This dissertation is submitted in partial fulfilment of the academic requirements

for the Seminar Paper — Media and Law

SUBMITTED BY: KAVITA MEENA

REGISTRATION NO.: 11A069

SEMESTER: IX

SESSION: 2015

NAME OF FACULTY SUPERVISOR: Dr. JOSHUA N. ASTON

GUJARAT NATIONAL LAW UNIVERSITY

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ABSTRACT

This paper focuses on how defamation laws are being used by the big corporate houses and
politicians. The major area of research is to find out problems faced by media due to the
prevailing laws on defamation in India even when protection is provided to the media under
article 19(1), freedom of speech and expression. This has been done with the help of various
landmark case laws and recent cases on defamation.

The first part of this research deals with the various aspects of defamation in order to grasp a
better holding on the topic, in the later part the present standing of India on defamation as a
criminal offence and a civil wrong is discussed. the paper also contains the position in United
states and United Kingdom with regard to defamation laws.

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TABLE OF CONTENT

1. Abstract...................................................................................................................3
2. Acknowledgement...................................................................................................5
3. List of cases.............................................................................................................6
4. Chapterisation..........................................................................................................7
5. Chapter 1: Introduction............................................................................................8
 Research problem
 Research objectives
 Hypothesis
 Research questions
 Scope and limitation
 Research methodology
 Significance of the research
 Review of literature
6. Chapter 2: concept of defamation and governing laws in India..............................14
7. Chapter 3: promise of Article 19(1)(a): Free Media.................................................23
8. Chapter 4: Reasonable restrictions, how reasonable?..............................................30
9. Chapter 5: Media protection in US and UK.............................................................41
10. Chapter 6: India’s standing on free media...............................................................50
11. Chapter 7: Media’s role as a Public Watchdog........................................................65
12. Chapter 8: Conclusion and Recommendations........................................................70
Bibliography..............................................................................................................73

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 ACKNOWLEDGEMENT

I deem it my utmost privilege to present this dissertation on this very pertinent issue: Law of
Defamation as a Weapon Against Free Media.’

At the outset, I would like to express my deepest gratitude to the Respected Director, Mr.
Bimal Patel, Gujarat National Law University, for granting this wonderful opportunity to
research for which we shall remain indebted forever.

At this juncture, I would like to express my deepest gratitude to Dr. Joshua N. Aston,
Assistant Professor of Law at the Gujarat National Law University for his immense
resourcefulness and precious guidance in the course of preparing this dissertation.

It is indeed impossible to mention the names of everyone-friends, fellow students, resourceful

bloggers and legal experts who have helped me formulate my ideas through stimulating
discussions.

Therefore, all in all, I take this opportunity to express my heartfelt gratitude to one and all
under whose valuable support my crude brain ware has finally materialised into this cogent
and coherent document.

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LIST OF CASES

1. Cassidy v. Daily Mirror (1929) 2 KB 331.

2. Newstead v. London Express Newspapers Ltd. (1940) 1 KB 377.

3. Newstead v. London Express Newspapers Ltd. (1940) 1 KB 377.

4. Ridge v. English Illustrated Magazine, (1913) 29 TLR 592.

5. Ridge v. English Illustrated Magazine, (1913) 29 TLR 592.

6. Knupffer v. London Express Newspapers, (1944) AC 116.

7. Slipper v. British Broadcasting Corporation, (1991) 1 QB 283.

8. Youssopoff v. Metro Goldwyn-Meyer Pictures Ltd., (1934) 50 TLR 581 (CA).

9. Ramdhara v. Phulwatibai, 1969 MPLJ 483.

10. Balraj Khanna v. Moti Ram,(1971) 3 SCC 399.

11. Lachhmi Narayan v. Shambhu Nath, AIR 1931 All 126.

12. M’Pherson v. Daniels, (1829) 10B & C 263.

13. Mitha Rustomji v. Nusservanji Nowroji, AIR 1941 Bom 278.

14. Romesh Thappar v. State of Madras, AIR 1950 SC 124

15. Bennett Coleman & Co. v Union of India, AIR 1972 SC 106

16. Tata Press Ltd v Mahanagar Telephone Nigam Ltd. (1995) 5 SCC 139 at 154.

17. R.Rajgopal v. State of Tamil Nadu, AIR 264, 1994 SCC (6) 632.

18. Duke of Brunswick v. Harmer, (1849) 14 QB 185.

19. Hulton v. Jones , (1910) AC 20.

20. Knupffer v. London Express Newspaper, (1944) AC 116.

21. Alexander v. N.E.Railway Company, (1865) 6 B & S 340.

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CHAPTERISATION

1. Introduction

2. The concept of Defamation and governing laws in India

3. Promise of article 19(1)(a): free media

4. Reasonable restrictions, how reasonable?

5. Media protection in U.S. and U.K

6. India’s standing on free media: a comparative study

7. Media’s role as a public watchdog: Hurdles faced

8. Conclusion

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 CHAPTER 1: INTRODUCTION

The Concept of defamation:

Defamation is primarily a publication of wrong or defamatory statement about another

person, the statement is such that it doesn’t have any legal justification. A statement is
defamatory if it attacks and injures the reputation of the person referred and such publication
exposes him to hatred , ridicule or it causes him to be avoided or has the propensity to injure
him in his office, profession or calling.’1

What constitutes cause of action for defamation:

i. The statement must be defamatory

A statement which injures the reputation of another is defamatory. It is not necessary to

disparage the moral or intellectual character of the concerned person. 2 Traditionally, the test
which is applied to find whether a statement is defamatory is to check whether the words
were intended to injure the reputation of another and such words expose him to hatred,
contempt or ridicule.’3 In Cassidy v. Daily Mirror4, a defamation suit was filed by Casidy’s
wife arguing that the alleged photographs suggested that Corrigan is unmarried man and the
wife has an illicit relationship with him. The court held that to fix the liability for libel it is
not necessary to prove intention of the defendant but facts are important.

In Newstead v. London Express Newspapers Ltd.5, the Daily Express described a prisoner in
a trial for bigamy as ‘Harold Newstead, a 30 year old Camberwell man.’ Case was filed by
the plaintiff and it was argued that the plaintiff fits the description. The court decided in favor
of the plaintiff and was successful in proving defamation. The court said that it is irrelevant
that the defendant took utmost care. To rectify this situation which proved to be fatal for
media section 2 of the English Defamation Act, 1996 was inserted.

ii. The statement must refer to the Plaintiff

In every case of defamation, the plaintiff has to establish that the statement was referred to
him. It implies that the plaintiff must prove that he is the person defamed. The House of

1
Nevill v. Fine Art and General Indurance, (1897) AC 68
2
Ridge v. English Illustrated Magazine, (1913) 29 TLR 592
3
Parmiter v. Coupland, (1840) 6 M&W 105.
4
(1929) 2 KB 331.
5
(1940) 1 KB 377.

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Lords in Hulton v. Jones6, held that even if the intention to defame the plaintiff is not there
the defendants are still liable.

In Knupffer v. London Express Newspapers7, Viscount Simon, L.C., observed that “it is an
essential element of the cause of action in defamation that the words complained of should be
published of the plaintiff.”8

With respect to group defamation, in Eastwood v. Holmes9 is a case which dealt with concept
of group defamation. The court was of the view that when words are targeted at a particular
group, it becomes difficult to prove that such words were spoken especially for one person of
that group. Example that can be used here is a statement that ‘all lawyers are thieves’, this
does not gives a cause of action for an individual lawyer to file a case.

iii. The statement must be published by the defendant

The objective behind the defamation law is to protect the reputation and integrity of a person
in front of society. Hence to file a defamation suit the plaintiff is required to prove that the
words are published to persons other then the plaintiff himself. In Re, S.K. Sundaram10,
certain defamatory and contemptuous allegations were made against the Chief Justice of
India by an advocate. The defamatory remarks were written in a telegram which was sent to
the Chief Justice. The court held that since when someone sends a telegram the contents are
read by telegraphic office before as well as after the transmission, therefore sending a
telegram amounts to publication.

In another case, Slipper v. British Broadcasting Corporation11, a defamation suit was filed
by a retired police officer who claimed that in a television program he was shown as an
‘incompetent buffoon’. The program was about tracing a train robber and bringing him
back to Brazil. On the basis of the broadcasting of this show by the defendants on the
television to the press and television journalists, a series of review came in newspapers. In
these reviews the plaintiff was portrayed as a negative character. The court held the
defendants liable for defamation and in addition they were also held liable for the

7
(1944) AC 116
8
Id. P. 118.
9
(1858) 1 F&F 347.
10

11
(1991) 1 QB 283

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 defamation due to the action of other media persons. It was so because the reviews were
based on the defendants portrayal of the plaintiff.

It is used as a means to silence criticism. For example, The polyester prince, authored by
Hamish MacDonald, the book is about the Ambanis. Its was unavailable in India because the
publisher feared defamation suit. The most recent case of defamation is filed by BSES
Limited, a company in Anil Dhirubhai Ambani Group against Bennett, coleman and company
publisher of Times of India for a series of reports allegedly defaming them. The amount
claimed is of Rs. 5000 crores.

One thing that seems to be disconcerting in this scenario is that most of the plaintiffs are
politicians or big business houses and defendants are journalists or newspapers. The amount
claimed is massive so as to make the media houses discontinue their business but the actual
harm is unidentified. The reason behind this crippled situation of media is because the
defamtion law allows this. Once preliminary conditions are satisfied burden shifts to
defendants to prove that the statement is true or is guarded by privileged communication.
Even an unintentional error can lead to liability.

(i) To find out the reasons for recent rise in defamation suits against media.
(ii) To analyse the pattern of various judgement passed by the courts with regard to
defamation suits.
(iii) To compare the protection given to media in India under article 19(1)(a) with that of
U.K and United States Of America.

HYPOTHESIS:

Threats of legal action with punitive damages under the laws of defamation lead to ‘chilling
effect’ on the publication of free and independent articles and puts undue pressure on

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journalists and publishing houses. In this situation the media more or less becomes
handicapped.

(i) Whether the increase in defamation suits and courts decisions in favour of
plaintiff’s clipping the wings of media and thus interfering with free media?

(ii) Is it time for the appropriate authority to remove defamation as a reasonable

restriction under article 19(2) for the purpose of article 19(1)(a)?

(iii) Keeping in mind the various measures taken in different countries for the
protection of free media, is it time for Indian counterpart to make effective
regulatory framework to protect media from dummy defamation suits?

The researcher would analyse the legal position persisting in India in relation to defamation
laws and would also analyse various case laws to find out the judicial standing on the same.
The researcher will also juxtapose the Indian scenario with that of U.S and U.K.

The study is limited to that of Indian legal system and reference is made to U.K and U.S laws
only for comparative purpose. The author will not deal with the historical evolution of
deafamtion law in India and will restrict to the contemporary scenario.

RESEARCH METHODOLOGY:

The doctrinal research method would be used for the purpose of this dissertation. The
formatting is done as per the issued guidelines. The researcher has used secondary sources of
reference, like books, journals and the Internet. A major portion of the research has been done
on the internet as most of the theoretical data is available only in the form of articles in
legal/social science/institutional databases.

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SIGNIFICANCE OF THE RESEARCH:

The research will focus on whether the Indian defamation laws are appropriate in the current
scenario or there is a need for change in order to keep pace with other countries and
providing a conducive environment for media houses.

REVIEW OF LITERATURE:

Roy L. Moore and Michael Murray in their book ‘Media law and Ethics’ 4 th edition12
talks about libel, its meaning and the impact of various decisions of U.S. Supreme Court on
libel suits. The authors have explained how it has become a smooth walk for people suing for
defamation but still some hurdles for public figures, public officials and private individuals
are there to successfully sue for libel. They have also dealt with various defenses like
constitutional privilege and truth, truth being an absolute defense. They have concluded by
saying that the past trend shows more favourable conditions for the plaintiff but recent trends
indicate a swing in favour of media defendants. The book gives an insight into the U.S laws
and their standing with regard to media protection. The book gives a basic understanding of
defamation law, what it means, its impact on freedom of media and how the various Supreme
Court decisions have led to the passing of First Amendment.

Comparative Media law and Ethics by Tim Crook 13, this book focuses on the law of
United Kingdom and USA. The author also considers media law jurisdictions of India,
France, China and Saudi Arabia, each country giving an insight into media law of common
law, civil law, socialist law and Islamic law countries. Tim crook also analyses the present
position of media law and how it ought to be, historical development of legal and regulatory
controls of communication. The comparative study is important to analyse the safeguards for
free and independent media at international level. The book is a very good source to
understand the historical development of defamation law in different countries. Not only it
focuses on common law but also refers the civil, socialist and Islamic laws on media.

In an article by Nandita Jha published in The Hoot, an online forum keeping watch on the
media, it was stated that there is a hike in defamation suits against media. The article gives
12
David Banks and Mark Hanna, ‘McNae’s essential law for journalists’, (Oxford University Press, New York,
20th ed., 2009).
13
Tim Crook, ‘Comparative Media Law and Ethics’,( Routledge Taylor and Francis group, New York, 2010).

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statistical data with regard to increase in such suits as compared to previous years. The author
in conclusion is of the view that even in cases where full investigation is undertaken before
the publication there are chances that they might be dragged to court. The increase in
defamation suits is due to recent decisions favouring the plaintiffs.

In another article published by the Centre for Internet and society, the author examines the
unruly demands of defamation law. In his article he particularly points out that most of the
defamation suits are filed by politicians or big business houses and the amount claimed as
damages are often so high that it is impossible for media houses to either defend the case or
pay such hefty amount. He referred to the Sullivan case of USA in which the court held that
media need a ‘breathing space’ i.e. a space where it can make mistakes. The decision passed
by US court in this case changed the face of free media in U.S. time has come for Indian
courts to frame media friendly laws, there is no dearth of international guidance.

