959
(United Kingdom).
266. John Calder Publication Ltd. v. Powell , (1965) 1 Q.B. 509; D.P.P. v. A.B.C.
Chewing Gum Ltd., (1968) 1 Q.B. 159.
267. See contra , J.N. Malhck, Law of Obscenity in India 17 (1966).
268. I.P.C., s. 292, exception.

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extracts from religious material.269

inter-racial dispute, including prosecutio
sexual practices of some religions. One
family planning programme might fall
Influenced, perhaps, by decisions fr
amendment to the penal code redefine
"...is lascivious or appeals to the purien
whole, tends to deprave and corrupt p
matter."271 A defence that the publi
permitted, if it was in the interest of
Too wide to admit of precise meaning
the problem back to the often unreliab
In addition to the penal provisions27
ment is empowered to forfeit obscene m
is liable to forfeit if the defendant com
Various provisions protect persons under
as well as from material showing thi
violent nature or which incite children to commit acts of violence or
cruelty.277 Other provisions prohibit the mailing of indecent, obscene, sedit-
ious, scurrilous, threatening or grossly offensive items through the post.278
While obscenity controls helped the British to maintain an ideological
moral hegemony about the moral preoccupations of an Imperial Raj,
these provisions, inevitably, became litigating instruments in the hands of
government and others to harass their opponents.279
The Indian tradition of maintaining the appearance of a strong public
morality has contributed to varying attitudes within a middle-class judiciary
from different educational background. Variations in standards between
269. See Ghulam Hussain v. Emperor , A.I.R. 1917 Lah. 219.

270. Ibid.
271. I. P.C., s. 292(1) as amended by Indian Penal Code (Amendment) Act 1969.
272. Law Commission. Forty-second Report on the Indian Penal Code 225 (1971).
273. Present penalties for first convictions are a maximum of two years imprisonment
and/or a fine of two thousand rupees. Subsequent convictions are punishable by up to
five years imprisonment and/or fines of up to five thousand rupees.
274. Code of Criminal Procedure 1973, s. 95.
275. Code of Criminal Procedure 1898, s. 108.
276. I. P.C.. s. 293.
277. Young Persons (Harmful Publications) Act 1956; see C.T. Prim v. State. A.I
1961 Cal. 177 at 179.
278. Post Office Act 1898, s. 120. Import and export of such articles are also pro-
hibited. Customs Act 1862, s . 11. Although advertising for obscene material is not a
violation unless the advertisement is obscene, advertisement for sexual stimulants
is banned by the Drug and Magic Remedies (Objectionable Advertisements) Act
1954, which has been held constitutional. Hamdard Dawakhana v. Union of India , A.I.R.
1980 S.C. 554.
279. See Emperor v. Indarman , 3 I.L.R. All. 837 (1881); Emperor v. Hari Singh , 28
I.L.R. All. 100 (1905).

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regions and age groups have created confusion for judge

sophisticated approach which balances personal preference, soci
lity, and hegemonic goals. Relying sometimes on experts and s
themselves, judges have paid concessions to literature, religion
and medical and scientific knowledge.
In one case an item was declared not obscene because of the low
circulation of the newspaper.280 Other judges have taken a protec
approach based upon a belief that thoughts about sex are impure
libidinous. This approach is giving way to discussion of constitu
tional requirements of public decency and morality rather than
protection of individuals from themselves. Some judges favour a socia
advancement approach asserting that protected literature must further
cause of society in some way.281
In many cases the courts have concentrated on the motives of the publi-
sher282 or with the advantages which have accrued to him as a result
publication. Yet it would be misleading to state that of traditional noti
morality do not lie at the root of judicial displeasure about the commer
exploitation of sex - for a judge's reputation in India depends greatly
the public's understanding of the judge's understanding of the public.
VII Privacy and defamation
The right to privacy has not been a major area of concern in India.2
Privacy is not a guaranteed fundamental right protected from state int
vention, and the exact extent of the constitutional right to personal libe
remains undefined.284
Like England the civil and criminal law of India does not recognize
an omnibus right to privacy but protects diverse types of privacy inter
in different ways. The laws of trespass, defamation, nuisance and copyri
protect the right to solitude and seclusion; right to non-disclosure of p
sonal information and the rights against misappropriation of a person
name or likeness and representation of one's views falsely in the eyes
the public.
A recent Bill to protect the right to privacy which did not mention
the right against defamation or the right to confidentiality represents the
280. State v. Thakur Datt , 18 Cr. L.J. 126 (1917).

281. See Rani it D . Udeshi , supra note 71a, (suggesting that the purpose of free
speech is, inter alia , the advancement of human knowledge).
282. Under the law, motive is irrelevant; see Kailash Chandra v. Łmperor, A.l.K.
1932 Cal. 651 at 654.
283. K.K. Mathew, The Right to be Left Alone (1979).
284. Kharak Singh v. State of Uttar Pradesh , (1964) 1 S.C.R. 332, see, also, F.
Nariman, "The Right to be Left Alone - A Fundamental Right/' 17 Indian Advocate 76
(1977).

