End semester examination

Media law

Q2.

Sedition law: Introduction

Section 124A of the IPC defines sedition – “Whoever by words, either spoken or written, or
by signs, ….., brings or attempts to bring into hatred or contempt, ….. towards, 2*** the
Government established by law in 3[India], 4*** shall be punished with 5[imprisonment for
life], ….., or with fine.” This was drafted by Thomas Babington Macaulay and included in
the IPC in 1870. This act was bought in by British as a solution against Indian freedom fights
which entailed the form of riots and protests and freedom movements. The British had no law
or legislation to control the situation of these movements, and bought into place sedition laws
to control the situation. Under Article 19(1)(a) of the Indian Constitution, people are allowed
to talk and express their opinions. However, Article 19(2), which specifies that this freedom
is subjected to some restrictions and has certain reasonable limitations, is an exception. The
act of revolting against the state and its authority by words or behaviour is referred to as
sedition. Section 124A of the IPC, 1860, which governs laws against dissent, is commonly
read in conjunction with Article 19(2) of the constitution.

Kedar Nath Judgement:

Kedar Nath Singh, one of the members of the forward communist party while
addressing a rally in Bihar, called for a revolution against congress, the ruling party at that
time. The speech made by Kedar Nath Singh, “strike and drive out congress goondas like the
Britishers” were alleged to be violating the norms set by the sedition law, A complaint was
brought against him under IPC Sections 124A (Sedition) and 505 based on his comments and
statements (Public Mischief). Singh was found guilty in the case and given a one-year term of
hard labour in jail. The constitutionality of IPC Section 124A was challenged in a 1962
appeal before the Supreme Court on the grounds that it "obstructed" Article 19 of the
Constitution, which guarantees everyone the right to freedom of speech. A criminal appeal
was being heard by a five-judge panel from Kedar Nath Singh among others.
 In a historic decision, the Supreme Court maintained Section 124A of the IPC's
legality but limiting the law's application to prevent "misuse" by defining what would and
would not be considered sedition. According to the Supreme Court, Section 124A cannot be
taken "literally," and two general methods might be used to prove sedition in light of the
ruling:

(1) The alleged act must be intended to have direct effect of subverting the
government by violent and illegal means.
(2) The alleged act must have an intention to create disorder or disturbance of public
peace, or disrupt the law and order of the public or cause public nuisance.

The exact words of the judgement were, “It also held that comments, however strongly
worded, expressing disapprobation of actions of the Government, without exciting those
feelings which generate the inclination to cause public disorder by acts of violence, would
not attract the penal offence.”1

In the introduction to this answer we saw that the law was first implemented in India by the
British, today the law is questioned more than ever in India, but ironically so, the British, the
minds behind the sedition law them self-have scrapped down the law in 2009. Should this be
detrimental in deciding if sedition law must be stuck-down, let’s understand the importance
and disadvantaged of the law. There have been many cases filed in the supreme court
challenging the validity of the sedition laws, the underpinning reason behind removal is not
just because of the arbitrary law, but the same offences can be punished under several other
laws, including the unlawful activities prevention act or UAPA. The supreme court, in
furtherance of these cases questioned the union/ centre about the necessity of the law,
whether this colonial law, which was used to imprison the people fighting for the freedom of
the country still necessary even after 75 years of independence.

The main contention for reading down the law is the misuse by the state machinery to supress
the criticism against the government, there have been multiple misuse of this sedition law by
the government to curbed the freedom of speech and expression, a basic fundamental right
guaranteed by the constitution. An assamese journalist was imposed with sedition for a
1
Kedar Nath Bajoria vs The State Of West Bengal; 1953 AIR 404, 1954 SCR 30
editorial publication, charging opposite party leaders, such as congresses’ Ajay Rai in
Varanasi over remarks on PM. A person was charged with sedition over a WhatsApp
message in a housing society WhatsApp group, not standing for the national anthem,
environmental activist Disha Ravi for merely sharing a toolkit, anti CAA activist charges for
over 50 people are some of the recent example of misuse of sedition law. The number of
cases of sedition between 2016 to 2019 increased by a whooping 160 percentage, while
convection has gone down from 33% in 2016 to 3.3% in 2019. This only shows proof that
this provision is behind used merely to restrict the freedom of speech and expression against
the government, since the same offence can be charged under other laws and legislations, and
sedition has become a tool for misused power, it is better to read down the law, if not for
striking it down, like in a recent conference as Hon’ble Justice Deepak Gupta, a sitting judge
of the supreme court said, “the law of sedition needs to be toned down if not abolished”.