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 CHAPTER 2: CONCEPT OF DEFAMATION AND
GOVERNING LAWS IN INDIA:

Defamation is a serious problem which journalists belonging to all the mass media have to
deal with in their career. Journalists tend to defame the political leaders, film stars, sports
people and other famous people either due to carelessness or because of lack of sufficient
knowledge about defamation.

LIBEL AND SLANDER

Defamation could take one of the two forms: libel or slander. Libel consists in the publication
of a defamatory statement expressed in some permanent form, for instance by writing,
printing, pictures, statue, waxwork, effigy etc. Where, on the other hand, defamation is oral
or by gestures or in some other transient form, it constitutes the tort of slander.14

In Monson v. Tussands Ltd.,15 the distinction was explained thus:

Libels are generally in writing or printing, but this is not necessary; the
defamatory matter may be conveyed in some other permanent form. For
instance, a statue, caricature, an effigy, chalk marks on a wall, signs or
pictures may constitute a libel.

In a later case, Youssopoff v. Metro Goldwyn-Meyer Pictures Ltd., 16 it was suggested that in
addition to the test of permanence, the communication must also be visual. In this case, the
question arose as to whether film pictures accompanied by speech could amount to libel. The
court came to the conclusion that while there was no doubt that the visual aspect, being
permanent in nature would constitute libel, the audio portion would also qualify as libel, not
independently, but only because it was part of ‘one complex, common exhibition’ being
‘ancillary’ to the visual image.

At common law, while libel is both criminal as well as a civil wrong, slander is regarded as
capable of constituting only a civil wrong, even though the words used may come within the
ambit of criminal law being blasphemous, seditious or obscene, or as being a solicitation to

14
Madhavi Goradia Divan, ‘Facets of Media Law’, (Eastern Book Company, Lucknow, first ed. 2006) pg. 85.
15
(1894) 1 QB 671, P. 692.
16
(1934) 50 TLR 581 (CA).

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commit a crime or as being a contempt of court. 17 Under Indian Law, both libel and slander
constitute criminal offences under section 499 of the Indian Penal Code, 1860.

In India, we need not over-emphasise the distinction between libel and slander since the
common law rule that slander is not actionable per se has not been adopted by our courts. In
Indi, both libel and slander are actionable in a civil court without proof of special damage. 18
Also, section 499 of Indian Penal Code, 1860 makes no distinction between written and
spoken words and both libel and slander are capable of constituting criminal offences. 19 In
cases of slander, the actual words used by the accused may be reproduced where the
statement is brief. But where the defamatory statement is long, it would be technical to insisit
that the actual words spoken be reproduced verbatim.20

CRIMINAL LAW:

According to section 499 of the Indian Penal Code, defamation may be by words, either
spoken or intended to be read, or by signs or visible representation. Any person who makes or
publishes any imputation concerning any person, knowing or having reason to believe that
such imputation will harm the reputation of such person, is said to defame that person.21

There are 10 exceptions and four explanations for this.

Exceptions:

1. It is not defamation to impute anything which is true concerning any person, if it is for
public good that the imputation should be made or published.
2. It is not defamation to express in good faith any option whatever regarding the
conduct or character of a public servant in discharge of his public function.
3. It is not defamation to express in good faith any opinion regarding the conduct or
character of any person touching any public question.
4. It is not defamation to publish a substantially true report or result of a court of justice
or any other proceedings.
5. It is not defamation to express in good faith any opinion regarding the merits of any
case, civil or criminal, which has been decided by a court of justice, or the conduct of

17
R. v. Holbrook, (1878) 4 QBD 42, P.46.
18
Ramdhara v. Phulwatibai, 1969 MPLJ 483.
19
Ibid.
20
Balraj Khanna v. Moti Ram,(1971) 3 SCC 399.
21
M.Neelamalar,’Media Law and Ethics’, (PHI Learning Private limited, New Delhi, 2010) pg.25-28.

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 any person as party, the witness or agent in any such case, or regarding the character
of such person as far as his character appears in that conduct, and no further.
6. It is not defamation to express in good faith an opinion regarding the merits of any
performance which an author has submitted to the judgement of public, or respecting
the character of the author so far as his character appears in such performance and no
further.
7. It is not defamation if a person having any authority over another person, either
conferred by law or arising out of a lawful contract made with that other, to pass in
good faith any censure on the conduct of that other in matters to which such lawful
authority relates.
8. It is not defamation to prefer in good faith an accusation against any person to any of
those who have lawful authority over that person with respect to the subject-matter of
accusation.
9. It is not defamation to make an imputation on the character of another person,
provided that it is made in good faith by the person for his protection, or any other
person, or for the public good.
10. It is not defamation to convey a caution to one person against the other, intended for
the good of a person to whom it is conveyed or for public good.

Explanations:

1. It may amount to defamation to impute anything to a deceased person, if that

imputation would harm the reputation of a person, if living, and is intended to be
harmful to the feelings of his family or other near relatives.
2. It may amount to defamation to make an imputation concerning a company or an
association or collection of persons as such.
3. An imputation in form of an alternative or expressed ironically, may amount to
defamation.
4. No imputation is said to harm a person’s reputation, unless that imputation
directly or indirectly, in the estimation of others, lowers the moral or intellectual
character of that person in respect of his caste or of his callings, or lowers the
credit of that person, or causes it to be believed that the body of that person is in a
loathsome state or in a state generally considered as disgraceful.22

22
Ibid.

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 Punishment:

The punishment for the criminal offence of defamation, as prescribed by the IPC are:

Section 500: punishment for defamation reads:

Whoever defames another shall be punished with simple imprisonment for a term
which may extend to two years, or with fine, or with both.

Section 501: printing or engraving matter known to be defamatory

Whoever prints or engraves any matter, knowing or having good reason to believe
that such matter is defamatory of any person, shall be punished with simple
imprisonment for a term which may extend to two years, or with fine, or with both.

CIVIL LAW:

In civil law, an action for defamation is claimed in the form of damages for causing
injury to the reputation of the plaintiff. The amount of damages differs from case to
case and is to be determined by the judge.

Defences to an action for defamation:

Justification: the defendant can justify his statement by providing that his statement
is substantially true. The truth of the defamatory statement is a complete defence to a
civil action for libel or slander.23 If the statement is found to be true, the motive with
which it was published is of no consequence. Proof that the defendant acted in a
malicious manner in order to destroy the plaintiff’s reputation will not defeat the
defence of justification.24

A defendant may ‘justify’ a defamatory statement by proving its truth in all material
respects. The test is whether the allegation is ‘true in substance and in fact’. 25 If the
statement is proved to be substantially true it does not matter if it is inaccurate on
some unimportant detail. Thus, where the plaintiff was stated to have been convicted

23
Lachhmi Narayan v. Shambhu Nath, AIR 1931 All 126; Raghunath Damodhar v. Janardhan Gopal, (1891) ILR
Bom 599
24
Madhavi Goradia Divan, ‘Facets of Media Law’, (Eastern Book Company, Lucknow, first ed. 2006) pg. 97-98.
25
Sutherland v. Stopes, (1925) AC 47.

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 and sentenced to three weeks imprisonment, while in fact he was sentenced only for
fortnight, it was held that there was sufficient justification. 26 According to the classic
dictum of Burrough J in Edwards v. Bell;27;
It is sufficient if the substance of the libellous statement be
justified... As much must be justified as meets the sting of the
charge, and if anything be contained is a charge which does not
add to the sting of it, that need not be justified.
A question that often arises is whether particular words carry an imputation of
specific or general behaviour. An imputation of general bad behaviour cannot be
justified by a stray instance of bad conduct. 28 Conversely, an allegation that the
plaintiff did a specific thing cannot be justified by evidence of other similar conduct
on his part.29
In cases of multiple allegations, the test is whether the allegations share a common
‘sting’ or convey separate and distinct imputations. A common ‘sting’ may be
justified notwithstanding the defendant’s failure to prove the truth of every specific
allegation.30
On the other hand, where the words contain two or more distinct charges, for the
defence of justification to succeed, it must address each of the meanings attributed to
the words.
In the criminal prosecutions for defamation, mere truth is not a defence. It must be
proved that the publication was for the public good.31 In Sewakram Sobhani v.
R.K.Karanjia,32 The Supreme Court considered a defence under the ninth exception to
section 499 of the Indian Penal Code, 1860. A weekly magazine had published a
report to the effect that a female detune had got pregnant during her detention in the
Bhopal central jail through the appellant, a politician. It seems that the news report
had been correctly made from a government enquiry report. It was held that a jail
being a public institution where discipline had to be maintained, the prison authorities
ought not to have permitted mixing of male and female detunes. The news report was

26
Alexander v. N.E.Railway Company, (1865) 6 B & S 340.
27
(1824) 1 Bing 403 at 409.
28
Wakely v. Cooke, (1849) 4 Exch 511.
29
Bookbinder v. Tebbit, (1989) 1WLR 640.
30
Polly Peck (Holdings) Plc v. Trelford, (1986) QB 1000.
31
Section 499, Indian Penal Code, 1860.
32
(1981) 3 SCC 208.

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 based on reliable sources exercising due care and attention in good faith for the public
good.
Mere belief in the truth of the statement is no defence. A mistake however innocent,
can be of no help. The principle governing the defence of justification is that ‘the law
will not permit a man to recover damages in respect of an injury to a character which
he either does not or ought not to possess.’33
A defamatory statement is presumed to be false, and the burden of providing that it is
true lies on the defendant. This is unlike the general approach where the person
initiating the proceedings has to bear the burden of establishing his case. All
defamatory statements are presumed to be false but it is always open to the defendant
to rebut this presumption.34 The benefit of doubt as to the truth of the statement must
be given to the plaintiff.35 It is not enough to show that the opinion was genuinely held
but the defendant must show that he was right in holding the opinion. It is not
sufficient justification to show that there was a rumour, it must be proved that it was
true.

Fair comment: the defendant can defend himself by showing that the statement is a
comment and not a facet, the comment is on a matter of public interest and the
comment is fair in nature.

The defence of fair comment on a matter of public interest is like justification, a

complete defence to an action for defamation. This defence is of special relevance to
the media since it enables the expression of opinion and fair criticism. The defence is
based on public policy and endorses the right of all persons to comment on and
criticise without malicious intent, matters in which the public are legitimately
interested. Matters of public interest include affairs of the state,36 the administration of
justice, public institutions and local authorities, 37 eccelesiastical matters, books,
pictures, works of art, theatres, concerts and public entertainment.38

The requirements of the defences are:

33
M’Pherson v. Daniels, (1829) 10B & C 263
34
Mitha Rustomji v. Nusservanji Nowroji, AIR 1941 Bom 278.
35
Khairuddin v. Tara Singh, (1926) ILR Lah 49
36
Wason v. Walter, (1868) LR 4 QB 73; Darrius v. Shepstone, (1886) 11App Cas 187, 190.
37
Cox v. Feeney, (1863) 4F & F 13
38
London Artists v. Littler (1969) 2 QB 375.

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 i. Public Interest: In London Artists v. Littler,39 Lord Denning emphasised that
the test was not solely whether the public was legitimately concerned in the
matter in question but whether the public was legitimately interested. A
subject which invites public attention or is open to public discussion or
criticism is a matter of public interest 40 which is not the same thing as a matter
of general interest.41 Under the ninth exception to section 499 of the India
Penal code, 1860, both public good and good faith have to be established. It is
also a defence to an action for defamation to show that the imputation was
made for the protection of the interest of the person making it. In other words,
besides the bonafides of the person making the imputation, the person to
whom the imputation is conveyed must have the common interest with the
person making it.42
ii. Comment rather than fact: a comment, though based upon facts, is to be
distinguished from fact. A comment is an expression of opinion and not a
statement of fact. The distinction between fact and comment depends not just
on the context of the allegations but also on the manner of expression. Where
words are expressed alongside statement of fact or are prefaced by words like
‘it would seem’...or ‘it is therefore apparent...’, it is a comment. Winfield and
Jolowicz state:
To say that A is a disgrace to human nature is an allegation of fact. But if the
words were, ‘A murdered his father and therefore disgrace to human nature’,
the latter words are plainly comments on the former.43
iii. Basis of truth: Once it is clear that the words in question are comments, not
fact, the test is whether the comments are based on true facts. The basis of
truth underlying the comment must be clear from the publication, although all
the facts need not be set out by the defendant. This was affirmed by the House
of Lords in Kensley v. Foot,44 in which one writer writing in the tribune
haddescribed an article that had appeared in the Evening Standard as ‘the
foulest piece of journalism appearing in this country for many a year’. The

39
Ibid.
40
Union benefit Guarantee Co. Ltd v. Thakorlal, AIR 1936 Bom 114.
41
R.K.Karanjia v. K.M.D. Thackersey, AIR 1970 Bom 424; see also the Indian Penal Code, 1860, Section 499 first
and second exceptions.
42
Indian Penal Code, 1860, Section 499, nith exception; Kanwal Lal v. State of Punjab, AIR 1963 SC 1317.
43
Winfield and Jolowicz on Tort, (16th edn., 2002) p. 437.
44
(1952) 1 AC 345.

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 article had appeared under the headline,’Lower than Kemsley’. Kemsley, the
owner of the rival newspaper, sued for defamation. It was held that the
reference to Kemsley clearly indicated to the public the facts on which the
writer had commented. In such a case, it was not necessary to set out the facts
in full.
iv. Fairness: the test of fairness is ‘would any honest man, however prejudiced he
might be, or however exaggerated or obstinate his views, have written this
criticism’.45 This test has been followed in India. 46 This defence protects both
the intelligent commentator commenting on the matters of public interest as
well as the crank who may hold completely imbalanced or exaggerated views.
It is, after all, in the public interest to encourage debate through the expression
of diverse and plural opinions. The comments, however, must be made in
good faith, untainted by malice.47

Privilege: on certain occasions, defamatory statements are permitted by law itself

even when the statement is false. Those occasions are called privileged occasions.

