Compilation of Case Studies:

Issues Pertaining to
Media and the Law

Maitreyee Misra
Rahel Philipose
Saloni Singla

EXPRESSION
FREEDOM OF SPEECH AND
ARTICLE 19(1)(2) OF
THE
(ARTICLE 19(1)(A) AND
INDIAN CONSTITUTION)
have the
constitution says that all citizens shall
This article of the
It means the
Tundamental right to freedom of speech and expression. word
convictions and opinions freely by
gnt to express one's own includes

pictures or any other

mode. Itthus
mouth, writing, printing,
or medium
communicable
ideas through any
like. Free
Ae expression of one's such as, gesture, sign and the be done
visible
1 repres
I e representation,
objective and
this may

propagation of ideas
is the necessary
Romesh Thapper
v. State of
the press. In
the platform or through ' F r e e d o m of speech
and
ofthe
on observed that,
rightly for without free
2adras, it was
democratic
organisations,

foundation
ofall essential for the proper
press lay public
education,
so
is possible.
d i s c u s s i o n no government,

political of popular restrictions,

of the process
and are
subject to
unctioning absolute
state to put
are not empowers
the
However, Rights constitution
191)
Indian under article
of the right provided
Article 19(2) on the grounds
Restrictions'
restrictions on the following
Reasonable
reasonable
relations with
Foreign
impose
a. State
can State, friendly These
example,
Security ofthe and Sovereignty
of India.
only, Order,
Decency
in the courts.
States,
Public
can be challenged
government
restrictions by the
 191
Case Studies
S t u d i e s . .

C u s e

Thapper v. State of Madras

nyuhatto
npnhatuon

Romesh

( a s wS H u d y
y 3:
AIR1950SC124)

called
was
the editor ofaweeklyjournal in English
The
pctitiom
er
Government of Madras, in excise of their powers
The
Public Order Act, issued an order
(rassroads,.Th
aintenance
of
Journal in the State
der the Mair

and circulation of the

iing the entry
orohibitingthe

Freedom of Speech and Expression

held that the
of ideas, and that freedom
Court
The
freedom of propagation
includes
also includes i
circulation.
freedom of
ensured
by
is
Indian Express Newspaper v.
Union ofIndia
Case
Study 4:
1985 SC 287)
(AIR
writ petitions challenged
thelevy of an import duty
In this case
contended that the duty
led to an
The petitioners
newsprint.
on and a drop in circulation, thereby
in cost of newspapers
increase
freedom of speech
and expression. The
adversely affecting and directed the
of India allowed the petitions
Court
Supreme
re-examine its taxation policy
in light ofthe effect
government to in this case were
freedom of the press. The petitioners well as trusts
on
shareholders thereof, as
companies, employees, and challenged the
of newspapers. They
the publication
engaged in 1975 and
under the Customs Tariff Act
import duty on newsprint Finance Act 1981, as modified by
under the
the auxiliary duty effect from March
Customs Act 1962 with
notifications under the
imposition ofthis duty
contended that the
1, 1981. The petitioners and circulation and, therefore,
had
costs
adverse effect on
had an
Article 19(1)Xa) under
a crippling effect on
freedom ofexpression
freedom to practice any
trade
Constitution and the
of the Indian
under Article 19(1)g).
or occupation was
observed that the government
Court of India publication of
The Supreme affecting the
taxes
to levy
indeed empowered could be
characterized as an
publication
because such industries.
as other
to the same levies
newspapers
and must be subject and large
industry classification into small, medium,
that the nexus with the
It also stated c o n s i d e r a t i o n s had a rational
economic
based on
192
Media Laws and mpilation
of Case Studies.
193
hiective of taxation and could not be considerod Bthies qualified privilege. Court held that the
aff q u a l i t
defence o
However, where the power of
of
taxation encroachesd arbitrary oftruth
and the article
subject had nothing to do with the had no
freedom expression under Article
19(1)(a), the upon thon
the restriction
c l e m e n t
pcople, thus, refused to accept interes
the freedom must be within reasonable limits, of the newspaper's defence
Study 2: Subramanian Swamy v. Union of India
ase
FREEDOM OF SPEECH AND EXPRESSION (Writ Petition (Criminal) No. 184 of 2014)
(DEFAMATION-LIBEL AND SLANDER her of petitions have been filed under Article 32 of the
Defamation is injury to the reputation of a person.
f
dia
Constitution of India challenging the constitutional validity of the
injures the reputation of another, he does so at his own person e of criminal defamation as provided for in Sections 499
the case of an interference with the property. A risk, as in 500 of the Indian Penal Code and Sections 199(1) to
man's renitad ar 199(4)
o fthe Indian
is his property. on Code of Criminal Procedure, 1973. Several of
the
Defamation can be of two types: titioners, such as Subramanian Swamy, Rahul Gandhi and
Arvind Kejriwal, are politicians who had been charged with
(a) Libel-a form of defamation in permanent iminal defamation, contested the constitutionality of the offense
form such as
as
written documents.
of criminal defamation, arguing that it inhibited their right to
(b) Slander-is defamation in an oral or transient form freedom of expression. The criminal proceedings against them had
addressed to the ear. been stayed, pending the constitutional proceedings. The Supreme
In India the law does not distinguish between Court of India dismissed challenges to the constitutionality of the
Libel and
Slander, Section 499 of the Indian Penal Code criminal offense of defamation, holding that it was a reasonable
criminalises restriction on the right to freedom of expression. The
defamation. There certain defences for Defamation
are
in India, they are:
recognised reasonableness and proportionality of a restriction is examined
from the standpoint of the interest of the general public, and not
Justification of Truth-A true statement does not meet
the legal requirements for defamation. from the point of view of the person upon whom the restrictions
are imposed.
Fair comment-Upon matters pertaining to public
interest. Case Study 3: Vir Sanghvi 2004
Privilege-Certain occasions when the law recognises that In 2014 a Magistrate's Court convicted senior joumalist and former
the right of free speech outweighs the plaintiff's right to Hindustan Times editor Vir Sanghvi and three others in a 2004
reputation. It can be of two types: Qualified and Absolute defamation case and sentenced them to one-month imprisonment,
Privilege. besides imposing a fine ofRs. 3,000. The complainant, Ajay Ubale
Bureau in Mumbai, had
Case the then chief of the Narcotics Control
Study 1: Reynolds v. Times Newspapers Limited and others after an "incorrect
filed the complaint against Sanghvi
An Irish politician sued the newspaper for an article published news report appeared in
the newspaper's Delhi edition in
which was defamatory. Plaintiff alleged that the words used in December 2001 accusing
him of extortion.
the articles bore mislead ing meanings. Defendant pleaded for the
 Case Study
4:
Newspaper editor,The Case of Amara Media Laws
criminal Amara nfhm o
(ase
Studies.
195
defamatorycourt with al-Khatabi,
al
a
- Ta
Khatabi, al-Khat ab and
hies
o00 crores. The Central Bureau of
Investigation
had
The five-year
am and filed a chargesheet in connection with
Gaddafi-era articie: was
prison sentence
inseslilcd the sca
court
members of thepenal code, the held that sentenced Kalmadi and others.
that term forfor m publis
by Suresh
ofunder article 19aLbyan
s AmINg
thus
punishable public
under
publioation
judiciary for an article shinbyng a a l m a
s
and his team
d i