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only serious attempt to clarify the law.285

The principle of confidentiality affects t
not to disclose confidential information or the identities of confidential
sources. The Indian law of confidentiality is clearly developed only in
regard to government documents, which are protected by official secrets
legislation286 and by the government's right, subject to judicial review, to
claim executive privilege when asked to present them to court.287
Although a mixture of common law and equity can undoubtedly be
used to restrain the publication of confidential information,288 uncertainty
exists regarding both a reporter's right to refuse to disclose his sources and
the right of such sources to prevent reporters from disclosing their identities.
Unlike lawyers,289 journalists have no statutory professional privilege to
shield information received in the course of their work. The uncertainty
in this area will not be resolved without further litigation.
The Indian law relating to Commissions of Inquiry can compel disclo-
sure despite a plea of confidentiality.290 Generally, a court can order the
disclosure of information relevant to the resolution of a case pending before
it.291
Defamation in India constitutes both a civil wrong and a crime under

the Indian Panai Code,292 and criminal defamation is not limited to situa-
tions where there is a breach of the peace.293 The remedies have differing
attractions for plaintiffs. Criminal cases, tried in a magistrate's court, are
quicker and cheaper, since no ad valorem fee is needed, while a civil action
takes place in a more dignified and publicized higher court setting. While
a poor plaintiff is usually restricted to seeking a criminal complaint, forum
shopping in civil defamation cases is a frequent tool of those possessing the
economic resources and institutional skill to pursue such claims. Civil and
criminal complaints have become tools in the overall strategies of rich
litigants, with newspapers making extensive use of the power of publicity to
respond.
Indian defamation law eliminates both the English distinction between
slander and libel and the need to prove special damage in slander cases.294
These factors, together with the Indian view that civil liability can be imposed
285. Right to Privacy Bill 1981.

286. (The Indian) Official Secrets Act 1923.
287. See Indian Evidence Act 1872, s. 123.
288. See Attorney General v. Jonathan Cape Ltd., (1976) 1 Q.B. 752.
289. Indian Evidence Act 1872, s. 126.
290. Commissions of Inquiry Act 1952, ss. 4 and 6. In certain circumstances witnesses
are immune from use of their statements in civil or criminal litigation.
291. Indian Evidence Act 1872, s. 126.
292. See Hirabai v. Dinshaw , A.I.R. 1927 Bom. 22; Naganatha v. Subramania , À.I.R.
1918 Mad. 700.
293. I.P.C. ss. 499, 500 and 501 .
294. Id., s. 499; see Alexander, Indian Çase Law on Torts 288-90 (5th ed., 1910).

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in cases of unintentional defamation295 increase the use of the law

tion in trivial cases.
The courts have taken conflicting views in defining press privilege in

this area. The formal position is that the press enjoys no privileges other
than those of ordinary citizens.296 Although the courts show a certain
hostility towards the press, reminding it of its ordinary status and great
responsibilities,297 inelegant but substantially true, reporting in good faith
has been protected from charges of defamation. One court actually recogn-
nized the importance of the press in exposing black-market activity and
corruption.298
With the exception noted above, the civil defamation law of India is
the same as that of England. Truth is a defence, and a plea of fair
comment in good faith and in the public interest is allowed, with one
court holding that express and actual malice must be proven to rebut such
a plea.299 Absolute privileges cover truthful reporting of parliamentary
and judicial proceedings.300 A qualified privilege is available to reports of
public meetings or to a speaker who can show a moral, social or legal duty
to make a statement. This qualified privilege can be rebutted by a show-
ing of malice, or an absence of an honest belief.301
Civil defamation cases cover a wide range of issues, including attacks
on the integrity and ethics of politicians,302 police,303 professionals,304
manipulation of British justice,305 disputes over the administration of trusts
and estates,306 and attacks on the chastity of women.307
The response of the courts to such cases has depended upon the social
context of the particular dispute. The courts have vigorously defended
the chastity of women308 and the reputations of big, as opposed to small,
295. Nagantha v. Subramania , supra note 292; cf. T. V.R. Iyer v. A.M. A. M oh ideen,
A.I.R. 1972 Mad. 398.
296. Arnold v. K.E. , 41 I.A. 149 (1914).
297. See Vishan Sar up v. Nardeo Shastri, A.I.R. 1965 All. 439 at 441; Sahib Singh
v. State of Uttar Pradesh, A.I.R. 1965 S.C. 1451.
298. See Durga Prashad v. State of Rajasthan , Raj. L.W. 202 (1969).
299. R.K. Karani ia v. K.M. D . Thackersey , A.Í.R. 1970 Bom. 424.
300. Including the official conduct of a judge, statements of witnesses in court,
lawyer's conduct in court and acts of state. Parliamentary Proceedings (Protection of
Publication) Act 1956.
301. All these are well known common law privileges which are part of Indian law.
302 .Bina Bhowmick v. Tushar Kanti Ghosh , A.I.R. 1955 Cal. 487; Narayana v.
Narayan Iyer , II M.L.J. 189 (1961).
303. K.P. Narayan v. Mahendra Singh , A.I.R. 1957 Nag. 18.
304. Nagantha v. Subramania , A.I.R. 1918 Mad. 700.
305. Hales v. Smiles , A.I.R. 1937 Rang. 195.
306. Nadirshaw Bor musí i v. Pirojshaw Ratnaj i. XV I.L.R. Bom. 130 (1913).
307. Venkayya v. Surya Prakasamma , A.I.R. 1940 Mad. 879.
308. Ibid ; accord , Mitha Rustomjee v. Nusserwanji Nowrojin , A.I.R. 1 94 » Bom. 278.