Privilege could be absolute or qualified in nature. Absolute privilege is provided on

the grounds of public policy and without any condition attached to it. Qualified
privilege is provided conditionally and in the absence of malice. The defence of
qualified privilege affords less protection when applied but is of a much wider scope
than absolute privilege. At common law, a qualified privilege attaches to any occasion
where the person who makes a communication has an interest of duty, legal, social, or
moral, to make it to the person to whom it is made, and the person to whom it is made
has a corresponding interest or duty to receive it. Reciprocity is essential. The
instances of absolute privilege are parliamentary proceedings and judicial proceedings
while reports of Parliamentary and judicial proceedings come under qualified
privilege.48

45
Turner v. Metro Goldwyn-Mayer, (1950) 1 All ER 449, p. 461,per Lord Porter.
46
Union Benefit Guarantee Co. Ltd. v. Thakorelal, AIR 1936 Bom 114.
47
Harbhajan Singh v. State of Punjab, AIR 1966 SC 97; see also Rajendra Kumar Sitaram Pande v. Uttam, (1999)
3 SCC 134.
48
M.Neelamalar,’Media Law and Ethics’, (PHI Learning Private limited, New Delhi, 2010) pg.27.

20 | P a g e
 Consent: it is a defence to an action of defamation that the plaintiff had expressly or
impliedly consented to the publication complained of.

Apology: where the defendant offers an apology and the apology is accepted by the
plaintiff, it would absolve the defendant in an action for defamation. However, the
publication of a contradiction and expression of regret by itself is not tantamount to an
apology.49 In the U.K., the Defamation Act, 1996 makes provision for ‘offer of
amends’ which in certain circumstances, serves as defence in defamation
proceedings.50 Although there is no such statutory provision in India, in both
countries, it is one of the circumstances which would mitigate damages.

Remedies for defamation

The plaintiff may sue an author, editor, proprietor, printer and publisher for
defamation. All these persons would be jointly and severally liable and may be sued
as such. Punitive damages are awarded to punish the wrongdoer. In awarding
exemplary or punitive damages, the court considers, not what the plaintiff would like
to receive, but ‘what the defendant ought to pay’ for his conduct. Punitive or
exemplary damages are awarded by adding a sum to the compensatory damages,
enhanced by aggravating circumstances.

49
K.P.Narayanan v. Mahendra Singh, ILR 1956 Nag 439.
50
The English Defamation Act, 1996, Section 2.

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CHAPTER 3: PROMISE OF ARTICLE 19(1)(a): FREE MEDIA

Freedom of speech and expression is an issue, which, for various socio-political and
economic reasons, has not yet taken the shape it should have acquired. Nonetheless, it is an
issue. The more we are aware of it, the better it is for our society to pursue its democratic
principles. Through the ages, man has expressed his ideas through several media like
symbols, signals, speech, script and print, and now computer language. Man’s greatest
invention is language. The invention of the script has helped mankind to preserve human
thought and learning. It has helped society to conquer both space and time. Since
information and ideas are so important for growth and survival of a free and democratic
society, such a goal cannot be achieved unless every citizen has a fundamental right to give
expression to his ideas and opinions. This came to be known as the right to free speech and
expression. With the advent of printing technology, freedom of the press was included in the
freedom of expression.

Champions of freedom:

But these attempts to suppress freedom of expression never went unchallenged. They gave
birth to champions of freedom of expression and speech. John Milton (1608-1674) in
Areopagitica (1644) gave a solid reason for the freedom of the press. According to him, in a

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free and open encounter in public view between truth and falsehood the truth shall prevail. In
his essay On Liberty (1859), John Stuart Mill (1806-1873), proclaimed that liberty was the
right of the individual. “All action should aim at creating, maintaining and increasing the
greatest happiness of greatest number”. He said “if all mankind minus one, were of one
opinion and only one person were to be the contrary opinion, mankind would be no more
justified in silencing that one person than he, if he had the power, would be justified in
silencing mankind”.51

Recognition:

Today freedom of expression and speech are internationally recognised rights. The League of
Nations made the first organised attempt at the international level to proclaim rights of speech
and expression by launching a series of conferences at Geneva, Copenhagen and Madrid,
between 1927 and 1933. In just first few years of its birth, the United Nations approved the
UN Declaration of Freedom of Information (1946) and the Universal Declaration of Human
Rights (1948).

Before India gained independence, there were laws in the country to restrict freedom of
speech and expression. These laws were a response to the birth and growth of the Indian
press, beginning with the publication of well known Hickey’s Bengal Gazette. The first press
law required that every newspaper should publish the names of editor, printer and publisher.
It also required that all the material to be published be submitted to pre-censorship. Then
came the Indian Penal Code, 1860, making defamation, obscenity, sedition etc. equal to
offences. Among other important laws restricting press freedom were Official Secrets Act
and Press and Registration of Books Act. The latter required that a copy of every book and
newspaper published in the country be supplied to the government.52

All these laws were intended to stifle individual and collective expression, specially in the
context of our independence struggle. They were also a reaction not only to the mainstream

51
S.Kundra,’Media Laws and Indian Constitution’,(Anmol Publications Pvt. Ltd., New Delhi, first edn.,
2005)pg.199-200.
52
Supra 38.

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Indian newspaper in English and India Languages but also to such journals whose exclusive
focus was to overthrow the colonial government, as Annie Besant’s young India, Gandhiji’s
Harijan, Tilak’s Kesari and so on. The laws made by the British in India mostly aimed at
protecting the state from legitimate criticism of its oppressive rule.

Article 19(1) (a):

With the gaining of independence, freedom of speech and expression were recognised as
fundamental rights and were included in the Indian Constitution. In the article 19(1) (a) of our
Constitution. In the Article 19(1) (a) of our Constitution, it is stated: “all citizens shall have
the right to freedom of speech and expression”.

Article 19(2) provides reasonable restrictions on freedom of expression. Article 19(2) says
that the state can impose reasonable restrictions on the exercise of the freedom expression
and speech in the interests of (a) sovereignty and integrity of India; (b) the security of the
state; (c) friendly relations with foreign states; (d) public order; (e) decency or morality; (f)
contempt of court; (g) defamation and (h) incitement to an offence. It means that the law has
to limit itself to the eight areas mentioned above. The restrictions imposed on the freedom of
speech and expression must be reasonable.

Article 361 A of our Constitution says:

No person shall be liable to any proceeding, civil or criminal in any court in respect
of the publication in a newspaper of a substantially true report of any proceedings of
either house of the Legislature of a State, unless the publication is proved to have
been made with malice.

The Supreme Court delivered judgements in a few cases proclaiming that freedom of speech
and expression included freedom of the press also. An important case was that of the Sakal
decided by the Supreme Court in 1962. In that case, the Supreme Court held that the right to
propagate one’s ideas was inherent in the concept of freedom of speech and expression and
that for the purpose of propagating his ideas, every citizen had a right to publish, disseminate
and circulate them.53

53
S.Kundra,’Media Laws and Indian Constitution’,(Anmol Publications Pvt. Ltd., New Delhi, first edn.,
2005)pg.201.

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In two earlier cases, Romesh Thapar v. State of Madras(1950) and Brij Bhushan v. State of
Delhi (1950), the Supreme Court held that the freedom of speech and expression included
freedom of propagation of ideas and that freedom was ensured by the freedom to circulate
ideas. It also declared that freedom of the press was an essential part of the right to freedom
of speech and expression.54

Constitutional status of the media

The media derives its right from the right to freedom of speech and expression available to
the citizen. Thus, the media has the same rights- no more and no less than any individual to
write, publish, circulate or broadcast. In a case that arose in pre-independent India, the Privy
council held:

The freedom of the journalist is an ordinary part of the freedom of the subject
and to whatever lengths the subject in general may go, so also may the
journalist, apart from the statute law, his privilege is no other and no
higher....No privilege attaches to his position.55

The framework for analysing media rights remains much the same in post-independence
India. In M.S.M.Sharma v. Krishna Sinha56, the Supreme Court observed:

A non citizen running a newspaper is not entitles to the fundamental right to

freedom of speech and expression and , therefore cannot claim, as his
fundamental right, the benefit of the liberty of the press. Further, being only a
right flowing from the freedom of speech and expression, the liberty of the
press in India stands on no higher footing than the freedom of speech and
expression of the citizen and that no privilege attaches to the Press as such,
that is to say, as distinct from the freedom of the citizen.

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

54
Ibid.
55
Channing Arnold v. Emperor, AIR 1914 PC 116.
56
AIR 1959 SC 395.

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Characteristics of speech and expression under Article 19(1)(a)

The concept under article 19(1)(a) enumerates various characteristics of freedom of speech
and expression. It deals with what should be the contents of speech and expression and
various methods via which communication is undertaken. The concept is not static but
dynamic which changes with time and technology.

Article 19(1)(a) includes the right to express by words spoken, written, printed, conveyed
through pictures or in other ways. It covers freedom of communication and the right to
propagate or publish any individuals view.

First amendment to the constitution

The First Amendment to the Constitution, made on June 18, 1951, states that “interests of the
sovereignty and integrity of India, the security of the state, friendly relations with Foreign
States, public order, decency or morality or in relation to contempt of court, defamation or
incitement to an offence” will be paramount and freedom of expression will not be
unconditional.

Romesh Thappar v. State of Madras,57 amongst the earliest cases to be decided by the
Supreme Court, involved a challenge against an order issued by the Government of Madras
under Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 imposing a ban
on the entry of and circulation of journal, Cross Roads, printed and published by the
petitioner. The court struck down Section 9(1-A) holding that the right to freedom of speech
and expression was paramount and that nothing short of a danger to the foundations of the
state or threat to its overthrow could justify a curtailment of the right to freedom of speech
and expression. The impugned provision which authorised the imposition of restrictions for
the wide purpose of securing public safety and public order fell outside the scope of the
reasonable restrictions permitted under article 19(2) and was held unconstitutional.58
57
AIR 1950 SC 124
58
Madhavi Goradia Divan, ‘Facets of Media Law’, (Eastern Book Company, Lucknow, first ed. 2006) pg. 4.

26 | P a g e
In the Romesh Thappar case the court laid down an important principle: So long as the
possibility of the law being applied for purposes not sanctioned by the Constitution cannot be
ruled out, it must be held to be wholly unconstitutional and void. In other words, Clause 2 of
Art 19 having allowed the imposition of restrictions on the freedom of speech and expression
only in cases where danger to public security is involved, an enactment which is capable of
being applied to cases where no such danger could arise, cannot be held to be
unconstitutional and valid to any extent12. Art 19(2) was subsequently amended by the
Constitution (First Amendment) Act,1951, which was enacted with retrospective effect on 18
June,1951.13 Art 19(2) was subsequently amended by the Constitution (Sixteenth
Amendment) Act, which was enacted with prospective. Thus by way of judicial
pronouncements over the years there had been a paradigm shift in the application of this
article and it became somewhat press friendly although imposing restrictions by way of
amendments.

The resultant scenario:

The current scenario is that freedom of press is not absolute. It can be restricted provided
three distinct and independent prerequisites are satisfied:

1) The restriction imposed must have the authority of law to support it. Freedom of the press
cannot be curtailed by executive orders or administrative instructions which lack the sanction
of law

2) The law must fall squarely within one or more heads of restrictions specified in Art 19(2).
Restrictions on freedom of speech and expression cannot be imposed on such omnibus
grounds as ‘in the interest of the general public’.

3) The restrictions must be reasonable and must not be excessive. The validity of restrictions
imposed is justifiable and open for Judicial review by the Indian courts.

Liberty has got to be limited in order to be affectively possessed. For liberty of one must not
offend the liberty of others. Patanjali Shastri,J. in A.K. Gopalan’s59 case, observed, “ man as
a rational being desires to do many things, but in a civil society his desires will have to be
59
AIR 1951 SC 21

27 | P a g e
controlled with the exercise of similar desires by other individuals”. The guarantee of each of
the above right is therefore restricted by the Constitution itself by conferring upon the State a
power to impose by reasonable restrictions as may be necessary in the larger interest of
community. The restrictions on these freedoms are provided in clauses 2 to 6 of Art 19 of the
Constitution. ‘The Liberty of the press as defined by Lord Mansfield, “consists in printing
without any license subject to the consequences of law”. Thus the liberty of the press means
liberty to print and publish what one pleases, without previous permission. It includes
newspapers, periodicals and even pamphlets.60

Freedom of press does not occupy a preferred position in the Indian Constitution which does
not recognize a hierarchy of rights. There are however dicta of the Supreme Court describing
this freedom as ‘the Ark of the Covenant of Democracy’ 61.The most precious of all freedoms
guaranteed by our Constitution.

In Prabhu Dutt v Union of India62 the Supreme Court has held that the right to know news
and information regarding administration of the Government is included in the freedom of
press. But this right is not absolute and restrictions can be imposed on it in the interest of the
society and the individual from which the press obtains information. They can obtain
information from an individual when he voluntarily agrees to give such information.

In its landmark judgment in the case of Sakal Papers63 the Supreme Court ruled that Art
19(2) of our Constitution permits imposition of reasonable restrictions under the heads
specified in Art 19(2) and on no other grounds. Freedom of the press cannot be curtailed, like
the freedom to carry on business, in the interest of the general public.

In another celebrated decision, Bennett Coleman & Co. v Union of India64 the Supreme court
again came to the rescue of the press. It held that freedom of press entitles newspapers to
achieve any volume of circulation and freedom lies both in its circulation and content.
Freedom of press is the heart of social and political intercourse. It is the primary duty of the
courts to uphold the freedom of the press and invalidate all laws or administrative actions
which interfere with it contrary to the constitutional mandate.

