Name S.

Maneesh Reddy

Roll No. 1582

Roll No. (IN WORDS) Fifteen Hundred and Eighty-Two

Semester VIII

Subject Media Law

Total no. of Page Numbers 22

ANSWER 1

Introduction

Section 124A of the IPC, which deals with sedition, states, "Whoever, words, either spoken or
written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into
hatred or contempt, or excites or attempts to excite disaffection towards the Government
established by law in India shall be punished with imprisonment for life, to which fine may be
added, or with imprisonment which may extend to three years, to which fine may be added, or
with fine."
Section 124A of the Indian Penal Code punishes anyone who ‘brings or attempts to bring into
hatred or contempt, or excites or attempts to excite disaffection towards, the Government
established by law in India
History

The crime of sedition was originally conceptualized in monarchical England to insulate the
King, and a largely unelected parliament, from public criticism
The sedition as an offence was included in the Draft Penal Code which was proposed by
Thomas Macaulay way back in 1837. However, the offence had not seen the light as it was not
included when the Penal Code was finally enacted. Some consider such omission to be nothing
but a mistake while others have a different opinion about it.

The non-inclusion of the provision was rectified as the necessity was felt so that the government
can deal more efficiently with seditious activities was first recognized by the British in light of
increased Wahabi activities in the period leading up to 1870. With increasing incidents of
mutinous activities against the British, the need to make sedition a substantive offence was
widely acknowledged, and the insertion of a section pertaining specifically to seditious
rebellion was considered exigent. It was the recognition of this rising wave of nationalism at
the turn of the 20th century which led to the bill containing the law of sedition finally being
passed. The offence of sedition was incorporated under 124A of the IPC on November 25,
1870.

Constituent Assembly

The Fundamental Rights Sub-Committee comprising, for the most part, of veterans of the
freedom movement, and chaired by Sardar Patel in its first draft of a bill of rights, expressly
included sedition as a ground for restricting free speech. When the draft came up for debate on
29 April 1947, it was trenchantly criticized by Somnath Lahiri
Lahiri also warned presciently enough that sedition would be used to crush political dissent, as
it had been used in colonial times
Ananthasayaman Ayyangar provided the theoretical rationale, which was directly grounded in
the shift from a colonial regime to one based upon principles of self-government: it was the
fundamental right of citizens to non-violently overthrow an entrenched government by
exposing its faults and persuading each other that it ought to be removed. Consequently, unless
it rose to the level of ‘the entire state itself[being sought to be overthrown or undermined by
force or otherwise, leading to public disorder…any attack on the government itself ought not
to be made an offence under the law. Thus, resulting in its exclusion from the restriction.
The Constituent Assembly itself, of course, was not into the business of repealing legislation.
Consequently, it inserted into Article 13 a proviso that rendered void all existing colonial laws
that were inconsistent with the Constitution, from the moment the Constitution came into force.

Judicial Evolution

After independence and before the first amendment to the constitution was brought in, it was
felt that Section 124A would not at all be constitutionally valid. In fact, Justice Sarjoo Prasad
in Bihar had gone to the extent of interpreting the judgment of the Supreme Court in Ramesh
Thapar’s case to mean that even a call for incitement of murder would not be a crime. This was
an extreme view, which was rightly set aside by the Supreme Court in 1952, but this led to the
first amendment being brought in by which the restriction of public order was introduced to
Article 19. Interestingly, whereas the first amendment carried to the United States constitution
guaranteed freedom of speech, our first amendment curtailed the right of freedom of speech to
a certain extent.

The Punjab High Court, however, had no such compunctions when it heard a sedition case that
same year. In Tara Singh Gopi Chand v. State, Weston C.J., applying overbreadth analysis,
noted:
India is now a sovereign democratic State. Governments may go and be caused to go
without the foundations of the State being impaired. A law of sedition thought
necessary during a period of foreign rule has become inappropriate by the very nature
of the change which has come about…. The unsuccessful attempt to excite bad feelings
is an offence within the ambit of Section 124A. In some instances, at least the
 unsuccessful attempt will not undermine or tend to overthrow the State. It is enough if
one instance appears of the possible application of the section to curtailment of the
freedom of speech and expression in a manner not permitted by the constitution. The
section then must be held to have become void.
By the time the Supreme Court was called upon to decide Kedar Nath Singh, two High Courts,
employing impeccable constitutional reasoning, had found that Section 124A violated the
constitutional guarantee of freedom of speech and expression, and had struck it down
At the turn of the 1950s, there were two conflicting High Court decisions on Section 124A.
The Punjab High Court, taking the broad definition of sedition from the Privy Council, had
declared it unconstitutional. The Patna High Court, taking the narrow definition they had found
it to be constitutional. Between the two decisions lay the First Amendment. The stage was set
for the Supreme Court to rule definitively on the issue, which it did in 1962, in Kedar Nath
Singh’s case.