accusedof giving out inflated contracts

Additionally, an RTI application filed by the
On
edited byNovember 21, 2012,
the code. corruption tha. f
9VBtuption was defamato the
for the games
and Land Rights Network revealed that the Delhi
enoitttbg o xposed
Housing and
Amara had diverted Rs. 744 crore from social welfare
List of the al-Khatabi, A1-Ummah, and nment
Dalits to the Commonwealth Games. The fact was
Judiciary.' This published an ticleLibyan
a
G o v e r
public judiciary and named article detailedarticle
lut
ttitled The
neu..
projects
for
confirmed by Government's
the Delhi State
had Paper paper auently
ubsequently cor
a accepted bribes and other several judges corruption wi Black for the Welfare of SC/ST/OBCMinorities, in response
Libyan and
D e p a r t m e n t
defamation criminal court illegal
amings.
eamings. O n
On prosecite the Right to Information (RTI) application on June 30, 2010.
allowing thisconvicted al-KhätabiAúgust
to a
for August 17
17,
be hätabi in absentis2014,
Tn 2: Adarsh Housing Scam
addition to the article tö Case Study
five-year published n absentia of
alKhatabi to pay damages toprison teh, the court alsóAlLUmmahmah. Activists Yogacharya Anandji
and Simpreet Singh filed an RTI
orlpracticíng
the that later exposed the Adarsh housing scam in 2008.
to journalism for the düätiönplaitiffs'ärid bänned sentence
him
application
application then led to the
RTI
prison sentehcedfram
with simple
!iisnoiiiilaioo 9ril oj of his What started
a
of Maharashtra chief minister Ashok Chavan.
ldeoebo RIGHT TO 29gr1ollsrlo boreimaib tibal 1o nu resignation
The Right
.
fioi2z91q/9 tg f1obs911 o1
to
INFORMATIONACT
tlgii orli 2005° lhaimi
The Adarsh housing society a 31-storey apartment
meant for war widows
and veterans was found to be chiefly
-
building
empower
Information, Act2005FMerged(10as 1oiloineA to occupied by politicians,
bureaucrats and their relatives. It was
in
citizens.by.ensuring means launched separate probes into the
transpargney and 2010 that the Army and CBI
In abid to curbaccountability
the working of the in
strengthen democracy,gPvernment.
children of several bureaucrats
qRrTuption and matter. The RTI found that
the RTI Act was initiated for building the complex also
of Personnel and by the Department involved in the permission process
Training, Ministry of Public Grievances and The Bombay High Court
Owned houses in the housing society.
Pensions. It provides access toinfórination1that is building for violating green
norms.
uídet the'control ordered the demolition of the
ofpublic authorities. The act is primarily in place to create a legion
of informed citizens who then ensure that the many1J216|/
institutions Case Study 3: 2G Scam Andimuthu
Telecom Ministry, led by
pon which they rely are held accountable and are answerable to The 2G scandal involved the
for frequency
of i9flt beono192 ban se6o n o t s mobile phone companies
he deonlell flifiofii-9no Raja, undercharging ended up costing
bribes, which
IBdU }B|/ JGislqos srlT.000,E .2A to i l gnieoqml2hie allocation licenses,
allegedly for unfolded over
The scam
loidlsimil ont
aseStudyIaiComnmbnwealth Games slito
crore.
Rs. 1,76,645
the Indian government a facilitator
in uncovering
acted as
from Pune was and the RTl
14Wmaket Several months
April 26, 2611 Suresh Kalmadi misäpprópriation offunas
rested for'his róle in the 1árgé stale' Gathes in New Delhi
the events.
at took place during the 'Commbhwealtruarnmeat is placed at
196
Media Laws and Compilatior of Case Studies..
RTI applicant Subhash Chandra Agrawal and act Ethics Often referre the ifth pillar 197
Garg's finding let the Central Bureau of
Investigation fvst Vivek role to
rtant role to play in the
of
democracy, the media
smooth
important