60
Lowell v Griffin, (1939) 303 US 444
61
Bennett Coleman & Co. v Union of India AIR 1972 SC 106
62
AIR 1982 SC 6
63
Sakal Papers(P) Ltd v Union of India AIR 1962 SC 305
64
AIR 1972 SC 106

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In the case of Tata Press Ltd v Mahanagar Telephone Nigam Ltd. 65 The issue was that
whether a commercial speech is protected under Art 19(1)(a). the court after an extensive
review of the judgments of the US Supreme Court and previous Supreme Court held that
Commercial advertisements are entitled to the protection of Article 19(1)(a).

CHAPTER 4: REASONABLE RESTRICTIONS, HOW REASONABLE

‘I disapprove of what you say, but I will defend to the death your right to say it.’ – Voltaire

The “the world‘s lengthiest, most complex” Constitution is a 443-page treatise born out of a
nearly three-year drafting process. It includes the fundamental right: “All citizens shall have
the right to freedom of speech and expression. At the intersection of that precept and another
that guarantees “the freedom to practice any profession, or to carry on any occupation, trade
or business” is inferred a freedom of press encompassing cognate rights to print, publish,
circulate, transmit and propagate.66

The Indian press is a political institution, evident in the performance of diverse and thriving
news media. To the extent that Facebook, Twitter and other real-time or social media
applications are used to express political opinion, report in the public interest, or enable
voting decisions, they would implicate the institutional press similar to the older media of
print, broadcast, cable and the web. To quote the first Press Commission, the “freedom of the
Press, particularly of newspapers and periodicals, is a species of which freedom of expression
is a genus.”67 Further, Justice E.S. Venkataramiah has found in freedom of the press ―the
mother of all other liberties.68

65
(1995) 5 SCC 139 at 154.
66
See Bennett Coleman & Co. vs. Union of India, 1973 SCR (2) 757; Brij Bhushan v. Union Territory of Delhi,
1950 SCR 605.
67
Government of India, Report of the Press Commission (New Delhi: Manager of Publications, 1954), Part I,
357.
68
Indian Express Newspapers (Pvt.) Ltd vs. Union of India, 1985 SCC (1) 641, at 664.

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The freedom of the press:

The expression “freedom of the press” has been understood in various senses by diferrent
persons. It has not been defined or referred in the constitution. Article 19 of the Constitution
deals with one of the fundamental rights , viz. Right to different kinds of freedoms, and
clause (1)(a) thereof says:

“All citizens shall have the right-

a) To freedom of speech and expression.”

This freedom is stated in wide terms and includes not only freedom of speech which
manifests itself by oral utterance, but freedom of expression, whether such expression is
communicated by written word or printed matter. Thus, freedom of the press, particularly of
newspapers and periodicals, is a species of which the freedom of expression is genus. There
can, therefore, be doubt that freedom of press is including in the fundamental right of
freedom of expression guaranteed to the citizens under article 19(1)(a) of the constitution.

Nature and extent of restrictions:

In a society, where the rights of the individuals have to be harmonised with their duties
towards the society, all fundamental rights and their free play must be subject to restrictions.
But as pointed out by Mons Lopez in his report to the Economic and Social Council of the
United Nations, one has to be on one’s guard against the danger that “the concept of freedom
with responsibility can be pushed to a point where emphasis on responsibility becomes in
effect the negation of freedom itself. It should be the common concern of developed and
undeveloped countries alike to seek a cure for the disease without killing the patient. The
doctrine of absolute freedom of information has its dangers; but they may be no more
formidable than those which could arise from the irresponsible use of the concept of
responsibility.”69

There is, however, little dispute that some kind of restriction is inherent in the concept of the
freedom of the press. To quote again from the report of Mons Lopez “what is objectionable is
the imposition of arbitrary and unnecessary restrictions and not necessarily the restrictions
themselves. If it is true that human progress is impossible without freedom then it is no less

69
S.Kundra,’Media Laws and Indian Constitution’,(Anmol Publications Pvt. Ltd., New Delhi, first edn., 2005)

30 | P a g e
true that ordinarily human progress is impossible without a measure of regulation and
discipline.

Article 19(2) subjected the freedom of speech and expression to the government’s authority
to legislate on matters concerning ‘libel, slander, defamation, contempt of court, any matter
offending decency and morality, or which undermines the security of or tends to overthrow,
the State.’

As soon as in 1950, the restrictions under this article were invoked by the state government of
three states in order to undermine the freedom of expression. The government of Bihar
challenged a pamphlet of political nature on the ground that it incites violence and also
contains some objectionable matter which are similar in nature to those given under section
4(1) of the Indian Press (Emergency) Powers Act, 1931. This contention of the State
government was rejected by the Patna High Court and the view was upheld by the unanimous
five judge bench.70 The Supreme Court held that there is no evidence that could show a
connection between the pamphlet and the agitations that occurred and the State government
failed to prove the circumstances and the real purpose of publication, the leaflet cannot be put
under the ambit of section 4(1). In this situation, it is not possible to pass any security order
against the keeper of the press under Section 4(1) of the India Press (Emergency) Powers Act,
1931.

Under Article 19(2) of the Constitution of India, the State may make a law imposing
“reasonable restrictions” on the exercise of the right to freedom of speech and expression “in
the interest of” the public on the following grounds: Clause (2) of Article 19 of Indian
constitution contains the grounds on which restrictions on the freedom of speech and
expression can be imposed:-

1)      Security of State: Security of state is of vital importance and a government must have
power to impose restriction on the activity affecting it. Under Article 19(2) reasonable
restrictions can be imposed on freedom of speech and expression in the interest of security of
State. However the term “security” is very crucial one. The term “security of state” refers
only to serious and aggravated forms of public order e.g. rebellion, waging war against the
State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful
assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite

70
State of Bihar v. Shailabala Devi, AIR 1952 SC 329.

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to or encourage the commission of violent crimes, such as, murder are matters, which would
undermine the security of State.

2)      Friendly relations with foreign states: In the present global world, a country has to
maintain good and friendly relationship with other countries. Something which has potential
to affect such relation ship should be checked by government. Keeping this thing in mind,
this ground was added by the constitution (First Amendment) Act, 1951. The object behind
the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state,
which may jeopardize the maintenance of good relations between India, and that state.

3)      No similar provision is present in any other Constitution of the world. In India, the
Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against
foreign dignitaries. Interest of friendly relations with foreign States, would not justify the
suppression of fair criticism of foreign policy of the Government. However it is interesting to
note that member of the commonwealth including Pakistan is not a “foreign state” for the
purposes of this Constitution. The result is that freedom of speech and expression cannot be
restricted on the ground that the matter is adverse to Pakistan.

4)      Public Order: Next restriction prescribed by constitution is to maintain public order.
This ground was added by the Constitution (First Amendment) Act. ‘Public order’ is an
expression of wide connotation and signifies “that state of tranquility which prevails among
the members of political society as a result of internal regulations enforced by the
Government which they have established.”

Here it is pertinent to look into meaning of the word “Public order. Public order is something
more than ordinary maintenance of law and order. ‘Public order’ is synonymous with public
peace, safety and tranquility. Anything that disturbs public tranquility or public peace
disturbs public order. Thus communal disturbances and strikes promoted with the sole object
of accusing unrest among workmen are offences against public order. Public order thus
implies absence of violence and an orderly state of affairs in which citizens can peacefully
pursue their normal avocation of life. Public order also includes public safety. Thus creating
internal disorder or rebellion would affect public order and public safety. But mere criticism
of government does not necessarily disturb public order.

The words ‘in the interest of public order’ includes not only such utterances as are directly
intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a

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law punishing utterances made with the deliberate intention to hurt the religious feelings of
any class of persons is valid because it imposes a restriction on the right of free speech in the
interest of public order since such speech or writing has the tendency to create public disorder
even if in some case those activities may not actually lead to a breach of peace. But there
must be reasonable and proper nexus or relationship between the restrictions and the
achievements of public order.

5)      Decency or morality: The way to express something or to say something should be
decent one. It should not affect the morality of the society adversely. Our constitution has
taken care of this view and inserted decency and morality as a ground. The words ‘morality
or decency’ are words of wide meaning. Sections 292 to 294 of the Indian Penal Code
provide instances of restrictions on the freedom of speech and expression in the interest of
decency or morality. These sections prohibit the sale or distribution or exhibition of obscene
words, etc. in public places. No fix standard is laid down till now as to what is moral and
indecent. The standard of morality varies from time to time and from place to place.

6)      Contempt of Court: In a democratic country Judiciary plays very important role. In such
situation it becomes essential to respect such institution and its order. Thus, restriction on the
freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit
and amounts to contempt of court. According to the Section 2 ‘Contempt of court’ may be
either ‘civil contempt’ or ‘criminal contempt.’ But now, Indian contempt law was amended in
2006 to make “truth” a defence. However, even after such amendment a person can be
punished for the statement unless they were made in public interest. Again in Indirect Tax
Practitioners Assn. vs R.K.Jain, it was held by court that, “Truth based on the facts should be
allowed as a valid defence if courts are asked to decide contempt proceedings relating to
contempt proceeding relating to a speech or an editorial or article”. The qualification is that
such defence should not cover-up to escape from the consequences of a deliberate effort to
scandalize the court.

7)      Defamation: Ones’ freedom, be it of any type, must not affect the reputation or status
another person. A person is known by his reputation more than his wealth or any thing else.
Constitution considers it as ground to put restriction on freedom of speech. Basically, a
statement, which injures a man’s reputation, amounts to defamation. Defamation consists in
exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still
uncodified in India and subject to certain exceptions.

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8)      Incitement to an offence: This ground was also added by the constitution (First
Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right
to incite people to commit offence. The word ‘offence’ is defined as any act or omission
made punishable by law for the time being in force.

9)      Sovereignty and integrity of India- To maintain sovereignty and integrity of a state is
prime duty of government. Taking into it into account, freedom of speech and expression can
be restricted so as not to permit any one to challenge sovereignty or to permit any one to
preach something which will result in threat to integrity of the country.

From above analysis, it is evident that Grounds contained in Article 19(2) show that they are
all concerned with the national interest or in the interest of the society. The first set of
grounds i.e. the sovereignty and integrity of India, the security of the State, friendly relations
with foreign States and public order are all grounds referable to national interest, whereas, the
second set of grounds i.e. decency, morality, contempt of court, defamation and incitement to
an offence are all concerned with the interest of the society.

Even though the Constitution does not explicitly define ―reasonable, the Court has ruled that
the reasonableness must be both substantive and procedural, that is reasonable in its intent,
content, and application. The test of reasonableness is a singular criterion: the law in question
must strike an appropriate balance between individual rights and social control. If it does not,
then the law must be set aside as ultra vires or beyond the scope of Parliament. In 1951 the
Court ruled, “Any law which does not strike a proper balance between the freedoms
guaranteed and the social control permitted by the clauses in Art. 19, is an unreasonable
restriction.”71 Justice Mehr Chand Mahajan stated unequivocally, “In order to be reasonable,
a restriction must have a rational relation to the object which the legislature seeks to achieve
and must not go in excess of that object.”

Five years later, the Court added that reasonable meant the restriction had been ―considered
reasonably by a prudent man, but quickly clarified, “What is reasonable in one case may not
be reasonable in another.72 The meaning thus could be situational, but that call is a
prerogative of the judge: “Frequently reasonableness belong to the knowledge of the law, and
therefore to be decided by the justices.” In 1958 the Court warned, “A prohibition on the
fundamental right to carry on occupation, trade or business is not regarded as reasonable if it

71
Chintaman Rao vs. State of Madhya Pradesh, 1950 SCC 118.
72
Kapur Singh v. Union of India, 1956 Punjab 58 (66).

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is imposed not in the interests of the general public but keeping in view the susceptibilities
and sentiments of a section of a community.” As part of the test of reasonableness, a court
would scrutinise the nature of the right infringed, the purpose of the restriction, the purported
evil or competing right, and reasonable fit of the law to its purpose. But it would also
consider prevailing conditions, a euphemism for political considerations that allow legal
interpretation to be progressive rather than original.73

Finally, it would scrutinise the restriction for consistency with directive principles of state
policy, thus implicating public policy goals in the regulation of freedom of expression. A
reasonable restriction may “only be imposed by law, not by executive order. Law means a
statute; an ordinance promulgated by the president or governor, or delegated legislation.”

Law of defamation as a restriction on media

During the course of evidence, many of the state governments have stressed the desirability
of amending the law of defamation, particularly in its application to public officers and
government servants. They have urged that many newspapers, particularly those which
indulge in yellow journalism, make reckless allegations against public officials and
Government servants, very often merely for the purpose of indulging in sensationalism and
thus attracting more circulation. These officers find it extremely inconvenient and often very
expensive to launch either a civil suit or a criminal prosecution particularly because of the
delay involved in the conduct of these cases. When they do file such a suit or prosecution,
they are subjected to cross-examination which is aimed at throwing more mud on the
reputation of these persons, and even if there is no truth in the allegations which are
suggested in the cross examination, some of the mud sticks. They are, therefore, extremely
reluctant to take any legal step to obtain redress. Even if they are able to bring home the
charge to the accused, he often tenders an apology when it begins to appear that there is no
way of escaping conviction, and thus the matter is either compromised or the accused gets
away with a nominal sentence or fine. The state governments have, therefore stressed the
desirability of amending the law in such a way as to enable the public servants to obtain relief
without the handicaps involved in the present procedure. They have also urged that a mere
apology should not confer immunity on the accused. On the other hand, it has been urged by

73
Nikhil Moro, ’Web Freedom and Criminal Libel in India’, (The Hindu Centre for politics and public policy,
2013) last accessed on 11th October 2015.