Overruling the Ram Nandan’s verdict the Supreme Court upheld the Constitutionality of
Sedition and at the same time deemed it necessary to limit the scope in Kedar Nath Sing v.
State of Bihar, by the restriction of the instances where one through their speech and expression
may lead to disruption of law or provoke and incite violence. However, in practice and past
trend showcases that despite the existence of this stipulation, sedition charges are levied on
individuals for mere criticism of the Government in the public arena, mere expressions of detest
and abhorrence for State policies, religion and showcasing contempt against what is morally
acceptable in our society.

The Supreme Court had constitutionalised and limited the scope of sedition in Kedar Nath case
by restricting it to instances where individuals through their speech and expression disrupt the
law or provoke and incite violence. The court mentioned about the need to protect freedom of
speech and expression from any unduly restrictions and only in such instances would it be an
offence under sedition whereby there is intention to incite people to resort to violence against
the government that is established by law.

The decision of the Supreme Court in Kedar Nath laid down the interpretation of the law of
sedition as it is understood today. In this decision, five appeals to the Apex Court were clubbed
together to decide the issue of the constitutionality of Section 124A of the IPC in light of Article
19(1)(a) of the Constitution. In the Court’s interpretation the incitement to violence was
considered an essential ingredient of the offence of sedition. Here, the court followed the
interpretation given by the Federal Court in Niharendu Majumdar. Thus, the crime of sedition
was established as a crime against public tranquillity as opposed to a political crime affecting
the very basis of the State.

Thus, even though a plain reading of the section does not suggest such a requirement, it was
held to be mandatory that any seditious act must be accompanied by an attempt to incite
violence and disorder.

The reasoning of the Court was that since sedition laws would be used to maintain public order,
and the maintenance of public order would in turn be in the interests of the security of the state,
these laws could be justified in the interests of the latte

Despite narrowing the interpretation of Sedition, it still continues to be used to arrest people
and put them in jail irrespective how much attention or impact their “seditious” action has
caused. Sedition is continued to be used for selfish motives and the arrests are continued to
made of not those who incite violence and disorder but those who say something against the
likings of the government.

I do not think that the Sedition provision can be held unconstitutional keeping in mind the
observation of the kedar nath judgement and also that the sedition provision would be to arrest
those who incite and cause the disorder, but the misuse of the authorities is what is making it
difficult as the evils conintue to outweigh the object of the Sedition provision.

Thus, despite the Supreme Court narrowing the interpretation the authorities still continue to
misuse it to arrest even innocent. So I request the government to create a panel so as to amend
the provision to curb the misuse and restrict the use of Sedition, as one cannot just keep the
freedom of speech and expression under the rock and arrest the dissenters on charges of
Sedition.
ANSWER 2

Ms Rangoli Chandel has been booked for hatemongering under Section 153A and 153B of IPC
for the following tweet:

“A Jamati died of Corona when police and doctors went to check their families they were
attacked and killed, secular media, make these mullas + secular media stand in a line and shoot
them dead…f****k the history they may call us nazis who cares, life is more imp than fake
image.”

We need to determine whether the abovementioned tweet satisfies the ingredients of Section
153A and 153B.
Hate speech is abusive speech that targets members of certain groups and usually includes
racist, sexist, and homophobic speech. Speech that targets other groups, such as individuals
targeted on the basis of class, can also be classified as hate speech. Hate speech can be directed
at particular individuals or towards a group sharing particular characteristics.

Section 153A

Section 153A of the Indian Penal Code, 1960 criminalises and punishes making statements,
speeches or acts which have the effect of disturbing public tranquillity or law and order by
promoting enmity, creating fear or alarm between classes of people on the basis of difference
in religion, caste, language or place of birth

The Bombay High Court, in Gopal Vinayak Godse v. Union of India provided a useful outline
of the standards to assess the potential criminality of impugned content under Section 153A.
the ingredients of Section 153A ae as follows:

(a) Intention

Intention is central to establishing that a crime under Section 153A was committed. In Balwant
Singh v. State of Punjab, it was observed that ‘intention to cause disorder or incite people to
violence is the sine qua non of the offence under Section 153A IPC and the prosecution has to
prove the existence of mens rea in order to succeed’.