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1984] LA W OF PRESS IN INDIA 3Í3
businessmen.309 British Indian courts defended

politicians otherwise opposed to the regime,3
dent India have usually received very Low o
rious.311 Interestingly, cases alleging defam
higher awards of considerable damages.312 F
a newspaper for an inquiry into high-hand
women was held to be defamatory. In this
recognise the public role of the press as wat
The court has not been totally oblivious
talked of the need for investigative journalism
to verify the sources.314 It awarded stiff dam
to get a journalist dismissed from a newspa
ween newspapers when rivalry underlay def
antecedent malice as an important element i
Such cases, however, have not resulted in ad
to advance policy considerations. Newspape
vely and to score social points but made litt
lative strategies reform.
Although Macaulay may have included de
Code to protect virtuous ladies and cour
provisions have become adapted to the path
litigation practices. Criminal defamation co
or signs and visible representations constituting an imputation
concerning a person, intended to harm the reputation of such a person
or made with reason to believe that it would harm his or her reputa-
tion.318 Truth is a defence if the publication is for the public good. The
determination of public good is a question of fact and neither lack of due
care, nor attention to truth nor presence of ill-will invalidate such a
defence.
309. U.B. Guarantee Co. v. Thakore Lal, A.I.R. 1936 Bom. 114; see R. Ramamoorthy,
Law of Malicious Prosecution and Defamation 259 (1976).
310. Janardhan Karandekar v. Ramchandra Tilak , A.I.R. 1947 Bom. 209.
311. Ahsanali v. Hi/ azali, A.I.R. 1956 Nag. 264.
312. Dina Nath v. Sayad Habib , A.I.R. 1929 Lah. 129.
314. Gurbachan Singh v. Babu Ram, A.I.R. 1969 Punj. 201.
315. State of Orissa v. Nyayapati Ramanujaswami, A.I.R. 1970 Cut. 1264.
316. Makkhan Lai v. Panchamal, A.I.R. 1931 Cal. 81.
317. Macaulay, Report of the Indian Law Commission on the Indian Penal Code, 705
(1837).
318. I.P.C., s. 499. A dead person is defamed if his family would be hurt, id.,
explanation I. Companies and associations of persons can be defamed, id., explanation
II, and ironical innuendos are defamatory, id., explanation III, reputational harm can
be direct or indirect, id., explanation IV. True reports of judicial proceedings are
protected, id , exceptions IV and V, as are reports of Parliamentary proceedings. See
Parliamentary Proceedings (Protection of Publication) Act 1977; see, also Constitution
of India, art, 361 A inserted by the Constitution (Forty-fourth Amendment) Act 1978.

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Another defence protects imputations made in good faith

protection of the interest of the speaker or for the public good
relationship between the defence of truth and this defence is acce
the fact that the latter defence is not limited to matters of opinion.
tory statement which is false can still be defended as in good fai
the interest of the public good, if due care and attention to truth
by the speaker. The area producing the most controversy is the
good faith, which is intrinsically linked to the concept of jo
ethics. The factual determination of the degree of caution neces
insure a finding of good faith is crucial. This determination beco
vital when viewed in the light of the Indian Penal Code provision
public discussion in good faith of the conduct and character of a
servant320 and conduct of any person touching any public questio
Criminal defamation cases in the past were concerned with th
a breach of peace,322 group libel323 and defamation of the admin
politicians and municipal boards.324 The breach of peace case
communal tension325 and one led to a six-month prison sentenc
a newspaper's disparaging comment about a political faction
dered too general to constitute defamation.327
The courts have tried to balance a strong interest in defendin
from vindictive public attack, with the need of politicians for so
to make strong, general and sometimes irresponsible allegations
stance becomes all the more necessary because courts are awa
competing political tensions that lie at the root of such cases. N
reports of such allegations have been protected as accurate repo
what was said,329 without paying adequate attention to a ne
responsibility to investigate the underlying facts. Problems of t
are complicated by the fact that news agencies are a predomina
of news.
The decisions in cases involving investigative journalism and d
319. I.P.C., s. 499, exception IX.