35 | P a g e
the Southern India Journalists Federation that the law of defamation should not be made more
onerous. The All India Newspaper Editors Conference has stated that the libel laws, as they
stand, actually prevent many newspapers from taking the risk of exposure of public scandals,
while the Federation of Working Journalists have taken the view that only civil liability
should be attached to such defamatory statements, and if such defamation continues to be
criminal offence, a timely apology should relieve the offender from liability. These and other
newspaper interests have suggested an amendment of the law on the line of the English
defamation Act of 1952 (15 and 16, George VI and Elizabeth II, Chapter 66).74

Under article 19(2) of the Constitution, the fundamental right of Freedom of speech and
expression can be curtailed by the imposition of reasonable restrictions in relation, inter alia,
to contempt of court, defamation or incitement to an offence. It is the contention of the
Federation of Working Journalists and the point was stressed by a member of the bar that the
permissible restriction in relation to defamation should operate only in the sphere of civil
liability and not in the sphere of criminal liability. He urged that the right given by the
Constitution for freedom of expression should not be curtailed by making an exception in
favour of criminal libel of private individuals. He thought that only that form of defamation
which was likely to lead to a breach of the peace, should be made an exception to the right
conferred by article 19(1) in relation to defamation.

Apart from filing criminal complaints and civil suits against the media houses for defamation
there is new trend of SLAPP suits against the media. The concept first emerged in the United
States. The term 'SLAPP', which stands for strategic lawsuit against public participation, was
coined by two University of Denver professors, Penelope Canan and George W Pring. A
SLAPP suit is usually meritless in that it 'is intended to intimidate and silence' a party from
engaging in free speech, by burdening them with the cost of a legal defence until they
abandon their criticism or opposition. The concept of a SLAPP lawsuit evolved in the US,
where it was observed that certain lawsuits were filed targeting individual or group litigants
who voiced their concern over important or considerable social issues in the public
arena.1 The aim of filing such suits was not essentially to win the lawsuit but to impose
financial burden on the individual or group litigants, by means of incurring legal costs in
defending the lawsuit and to silence them from exercising free speech.

74
S.Kundra,’Media Laws and Indian Constitution’,(Anmol Publications Pvt. Ltd., New Delhi, first edn., 2005)

36 | P a g e
SLAPP suits are routinely filed for libel, slander, defamation, abuse of process, malicious
prosecution, conspiracy, invasion of privacy, and tortious interference with contract or
business relationships. The most common SLAPP suits have often involved a powerful
corporation suing local citizens for speaking against their company. Concerned with the
rising number of such SLAPP suits, 26 states in the US enacted anti-SLAAP legislation,
though none such equivalent can be found in the US federal law. The law so enacted by the
different states in the US can be separated into three categories: narrow, moderate and broad
(however, not the subject matter for the present article).75

As well as these US states, a large number of jurisdictions across the globe have outlawed
SLAPP suits. However, in India there is no specific enactment on the subject matter. Rarely
have the Indian courts faced questions on SLAPP suits. It is possible that, in the conspicuous
absence of regular determination of law suits to attain the character of a SLAPP suit, the
Indian jurisprudence may not have much to contribute on the subject.

Worldwide anti-SLAPP statutes or provisions are a way of outlawing such suits. However,
even then, careful consideration has to be given vis-à-vis the rights of the plaintiff and the
defendant to such a suit. Although one of the purposes of anti-SLAPP statutes is to quickly
throw out meritless suits meant solely to silence a petitioner, the main challenge to enacting
an anti-SLAPP statute is that by defending one person's right of petition, the statute may
intrude on the opposing person's right to petition, even if that party may not be fraudulently
petitioning.2

There is no direct statutory provision under Indian law that can be said to be anti-SLAPP. It
would perhaps be correct to say that the concept of SLAPP suits in Indian jurisprudence has
not been present, unlike the US system. The basic aim of an anti-SLAAP statute is to counter
and dismiss meritless petition.

In the Indian context, perhaps the provisions of Order 7 Rule 11 of the Code of Civil
Procedure, 1908 (CPC) may be stretched to say that the principle of anti-SLAPP is present
within a statutory provision. Order 7 Rule 11 of the CPC deals with rejection of plaint and the
court is mandated to reject the plaint for failure to disclose a cause of action. Judicial
interpretation of the aforesaid provisions reveals that the court has to form its opinion on the
non-disclosure of any cause of action in the plaint by a bare and meaningful reading of the

75
Ajay Roy,’SLAPP suits in Indian context,(The In-house lawyer,8th April,2011)
http://www.inhouselawyer.co.uk/ last accessed on 12th October 2015.

37 | P a g e
plaint only.3 However, the defendant has to make out a clear case only by reading the plaint
that the plaintiff has failed to disclose a cause of action as against the defendant.

In the absence of any express statutory provisions regarding the principle of anti-SLAPP,
Indian courts have not had many occasions to consider such principle. Judgments on rejection
of plaint under the provisions of Order 7 Rule 11 of the CPC have not discussed the
applicability of the principle of anti-SLAPP. However, the principle is slowly being plead
before courts in India as well. Two judgments have been rendered by the Delhi High Court
with regards to SLAPP suits and both the judgments are a recent phenomenon, occurring as
late as 2009.

In Crop Care Federation of India v Rajasthan Patrika (PVT) Ltd & ors [2009], the Delhi
High Court was confronted with the following facts.

The plaintiff was a company whose members and shareholders were insecticide
manufacturers, licensed to produce such goods. The first defendant was the
newspaper Rajasthan Patrika and the remaining defendants were employees with the
newspaper. The plaintiff approached the High Court and claimed to be aggrieved by several
articles published in Rajasthan Patrika by the defendants, with respect to the alleged levels of
pesticides the company used and the alleged harmful effects these have on plant and animal
life. The plaintiff argued that these articles tended to defame all pesticide and insecticide
manufacturers, which essentially included all the plaintiff's members and shareholders. The
defendant filed an application under Order 7 Rule 11 of the CPC, contending that for a suit of
defamation to succeed, the plaintiff should be an individual or a determinate body. It was
argued that the plaintiff, being an association of various firms, companies and individuals
from all over India, could not be termed as a determinate body and therefore a suit for
defamation would not be maintainable.

After a close scrutiny of the submissions, the court was of the opinion that since both parties
admitted that there was no direct reference to the plaintiff and/or any of its members in the
impugned articles, it would be wrong to say that any reference had been made to the plaintiff
so as to hold that defamation had taken place. The court was of the opinion that a suit for
defamation could not be maintained if the alleged defamatory statements did not refer to a
determinate or definite class or group of persons.

38 | P a g e
The court also held that the suit contained all the ingredients of a SLAPP suit, intendeding to
censor, intimidate and silence critics. It observed that the concept of a SLAPP suit can be
defined more broadly to include suits about speech on any public issue and the present suit
was an indication in that direction. It held that the plaintiff's attempt, by filing the present suit
in Delhi, in relation to publications in Rajasthan, on what were matters of public concern but
called for debate, was to muffle the airing of such views. The suit was not brought by a
company really aggrieved, as a manufacturer, who alone could have claimed a cause of
action, but virtually a trade body, though created as a company limited by guarantee. The
attempt was plainly to stifle debate about the use of pesticides and insecticides. Whether such
use, or overuse, of pesticides over time would affect plant or human life could be a matter of
discourse, but certainly not one that could be stifled through intimidatory SLAPP litigation.

In light of the above discussions, the court held that the plaint, read as a whole, could not be
said to have disclosed a cause of action, disclosing any defamation and therefore the plaint
was rejected under Order 7 Rule 11 of the CPC.

In Tata Sons Ltd v Greenpeace International & anor [2011], the plaintiff, Tata Sons, claimed
a decree for permanent injunction, and a decree for damages to the extent of ten crores,
against the defendants for defamation with the ulterior motive of damaging its reputation and
infringement of its trade mark. The plaintiff alleged that the defendants made an online game
by the title 'Turtle v TATA' in which the users of the game read statements like:

'The aim of the colourful and noisy video game is to help the yellow turtles eat as many little
white dots as possible without running into Ratty (presumably after Ratan Tata, chairman of
the Tata Group), matty, Natty or Tinku.'

The plaintiff alleged that such statements over the internet were clearly defamatory.

The defendants contended that here was a global organisation consistently espousing
environmental issues and the impact of development at the cost of the environment. They
argued that the suit was a SLAPP suit intended to silence, censor and intimidate the
defendants and other third parties, who were concerned with the negative effect of the
Dhamra port project on one of the largest nesting grounds for the olive ridley sea turtle and
two adjoining protected areas. It was submitted that the suit had been instituted with the only
motive being to stifle honest and bona fide criticism by threatening to burden the defendants
with financial consequences.

39 | P a g e
The Delhi High Court, while dismissing the application filed by the plaintiff, held that the
courts in different jurisdictions had put great value on free speech and its salutary catalysing
effect on public debate and discussion on issues at large. It was of the opinion that the issue,
which the defendant's game sought to address, was also one of public concern, and the court
could not sit in value judgment over the medium (of expression) chosen by the defendant
since, in a democracy, speech can include forms such as caricature, lampoon, mime parody
and other manifestations of wit. The court held that whether there was libel or not would be a
matter of trial and, therefore, the granting of an injunction at such an intermediate stage
would freeze the entire public debate on the effect of the port project on the olive ridley
turtles' habitat.

A final point about this trend, particularly as it relates to silencing academic comment, is that
it is a dangerous one, and one against which we must all speak out: these cases, in which the
challenged content offers studied comment against the powers that be, will be a good acid test
for the strength of our speech protections as they fall squarely within the class of speech
which constitutional protections seek to maximize and disinhibit. It should be the very
minimum that the Article 19(1)(a) guarantee entails.

CHAPTER 6: INDIA’S STANDING ON FREE MEDIA

40 | P a g e
India was ranked 136 out of 180 nations worldwide in terms of press freedom in 2015, which
marks an improvement from its rank of 140 in 2014, even though its absolute score declined
from 40.34 to 40.49.

In the annual World Press Freedom Index (WPFI) produced by Reporters Without Borders
(RSF), India’s “abuse score,” which reflects the intensity of violent harassment faced by
journalists was 59.58, which is higher than Sri Lanka’s score of 40.6 but below Pakistan’s
score of 64.91 and China’s score of 89.64.

Regarding the country performance the WPFI report said “One journalist and no net citizens
were killed.”76

The WPFI ranks the performance of countries according to a range of criteria that include
media pluralism and independence, respect for the safety and freedom of journalists, and the
legislative, institutional and infrastructural environment in which the media operate,
according to its producers.

While the top of the list was this year and in previous years dominated by Scandinavian
nations such as Finland, Norway and Denmark, at the other end of the scale, Turkmenistan,
North Korea and Eritrea, were the worst performers.

Russia, Iran and China also performed poorly, ranking respectively at 152, 173 and 176
place.

The U.S. was down three places at 49 in 2015, which according to reports was due to the U.S.
government’s “persecution of New York Times reporter Jim Risen, as well as the fact that the
U.S. ‘continues its war on information in others, such as WikiLeaks.’”

Also cited in the U.S. case were the numerous arrests of journalists covering the police
protests in Ferguson, Missouri.

Overall RSF said there was a “sharp decline in freedom of information [and] two-thirds of
180 countries performed less well… and press freedom declined in all continents in 2014.”

From the reports printed by various newspapers and the news channels it seems that its not
that India become more press friendly but the fact is that the press tolerance of other countries
decreased. The infamous case of Edward Snowden being forced to take asylum in Russia
76
Narayan Lakshman, ‘India Improves press freedom rank”, (The Hindu, 13th February 2015), last accessed on
14th October 2015.

41 | P a g e
where Snowden did get the public approbation but it didn’t got down well with the
government. The government tried to hush up the media which went against them and their
ranking in press freedom went down.

The World Press Freedom Index decides the ranking on the basis of various factors like
media’s independence and protection, respect for the protection of the press persons and the
laws favouring a conducive environment for the media to function freely and to give unbiased
opinion. Also it depends upon the institutional and infrastructural atmosphere given to media
houses.

With regard to the laws of the country in favour of media houses there is a heated debate
going on. Cases are being filed for decriminalising defamation. Section 499, 500 and 501 of
Indian penal code are being challenged as being violative of Article 14, 19 and 21. This
reasonable restriction does not seem to be reasonable anymore. As the concept of
investigative journalism is embraced by the media there is an increase in defamation cases
against them. Also with the introduction of SLAPP suits more and more corporate houses are
filing such suits. The big names like Subramaniam Swamy and Rahul Gandhi are in favour of
scrapping defamation as a criminal offence.

The recent reports suggest that the defamation cases have multiplied in 2015. The number of
defamation cases increased from six in 2014 to eight (till august) in 2015. The latest case was
filed by Essar Steel India ltd against CARAVAN on august 22. The case is filed against the
publisher i.e. Delhi Press and its editors and also against its reporter, Krishn Kaushik. The
company filed a defamation suit on the basis of a report published by the reporter under the
heading ‘Doing the Needful: Essar’s industry of influence”. The company alleged that the
story makes such imputations which are harmful for the company’s goodwill.

In January 2015, cricketer Ravindera Jadeja filed a suit against a newspaper in Rajkot which
published a report alleging the cricketers connection with a land grabber. In February, suit
was filed by a MLA from Karnataka, Priya Krishna, against a Kannada news channel. The
channel alleged that the MLA was involved in encroachment of forests. The number of cases
steeply increased in July. In July itself five cases were filed and in August three were filed.77

The first case filed in July was by National Stock Exchange against Moneylife, an online
portal, on the basis of a report published by it. It was alleged that the portal has published
77
Nandita Jha, ‘Defamation cases multiply’, (The Hoot, 27/08/2015), http://www.thehoot.org/, last accessed
on 15th October 2015.