In Bilal Ahmed v. State of Andhra Pradesh, the Supreme Court reaffirmed the proposition in
Balwant Singh, that mens rea was a necessary ingredient of the offence. The Supreme Court
has, in Manzar Sayeed Khan v. State of Maharashtra described the importance of the proof of
intention under Section 153A as ‘the gist of the offence’ and even went on to characterise
intention to cause public disorder as the ‘sine qua non of the offence’.

(b) Class/community hatred

Before amendment in 1961, Section 153A contained the term ‘classes’, which was then
replaced with the phrase ‘religious, racial or language groups or castes or communities’ so as
to accommodate potential enmity between more diverse groups.

The effect of this amendment is evident from the Supreme Court’s judgment in Babu Rao
Patelv. State of Delhi, it is clear that the promotion of enmity is not just limited to religion but
also other grounds like race, place of birth, residence, language, caste or community.

(c) Tendency to provoke enmity

The standard prescribed by Section 153A requires a tendency or intention of creating a

disturbance of public order and tranquillity.18Speech acts which are purely political comments,
which do not promote enmity between classes or communities do not fall within the law.

In Ramesh s/o Chotalal Dalal v. Union Of India, the Supreme Court determined the standard
by which the tendency to provoke enmity would be judged, stating that the ‘effect of the words
must be judged from the standards of reasonable, strong-minded, firm and courageous men,
and not those of weak and vacillating minds, nor of those who scent danger in every hostile
point of view’. This standard was reaffirmed in Manzar Sayeed Khan.

In Gopal Vinayak Godse, the Bombay High Court noted that to determine whether any material
violates Section 153A, the natural and probable consequences of the writing must be examined.
It is also permissible to consider the class of readers for whom the material is primarily meant,
as well as the state of feelings between the different classes or communities at the relevant
time. It is not necessary to prove that enmity was in fact promoted by the material in question\

Whether the tweet falls under Section 153A?

There are three ingredients that need to be satisfied which are intention, class/community
hatred and tendency to promote enmity.

The intention he intention of the accused must be judged on the basis of the words used by the
accused along with surrounding circumstances.
It is clear from the tweet as she has gone to an extent where she is has no issue to be called a
nazi and she clearly mentions that certain people should be made to stand in line and be shot.

The tweet is pointed towards a class/community hatred as she speaks about a specific religion.

She had tweeted with a clear tendency to promote enmity which can be seen from her provoking
tweet to kill the people belongin to muslim religion.

If she was so concerned about the death caused by the untoward actions of those in that
particular area, she could’ve spoken about the area but the generalistion that it is the people of
muslim religion alone and to kill everyone belonging to muslim religion is a clear case under
Section 153A.

The intention to cause disorder or incite people to violence is the sine qua non of the ofence
under Section 153A of IPC and prosecution has to prove prima facie the existence of mens rea
on the part of the accused.

Section 153B

Section 153B of the IPC punishes making imputations or assertions prejudicial to national
integration. It was added to address acts prejudicial to the maintenance of communal harmony
and national integrity.43It prescribes punishments for imputations and acts propagated by
divisive forces with an aim to generate fear, apprehension and insecurity amongst members of
a targeted group on the basis of their religion, race, language, region, caste or community.

The ingredients of Section 153B can be seen in the 4 sub-parts,

(a) Makes or publishes

The word ‘makes’ in the context of Section 153B refers to both the originator of the imputation,
i.e. the author, and to someone who repeats, writes or copies it. It is intended to supplement the
act of ‘publication’ which is sine qua non for an offence under Section 153B. The word
‘publish’ means to make ‘public’, ‘to circulate’, ‘to make known to people in general’, ‘to
issue’ or ‘to put into circulation’.

For successful conviction under Section 153B, it is necessary to prove that there was
publication to a third party.

(b) Class of persons

The word ‘class’ refers to ‘a homogeneous section of people grouped together because of
certain likenesses or common traits and who are identifiable by some common attributes such
as status, rank, occupation, residence in a locality, race, religion and the like’.

In order to constitute an offence under Section 153B, imputations and assertions which are
prejudicial to national integrity have to be made against a class of persons belonging to a
particular racial, religious, regional, linguistic or caste-based community.

(c) Obligation

Section 153B(1)(c) criminalises statements about the racial, communal, religious, regional or
caste-based obligations of a person. Accordingly, this sub-part discusses the additional
ingredient under section 153B(1)(c) it must be established that an assertion, counsel, plea or
appeal was made about the obligation of any class of persons by reason of their being members
of that class, and such assertion creates or is likely to create disharmony.

The legal position was explained in Murzban Shroff v. State of Maharashtra, that obligations
with regards religion are an illustration, in Sikh Religion, it is obligatory for Sikh to wear
Turban and carry Kirpan or for Hindu not to eat cow meat or for Muslim to pray Namaz for
five times in a day.