320. Id. , exception II.
321. Id., exception III.
322. Aziz Ahmad v. Emperor , A.I.R. 1928 Lah. 865; Mohd. Nazir v. E
A.I.R. 1928 All. 321.
323 . Asha Par ekhv. State of Bihar, 1977 Cr. L.J. 21.
324. Dongarsingh v. Krishan , A.I.R. 1957 M.P. 162 and A.I.R. 1958 M.P. 216; Sahib
Singh v.State of Uttar Pradesh , A.I.R. 1965 S.C. 1451.
325. E.g., Aziz Ahmad , supra note 322.
326. Mohd. Nazir , supra note 322.
327. T.C. Gupta v. R.K. Karanjia , All L.J. 450 (1962).
328. N.B. Khare v. M.R. Massani , A.I.R. 1942 Nag. 117 . Cf. Balas ubť am aniam v.
Rajagopalachariar , A.I.R. 1944 Mad. 484. See also G our Chandra v. Public Prosecutor ,
A.I.R. 1962 Ori. 197.
329, NJ, Nanporia v, Brojendra Bhowmick , 79 C.W.N. 531 (1974-75).

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i 984] LAW ÒF PRESS ÎN tŇDÍA 325
for public inquiry are not clear.330 A strict attitu

magistrate was accused of accepting groceries
ambivalent attitude was taken when the police
gestions of communal prejudice in delaying an
statements that the people should not be scared t
of a named individual334 were found not defamat
to investigative journalism needs clarification i
seems to have suggested that journalists must disclo
there is no clear standard to define the due care and attention to truth
necessary to establish good faith. The courts have considered a "sub-
stantially true" test336 and at times have given even greater latitude.337
The latest Supreme Court judgment, although seeming to set a very high
standard of verification, failed to clarify the situation by laying down clear
guidelines.338
The courts have generally attempted to deal with political and social
situations underlying criminal defamation cases rather than resolve them
by reference to neutral points of law. Most press involvement has been
as a spokesman for one side, or as a neutral courier for the public. The
press has not had sufficient skills, resources or allies to sustain a campaign
for more preferential treatment by the judiciary.
The Press Commission confined itself to opposing liability for
unintentional defamation, retaining the existing law on the subject and
limiting inquiry into the plaintiff's reputation and character.339 The
commission was instrumental in changes made to protect civil servants in
defamation cases. It was most concerned about suits brought against
civil servants and suggested a special procedure in such cases. The
criminal law was amended to enable the public prosecutor to sue on the
civil servant's behalf.340 Matters have not progressed beyond this.
VIII Accountability and the Press Council
Government control of television and radio leaves the press as the sole
330. For an interesting early case stressing the need for good faith, see E.J. Howard
v M. Mull , 1 Bom. H.C. (App.) 85 (1862-63).
331. State v. Packiaj, A.l.R. 1951 T.C. 105.
332. Queen-Empress v. Girja Shankar Kas hi ram, 15 I. L.R. Bom. 286 (1890).
333. Purushottam Vi) ay v. State , A.l.R 1961 M.P. 205.
334. H. Singh v. State of Punjab, A.l.R. 1966 S.C. 97.
335. Ram Kumar v. State , 1 Cr. L.J. 122 (1962).
336. Vishan Sarup v. Nardeo Shastri , A.l.R. 1965 All. 439.
337. See Charivan v. Johnson , K.L.J. 507 (1969).
338. Sewakram Sobhani v. R.K. Karanfia , Cr. App. No. 543-5 öf 1979, decided on 1
May 1981.
339. Report , supra note 6 at 434.
340. See id. at 437; and also s . 198, of the Criminal Procedure Code 1898 and now
s. 199 of the Criminal Procedure Code 1973.

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326 JOURNAL ÔF THE INDIAN LA W INSTITUTE [Vol. 26 : i
private institution performing vital public media functions in India. Th

nature of the press imposes on a hybrid range of business and entertain
ment functions in addition to its role in information dissemination,
investigation, truth verification, public discussion and opinion stimulation.
These public functions impose considerable responsibility on the press,
and at the same time serve as a basis on which the press can claim special
powers and privileges.341 In India, the press has failed to discharge its
public functions adequately. It transmits information without independent
investigation or truth verification, and its censorial and opinion stimulation
functions are either transparently partisan or ineffective and pontificat ory.
Despite a growing concern for the development of professional journalism,
the cosmopolitan press is imitative of western styles while the local and
vernacular press reflect market reality and local power distribution.
Should the press be trusted? On the one hand, there is insufficient
sensitivity to the needs of the press to fulfil its public function. Police
and tax inspectors have more freedom to intrude into personal privacy
than journalists. On the other hand, the press is subjected to modes of
accountability which cannot be applied to it without damaging its
operational freedom. The press cannot justify its work on the basis of
the consequentialist arguments that what it does justifies its demands
for special status. It needs to legitimise these demands by establishing
mechanisms which demonstrate that it works on fair, equal and just
manner, India has experimented with the creation of a statutory Press
Council to improve patterns of responsibility on the press.
It all started with the Press Commission concern about the quality of
the press's treatment of public issues.342 The Press Council was created in
1965, 343 abolished in 1976344 and restored in 1978.345
The political discussions in Parliament reveal an expectation that the
Press Council would clean the Augean stables on behalf of the govern-
ment in the name of social justice.346 Undoubtedly, parliamentarians
341. See Emerson, supra note 2 at 1-15.