42 | P a g e
false reports on algorithm trading mechanism. The judgement in this case was passed on 9 th
September 2015 in which the Bombay High Court rejected the application for injunction filed
by National stock exchange. The application was filed against the journalist Sucheta Dalal
and others. Heavy fines were imposed by Justice Gautam Patel upon the National Stock
Exchange which will serve as a deterrence to increasing SLAPP suits. It might seem a little
inappropriate to some people to impose fine in an injunction application where the main suit
was till not disposed off but the step will go a long way in safeguarding the media against
such suits.

The case is important because it further strengthens the body of jurisprudence of defamation
laws and the extent of freedom of speech and expression. The constitutionality of defamation
law started to be questioned back in 1994 in the case of R.Rajgopal v. State of Tamil Nadu78.
From then on defamation law has seen many ups and down. The decision of the Bombay
High Court bucks an emerging trend of subjecting defamation law principles to thorough
constitutional scrutiny.

The disputed articles effectively accused the NSE of actively permitting illicit trading
advantages to users of certain high-end technology. The two articles were written on the basis
of a detailed anonymous letter that was sent to Sucheta Dalal. After receipt of the letters, Ms
Dalal emailed the SEBI Chairman, as well as two persons “at the helm of” NSE’s affairs, but
received no reply. A reminder email and a reminder SMS were also met with silence. After
this failed correspondence, the two articles were published.79

The National Stock Exchange contended that the allegations were wrong as the illegal benefit
that the article talked about was not possible to take. Therefore the articles were defamatory
and the defence of qualified privilege, truth or fair comment does not apply in this case.

While dealing with the submission, it was particularly focussed on by Justice Gautam Patel
that Sucheta Dalal attempted to investigate the truthfulness of the claims that were made in
the letter sent by some anonymous person but the National Stock exchange refuse to give any
sort of information to her. In this case Justice Patel went a step further and on the basis of
Dalal’s attempt to verify the veracity he decided the case. On the other hand under Common
law defamation is a strict liability offence, therefore, if a defamatory statement comes out to

78
 AIR 264, 1994 SCC (6) 632
79
Gautam Bhatia,’Bombay High Court Ruling On Defamation Suit’, (Legally India, 10th September 2015),
http://www.legallyindia.com/, last accessed on 15th October 2015.

43 | P a g e
be false the defendant is held to be liable irrespective of the fact that he took utmost care
while making it. In his judgement Justice Patel noted that:

“Mr. Basu has also done some quite formidable legal research. The point he makes is this:
that there is a material difference when the complainant plaintiff is a public persona or figure
or institution, as the NSE undoubtedly is, as opposed to a private citizen. He cites, of course,
the classic decision in New York Times Co. v Sullivan, for its proposition that a public
official cannot recover damages in a defamation action unless he proves with convincing
clarity that the statement was made with knowledge of its falsity or with reckless disregard of
whether or not it was false. This standard has been generally applied to public figures, but I
will for the present, set this to one side since Sullivan seems to me to be closely hinged on the
First and Fourteenth Amendments to the US Constitution. Mr. Basu’s reliance on Reynolds v
Times Newspapers Ltd & Ors. may be more appropriate. That seems to me to be a case closer
to our conception of the law in the field, though the law it states is somewhat different, as
Radhakrishnan J noticed, from our own standard. I do not think this distinction is material,
given the facts of this case. The House of Lords in Reynolds inter alia reviewed the law from
other jurisdictions, including ours: it referenced the Supreme Court decision in Rajagopal v
State of Tamil Nadu, 16 to much the same effect as Sullivan in relation to public officials.
Now if there is no doubt, and I do not think there can be any doubt, that the NSE is very
much a public body, then this standard must apply. In that situation, a demonstration that the
defendant acted after a reasonable verification of the facts is sufficient to dislodge a claim for
an injunction and a charge of malice.”80

The point noted by Justice Patel is crucial because in Rajagopal’s case the Supreme Court
followed the Sullivan’s case and a higher threshold was reserved for public officials. He
clarifies that in U.S. the meaning of public officials was widened by including public figures
and matters related to public importance within its ambit. Justice patel refuses to go back to
Sullivan’s principle in this case, instead he adopted the principle adopted by House of Lords
in Reynolds case and do extend the limit to public bodies and public figures. The decision is
important since a large number of SLAPP suits in filed by big corporations which are
supposedly involved in public functions. This decision will bring the private corporations
defamation cases under the strict scrutiny. Such attempt was earlier made by Justice Ravindra
bhat in Petronet case before Delhi High Court. An injunction was claimed against disclosure

80
Gautam Bhatia,’Bombay High Court Ruling On Defamation Suit’, (Legally India, 10th September 2015),
http://www.legallyindia.com/, last accessed on 15th October 2015.

44 | P a g e
of confidential information on a company in which 50 per cent share were held by state and it
was involved in important public function of distributing gas. It was held at pentagon Papers
level threshold. The difference between that case and this case is that, petronet did not
directly dealt with defamation law. The judgement of Bombay High Court falls squarely on
the point.

it is noteworthy to point out here that Rajagopal’s judgement created confusion and Justice
Gautam Patel tried to clear the position through this judgement in two ways. First of all, in
the judgement of Rajagopal’s case both Reynolds and Sullivan are referred but the court
failed to clarify which one is applicable in that particular case. The confusion comes in
because Sullivan and Reynolds lays down different principles. Secondly, there is a confusion
regarding issue of burdens in Rajagopal.the burden of proving that the defendant acted
recklessly and without knowing the facts is upon the plaintiff. This test is laid down in
Sullivan. Whereas under Reynolds the burden is upon the defendant to prove that he verified
the facts before acting upon them. In NSE case Justice Patel adopts the principle laid down in
Reynolds. He notes that

“… where there is a factual demonstration of sufficient steps being taken to ascertain the
‘other side of the story’ and this opportunity, when presented, has been ignored, no more can
be expected if it is also shown that the article when published was not unreasonable in its
content, tone and tenor.”81

Now it can be said that if a publication is related to a public figure, public official or a public
body, the defendant by showing that he published the report only after verifying the facts as
far as possible. This defence can be used even if the report is untrue in some respect.

But the clarity that is provided by the judgement is lost somewhere in what is noted by
Justice Patel in paragraph 26. He opines that:

“For public bodies and figures, I would suggest that the legal standard should be highly set to
demonstrate actual malice and a unjustifiable and reckless embracing of falsehood even
though it is opposed at the first available opportunity. I do not think it is reasonable to
propose a legal standard of utter faultlessness in reportage or public comment in relation to
such bodies or persons. If there is indeed a factual error, can it be said to have been made in
81
Gautam Bhatia,’Bombay High Court Ruling On Defamation Suit’, (Legally India, 10th September 2015),
http://www.legallyindia.com/, last accessed on 15th October 2015.

45 | P a g e
good faith, and in a reasonable belief that it was true? The ‘actual malice’ standard seems to
me to suggest that one or both of these must be shown: intentional falsehood, or a reckless
failure to attempt the verification that a reasonable person would. In this case, I do not think
that the Plaintiffs have met that standard, or demonstrated either intentional falsehood or a
failure to attempt a verification. The burden of proof in claiming the qualified privilege that
attaches to fair comment can safely be said to have been discharged.”82

The sad part is that the judgement somehow creates the same problem that was created by
Rajagopals case. There are legal standards used which are totally different from each other.
Just like Sullivan’s case it bases on ‘Actual malice’ and ‘Reckless embracing of falsehood’,
where it is required to prove that there is intentional lying or the truth is being disregarded
recklessly. On the other hand the judgement also refers to ‘good faith’ and ‘reasonable belief
in the truth’ which are based upon currently famous tests in Canada, U.K and South Africa.
Recklessness is one step above reasonableness and it demands the publisher to establish the
truthfulness of his or her claim. Also the other problem in the judgement is that it uses
‘qualified privilege’ but fails to explain what precisely it means. This qualified privilege is
not given in United Kingdom anymore and a totally different interpretation is given to it in
Australia. In Australia it is applicable to statements made on the matters which are politically
important.

The other shortcoming of the judgement is that it fails to mention the apt legal principles to
be followed while deciding whether an injunction should be granted or not in a defamation
case. Under common law, a correct position was laid down in the case of Bonnard v.
Perryman, where it was established that an injunction should not be granted unless it is
proved by the petitioner that the defendant has no chance of winning in the trial. In this
judgement which is appropriate in all other aspects, the court failed to consider this common
law precedent which did not go down well with many media supporting persons.

Keeping all this aside, it is noteworthy that this judgement will somehow going to affect the
judgement of Supreme Court on the fate of criminal defamation which is being challenged in
Supreme court by Subramaniam Swamy and many others. The case establishes that a person
can escape liability under civil law if he successfully proves that the report was published or
shown only after reasonable verification. This suggests that the law of the land is unique in
the sense that the standards to escape liability under criminal defamation law are much strict

82
Ibid.

46 | P a g e
than those for the civil defamation. This might affect the decision of Supreme Court in order
to decide whether to scrap the defamation provisions under section 499 and 500 of Indian
Penal Code, 1860 as being violative of Article 14, 19 and 21.

In all, Justice Patel’s decision in National Stock Exchange v. Moneylife is significant in the
sense that it sets higher threshold for defamation to be proved by public officials, public
figures or public bodies. It can also be inferred from the judgement that it applies the test of
Reynolds case of reasonable verification of facts if there are false defamatory statements, but
with some evidentiary burdens. In any case, it is relevant to note that Sullivan’s case is not
the reasonable standard, but is much more speech-protective. There is still a requirement of
clarity on the exact standards to be adopted under the civil defamation law of India.

Another defamation suit filed in the month of July was by the son of the Chief Minister
Vasundhara Raje, MP Dushyant Singh. He filed two criminal defamation cases one against
leader of the congress party Jairam Ramesh and other against leading news channel Times
Now. The case was filed against the owner of Times Now, Vineet jain, and other directors
and anchor Arnab Goswami under criminal defamation law in Dholpur Court. Claims were
made by the Congress Party that Dushyant Singh wrongfully acquired the Dholpur Palace
which is owned by the government and was not the true owner of the property. He also took
advantage of the compensation provided by the National Highway Authority of India under a
project. And the case against Times Now is filed on the ground that the news channel in its
prime time show ‘The News hour’ made baseless allegations against him.

In the month of July itself a principal Sessions Court in Chennai, Tamil Nadu, summoned the
publishers and editors of two magazines published in Tamil language and also a daily
newspaper was summoned on the ground of publishing and circulating defamatory news
against two ministers of state. Here there were three cases, in which three ministers claimed
to be defamed by the published article.

The article published in Tamil weekly Anand Viketan questioned the educational
qualification of the Transport Minister Senthil Balaji. Therefore the case was filed. On 28 th
August the court asked the editor of the weekly and its publishers R Kannan and S Madhavan
to appear before it.

A report was published in a Tamil biweekly Junior Viketan, as reported by Times of India,
which allegedly contained defamatory statement with regard to the Tamil Nadu Finance and
47 | P a g e
Public works Minister O Panneerselvam with regard to his close aide providing heavy funds
to the ruling party. A summon was issued to the editor and publisher by the Judge N
Authinathan to appear before the court on 28th August. The third case is a alleged defamatory
report published in Tamil daily Dinamalar against the food Minister R Kamaraj on April 24th.

In early August 2015, in first of its kind step, Telangana government sanctioned Rs 15 lakhs
legal aid to an IAS officer to battle against a defamation suit of Rs 10 Crore against Outlook
magazine. There was an article published by the Outlook magazine which contained a gossip
along with a caricature. Though the article did not specifically mentioned the bureaucrat it
could be inferred from the piece that it was pointing her. On 29th July she went to the state
government for the permission to sue and for financial aid to sue the magazine. From this
case it seems that there is some king of new found enthusiasm in people to drag the media to
the court and impose accountability on them for anything they write or report. One thing that
is really ironic in all this scenario is that the amount of damage that is claimed is highest in
the case where a thorough investigation was undertaken before the publication i.e in Essar
steel India limited case.

Another defamation biggie is filed by BSES ltd. a company under Anil Dhirubhai Ambani
Group against a report published by Times of India. A humungous amount of Rs 5000 crore
has been claimed as damage from Bennett Coleman and Company Limited, publisher of
Times of India.

The Times of India published some reports on August 18 th, one of which was written by Josy
Joseph. The article was based on the report of Comptroller and Auditor General of India, in
that report there were many false accounts being maintained by the electricity distribution
companies in Delhi. The same day Mulla & Mulla and Craigie Blunt & Caroe, a firm of
lawyers acting on behalf of BSES Rajdhani Power Limited and BSES Yamuna Power
Limited (both part of BSES Ltd of the ADAG), served a notice of defamation on BCCL.83

The contested articles which contained the alleged defamatory statement were printed in the
newspaper as well as were made available on the newspapers website, timesof
india.indiatimes.com. the articles were published under the heading ‘Delhi disoms inflated
dues by Rs 8000 crore: CAG’, ‘Delhi govt representatives in discoms slammed’, ‘Discom

83
Paranjoy Guha, ‘BSES v. ToI: A Defamation Biggie’, (The Hoot, 8th September 2015), www.thehoot.org, last
accessed on 15th October 2015.

48 | P a g e
audit: CAG points out conflict of interests in deals’ and ‘Discoms made money from meters,
says CAG’.84

The notice that was issues by the BSES claimed that the story that was published contained
sham, fictitious and unverified statements which would lead to wrong interpretation by the
readers and wrong conclusions are going to be drawn. The reported articles are actuated by
malice and therefore defamatory. It also stated that that the CAG report cannot be accessed as
the draft report is sub judice form the time an interim order was passed by the Delhi High
Court saying that the final report on this subject could not be submitted unless this court
grants the permission to do so.