Therefore that if the assertion, appeal pertains to any such obligation of the member of a
religious group etc. and such a plea, appeal is likely to cause disharmony only then it would
fall under sub-clause (c) of sub-section (1) of Section 153-B.

Whether the tweet falls under Section 153B?

For Ms. Rangoli to be arrested under Section 153B her tweet has to satisfy the ingredients that
she has made or published, should be against a class of persons and it should concern an
obligation.

The tweet satisfies the first two ingredients as Ms. Rangoli had published a tweet thus making
her view knonw to a third person and also it is clearly directed against a class of persons which
is clear from the tweet as she provokes people to kill muslims, however it doesn’t satisfy the
ingredient of an obligation as Ms. Rangoli doesn’t speak about any religious obligation of
Muslims so as to provoke hatred.

Thus, Ms Rangoli will be charged under Section 153A and not charged under Section 153B
What should be the test to determine Hate Speech?

The test to determine whether any publication, statement or something made known to a third
person be considered as hate speech while considering the clear and present danger and also
keeping in mind other considerations. While looking at something considered to be hate speech
We have to ask ourselves the question: does a particular act lead to disturbance of the current
life of the community or does it merely affect an individual leaving the tranquility of society
undisturbed?

The statement in question on the basis of which the FIR has been registered against the accused
must be judged on the basis of what reasonable and strong-minded persons will think of the
statement, and not on the basis of the views of hypersensitive persons who scent danger in
every hostile point

In Schenck v United Sates, Justice Holmes spoke about clear and present danger in terms of
proximity and degree and whether words used in such circumstances are of such a nature as to
create an imminent danger. Further in S. Rangarajan v P Jagjivan it was observed that the
anticipated danger should not be remote, conjectural or far-fetched. It should have proximate
and direct nexus with the expression. The expression of thought should be intrinsically
dangerous to the public interest. In other words, the expression should be inseparably locked
up with the action contemplated like the equivalent of a "spark in a powder keg".

Further in addition to the clear and present danger test, the test of reasonableness should be
applied to each, individual statute impugned and no abstract standard, or general pattern of
reasonableness can be laid down as applicable to all cases. The nature of the right alleged to
have been infringed, the underlying purpose of the restriction imposed, the extent and urgency
of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial verdict. In evaluating such elusive
factors and forming their own conception of what is reasonable, in all the circumstances of a
given case, it is inevitable that the social philosophy and the scale of values of the judges
participating in the decision should play an important part

Thus, we should consider different factors before determining something as hate speech as any
test not factoring different circumstances would lead to it being curtailing speech even in those
which do not provoke any disturbance in the society but just anger a single person.
ANSWER 4

Introduction

There have been widespread concerns about issues relating to digital contents both on digital
media and OTT platforms. Civil Society, film makers, political leaders including Chief
Minister, trade organizations and associations have all voiced their concerns and highlighted
the imperative need for an appropriate institutional mechanism. The Government also received
many complaints from civil society and parents requesting interventions. There were many
court proceedings in the Supreme Court and High Courts, where courts also urged the
Government to take suitable measures.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,
2021 was enacted due to the growing concerns around lack of transparency, accountability and
rights of users related to digital media.

At the same time, multiple public interest litigations have been filed before various high courts
seeking regulation of online content published by over-the-top platforms. While the industry
has adopted various self-regulatory codes to address the MIB's concerns, the government has
time and again expressed its dissatisfaction and found the codes to lack independent third-party
monitoring.

The Rules at present are under the scanner and are being objected by several groups for being
anti-democratic and taking away digital rights. The rules though stringent will play a major
role in evolving social media control mechanism in the coming days and also the enforcement
action undertaken against violation of IT Rules 2021, will determine the extent of social media
misuse in India in future.

The need for the rules increased with multiple issues being faced like spread of fake news,
misuse of social media to settle corporate rivalries has increased its unethical use, usage of
abusive language and defamatory content or hurting religious sentiments, also absence of a
complaint redressal mechanism for ordinary social media users.

Issues addressed by the rules

These Rules seek to address all these issues and to regulate the following categories of
intermediaries and digital media entities:
(i)intermediaries and social media intermediaries (including significant social media
intermediaries)

(ii) publishers of news and current affairs content, including news aggregators, news agencies,
and individual news reporters to the extent they are transmitting content in the course of a
systematic business, professional or commercial activity; and

(iii) publishers of online curated content, which appear to include publishers (including
individual creators) transmitting content in the course of a systematic business, professional or
commercial activity.