342. Report , supra note 6 at 339-56.
343. Press Council Act 1965; Press Council (Amendment) Act 1970.
344. Press Council (Repeal) Act 1976.
345. Press Council Act 1978.
346. For the debates on the Press Council Act 1965 see (1964) 33 L.S.D (third
series) 2200-02 (17 Sept. 1964; message from Raj'ya Sabha); (1964) 34 L.S.D. (third
series) 4398-4432, 4558-62 (29-30 Sep. 1964; Motion to refer to Joint Committee); (1964)
35 L.S.D. (third series) 28-29 (17 Feb. 1964; motion to extend time of Joint
Committee); (1965) 46 L.S.D. (third series) 7202-62, 6788-96 (23 Sept. 1965; substantive
debate); (1965) 47 L.S.D . 121-250 (13 Nov. 1965; passed by Lok Sabha). For the
Rajya Sabha see (1963) 45 R.S.D . 386-422; 540-53; 563-98; 607-28 (8 Sept. 1964); 754-
773 (10 Sept. 1964), 1405-4531 (15 Sept. 1964; motion to refer to Joint Committee);
3975-76 (1 Oct. 1964; message to refer to Joint Committee); (1965) 51 R.S.D. 34 (17
Feb. 1965; presentation of Committee Report); (1965) 53 R.S.D. 383-462 (17 Aug).
1965); 530-600 (18 Aug. 1965); 1118-89 (24 Aug. 1965); 1280-1302 (24 Aug. 1965).

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have kept a continuous watch on the

ensure that it does its job and controll
like.347 That this clothes the Press Co
1303-80 (25 Aug. 1965); 1481-1592 (20 Aug.

17-26 Aug. 1965.
For the debates on the Press Council Amendment Act 1970 see (1970) 71 R.S.D.
131 (26 Feb. 1970; introduced); 1216-68 (3 Mar. 1970); 146-258 (4 Mar. 1970; substantive
debate on 3-4 Mar. 1970); for Lok Sabha see (1970) 37 L.S.D. (fourth series) 237 (10
Mar. 1970; message from Rajya Sabha); (1970) 38 L.S.D. 378-90 (30 Mar. 1970;
substantive debate); 226 (3 April 1970; passed).
On the Press Council Repeal Act 1976 see (1976) 56 L.S.D. (fifth series) 133-34 (23
Jan. 1976; introduced); 140-79 (28 Jan. 1976; substantive discussion); 180-81 (28 Jan.
1976; motion to pass); (4 Feb. 1976; message from Rajya Sabha arguing without amend,
ment). For Rajya Sabha see £(1976) 94 R.S.D. 256-58 (29 Jan. 1976; message from Lok
Sabha); 104-40 (passed).
On the Press Council Act 1978 see 104 R.S.D. 154-245 (1 Mar. 1978; introduced and
recommended for Joint Committee procedure); 105 R.S.D. 29-33 (17 May 1978; massage
from Lok Sabha)' 106 R.S.D. 161 (17 July 1978) 294-322 (3 Aug. 1978); 186-289 (7 Aug.
1978; substantive debate from 17 July - 7 Aug. 1978); for Lok Sabha see 10 L.S.D. (sixth
series) 254-55 (3 Mar. 1978; message from Rajya Sabha regarding Joint Committee); 15
L.S.D. (sixth series) 277-78 (15 May 1978; agreed with Rajya Sabha on Committee); 16
L.S.D. (sixth series) 385-87 (17 July 1978; Joint Committee Report tabled); 17 L.S.D.
(sixth series) 228 (10 Aug. 1978; message from Rajya Sabha with Bill); 18 L.S.D. 361-72
(25 Aug. 1978); 410-44 (28 Aug. 1978); 227-83 (29 Aug. 1978); 353-61 (30 Aug. 1978;
substantive debate from 24-31 Aug. 1978); 109-13 (31 Aug. 1978; motion to pass).
347. See 38 L.S.D. (third series) 28-29 (17 Feb. 1965; request for Joint Committee
of Bill); 682-83 (22 Feb. 1965; giving adequate representation to periodicals and small
newspapers in the Press Council; 54 L. S.D. (third series) 1274-78 (25 April 1966; on
setting up the Press Council); 59 L.S.D. (third series) 7693 (29 Aug. 1966; on the
representation on the Press Council); 7632-33 (29 Aug. 1966; on the composition and
membership of the Press Council); 3 L.S.D. (fourth series) 2906 (5 June 1967; on the
power of the Press Council to force a newspaper to stop indulging in yellow journalism.
The government's reply that these powers are adequate is surprising); 3 L.S.D.
(fourth series) 8941-44 (July 3, 1967; on the differences between the government and the
chief of the Indian Federation of Working Journalists); 7 L.S.D. (fourth series) 12304-05
(17 July 1947; on the working and setting up of the Press Council); 8 L.S.D. (fourth
series) 17524-25 (7 Aug. 1967; on the employment of retired people by the Press Council,
the amount spent on the Chairman and Secretary and on the journalistic status of the
Secretary); 10 L.S.D. 5958 (11 Dec. 1967; on the Press Council's action against iiyudicious
writting against India); 12 L.S.D. 2575-76 (14 Feb. 1968; the Press Council's actions on
indecent posters); 2316 (21 Feb. 1968; on the boycott of the Press Council by the
Federation of Working Journalists); 15 L.S.D. (fourth series) 1969 (3 April 1968; on the
All India's News Editors' Conference concern about controversy over the working of
the Press Council); 17 L.S.D. (fourth series) 2726 (8 May 1968; on the chairman of the
Press Council's visit abroad); 2750 (8 May 1978; on the chairman of the Press^Council's
resignation); 2756 (8 May 1978; on the performance of the Press Council in respect of
matters pertaining to obscenity and its attempts to evolve a code of ethics); 2756-7 (18
May 1978; on communal writings in Mother India - a paper); 42 L.S.D. (fourth series)
164-65 (30 July 1970; on adequate representation in the Press Council); 44 L.S.D. {fourth
series) 164-65 (30 July 1970; on adequate representation in the Press Council); 44 L.S.D.
89 (27 Aug. 1970; guidelines on communal writings); 92-93 on the performance of the
complaints jurisdiction of the Press Council; 18 L.S.D. (fifth series) 11-17 (23 Au$.