April l aagainst
charge
sheet in 2011. In its charge sheet filed in
between thefunctioning of the
an
has ystem. It is an interface
A. Raja and others, CBI had alleged
that there was2011
a
JUstuce

nment. Whenmedia propagates biasedpeople and the

the
30,984 crore to the exchequer in allocation of 122 of Rs jinfluences public ion before a formal reportage that
erodes the very foundation upon which a verdict is passed- it
2G spectrum which were scrapped by the
Supreme for
February 2, 2012. The court has been
hearing the threeCourt on e time, the mediais also often held democracy is built. At
responsible for bringing
the sam

two filed by the CBl and the third by the Enforcement Direc
cases - stice through honest and hard hitting
i n n o c e n t s

The court has recorded the statements of

154 CBI witnestorate. events. reportage of
including Reliance ADAG Chairman Anil
Ambani,
Ambani and former corporate lobbyist Niira his wifo Study 1: Aarushi Talwar
Radia. The offenina Case Murder Case
entail punishment ranging from six the night of May 15-16, Aarushi Talwar and
months in iail t life Hemraj domestic
heln at the Talwar household, were brutally murdered
-

imprisonment.
and their
Case hodies were discovered the following day. Hemraj's decomposing
Study 4: Indian Red Cross Society Scam hody was found on the terrace of the apartment
In 2005, Hitendra Jain, founder of Resurgent Talwars lived. The
building in which
India, an NGO based the police were criticized for not
in Punjab filed an RTI
inquiring about the use of funds followed proper procedure and securing the crime scene. having
Rajesh
the Kargil war relief and rehabilitation of meant for and Nupur Talwar were considered prime suspects in the case.
those hit by natural
disasters by the Indian Red Cross The case was transferred to the CBI who through a narco
Society, a statutory body. interrogation found Rajesh Talwars assistant and two other men
Twenty-six applications revealed that Indian as prime suspects in the murder. The CBI was criticized for
Service (LAS) officers had squandered the relief Administrative employing these means. In 2013 the parents of Aarushi Talwar
and rehabilitation
funds worth millions of rupees to were convicted and sentenced to life imprisonment.
buy cars, expensive mobile
phones, funiture, air conditioners etc. In October 12, 2017 a landmark judgement by the Allahabad
The court charged these bureaucrats
with fraud and the funds High Court acquitted Rajesh and Nupur Talwar of the murder of
were then transferred into their teenage daughter Aarushi and their domestic help Hemraj. A
Prime Minister's Relief Fund. Mishra
division bench of Justice B.K. Narayana and Justice A.K.
the Ghaziabad CBI court
upheld appeals by the Talwars against
TRIAL BY MEDIA on November23,2013.
order sentencingthemto life imprisonment
Trial by media' a of doubt,' and the court
phrase that was popularized between the late
-

The Talwars were given the "benefit

Dasna Jail.
20m and early 21st from Ghaziabad's
century, emerged to describe a ordered their immediate release
whereby television and newspaper coverage of events phenomeniu
shaped tne interview with Dr.
Vartika Nanda while
the
In an exclusive Talwar says"The
public's perception of an individual or Dr. Nupur
the use of media
group's reputation. It is
couple was lodged in the prison, here was perhaps more
than
to sway public
nnocence before, and
opinion to proclaim guito amount of love and respect
we got
with the other
her experience
sometimes even after a verdict is passed referring to
a court of
law. What we got outside,'
 198 Media Laws and 'atlpilation of Case Studies..
in
prisoners she interacted with. Owing to the manner in w
Ethtcs 199
res
case was covered and the media judgement which the lleged : accomplices was beginning to look weak.
A trial court
ini that was Sharma in February,
served, passed,
must question whether justice has truly 1uilted 2006. The decision
pr been
or one scd by the Delhi High Court in
was then
cri the Talwar's have been wronged to the extent that whet 2006. December,
Sharma
fo isn't enough to truly clear their name.
this sent
sentence p p c