Some of the inclusions in the Rules

Due diligence by intermediaries: Intermediaries are entities that store or transmit data on
behalf of other persons. Intermediaries include internet or telecom service providers, online
marketplaces, and social media platforms. The due diligence to be observed by intermediaries
includes: (i) informing users about rules and regulations, privacy policy, and terms and
conditions for usage of its services, (ii) blocking access to unlawful information within 36 hours
upon an order from the Court, or the government, and (iii) retaining information collected for
the registration of a user for 180 days after cancellation or withdrawal of
registration. Intermediaries are required to report cybersecurity incidents and share related
information with the Indian Computer Emergency Response Team.
Significant social media intermediaries: A social media intermediary with registered users
in India above a threshold (to be notified) will be classified as Significant Social Media
Intermediaries. Additional due diligence to be observed by these intermediaries include: (i)
appointing a chief compliance officer to ensure compliance with the IT Act and the Rules, (ii)
appointing a grievance officer residing in India, and (iii) publishing a monthly compliance
report.
Intermediaries which provide messaging as a primary service must enable the identification of
the first originator of the information on its platform. This originator must be disclosed if
required by an order from the Court or the government. Such order will be passed for specified
purposes including investigation of offences related to sovereignty and security of the state,
public order, or sexual violence. No such order will be passed if less intrusive means are
effective in identifying the originator of the information. The intermediary will not be required
to disclose the contents of any communication. If the first originator is located outside India,
the first originator of that information within India will be deemed to be the first originator.
Code of Ethics for Digital Media Publishers: The Rules prescribe the code of ethics to be
observed by publishers of digital media including: (i) news and current affairs content
providers, and (ii) online curated content providers (also known as OTT platforms). For news
and current affairs, the following existing codes will apply: (i) norms of journalistic conduct
formulated by the Press Council of India, (ii) programme code under the Cable Television
Networks Regulation Act, 1995. For OTT platforms, the requirements include: (i) classifying
content in age-appropriate categories as specified, (ii) implementing an age verification
mechanism for access to adult content, and access control measures such as parental controls,
and (iii) improving accessibility of content for disabled persons.
Grievance redressal: The Rules require the intermediaries and digital media publishers to
provide for a grievance redressal mechanism. The intermediaries are required to designate a
grievance officer to address complaints against violation of the Rules. Complaints must be
acknowledged within 24 hours and disposed of within 15 days.

In case of digital media publishers (news and OTT), a three-tier grievance redressal mechanism
will be in place for dealing with complaints regarding content: (i) self-regulation by the
publishers, (ii) self-regulation by the self-regulating bodies of the publishers, and (iii) oversight
mechanism by the central government. The publisher will appoint a grievance redressal officer
based in India and address complaints within 15 days. As part of the oversight mechanism, the
Ministry of Information and Broadcasting (MIB) will establish an Inter-Departmental
Committee to hear grievances not addressed by self-regulatory bodies and also oversee
adherence to the code of ethics.

Blocking of content in case of emergency: In case of emergencies, the authorised officers

may examine digital media content and the Secretary, MIB may pass an interim direction for
blocking of such content. The final order for blocking content will be passed only after the
approval by the Inter-Departmental Committee. In case of non-approval from the Committee,
the content must be unblocked.

The new rules empower ordinary users of social media, embodying a mechanism for redressal
and timely resolution of their grievance. The proposed framework is progressive, liberal and
contemporaneous. It seeks to address peoples’ varied concerns while removing any
misapprehension about curbing creativity and freedom of speech and expression.
Critical Analysis of the Rules

The definition of social media intermediaries is vague and could include any service provider
that enables interactions amongst users. The increase in compliance requirements is likely to
result in higher volumes of user complaints and access requests by government agencies,
making it difficult for entities to address them in the short time frames that have been prescribed
under the Rules. Their impact on the delivery of content over the internet is significant and
entails practical risks and compliance costs for entities. Provisions such as permitting the
tracing of originator of the information drastically undermines the privacy of individuals.
Besides this, the fact that blocking orders can be issued by the MIB to publishers of News and
Current Affairs or Online Curated Content in cases of 'emergency nature' provide extensive
powers under the garb of self-regulation. The Rules issued by the MeitY and under the IT Act
also aim to regulate digital media entities, which are currently allocated to the MIB, and this
raises concerns regarding the legislative backing of the Rules.
The scope of definition of child as someone who is below 18 years is too paternalistic as the
implications of usage of Social Media Platforms & OTT Platforms are widely used and
understood by children above the age of 12 years.
Additionally, the prescribed definition of ‘news and current affairs content’ is idealistic with
usage of expressions like “noteworthy content”, this definition leaves ambiguity with respect
to its applicability to other kinds of content from plethora of every-day blogs, small-self
publishing editorial houses, and informal blogs as well as YouTube News channels.