The Anil Dhirubhai Company has accussed the BCCL, its publisher, reporters and editors of
being guilty of contempt of court also of breaching the established journalistic norms by
publishing articles that are meant for sensationalism and to tarnish the goodwill of the
company. The notice is served upon:

 Bennett, Coleman and Co. Ltd., the owners of the ToI,

 Balraj Arora,  publisher of the ToI,
 Arindam Sengupta, Executive Editor, ToI, and
 Josy Joseph, correspondent, ToI.85

The BCCL through its representatives have stated that the news report was published only
after reasonable verification and is factually correct and is based upon the ongoing
proceedings in the court. The reports were published for the interest of the public.

In their reply BCCL has also added that there is no restriction neither there is any such
direction by any court on publishing articles about Delhi power distributor companies. If such
restriction is imposed the fundamental right of freedom of press would be threatened and it
will give a heavy blow to the Constitution. The claim of the distributor companies of right to
privacy and confidentiality does not have a standing in this scenario as it will harm the larger
public and where public interest is involved no restrictions can be imposed. The articles

84
Ibid.
85
Paranjoy Guha, ‘BSES v. ToI: A Defamation Biggie’, (The Hoot, 8th September 2015), www.thehoot.org, last
accessed on 15th October 2015.

49 | P a g e
published are not personal opinion of the reports but the information received from the
reliable sources.

The case has just reached the legal arena and the judgement is yet to come but a revolution
has been brought by the Bombay High Courts decision in National stock Exchange case.
Hopefully this case will also further strengthen the media protection.

While there is a steep hike in the defamation cases, the validity of defamation laws itself are
being challenged in India now. A stir is created when many senior leader’s like Subramaniam
Swamy, Arvind Kejriwal and Rahul Gandhi approached the Supreme court to scrap section
499 and 500 of the Indian Penal Code, 1860. They have challenged the constitutionality of
these provisions.
The validity of these sections was also challenged by Foundation of media persons (FMP)
before the Supreme Court. The case is argued by senior advocate Anup J. Bhambhani who
challenged the constitutionality of these provisions. The court directed that this case be heard
along with the one filed by Subramaniam Swamy.

The Supreme Court has not yet decided on the validity of these provisions, whether these
provisions will be totally removed or some changes will be suggested can only be known
once judgement is given. The government has sternly opposed the removal of these
provisions from the Indian Penal Code as they are of the opinion that these provisions serve
as a deterrent to those of tarnishes the image of people without any factual information. If
these provisions are removed those who are actuated by malice will ruin the image of the
person and would easily escape the clutches of law.

India’s standing on ‘Single Publication rule’:

Online networking and systems administration sites have possessed a difficult space in our
lives. In the present time of helping quick correspondence channels and the quickly
developing Social Networking Websites (SNWs), greater part of the general population
experience the ill effects of a desire to set up their musings and sentiments about distinctive
matters and occurrences on these SNWs at the earliest opportunity.

50 | P a g e
But the stark difference between Print media and SNWs is that the information on SNWs
travels way faster than on print media, more like a Wildfire. With the proliferation of social
networking websites and their widespread use, especially amongst the youth, one observes
certain legal loopholes in their operation and use. On one hand, while such SNWs provide an
easy to use, convenient and cost effective way of networking (whether at a personal level or
for commercial reasons), however the other hand presents the drawback of such SNWs. One
such glaring drawback is the opportunity they provide for "cyber-defamation" or "virtual
defamation" to mushroom.86

An important ingredient of the offense of Defamation is the requirement of 'publication' i.e.

the communication of the defamatory matter to third persons. Therefore, the cause of action
for defamation arises on the 'date of publication'. The limitation period for defamation is one
year, which also begins to run from the date the libel was published.

Single Publication Rule

Under this rule, "any form of mass communication or aggregate publication is a single
communication and can give rise to only one action for libel." The rule applies "where
communication is simultaneously available to multiple persons." Under the single-publication
rule, the statement is considered published and "the statute of limitations runs as soon as the
communication enters the stream of commerce."

Multiple Publication Rule

Under this rule, a fresh cause of action arises for every moment the offending matter is left on
a webpage. So, the 'date of publication' and the limitation period for the offense of libel lose
significance.

Therefore, the question that arises here is which date should the cause of action be related to?

VIEW OF THE COURTS OF UNITED KINGDOM

Initial view

86
Vaibhavi Pandey,’The single publication rule on Social Websites’, (Mondaq, 13th October 2014),
http://www.mondaq.com, last accessed on 15th October 2015.

51 | P a g e
For many years the courts in the U.K. followed the Multiple Publication Rule which was first
propounded in the case of Duke of Brunswick v. Harmer 87. In this case, the Duke was given a
copy of a newspaper that contained material that defamed him but had been published 17
years earlier. While upholding the claim for damages as being within limitation, the Court
held that the limitation period of 6 years re-started when Duke viewed the publication. But in
this Internet age each 'hit' on a webpage containing the offending material will constitute a
new publication and hence a new cause of action which will allow the person defamed to
bring about an action of defamation even after several years of the publishing of the article
online.

Current View

On 1 January 2014, the Defamation Act 2013 (the "Act") of the UK, which received Royal
Assent on 25 April 2013, entered into force. Prior to the Act, the law on defamation was
made up of common law supported by the 1952 and 1996 Defamation Acts. The recent Act
has updated and codified this area of law, and in particular the way that defamatory material
published online is treated. The Act's effect is largely limited to England and Wales, though
certain parts of the Act affect Scotland also.

Section 8 of this legislation has done away with the long prevailing Multiple Publication
Rule laid down in Duke of Brunswick v. Harmer and has upheld the legally sound Single
Publication rule. The section reads as follows:

"Section 8: Single publication. Section 8 of the Act provides that, where a person publishes
a statement to the public, the publication will be deemed to include any subsequent
publications of substantially the same statement (unless the manner of publication is
materially different). This 'single publication' rule aims to protect defendants from claims
made long after the initial publication, and replaces the previous 'multiple publication' rule
which stated that each publication restarted the limitation period. The primary reason for the
single publication rule is that, until now, each time defamatory material was accessed via a
website it would be deemed to be re-published and the one year limitation period would re-
start. Section 8 of the Act will not however affect the court's discretion to allow a claim to
continue outside the limitation period (pursuant to s.32A of the Limitation Act 1980)."

87
(1849) 14 QB 185.
52 | P a g e
VIEW OF THE COURTS OF THE UNITED STATES OF AMERICA

The Courts in US have followed the Single Publication Rule since long in regard of
defamation which was developed in 1938 in respect of newspapers, in Wolfson v Syracuse
Newspapers Inc.88 The court in this case rejected the Multiple Publication Rule as it observed
that if this rule was used the period of limitation would never expire so long as a copy of the
published material remained in stock and this would render the statutorily prescribed period
of limitation useless.

The same Single Publication rule has been adopted for Defamation in the Cyber Space as
well. New York being one of the first states to uphold the single publication rule in the cyber
space In the case of Firth v. State.7In this case the court held that "a multiple publication rule
would implicate an even greater potential for endless retriggering of the statute of
limitations, multiplicity of suits and harassment of defendants."89

VIEW OF THE INDIAN COURTS

Law in India had entered the cyber foray with the IT Act, 2000, but the act did not talk about
Torts like defamation in the cyber space. So since defamation online is considered in the form
of Libel, Indian courts were following the common law rule of Multiple publication as far as
Cyber Defamation was considered. Though there would have been only a handful of cases in
this regard.

The Limitation Act, 1963 fixes the limitation period for Libel at 1 year 8, so that would mean
with each hit to the webpage with the defamatory content, the limitation period of one year
got renewed, thus providing a longer limitation period to the Libel that could last years.

Latest View

88
Inc. 254 App. Div. 211 (4th Dept. 1938))
89
Vaibhavi Pandey,’The single publication rule on Social Websites’, (Mondaq, 13th October 2014),
http://www.mondaq.com, last accessed on 15th October 2015.

53 | P a g e
The Delhi High Court recently ruled in the case Khawar Butt vs Asif Nazir Mir, Nov,
2013, Justice Vipin Sanghi9 on defamation on the Internet. In this far reaching Judgment the
Delhi High Court rejected the Multiple Publication rule and adopted the Single Publication
Rule for Libel on the Internet.

Facts and Ruling in Khawar Butt vs Asif Nazir Mir Case

The plaintiff instituted a suit for damages of Rs. 1 crore and for a mandatory injunction
against the defendants for defaming the plaintiff on a SNW- facebook. The posts were
published in 2008 but the plaintiff instituted the suit only in 2010.

Counsel for the plaintiff submitted that,

"the publication of the posting on the Facebook gives right to a continuous cause of action,
since it tantamount to a fresh publication every moment the offending material remains on
the website. He seeks to distinguish publication in a printed journal or a book, from
publication on a website on the ground that a publication on a website can voluntarily be
withdrawn by the publisher, unlike publication in print media, which, once published cannot
be withdrawn. Learned counsel, therefore, submits that the suit cannot be said to be barred
by limitation."

Rejecting the Plaintiff's submission, the court followed the Single Publication Rule and held
that the plaintiff's claim was barred by limitation (beyond one year from the publication of
libel). The High Court relied on various foreign legislations and cases to reach the well
researched and far reaching judgment.

LIABILITY OF INTERMEDIARIES

54 | P a g e
Under the operative Indian law, the person who makes a defamatory (written) statement as
well as its distributor and publishers can be sued. Apart from the author of such statement,
intermediaries such as the concerned SNW, the website holder, the internet service providers,
as well as the other users of such SNW on whose profiles defamatory statements have been
written by the author, can be sued in their capacity as a publisher of defamatory statements
and can be held liable for such statements. It is to be noted that such intermediaries or other
users of SNWs may not be aware of such defamatory statements by the author on their own
virtual profile.

In USA, intermediaries such as SNWs, internet service providers and other interactive web
service providers are exempted from liability under defamation if (i) they prove that they
have no control over the statement or content and (ii) they remove such statement or content
from their website or network immediately upon receiving the notice from the plaintiff.

The Information Technology Act (Amendment), 2008 bears a certain degree of similarity to

the prevailing law in the United States of America ("USA"). Amended section 79 of this
Amendment Act provides the mechanism equivalent to the law of USA.

According to the sub section (1) of this amended section 79 "an intermediary10 shall not be
liable for any third party information11, data, or communication link made available by him."
Given that,

a) the function of the intermediary is limited to providing access to a communication system

over which information made available by third parties is transmitted or temporarily stored;
or

(b) the intermediary does not—

 initiate the transmission,

 select the receiver of the transmission, and
 Select or modify the information contained in the transmission.

55 | P a g e
 CHAPTER 7: MEDIA’S ROLE AS A PUBLIC WATCHDOG

The fourth pillar of democracy, the media, has never hogged more limelight than it has in the
last few years in India. This is especially true in the aftermath of the Guwahati molestation
incident, when a journalist continued to record the act of a teenage girl being molested by a
mob for half an hour and later justified it by saying that he did so to enable the authorities to
identify the perpetrators of the crime. Following this incident, the dubious role of the media
in covering sensitive issues such as these was put to test. Also, last month, at Mangalore, the
cameraman of a news channel was accused of conspiring with a group of self-proclaimed
“activists” in an attack against guests of a homestay in the city, accusing them of carrying on
illegal activities. In another incident,  the Press Council of India (PCI) Chairman, Justice
Markandey Katju, commenting on the reportage of Anna Hazare’s agitation, said that a large
section of the print and electronic media was swayed by emotions and became a part of the
movement. Did the media exceed its mandate, becoming the news maker instead of playing
the role of a news disseminator?90
The media is not just the fourth pillar but also the backbone of any democratic society. This is
because while the legislature makes the laws, the judiciary interprets it and the executive
implements it, it is the media which acts as the watchdog of the three pillars, in order to
ensure that they are performing their constitutional duties, thus calling for accountability.
Considering the fact that the media performs such an important function, it is particularly
important that there should be some authority which acts as its watchdog, lest the media take
undue advantage of its role. In the last decade, there have been incidents where the media has
taken advantage of its role – be it tabloidization of news, fake sting operations to settle
personal scores, paid news especially during elections – without any concrete action being
taken against the wrong-doers.
The challenges in tackling the might of the media without compromising its liberty are many.
Any future legislation seeking to exert any form of control or censorship on the media needs
to take into account a multitude of complex factors like viability of a publication as a

90
Saumya Ramakrishnan,’can the watchdog watch itself? Indian media and self-regulation’, (F.India, 27th
August 2012), http://www.firstpost.com, last accessed on 15th October 2015.

56 | P a g e
business, national security vis-à-vis journalistic anonymity, competition in the media,
amongst other things.
In April 2012, a Private Member’s Bill called the “Print and Electronic Media Standards and
Regulation Bill, 2012” was circulated in the Parliament, drafted by Congress MP Meenakshi
Natarajan. However, she was absent the day she was scheduled to introduce in the Parliament
and hence the Bill, till date, has not been placed before the House.

The Bill calls for the establishment of a media regulatory authority which has the power to
ban or suspend the coverage of an event or incident that may pose a threat to national security
from foreign or internal sources. The seven-member regulatory body, which would be
selected by a panel consisting of a Supreme Court judge, the Information and Broadcasting
Minister and three members appointed by the central government, would have powers
equivalent to that of a civil court. Thus, it excludes the stakeholders in the media and deprives
them of a voice in issues that affect them directly. Also, the Bill proposed a fine of upto Rs
50 lakh on media houses that commit offences specified under the Bill. The other penalties
included a ban of upto eleven months on the offenders, or in severe cases, even cancellation
of their license. While the Bill purports to create a water tight regulation for the media, it
excludes the regulatory authority from the purview of the Right to Information Act, thus
giving itself total control to oversee media activities without itself being accountable to any
other body. Besides, a provision in the Bill – “no civil court will have jurisdiction of any
matter which the Authority is empowered to determine” – takes away any scope of appeal,
thus branding the authority as the most empowered one to decide on matters which come
under its purview.