to the Supreme Court

a l e d
the High against
Court's verdict
him guilty. On 20 December
that found
ha 2006, Sharma was
Case Study 2: Nitish Katara Murder Case
itenced to life imprisonment
and a fine. On 19
April 2010, the
Supreme Court of India approved the sentence.
In February, 2002 Nitish Katara -
MBA student and
son. of a
IAS officer was allegedly abducted by cousins, Vikas and Case Study4: Priyadarshini Mattoo Rape and Murder Case
Yadav from wedding Katara
Vishal la January 1996, Priyadarshini Mattoo, a 25 year old student of
a was attending in Ghaziabad. The
duo had noticed Katara getting friendly with Vikas' law was found raped and murdered at her residence in New Delhi.
sister Bharti Santosh Kumar Singh, a senior from her college who had Ibeen
Yadav and wanted to bring an end to the
relationship. They
employed Sukhdev Pehalwan, a hired killer to murder Katara and allegedly stalking and harassing her for several years, was foun
later dump his body. guilty on both counts of rape and murder.
A Supreme Court bench declared that the crime could
Singh was sentenced to death on 30 October, 2006. He had
neither previously been acquitted by a trial court in 1999. On 6 October,
be classified as an honour killing nor could it be called a
rarest of 2010, the Supreme Court of India sentenced him to life
rare crime warranting death penalty. It was only in
February, 2016 imprisonment.
that the Delhi High Court awarded Vikas and Vishal life terms of
25 years without remission. The Supreme Court in 2016 awarded
STING OPERATIONS CASE STUDY
a 25 year jail term to the cousins, and a 20
yearjail term to Sukhdev
Pehalwan. 1. Operation West End (2001)
caried out in 2001 by
The media both through television and newspaper coverage Operation West end was a sting operation
Tehelka under the editorship
has often been held responsible for reopening the case and bringing the paid independent online news site,
at various levels ofnational
Nitish Katara and his family to justice. of Tarun Tejpal, to expose corruption
defence procurement.
Case Study 3: Jessica Lal Murder Case Bahal and Mathew Samuel, posed
Two journalists, Aniruddha
"handheld thermal imaging cameras" from
Jessica Lal was manning the bar at Tamarind Court, a restaurant as arms dealers selling
International, London
(Thus the code name
in Delhi, on the night of 29 April, 1999 when she was shot point M/s West End recorded their
cams, they
blank by Manu Sharma, son ofa former Union minister on grounds Operation West End). Using hidden spy
collecting evidence
of Lal having refused to serve him a drink. officials and politicians,
dealings with various
of bribes.
When the trial began, the key witnesses were seen to provId of acceptance transcripts made
televísed and complete
accounts
ofthe incident that did not correlate and was starting The tapes
were
website.
Seem inconsistent. The case against Manu Sharma and his w their
available on
T1
200 ofCase Studies...
in
res
Media Laws and
p u l a t i o n
The outcomes are given below: Bthics 201
ini
ced by
the Wallenberg family's
pr
cri
1.. Conviction and resignation
President of the BJP, for "[accepting]
of
Bengaluru L
Banken,,for winning a bid to
supplySkandinaviska
India's 155 mmEnskilda
field
fo
ha of Rs.1 lakh from Mathew illegal
Samuel, [who gratiffication xman, hovlzer
chief liaison officer of M/S posed) tion The Comparison
Westend as thethe
further [agreeing to accept the International,
balance amount
, and
and w is
comparisc of
a the methods and timelines followed
lakh) of illegal gratification in ators during
reward for exercise of
dollars as a (Rs4
motive(Rs.4 The
TheHindu their Bofors scandal reporting (inby
personal influence words of Columbia Journalism
servants working with the on the or School,
ively new, unimpeachable kind"), and the"evidence of a
Ministry of
Defence" public
qualitative
Hindu, 27.07.2012) Tehelka
(The operators
op
This comparison helps
highlight some of the sting
2. Resignation of Jaya Jaitly, President of the which sting operations depart from the conventional ways in
Samata Party investigative journalism. methods of
3. Resignation of George Fernandes, Defence
4.
Minister
ster. N. Ram, former editor-in-chief of The Hindu, has
Adoption of new procurement rules by the this to say
Defence. nistry of shout the Bofors investigation carried out under him:
5, Charging of both the We relied almost exclusively
investigative journalists under the
on
documents, more
Official Secrets Act. Charges documents, hundreds of documents, We played the devil's
against Bahal were
dropped advocate on key story angles, verifying every detail.
...
while Samuel was convicted but
granted bail.
Tehelka was thus credited with pioneering a new ..[W]hen we had made a significant factual error
kind
journalism and exemplifying the "watch-dog" role of the mediaof misconstruing something Prime Minister Rajiv Gandhi had
This new form, "sting said in a closed meeting. We immediately published a
journalism" used unconventional methods correction, with an apology, on the
and breached accepted norms of news
gathering, raising questions
page we front
valued our credibility, our reputation, the trust readers placed
..
hiehy
and debates about privacy, trial by
media, and methods of news in us.... We did not practise anything that would be
gathering. Tarun
Tejpal, editor-in-chief, defends Tehelka's and spy
recognised as deceit in this era of hidden mikes
extraordinary" methods as
appropriate to "extraordinary We had our own data security
methods..."
situations". cameras.
verification offacts,
This reliance on documents, focus on
1.1 Operation West End and the
Bofors Scandal are allcharacteristics of
Admission of mistakes, and transparency contrasted with the
A Quick Comparison These can be
gOod investigative journalism.
entrapment,
and covert
methods of Operation
The Bofors scandal was dng questions,
a major political scandal that occurred West End and sting journalism
in general.
between India and Sweden during the 1980s and 1990s, initiated ran for 2
Bofors investigation
timelines: the
by Indian National Congress (Congress Party) politicians and Comparing the
for a couple of months.
mplicating the Indian Prime while West End ran has the
other members of the
Minister, Rajiv Gandhi, and sever ycars
The Hindu,
Readers'
Editor at
Indian and Swedish governments who were A.S. Panneerselvan,
out stingjournalism:
accused of
receiving kickbacks from Bofors AB, a bank principay following to say
 Case Studies..
202 o
pilation
203
I am
Media Laws and Shahabuddin, a sitting member of
convinced that sting journalism Ethics Saycd. parliament at the time
meticulous is a
lazy s banning in India, was at the forefront of the
the investigative reporting. It is true that
defence deals [as
substitute to
ot
f
de
he hooks
ranizations
huslin
that were mobilizing in opposition to novel
organizations