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JOURNAL ÒF THÈ ÍNDÍAN LAW INSTITUTE [Vol. 26 : i
overlooked. The council seems to have accepted that it is a

government body with low thresholds of status and efficiency. Its tasks
include developing professional standards and a code of conduct, review-
ing the concentration of power amongst newspapers and promoting
technical research.348 It is structured as an autonomous body with an
elected chairman349 and representatives of different groups. Publishers,
editors and journalists, with guaranteed representation for Indian
language newspapers,350 constitute a majority. The public is represented
through litterateurs, lawyers and members of Parliament.351 The council
has power to compel testimony,352 subpoena documents353 and order the
publication of the results of its inquiry,354 but cannot compel disclosure of
sources. It has power to censure, warn or admonish,355 and can levy
fines on newspapers and news agencies "after having due regard to their
circulation and other matters."356
The multiple functions of the Press Council, budget restraints and

abuse of its complaint procedures have limited its capacity to take up
issues. The Press Council budget has barely kept up with inflation since
1968.357 Administrative salaries and the expenses related to its establish-
ment left little money for independent investigation. Unless funding is
increased the council will continue to be restricted to performing its
complaint investigation function.
The complaint jurisdiction has acquired some of the dimensions of
litigation, with the government as a major complainant trying to inti-
midate the press.358 The council has not had great success in examining
1972; on the Press Council's work on the concentration of ownership in the Indian Press);
19 L.S.D. (fifth series) 140-24 (30 Aug. 1972; on the Council's work on vulgar
advertisements and the concentration of ownership of newspapers in various business
houses); 36 L. S.D. (fifth series); question 2863 (13 Mar. 1974; on the working of the
Press Council); (1974) 45 L.S.D. (fifth series) 31-32 (20 Nov. 1974; on whether radio and
television fall within the Press Council's jurisdiction); 107 (20 Nov. 1974; on the
suppression of press freedom by Central and state governments); 56 L.S.D. (fifth series)
121 (21 Jan. 1976; on the Indian Federation of Working Journalists' views on a code of
ethics); II L.S.D. (sixth series) 72 (22 July 1977; on the revival of the Press Council); 5
L.S.D. (sixth series) 188 (27 July 1977; on the reviving of the Press Council).
348. Press Council Act 1978, s. 13.
349. Id., s. 5(2) (6).
350. Id., s. 5(3). The board consists of six editors seven, reporters, six publishers,
one each from news agencies, the University Grants Commission, the Bar Council of
India the Sahitya Academy, and five members of Parliament. Three journalists and
four editors must come from the vernacular press.
351. Id., s. 15(2).
352. Id., s. 15(1) (a).
353. Ibid.
354. Id., s. 14(2).
355. Id., s. 14.
356. Id., ss. 16, and 25(2) (d).
357. See Press Council, Annual Reports 1967 -73; 1978 to date.
. 358. Of a total of 167 complaints between 1968 and 1970, 84 were by the government
against newspapers, while only 19 were by newspapers against the government.