Other definitions have also been shoddily drafted with the definition of newspaper including
usage of expressions such as “loosely folded sheets”. By categorizing Social Media Platforms
into ‘significant social media intermediary’ and ‘social media intermediary’ with the
demarcation being premised on the basis of the number of registered users.

Conclusion

These IT Rules 2021 are extremely dangerous because they are setting a precedent of
Information Regulation by the State, something which the majoritarian governments will
employ to take control of our thought and speech. Such an approach is extremely paternalistic
and borders on undemocratic self-governance. Moreover the prescriptions in these IT Rules
2021 are bereft of the existing web of interactions and inter dependencies operating between
the users and the platforms. All in all, we just came one step closer towards becoming a police
State

Essentially, these IT Rules 2021 are a confused mesh of delegated legislation that issue
prescriptive norms inculcating the dichotomous elements of co-regulation and self-regulation
The problem with laying down any prescriptive regulatory norms for cyber-space is that these
norms would be relegated to the back-seat in light of the technical architectural codes that
govern their realization. For example, Rule 3 (1) of the IT Rules 2021 lays down prescriptive
standards of duties, which the intermediary needs to follow during the discharge of its duties.
It includes the requirement to publish on its website (i) rules and regulations (ii) privacy policy
(iii) user agreement for access or usage of its computer resource by any person.
ANSWER 5

Background

In 2014, Dr. Subramanian Swamy made corruption allegations against Ms. Jayalathitha. In
response, the Tamil Nadu State Government filed defamation cases against Dr. Swamy.
Thereafter, Dr. Swamy and other prominent politicians challenged the constitutionality of the
criminal defamation law in India, i.e., Sections 499 and 500 of the Indian Penal Code (IPC). A
two-judge bench of the Supreme Court comprising Justices Dipak Misra and P. C. Pant decided
the case.

Provisions in contention

Section 499 defines defamation and Section 500 prescribes the punishment. Defamation is
defined as spoken or written words or visible representations, concerning any person intended
to harm his/her reputation. Exceptions to this include an ‘imputation of truth’ required for
a ‘public good’, or the conduct of any person touching any public question, or expressing
opinions on a public performance.

Issues

The challenge before the court was twofold – first, whether criminalising defamation is an
excessive restriction on freedom of speech, and second, whether the criminal defamation law
under Sections 499 and 500 is vaguely phrased and hence arbitrary.

Analysis

The judgment begins by analyzing the meaning of the terms ‘defamation’ and ‘reputation’, and
the interaction of these terms with right of the freedom of speech and expression. Reviewing
various authorities, the Court found that the term was clear and unambiguous. The Court also
recognized the sanctity and significance of the right to freedom of speech and expression in a
democracy, but pointed out that it is subject to reasonable restrictions. It highlighted that
restrictions should serve the public interest and should not be excessive. Legislation by which
restrictions are enacted should not invade the rights and should not be arbitrary. The balance
to be achieved should weigh the importance to society of freedom of speech against the societal
importance to the public interest sought to be protected.
The first issue is whether criminal defamation is per se unconstitutional for violating the
right to freedom of speech and expression vide Article 19(1)(a) of the Constitution or
whether it is a reasonable restriction permissibly imposed by the State in relation to
“defamation” under Article 19(2).

The Government argued that “defamation” has to be read to include both civil and criminal
defamation, given that it was included in the Constitution despite the framers being aware of
the existence of Section 499. In response, the petitioners relied on Article 13 of the
Constitution, which stipulates that laws inconsistent with fundamental rights shall be void.
Thus, as per the petitioners, merely because Section 499 has not been struck down for the last
155 years does not mean that this can never be done. The petitioners further argued that since
criminal defamation provisions are remnants of the speech-restricting colonial era intent on
safeguarding the rights of the aristocracy, they are completely anachronistic, disproportionate
and unreasonable in India’s present constitutional democracy.

This issue also led to detailed arguments on the “reasonableness” of the restrictions imposed
by Sections 499-500 on free speech in light of settled law that restrictions should be narrowly
tailored and should not be excessive, arbitrary or disproportionate. The restrictions ought to be
considered disproportionate because the protection of private interests – something criminal
defamation is primarily concerned with can already be ensured through civil liability for
defamation.

The second issue is whether Sections 499-500 are unconstitutional on account of being
unreasonable, imprecise, and vague.