hardline
appearing in the some ol lnhen the
murky. However, the
investigations
West End
that have had tapes are
published
t h e t i m e wheniit was in the
UK. The importation1988
of national sore mains in place
in India
resonance are the and no
attempts have been made by
conventional investigative modes."ones that have deploved domestic publishers to lift it. In 2015, Rushdie was strongly advised
Thus, while nst his appearance at the Jaipur Literature Festival by the
one may call the
old fashioned or adversaries of
sting governmen on
grounds of 'security concems
overly conventional, the fact isjournalism
C o n g r e s s - l e d
journalism remains precariously balanced on the
that sting
Study 2: Deepa Mehta's Fire: The Attacks that
the ethics knife.
sharp edge of Case
Followed its Release
However, many do continue to
when systems of accept its necessity as a Deepa Mehta's Fire, staring Shabana Azmi and Nandita Das,is
journalists, but transparency
fail and demand daring method the story of two sisters-in law from a traditional and conservative
agree that sting action by
last resort, and journalism should always be used a household falling in love with each other. The film released across
extremely carefully on the rare occasion this occurs. ndia in mainstream cinemas in the winter of 1998. Wide spread
opposition to its circulation followed from a number of parties.
ATTACK ON FREEDOM OF
AND AUTHORS
ARTISTs The Jain Samata Vahini of Mumbai then Maharashtra wantedthe
It is
Minister of State for Cultural Affairs, Anil Deshmukh to ban the
through speech that individuals are film but failed. On December 1, an attack on Cinemax theatre in
thoughts, feelings and desires to the able to communicate their Goregaon, Mumbai by Shiv Sainiks led to cancellation of all
need is very basic to human people around them. This a
existence. Placing limits on one's shows at the theatre. What followed was another cinema hall, New
capacity for free speech would thus in many Attacks also took place
of an individual to ways limit the ability Empire cancelling screenings soon after.
thrive and survive
society at large. The country, through its within a community or
at Regal cinema in New Delhi.
laws imposes restrictions on governing bodies and its
what artists and filmmakers can Actor Dilip Kumar came out in support
of Fire and filed a
cannot do. and film was sent back to the censor
There are
several legal and PIL with the Supreme Court. The
the manner in which one's sociological reasons behind board for re-evaluation,
however it was passed again without once
freedom of speech is curbed made was that the protagonists
state and its by the only alteration
machinery. a single cut. The
Sita to Nita.
Case name was changed from
Study 1: The Satanic Verses Controversy Banned in India
Pakistani Artists
In 1988, Salman Rushdie Case Study 3:
in the United published his novel The Satanic Verses Post Uri Atacks
Kingdom. The reaction was not favourable and was in September 2016
and a seemingly
termed as attacks in Uri
blasphemy.The
the Ayyotollah Ruholla rejection
led up to a fatwa issued by Following the
in Kashmir,
Motion Picture
the Indian
Producers
Khomeini of Iran in 1989 ordering volatile situation ban on Pakistani actors, singers
a
Muslims to kill Rushdie. (IMPPA) placed The ban was placed
and bombings followed. Mayhem broke out as numerous killings Association
from working on
lndian films.
and technicians
 204
Th Media Laws ars
soon after the Indian
army announced
res terrorlaunchpads across the LOC in surgical strikest ne
inf and said that the ban would remain 'till Pakistan-occupied
K
pr
cri Actors Fawad Khan and Mahira
normalcy returns.
Khan,
fou
hav
release of their
could thus not
respective films were sent backbothto awaiti
participate
Khan, Ali Zafar and
in
promotional events. RahatPakista
Fate
Atif
playback singing were also Aslam prominent names in
adversely aftected by the ban.
THE INFORMATION
TECHNOLOGY ACT, 20oo
The Information
Technology Act, 2000
legal recognition to transactions carried outwas enacted to pro
datainterchange and other means of electronic by means of electre
is based on the Model
Law on Electronic communicatiom
the United Nations Commerce
Commission on International Tradeadopted
law, along with the legal Law. TF
recognition
foundation for data protection
to
e-commerce, also sets t
and privacy
Amendment Act), assigning (with the 20
as network service responsibility to
intermediaries su=
providers, but also allows for interne
censorship by the government in certain cases.
under the act Some, of offence-
are
tampering
with computer source