117.232.123.74 on Wed, 01 Dec 2021 07:10:01 UTC
1984] LA W ÒF PRESS IN INDIA 329
government pressure on the press,350 which usual

editorial control through the withdrawal of govern
The State of Haryana challenged the council's po
area,361 and the council's attempts to suggest rules h
Press Council's complaint jurisdiction has also been
cal, social and communal groups,363 and rival newsp
quarrels in a new forum. Its decisions have created
jurisprudence to abate this trend.
Despite research364 and lobbying365 on various
the council has had neither the status nor resources to ensure enactment
of its recommendations. The fact that its chairmen have been retired
judges may have impeded its development as a mature and independent
body.
The original Press Council's inquiry into monopolies in the press was
seen by some as part of a government strategy of intimidating large
newspapers. Perceptions of council's closeness to the government have led
the press to resist it as a genuine attempt to maintain fair standards. It
has not served as an adequate institution to ensure freedom for journalists,
fair reporting and equality of access to the press by the public.366 The
lack of Press Council's credibility with the press has retarded development
of community accountability needed to increase the credibility of the press
with the public.
IX The press in context
Differing political systems have divergent conceptions of the functions

and status of the press. One conceptual position is that of the press as
the conveyor of information from the political elite to the public. Such a
view is reflected in Lenin's opinion367 that a free press is not necessary
for informed participation by the public, and that necessary information
could be transmitted through the party press and other political organi-
359. Press Council, Annual Report (hereinafter cited as A. R.) 14-25, (1978), 17-82
(1980), 32-93 (1981).
360. A.R. v/( 1971).
361. A.R. at(v)-(vi)(1970).
362. Ibid.
363. A.R. at 35-68 (1967); id. at 10-40 (1968); id. at 11-76 (1969); id. at 15-96 (1970)
id. at 5-75 (1971); id. at 7-146 (1972); id. at 11-94 (1973); id. at 14-25 (1979); id. at 82-146
(1980); id. at 94-166 (1981).
364. See S.N. Jain, supra note 101; Rajeev Dhavan, supra note 28; Ś. Mehdi
Trends in Journalism and Our National Press (mimeo, Press Council, 1980).
365. See A.R. at 41-56 and 68-76 (1968).
366. Recent research by A. Jacob and U. Loghani, Violation of Journalistic Ethics
and Public Taste (1984) in S.N. Jain (ed.), suggests the development of some consistent
doctrine by the Press Council. This, however does not reflect on its efficacy or effecti
veness as a watch-dog body.
367. V.l. Lenin, 32 Collected Works 505.

117.232.123.74 on Wed, 01 Dec 2021 07:10:01 UTC
¿30 JÔUkNAL ÒF TtîE INDIAN LA W INSTITUTE [Vol. 26 : 3
zations. Under such a theory the political system and not the pre
provides the opportunity for informed public participation. In a libera
democracy the press occupies a much greater role in ensuring the publ
right to informed participation, and is, at the same time, more free t
determine how to do so. Yet the use of the phrase "free press" is really
an exercise in persuasive and ideological definition rather than a definit
of a state of affairs.
It is necessary to visualize the press in the context of the network o
relationships which determine its status, role and viability in society. T
network includes the relationships of the press with the government
general public, as well as the relationships between journalists, proprieto
and others inter se .
The complex and often conflicting relationships of the Indian pres

have created a profound confusion as to what role the press should pla
Rhetorically, the conflict lies between the government trying to crea
"committed" press as a sequel to its attempts to create a "committe
bureaucracy and a "committed" judiciary geared to certain developmen
aims and a liberal tradition for an "objective" press to act in aid and
part-time critic of the government. In real terms, the conflicts run dee
and are linked with oppositional politics, conflicts of business interests
an attempt to create hegemonic ideologies which would compel the soc
and political fabric to give a greater bargaining strength to those t
run and manipulate the press.
Central to our understanding of how the press works is our under
standing of the concept of professionalism which lies at the root of o
expectations from the press. It is wrong to just judge the Indian pr
with the dismissive verdict that they are not professional. Profession
are wrongly credited with a self generating credibility. Theories about
professions usually attribute a degree of autonomous power a
responsibility to them. Such theories pay too much attention to t
technical skills of professions and the esoteric nature of their discour
while ignoring the broad context of power within which they operate.
Professions are not an autonomous repository of power even thoug
their technical skills have given them a good position for bargain
with those who possess real social, economic and political power. This
allowed the professions to obtain significant economic benefits and favou
status in return for a professionalism which represents predictability a
conformity to a certain style of behaviour. In that sense "professionali
is a commodity. An implicitly understood gentleman's agreement
made the professions "power brokers" as a transmitting and filter
mechanism between the public and those with real power while continu
to mystify this whole process.
The implied social arrangements made by any particular group
professionals reflects their barganining strength and the prevailing mar
conditions in which they exist. The Indian press, subject to econo