It is unlikely that the Bill will ever see the light of the day. However, it has raised significant
questions about regulating the media – whether self-regulation is the way forward or is a
statutory body with substantial legal powers required to regulate the media? If the latter is to
hold true, how does one draw the line between regulation and freedom of speech?
It is not surprising then that various sections of the media and even the Parliament have left
no stone unturned to criticize the Bill, calling it a Bill that purports to impose a gag on the
media and control it from every angle possible. However, this is not the first time that an
attempt has been made by the Legislature to keep a check on the media.

57 | P a g e
Article 19(1)(a) of the Constitution of India, granting the fundamental right to freedom of
speech and expression, has been interpreted by the Supreme Court of India as including the
freedom of the press. However, as per Article 19(2), like any form of freedom of speech and
expression, it is subject to reasonable restrictions, that is to say that one cannot disseminate
any information to the public without any sort of accountability or responsibility. While on
one hand the Legislature tries to pass laws curbing the freedom of the press; on the other, the
members of the media try to thwart any attempt to bring any form of legislation or censorship
to govern the media.

The first major “attack” on the Indian media came during the Emergency in the late 1970s
when “The Prevention of Publication of Objectionable Matters Ordinance, 1975” was issued.
This ordinance required news articles to be censored even before being published, along with
penalties for a ‘hostile press’. At that time, the media relented; and “crawled, when asked to
kneel down”. However, the said ordinance was withdrawn soon after Indira Gandhi lost the
elections held immediately after calling off the Emergency. In 1988, in a clear reminder of
the days of the Emergency, Rajiv Gandhi sought to get the Anti-Defamation Bill passed, a
legislation which aimed to target journalists who wrote critical articles about politicians and
placed the burden of proof on the accused in defamatory suits. The Bill also provided for
summary trials and prescribed a minimum period of imprisonment for journalists. It took a
long struggle by Indian journalists including a protest march for the Bill to be ultimately
withdrawn.

It is not that there isn’t any watchdog for the media. The PCI was first set up in the year 1966
on the recommendations of the First Press Commission with the object of preserving the
freedom of the press and of maintaining and improving the standards of the press in India. It
is a statutory, quasi judicial body that functions under the aegis of the Press Council Act of
1978. The PCI is headed by a Chairman, who has by convention, been a retired judge of the
Supreme Court of India. There are twenty-eight other members of whom three are from Lok
Sabha, two from Rajya Sabha, six editors of newspapers, seven working journalist, six
persons in the business of managing papers, one person from a news agency and three
persons represent cultural, literary and legal fields as nominees of the Sahitya Academy,
University Grants Commission and the Bar Council of India.

58 | P a g e
The PCI also acts as an advisory authority to the government on matters affecting media
freedom and has drawn up a set of norms on media reporting. While the genesis behind the
formation of the PCI was noble, its existence is merely superficial in the present day, serving
little or no purpose. Neither is it representative of the views of the media, nor does it have any
real legal power to take any punitive or corrective action against the offending publishers. It
has merely been an authority that publishes reports analysing the actions and words of the
media, reports which are not acted upon.
The independent functioning of any organisation is also dependant on where it derives its
funds from. The PCI is funded by revenue collected by it as fee levied son the registered
newspapers in the country on the basis of their circulation. No fee is levied on newspapers
with circulation less than 5000 copies. The deficit is made good by way of grants by the
Central Government, through the Ministry of Information and Broadcasting. However, it is
not an authority created by the press voluntarily, and the press at large considers the council
to be non-reflective of its interests and stake.

It is imperative to look at how press regulatory bodies across democratic countries in the
world function to understand where the Indian press is missing the point. The press in the UK
has been governed by self-regulation for the last five decades. In 1953, a voluntary Press
Council was established in the UK which aimed to maintain high ethical standards of
journalism and promote press freedom. However, it failed to be effective as it was observed
that some publications failed to follow the basic ethics of journalism. The British government
then considered either enacting a law relating to privacy and a “right of reply” or making the
Press Council a statutory body capable of enforcing legal sanctions. However, it was
inevitable that the consequences of such a move will be far reaching and hence discussions
began in 1990 on what would be the most effective way to ensure the independence of the
media without compromising on ethics and standards. The Committee entrusted with the task
suggested the formation of a Press Complaints Commission (PCC) and gave it a time period
of eighteen months to demonstrate “that non-statutory self-regulation can be made to work
effectively. This is a stiff test for the press. If it fails, we recommend that a statutory system
for handling complaints should be introduced.” The UK press left no stone unturned to seize
the moment and swiftly established an independent PCC in the beginning of 1991.91

91
Saumya Ramakrishnan,’can the watchdog watch itself? Indian media and self-regulation’, (F.India, 27th
August 2012), http://www.firstpost.com, last accessed on 15th October 2015.

59 | P a g e
Till date, the PCC has been functioning as an independent body administering the system of
self-regulation for the press. It deals with complaints against any article in any publication or
the general editorial content and the conduct of journalists. The PCC is funded by an annual
levy it charges newspapers and magazines. All newspapers and magazines voluntarily
contribute to the costs of, and adhere to the rulings of, the Commission, making the industry
self-regulated. Besides, in 2011, the newspaper and periodical industry framed the ‘Editor’s
Code of Practice’, which was ratified by the PCC and is effective from 1 January, 2012.
However, like the Press Council of India, the PCC does not have any legal powers and it
largely banks on the press accepting its recommendations, which it mostly does considering
they have come forward to form it. The sanctions that it is authorised to impose include
negotiation, critical adjudication, letter of admonishment, and formal referral of an editor to
their publisher for action. Thus, there are no monetary penalties that can be imposed or
suspension of licenses by the PCC. Also, another disadvantage of the self-regulatory body is
that there is a possibility of it overlooking some wrong-doings of the press, in order to protect
the large interests of the media as an industry. For example, the PCC has been considered
ineffective in the case of the phone hacking scandal that rocked the British Parliament last
year, with President David Cameron describing PCC as ‘inadequate’ and ‘absent’ during the
scandal.

While there are pros and cons for both legal regulation and self-regulation, in India, legal
regulation in the form of a statutory body which has merely been a ‘toothless tiger’ has not
served the purpose for which it was constituted. Neither has the PCI been able to ensure press
freedom, evidenced by frequent attacks on the press from various quarters nor has it been
able to keep an effective check on the malpractices in the media, evidenced by inaction on
several complaints of inaccurate information and paid news against some newspapers.

The way forward in India could be to empower the Press Council of India, allowing it to take
punitive action in the form of punitive monetary penalties, suspension of license, etc. Also, it
must be made more representative of the stakeholders in the media, thus giving them a voice.
In fact, the British model of PCC may be adopted with members of the press must coming
together to draft a code of practice.

60 | P a g e
Self-regulation deserves a chance in this country. Giving an opportunity to the media to
regulate itself and show efficiency might throw up some surprising results indeed.

61 | P a g e
 CHAPTER 8: CONCLUSION AND RECOMMENDATIONS

CONCLUSION:

India has come a long way in its protection for media. There were laws made against the
freedom of media before independence when Hickley’s Bengal Gazzette came into being and
the laws got stricter after coming of Indian Penal code which made defamation a criminal
wrong. In India defamation is treated as a civil wrong as well as a criminal offence whereas
in United states it is treated as a civil wrong because they are of the view that it is important
to provide security to the reputation of a person but at the same time it is also necessary to
ensure freedom of media. In U.K also defamation is treated as a tort only i.e. a civil wrong
not a criminal offence as they consider the criminal defamation a relic and not applicable in
present society. They argue that such laws would do more harm than good, they might be
dangerous to freedom of speech and expression and therefore should be discontinued.

Defamation as a criminal offence is started to be questioned in India also. Though the

decision is yet to come it is time for the Indian Courts also to remove it from the criminal
offence because it does affect the freedom of media in reporting the reality. Many Supreme
Court lawyers are of the view that such false criminal defamation cases are filed with the sole
aim to oppress the opposition voices. These provisions are used arbitrarily these days. In this
paper various recent cases are discussed which are filed by many big politicians or big
corporate houses just to curb the voices of opposition against them. If such a situation would
be allowed to continue it will run havoc in the society and reality would be far more different
than that is being told.
Recently Priya Pillai, a greenpeace activist, fall prey to criminal defamation case against her.
The case was filed against her by Essar oil and minning company. She said that these big
corporate houses are using this defamation law to prevent public from raising voice against
their wrong doing. If such law is continued there will be plethora of cases just to stop people
from knowing the reality.

India is one of those rare countries who criminalise defamation. Even the country that gave
India its defamation laws have decriminalised defamation. Everybody is moving with time
and agree with fact that it is important to remove it as a criminal offence, but India is still

62 | P a g e
stuck with this century old regime. Kavita Krishnan, an activist, was branded as a terrorist
during a television debate but she refused to file a criminal case against that channel because
she was of the view that there are hundreds of people who are accussed of being terrorists but
they are mostly poor and therefore unable to file any case against anyone. This weapon is
majorly used by big corporate guns and politicians because they have resources and to ensure
that there secrets don’t get unearthed. It is clear from this fact that this law is used only by
rich to prevent from reaching the truth and poor even ripped apart have nothing in their
hands. In the author’s view we should follow the lines of other countries and scrap this age
old law.

It is also true that sometimes media do try to sensationalise a issue and forgets its true role in
the society. Newspapers have a come a long way from the time when there used to be limited
number of pages and it used to be filed with relevant news instead of some gossip columns.
With the advancement of technology newspapers have become much better edited and
crafted. With this evolution, the changes that have come are both good and bad. On positive
side, the concept of investigative journalism is widespread now. They help in raising the
social conscience against the miscarriage of justice. Now it has become much easier for them
to connect across the country and world to get all the relevant news.

But this has its own downside. The media instead of focusing on issues of social importance
shows the stories that have an element of gossip in them and sometimes during this process
they rip apart the reputation of a person which is than impossible to recreate. They reach a
judgement on there selves without verifying the true facts of the case. And even if they have
realised their mistake they are reluctant to issue any corrections. The problem lies in the fact
that these media houses have developed such a high sense of competitiveness that they don’t
want to run behind on any story, therefore before even undertaking a proper research they
publish the story.

This has become a serious matter of concern among all socially aware citizens of India
because free media is a lifeline of Indian democracy. The information that is provided by
these media houses is really important to them because based on it they decide who is going
to govern them and how to make the people who govern them accountable. Therefore the
media has the responsibility to focus on the issues that are important to the public instead of
running for gossips and maligning someone’s image. There is a growing obsession among

63 | P a g e
media persons to sensationalise even a trivial issue and in this course marginalise the matter
that is important for public welfare.

From the above noted facts it is clear that even though defamation as a criminal offence clips
the wings of the media but to ensure that the media follows a righteous path and refrain from
tarnishing someone’s image just to gain trps, defamation as a civil wrong is important. The
reasonable restriction on freedom of speech and expression under article 19(2) even though
sometimes might become a barrier between media and reporting but they are important.

The free press is both the mortar that binds together the bricks of our country’s freedom, and
the open window embedded in those bricks. No Indian leader would go as far as Thomas
Jefferson, who said that given a choice between government without newspapers and
newspapers without government, he would choose the latter. But government needs
newspapers to keep it honest and efficient, to serve as both mirror and scalpel. If instead all
we have is a blunt axe, society is not well served.

If India wishes to be taken seriously by the rest of the world as a responsible global player
and a model 21st-century democracy, we will have to take ourselves seriously and
responsibly as well. Our media would be a good place to start.

RECOMMENDATIONS:

Since the Indian Supreme court has taken a step forward in National stock exchange case by
setting high standards to prove defamation, it should continue moving in that direction only.
The author does not support the view that there should be no regulation on the media and to
let it run like a mad bull but there is a much needed relaxation that is required by removing
defamation as a criminal offence under section 499 and 500 of Indian Penal Code, 1860. We
need not to be clutched in the laws that were made for us by the people who ruled India
especially when they themselves have moved on with their own laws.

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BIBLIOGRAPHY

Statutes/legislations referred:

1. Constitution of India
2. Indian Penal Code, 1860
3. Press Council of India Act, 1965
4. The Press and Registration of Books Act, 1867
5. The Press (Objectionable Matters) Act, 1951

Books referred:

1. Madhavi Goradia Divan, ‘Facets of Media Law’, (Eastern Book Company, Lucknow,
first ed. 2006).

2. S.Kundra,’Media Laws and Indian Constitution’,(Anmol Publications Pvt. Ltd., New

Delhi, first edn., 2005).

3. Tim Crook, ‘Comparative Media Law and Ethics’,( Routledge Taylor and Francis
group, New York, 2010).

4. Banks D. and Hanna M., ‘McNae’s essential law for journalists’, (Oxford University
Press, New York, 20th ed., 2009).
5. Lalit Bhasin, ‘Media world and the Law’, (Universal law publishing Co., New Delhi,
2010).

Articles referred:

1. Gautam Bhatia, ‘Free Speech and Civil Defamation’ (The Centre for Internet and
Society, 25th june 2014), http://cis-india.org/ accessed on 13th September 2015.

2. Nandita Jha, ‘Defamation cases multiply’ (The Hoot, 27/08/2015)

http://www.thehoot.org accessed 13 september 2015.

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3. Saumya Ramakrishnan,’can the watchdog watch itself? Indian media and self-
regulation’, (F.India, 27th August 2012), http://www.firstpost.com, last accessed on
15th October 2015.

4. Vaibhavi Pandey,’The single publication rule on Social Websites’, (Mondaq, 13th

October 2014), http://www.mondaq.com, last accessed on 15th October 2015.

5. Paranjoy Guha, ‘BSES v. ToI: A Defamation Biggie’, (The Hoot, 8th September 2015),
www.thehoot.org, last accessed on 15th October 2015.

6. Ajay Roy,’SLAPP suits in Indian context’,(The In-house lawyer,8th April,2011)

http://www.inhouselawyer.co.uk/ last accessed on 12th October 2015.

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