documents
hacking with computer
information in electronicsystems,
and publishing of obscene
form, breach of confidentiality and
privacy, and publication for fraudulent
purposes.
1.
Section 66: Case Laws
Section 66A:
66-A. Punishment for
communication service, etc.
sending offensive messages througn
-Any person who sends, by means of a
or a
communication device, computer resource
(a) any information that is
grossly offensive or has menacing
character; or
(6) any information which he knows to be false, but for
purpose of the
causing
annoyance, inconvenience, dange,
Th 206 ilation of Case Studies..
in Media Laws and
res
Bthies Co
redressal for those affected by providing a defamation and
inf
takedown notices in the Intermediaries Guidelinesmechanism for
yber grants an
injunction restraining
207
pr Rules notifad defendant from defaming the plaintiffs
in April 2011, enabled unchecked invisible by sending the
cri
and has had a demonstrated censorship in India cmails
defamatory
fou chiling effect on speech. 2. Section 67: Case Law
hav
664 was scrapped, as the above mentioned
arguments
petitioners were found to be valid. Section 79 was partiallyof the Section 67 Summary:
down. The Court upheld S69A which deals with read
and found that it was a
website blocking. Publishing or
transmitting obscene material in
narrowly-drawn provision with adequate (Sec. 67): electronic fom
safeguards, and, hence, not constitutionally infirm.
Article 14 challenge: The pessimistic This Section provides the
reading of
Singhal is that Parliament can enact medium-specific law Shreya publishe or transmits or punishment for a person who
causes to be
obscene material;in electronic form, published pornographic or
as there is an as long
intelligible differentia which could even be a technical e.g,
difference-speed of transmission. However, the optimistic cbscene e-mails, posting defamatory and sending of offensive and
interpretation is that medium-specific law can only be enacted if annoying messages etc.
there are medium-specific harms, e.8, Section 292 of IPC provides that it is
phishing, which has no offline dissemination of obscene information which is antransmission
equivalent. If the executive adopts the pessimistic reading, then offence. But
draconian sections like 66A will find their way back into the
IT
mere possession of the obscene material for personal use of
Act. Instead, if they choose the someone is not an offence under the Act.
optimistic reading, they will
introduce bills that fill the regulatory vacuum that has been
created Punishment for first conviction for publishing or
by the striking down of S66A, that is, spam and cyber-bullying. obscene material in electronic form: transmitting
Imprisonment up to 3 years
Case Study 2: SMC Pneumatics (India) Pvt. Ltd, vs. and Fine up to Rs. 5 lakh Punishment.
Jogesh
Kwatra, 2001 (India's First case of Cyber Defamation) Second or subsequent conviction for publishing or
transmitting
The plaintiff company's employee Jogesh Kwatra, obscene material in electronic form:
started sending
obscene, defamatory, derogatory and abusive emails to his Imprisonment up to 5 years and Fine up to Rs. 10 lakhs.
employers and also to different subsidiaries of said company in
other parts of the world. These were anonymous and Case Study 3:Avnish Bajaj vs. State (N.C.T.) ofDelhi (2005)
frequent and
sent to tarnish the image of the company' Managing Director. Avnish Bajaj was CEO of bazee.com, a C2C website which
The High Court of Delhi restrained the employee from sending received commission on the sales it facilitated. An obscene MMS
bazee.com on 27 November, 2004,
such emails. Further, he was also restrained the defendant from clipping was listed for sale on
fun'. Some copies ofthis clipping
transmitting or causing to be information under the name DPS girl having
publishing, published'any
in the actual world as also in cyberspace which is derogatory or were sold through bazee.com
and the company received
defamatory or abusive of the plaintiffs. This order of Delhi High Commission on these sales.
67 (offence of
Court assumes tremendous significance as this is for the first time was arrested under section
Avnish Bajaj of the IT
that an Indian Court assumes jurisdiction in a matter concerning obscene
information
in electronic form)
publishing of
 Case Studies...
ilttion o f Case
209
reale) of the unexpurgated edition of the book, Lady Chatterley's
'salc)o f
tho
Thepartners were charged under Section 292, Indian Per
ve. Thr certain obscene passages in the book. The
le(found the appellant guilty the Bombay High Court Trial
inde
(IPC).