The petitioners emphasised that unlike civil defamation, Section 499 does not allow for the
defence of truth, except where truth serves the vague notion of “public good”. They further
contended that Section 499 is unreasonable since it does not distinguish between erroneous and
malicious falsehood (a distinction upheld in the SCOTUS ruling of New York Times v
Sullivan) and does not include an express defence of fair comment.

A related challenge was made to the constitutionality of Section 199 of the Criminal Procedure
Code, 1973, which prescribes the procedure for defamation prosecutions. Sections 199(2)-(5)
deal with cases where the offence is alleged to have been committed against civil servants, and
require that they be prosecuted at the Sessions Court (which, compared with the regular
Magistrate’s Court, deals with more serious offences), at the State’s expense, by the Public
Prosecutor after obtaining State sanction. For ordinary cases, Section 199(6) only allows
complaints to be made directly in the Magistrate’s Court. This special treatment of public
servants was challenged for violating Article 14’s guarantee to equality.

Further, the petitioners elaborated on the “process as punishment” argument, given that the
defence of the accused cannot be heard until the time of trial and the Magistrate is not required
to give a reasoned order to the accused while issuing process. Thus, a mere prima facie
allegation makes it easy to initiate the criminal process. The petitioners argued that the threat
of criminal prosecution leads to self-censorship by the people, producing a chilling effect on
the exercise of the right to free speech and expression. They claimed that the arduous process
of a criminal trial and its disproportionate impact vis-à-vis a civil suit causes undue harassment
and fear, stifling free speech, which is vital in a healthy democracy.

Conclusion

The Court held that the penal code provision is not disproportionate. The reasonableness and
proportionality of a restriction is examined from the stand point of the interest of the general
public, and not from the point of view of the person upon whom the restrictions are imposed.
Applying this standard, the Court judged the criminal defamation laws to be proportionate. The
Court rejected the contention that defamation is fundamentally a notion of the majority meant
to cripple the freedom of speech and expression as too broad a proposition to be treated as a
guiding principle to adjudge the reasonableness of a restriction.
ANSWER 6

a) Contemporary Community Standards Test

The Courts across the world have been struggling to maintain a possibly unattainable balance
between the freedom of speech, and the protection of morals and decency. The Supreme Court
of India jumped into the fray with its decision in Aveek Sarkar v. State of W.B., where it
expressly rejected the classical test laid down in R. v. Hicklin. On a previous occasion, the
same court in Ranjit D. Udeshi v. State of Maharashtra, had arguably adopted the very same
test. This paper examines the intricate interplay between Hicklin, Udeshi, and Sarkar, against
the backdrop of a few leading decisions from the United States, and proceeds to offer an
alternate to the reasoning forwarded in Sarkar.
Shift from Hicklin test to Contemporary Community Standards
The Hicklin test postulated that a publication has to be judged for obscenity based on isolated
passages of a work considered out of context and judged by their apparent influence on most
susceptible readers, such as children or weak-minded adults. The United States, however, made
a marked departure. Of late, it felt that the Hicklin test is not correct test to apply to judge what
is obscenity. In Roth v. United States, the Supreme Court of United States directly dealt with
the issue of obscenity as an exception to freedom of speech and expression. The Court held
that the rejection of “obscenity” was implicit in the First Amendment. Noticing that sex and
obscenity were held not to be synonymous with each other, the Court held that only those sex-
related materials which had the tendency of “exciting lustful thoughts” were found to be
obscene and the same has to be judged from the point of view of an average person by applying
contemporary community standards. The Supreme Court of Canada in R. v. Butler held that
the dominant test is the “community standard problems test”.
Finally, in Miller, the US Supreme Court further modified the standards within the test, and
stipulated that obscene material would be that which when taken as a whole, appeals to the
prurient interests of an average person employing contemporary community standards; which
depicts in a patently offensive way, sexual conduct specifically defined by state law; and which
lacks serious literary, artistic, political, or scientific value as a whole.
Application of Contemporary Community Standards

Section 292 of the Penal Code, of course, uses the expression “lascivious and prurient interests”
or its effect. Later, it has also been indicated in the said section of the applicability of the effect
and the necessity of taking the items as a whole and on that foundation where such items would
tend to deprave and corrupt persons who are likely, having regard to all the relevant
circumstances, to read, see or hear the matter contained or embodied in it. We have, therefore,
to apply the “community standard test” rather than the “Hicklin test” to determine what is
“obscenity”. A bare reading of sub-section (1) of Section 292, makes clear that a picture or
article shall be deemed to be obscene

(i) if it is lascivious;

(ii) it appeals to the prurient interest; and

(iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter,
alleged to be obscene.