117.232.123.74 on Wed, 01 Dec 2021 07:10:01 UTC
1984] LA W OF PRESS IN ÍNDÍA 331
and social manipulation, has had a weak ba

unable to bargain for favourable social
terms. This affects the style of the "co
practices. An expanding economy more se
yield a better bargain for the press but
called objective autonomy (whatever that m
to covet.
But, it is not the coercive effect of crude power alone which controls
the press. The press usually markets and maintains its position, status and
viability on the basis of an ideology which credits it with cultural, social
and political support. The Indian press has never had that kind of
support. In fact, since the days of the Raj the press has constantly been
depicted, and idiomatically described, as a nuisance.
Successive governments have employed pre-censorship, economic
manipulation, patronage and litigation to control the press. Both the
British Indian and successive governments have operated at near emergency
conditions in normal times, with a full emergency model invoked
periodically. The Nehru government which entertained all the great
editors as courtiers, cultivated the press and developed a tradition of lobby
correspondents. On the other hand, the Indira Gandhi Government,
ostensibly acting in the name of the smaller newspapers, dissolved the
lobby system and waged war on the press.368 The government justifies
its need to control the press by referring to the need for public order and
maintaining the ideological conditions for socio-economic development.
The press has not really been able to develop and ideologically reply to this
other than by an unconvincing reference to the privileges of its western
counterparts and by charging the government with dictatorship. They have
not been able to argue a more specific case relating to their relevance to
India. This has precipitated a stale and somewhat arid ideological
deadlock.
Even so, the many shortcomings of the Indian press will not destroy
its important role as long as India retains its present political system.
Although the press has been used by the government and certain sections
of the community, it can be made to serve larger segments of the country.
Conflicting political demands and a weak bargaining position have affected
its social position and political effectiveness. But the press is* trying to
assert a new role on behalf of those who want to use it. The need of
democracy for a free press should ensure that the press is not forced to
make irresponsible bargains.
This essay is both about the press and the law. Neither the press nor
the law can be judged by reference to their putative ideals or attributed
368. Cf. K.P. Sinha, "The Attitudes of Prime Ministers as regards Freedom of the
press", XIV J.C.P.S. 70 (1980).

117.232.123.74 on Wed, 01 Dec 2021 07:10:01 UTC
332 JOURŇAL OF ŤHÉ INDIAN LA W INSTITUTE {Vol. Ì6 : 5
roles. Harsh laws are dissolved by pathological practice with the same
ease as complex pressures dilute attributed roles. The Indian press has
used India's restrictive lawsquite imaginatively even if for "non-cumulative"
gains. This cannot continue for long. Indian society is much too
inegalitarian; and increasingly fraught with volatility. The press can
never just be purveyors of information or victims of direct or systematic
control. Nor is mere criticism enough. What is needed is a powerful
critique of a society riddled with unconscionable coercions and ex-
ploitation. And even that is a modest expectation if we really pause to
consider the enormity of what needs to be done as minimum requirement.

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ON THE LAW OF THE PRESS IN INDIA

Author(s): Rajeev Dhavan

Stable URL: https://www.jstor.org/stable/43953869

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I Perceptions, controls and influences

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attributed to the press generally.2

2. Cf. T.I. Emerson, Towards a General Theory of

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improvements include fresh expertise, better technology and eco

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A central characteristic of Indian press

24. See Natarajan, supra note 6 at 36-38.

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finds a danger to human life, health, safety or public order.34

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extended from the Chinese invasion (196

44. See Chanchai Sarkar, "The Emergency and

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between labour and management are subject to compulsory ad

It is really impossible to understand the relationship between

(Conditions of Service and Miscellaneous Provisions) Act 1975. Journalists and

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newspapers continue to thrive as int

Faced with governmental hostility and linked to an incompletely

Pathology of press laws

Ultimately, it is the pathology of the operation of the law that deter-

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II The constitutional position

Article 19 of the Constitution of India reads:

(1) All citizens shall have the right

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The recent happenings in different pa

Unless [the restrictions of press freedom] were the direct or inevit-

61. Id. at 143.

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statute. This test seems to have been modified by later cases

The Supreme Court has taken two seemingly contradictory positions

66. See supra note 46.

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the imposition, the prevailing conditi

On the other hand, the courts denied

71. Id. at 200.

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weight is assigned to the governmental interests that justify sup

III The executive and official secrecy

The laws designed to protect the executive in India can be tr

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include "potential enemy".85 Section

85. Kutbuddin v. State of Rajasthan , A.l.R. 1967 Raj. 257.

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The legitimacy of the forfeiture deposit system was reinforced b

98. See supra note 70.

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is reserved for military and related dat

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IV The judiciary and contempt of court

The law of contempt affects the press by punishing those

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which was re-enacted in 1952.118 It gave

Between the promulgation of the Constitution and the Contempt of

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Marxist politician for making the statement that judges suffere