u h ev e r d i c
Hence the appeal. upheld
The prosecution contended that the law regarding obscenity

inIndia
had its underpinnings in the Hicklin test
(which and laid
emphasis on the potential of the impugned object to deprave
corrupt
enp by immoral influences) and that the book failed the test.
The appellant argued that S. 292 of the IPC was void as an
e'and vague restriction on the freedom of speech and
i m p e r m i s s i b l e ?

expressio that even if the Section were valid, if it was properly

construed and the book was considered as a whole, the book would
found obscene.
not be
The Court dismissed the appeal, saying that "The test to adopt
n India is that obscenity without a preponderating social purpose
free speech
or profit cannot have the constitutional protection of
of sex in a manner
and expression, and obscenity is treatment
human nature, or having that
appealing to the carnal sides of
this test.
tendency. It found the book failing
and Another v. Amal Mitra
Case Study 2: Samaresh Bose
and Another (Prajapati novel) (1985)
an advocate,
in the Court
made by Amal Mitra,
An application was the novel
Calcutta complaining that
of the Chief Magistrate at distributed,
the accused had sold,
obscene, and
that
was Samaresh Bose and
rrajapati The author,
exhibited the same. charged under
printed and were
Kumar Dasgupta
and then the
C publisher, Sitangshu Chief Magistrate
the
IPC by
Section 292 of the
Calcutta High Court. an appeal
inl in the Supreme
Supreme
then filed
publisher
The author and
references
r eferences kissing,
to kissing.
Court. Whether
wnether

included:

characters in
female
figures of
a d d r e s s e d

the
The issues body
and
ofthe
descripti
 Compilatio of Case Stud
Th
in
210 Media Laws and Ethies
true to life than even
res the book and suggestions of sex acts by
themselves
have th more the theatre or,
211
inf of depraving and debasing, and encouraging lasciviousn effect of representative art. indeed, any other form
pr
crit
readers of any age, and must therefore be considered obscene.
among, It said that the general
principles that applied to
fou The Supreme Court allowed the appeal and (1) (a) applied to the
19
hav dismissed the
Article
vague about the censorship exceptions
of film, and
charges ofobscenity. It held that vulgar writing is not
necess
vas
noth
wording of the that there
obscene. However, the Court observed that the censors
Censorship
Act.
We feel that the readers as a class will read into accountthe value of art while need to take
the book with. making their decision.
sense of shock and disgust and we do not think that Study 4: Raj
reading this book would become depraved, debased
any ader
on
Case Kapoor and Others v. State and
and (1980) Others
encouraged to lasciviousness.'
A Complaint was filed
by the
claiming to be the president ofrespondent, private complainant
a
We have to bear in mind that the author has written
this novel youth
a
which came to be published in the Sarodiya Desh for all
classes defending Indian cultural standards, organisation devoted to
of readers and it cannot be right to insist that the standard Satyam Shivam Sundaram,
alleging that the movie,
should obscene and indecent and
was
always be for the writer to see that the adolescent may not be rendered the producers liable for an act
under Section 292, IPC. constituting an offence
brought into contact with sex.'
Issues: Whether the issuance of a censor
Case Study 3: K. A. Abbas v. Union of India and Another certificate by the
(1971) specialised Board of Film Censors bars the criminal court's
In 1971, K.A. Abbas, after having to go through a lot of jurisdiction to try offences under Sections 292 and 293 of the
bureaucracy to obtain a 'U' certificate for his film (which Indian Penal Code relating to obscenity.
contained a brief scanning shot, blurred by the movement of the
The Court decided that while a certificate issued by the Censor
the red light district of Bombay, with the inmates of the
camera,
brothels waiting at the doors or windows), filed a writ petition in
Board is
ofrelevance,
it does not preclude the courtfrom deciding
if a film is obscene or not.
the Supreme Court, challenging
pre-censorship itself as offensive
to freedom of speech and expression and, alternatively, the However, the judge did note that the Courts must 'be cautious
to 'rush in' and must indeed 'fear to tread' lestthe judicial process
provisions of the Cinematograph Act and the rules, orders and
directions under the Act, as vague, arbitrary and indefinite.
become a public footpath for any highwayman wearing a mora
traveled the expensive and
ask holding up a film-maker who has
The Court said that pre-censorship was valid (in the context) 'certificated' picture
perilous journey to the exhibition of his
and an exception to the
right to freedom of speech and expression The world's greatest paintings, sculptures, and dances,
songs,
had been provided under Article lofty epics,
19(2). The Court saidthat pre Konarks and Khajurahos,
censorship was necessary as the medium of film had to be freaed ndia's lustrous heritage, the law, if prudes
and
prigs
uscious in patches, may be asphyxiated by and prescribe
auerently
from otherforms of art and expression. 'The art ot tn moralists prescribe paradigms
Cameraman, with trick photography, vistavision and threc d state
amensional representation thrown in, has made the cinema picture
heterodoxies.'
Th
212
Media Laws and pilation of Case Studi
in Ethics 213
The Court allowed the appeal and sent backthe
the case. The Court held that a number of
res
High Court for fresh disposal. case to the
Court.
ogramme code under the
television channels violated
inf the Cable TV Network
prc Cable TV Network Rules, Act and the
Case Study 5: Bobby Art International &
crit Others y, O
fou PalSingh Hoon & Others (1996) In 2004, pending disposal of the
petition, the Court
hav TV
chanr from telecasting any adult restrained
A writ petition was filed by the first
respondent to auash hout appropriate certificates from theprogramme and/or
Central eBoard
andorof Film
film
film
certificate of exhibition awarded to the film, 'Bandit the
Queen Certification (CBFC).
film was based on a book which had been in the The
market si In March 2005, Naitthani
1991 without objection. The certificate was quashed
by a single complained
doting these orders by continuing to show
that TV channels
were
Judge in theBombay HC and on appeal to a Division movies rated 'A" and
verdict was upheld. Bench, thehe lA by the CBFC. As a result, in August
n the instructions of the Court, cracked 2006, the police, acting
down
Issues: Whether the portrayal of frontal
nudity, rape and f Hathway, InCable, Indus and Siti cable, on the control rooms
violence in the movie, "Phoolan Star Movies, HBO, AXN, SET Max, Zee
leading to nine channels
and denigrating to women.
Devi, were obscene, indecen Studio, Zee Café, Star
World, Hallmark and Filmy-going off the air.
The Court reversed the decision of the Delhi The main question before the Court was
held that since the Tribunal (Censor Board) had
High Court, It whether cable
in 'true perspective' and granted the film an 'A'
viewed the film operators/cable service providers are free to telecast CBFC
certificate, and certified adult films despite the restriction in Clause of Rule
(o)
since Tribunal was an expert body 6(1) of the Cinematograph Act rules that no
capable of judging public programme shall be
reactions to the film, its decision should be followed. carried on the cable service which is 'unsuitable for
unrestricted
The Court observed that a film that
illustrates the public exhibition.
consequences of a social evil necessarily must show that social The Court held that the adult viewer's right to view films
evil. 'We find that the (High Cout) with adult content is not taken away by Clause (o) of Rule 6(1).
judgement does not take due
notice of the theme of the film and the fact that it
condemns rape The Court held that the restriction upon cable operators and
and degradation of violence upon women
by showing their effect cable service providers, that no programme should be transmitted
upon a village child .... the scenes of nudity and rape and use of
which is not suitable for unrestricted public exhibition and
expletives, so far as the Tribunal had permitted them, were in aid therefore, did not violate their right to carry on trade and business,
of the theme and intended not to arouse
prurient or lascivious The Court further held that only films sanctioned by the CBFC,
thoughts but revulsions against the perpetrators and pity for the
under the Cinematograph Act and Rules, as suitable for
victim. telecast or transmitted
unrestricted public exhibition' could be
Case Study 6: Pratibha Naitthani on Cable TV.
v. Union of India (2006) Kumar Pandey
Pratibha Naithani, a political science teacher in St Xavier's Case Study 7: Magbool Fida Husain v. Raj
College, Mumbai, aggrieved by the telecast of 'adult and obscene (2007)
films shown by the electronic media' and without
'obscene photograpns an artwork
ofa nude lady in grief
in the
ME Husain painted sold to a private
print media, filed a writ petition before the Bombay Hign The untitled painting was
8iving it any title.
Th 214 Media Laws and Ethics
in
res collector in 2004. In 2006 it was included as part of an
online
infc charity auction under the name "Bharat Mata. Husain had no role
pro or involvement in this auction. There were
crit large-scale protests
fou against painting,
the which appeared an advertisement for the
in
hav
auction. Husain had to tender an apology to the public for
the
same. Several complaints were filed in different
parts of the
country alleging various offences against MF Husain on the
account of the said painting. Husain approached the
Supreme Court
for the consolidation of all the complaints.
A petition was filed in the High Court of Delhi.
The main question before the court was whether Husain's
portrayal of Bharat Mata' should be considered obscene and
whether he should be held criminally liable under Section 292 of
the IPC. The Court held that the painting was neither lascivious
nor likely to appeal to the
prurient interest i.e. the painting would
not arouse sexual interest in a perverted person and would not
morally corrupt or debase a person viewing it. The Court ruled
that nudity alone couldn't said to be obscene. The nude woman
was not shown in any peculiar kind of posture, nor were her
surroundings painted so as to arouse sexual feelings or lust. The
placement of the Ashoka Chakra was also not on any particular
part of the body of the woman that could be deemed to show
disrespect to the national emblem.