Once the matter is found to be obscene, the question may arise as to whether the impugned
matter falls within any of the exceptions contained in the section. A picture of a nude/semi-
nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse the
feeling of or revealing an overt sexual desire. The picture should be suggestive of deprave mind
and designed to excite sexual passion in persons who are likely to see it, which will depend on
the particular posture and the background in which the nude/semi-nude woman is depicted.
Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be
held to be obscene, but the obscenity has to be judged from the point of view of an average
person, by applying contemporary community standards.
In Khushboo v. Kanniamal, criminal proceedings were initiated against a Tamil actress after
an India Today interview in which she stated that ‘our society should come out of the thinking
that at the time of the marriage, the girls should be with virginity’. In this case it was held that
the test for obscenity must be based on ‘contemporary community standards that reflect the
sensibilities as well as the tolerance levels of an average reasonable person’

Conclusion
While judging as to whether a particular photograph, article or book is obscene, regard must
be had to the contemporary mores and antional standards and not the standard of a group of
susceptible or sensitive persons. The concept of obscenity changes with the passage of time
and what might be obscene at one point of time would not be considered as obscene at a later
period.
The community standards test is more adaptive to any changing society. In a continuously
evolving society, which changes with every passing day, having a fixed standard for
determining a crime which is based on the perspective and acceptance of the society is wrong.
The Supreme Court by striking down the Hicklin test and upholding the more adaptive
Community Standards test has done an admirable job. If the society accepts the portrayal of
sexual activities on the silver screen, the court must not strike it down for the sake of a few
sensitive persons. If it is acceptable to the society in general, the court must accept it too

b) Democratic Self Governance theory of free speech

The democratic justification for free speech was most famously propounded by Alexander
Meiklejohn. He had linked freedom of speech and democracy and argued that the concept of
democracy is that of self-government by the people. For such a system to work, an informed
electorate is necessary. In order to be appropriately knowledgeable, there must be no
constraints on the free flow of information and ideas.

According to Meiklejohn, democracy will not be true to its essential ideal if those in power are
able to manipulate the electorate by withholding information and stifling criticism. He
acknowledges that the desire to manipulate opinion can stem from the motive of seeking to
benefit society. However, he argues, choosing manipulation negates, in its means, the
democratic ideal

Under the democratic self-government theory citizens are required to judge for themselves the
wisdom or fairness of any governmental policy. In other words, self-government requires that
the people be acquainted with all sides of all issues of governing importance. Free speech is
indispensable to the dissemination and propagation of political information.
Meiklejohn’s vision of the polity was that of one large town hall, where issues of public
importance are brought to the table, discussed, debated and argued over, and ultimately decided
upon, by the people. Thus, he was adamant that ‘no suggestion of policy shall be denied a
hearing because it is on one side of the issue rather than another. Citizens may not be barred
from speaking because their views are thought to be false or dangerous
Problems with the theory
But there are two problems with Meiklejohn’s original position, as it stands. The first is that it
is radically indeterminate. The question of what constitutes a public issue, or an issue of
governing importance, is a bitterly contested one. For example, until the middle of the twentieth
century, marital and sexual relationships were considered to lie entirely within the private
domain. As the feminist movement argued, however, that the ‘private’ was itself a political
category, and was used to mask relations of domination and subordination between the sexes.
Today, many of those issues like domestic violence, marital rape, and so on are inescapably
public. Meiklejohn provides us with no conceptual framework to settle disputes about the
dividing line between the public and the private.
Even if we could successfully bracket that problem, Meiklejohn’s theory proves too little. For
instance, if only explicitly political speech is protected, it would leave literature and the arts to
the whims of majoritarian politics and the blunt club of the government censor. This runs
counter to our intuitions. We do think that book bans raise free speech concerns; that they
impact the rights of authors, publishers, and readers; and that artists should be protected against
politically powerful and too-easily offended religious or political groups. A theory of free
speech that fails to address this seems incomplete

Faced with this criticism, Meiklejohn expanded his account. In his subsequent writing, he
argued that ‘free speech protects the freedom of those activities of thought and communication
by which we govern’. While the ultimate expression of self-governance is the casting of the
ballot, voting is only the culmination of a lengthy deliberative process that involves
understanding the issues that face a nation, judging the decisions that representative agents
make about those issues, and constructing methods to revise, modify, or substitute those
decisions in order to better achieve public welfare. To do this effectively, one would need to
protect all communication from which voters could derive ‘knowledge, intelligence and
sensitivity to human values. For Meiklejohn, this included education, discussions about
philosophy and science, literature and the arts, and public issues. It did not include libel,
slander, conspiracy, and so on.
Thus, Democratic Self Governance theory is where issues of public importance are discussed,
debated and argued over, and ultimately decided upon, by the people