Q3.

Defamation:

On the plane understanding of the word “defamation” we understand that it has got
something to do with defaming or undermining someone. Exactly as it is understood,
defamation in simple word is an “injury to the reputation of someone”. A person who harms
another individual's reputation is also held legally accountable. The Indian Penal Code 1860
defines defamation in section 499, and section 500 stipulates that anybody found guilty of
violating this provision is subject to simple imprisonment for a term of two years, a fine, or
both. There are a few essential ingredients for defamation, first the statement that is being
made must be defamatory, that statement must lower the reputation of the person, the test to
determine if the statement so made is defamatory is looked at from a reasonable man’s
perspective, if a reasonable man would deduce it as defamatory. Second, the statement must
be made towards the plaintiff, third, the statement must be published. There are other finer
elements even in these requirements, for the simplicity of the answer, the main ingredients
have been addressed.

Defences to defamation are exhaustive, if the statement made is truth it cannot be held for
defamation, or a fair comment, which can be interpreted widely can also be used as a
defence. There are privileges given, such as, parliamentary proceedings or judicial
proceedings, where absolute privilege is given, complete immunity is given to person
speaking and he cannot be held for defamation. Let us understand this via a case.

Case law: Depp v. Amber Heard

The divorce settlement between Amber heard and Jonny Depp owing to accusation by heard
on domestic violence from Depp was done in 2016, where heard was settled with 7 million
dollars. The divorce was settled with the inclusion of non-disparagement clause, which says
that neither party can publicly speak ill about the other person. Recently, Amber in one of the
interview newspaper article about targeted for speaking up against sexual/ domestic violence.
Although this article did not find the mention of Depp it was implied it was targeted towards
mr. Depp because amber was married only to Mr. Depp. Owing to this, Mr. Depp filed a 50
million dollars defamation suit. Ambers allegations were frivolous owing to lack of evidence,
whereas MR. Depp was allegedly subjected to violence and not amber, with proof of a voice
call recording. Let’s analyse the case with the ingredients for defamation, one, the statement
must be defamatory, the statement made by Amber was defamatory for the actor as any
allegation of domestic violence against anyone would cast negative image in the society, any
reasonable man would presume in the same way, also we could see how this affected him as
he lost various deals in the movie and endorsement industry, losing his alter ego, Jack
Sparrow character. Two, statement towards the plaintiff, although no name was mentioned, it
was imperative that Amber talked about Depp’s domestic violence as it can be deduced from
the fact that amber had only one marriage, with Depp. Third, the statement must be
published, the statement was published in a leading newspaper/ magazine. Defences, of truth
cannot be availed for the fact that Amber failed to furnish any concrete proof to the court,
second that it was not a fair comment not opinion but a statement, third Amber did not have
any immunity. Hence, this was a classic case of defamation.

Should defamation be decriminalised?

Article 21 of the Indian constitution guarantees citizens of India the right to life and personal
liberty, which also includes right to reputation, whereas article 19(1)(a) provides for freedom
of speech and expression, in the case of defamation, there has to be a strike of balance
between both fundamental rights, when either is taken away it affects the person. Defamation
puts a restriction on article 19(1)(a) where it restricts a person from enjoying unrestricted
speech and expression, while on the other hand, if defamation is struck down, a person being
defamed would lose the right to life with dignity and reputation guaranteed under article 21
of the constitution. To answer this, article 19(2) puts reasonable restriction on freedom of
speech and expression, but up to the extent of interest of state and general public and not
individual, defamation is a personal right and affects only an individual, hence, restricting
article 19(1)(a) on an individual right is unconstitutional.

It’s not only the individual rights and fundamental rights being a baggage on defamation, the
fact that defamation has been used widely as a tool to misuse the provision.

Press rights have been on the raise, with this raise and backing of various landmark cases
such as Ramesh v. State of Madhya Pradesh2, Indian Express Newspaper vs. Union of India3,
the court has recognised rights of media. Media have been given free hand upon some
reasonable restriction so that the purpose of media be fulfilled, to fulfil the purpose media
must have proper rights to talk and address opinion and views, but defamation laws acts as a
restriction to this by putting unreasonable burden, anything written about anyone might be
considered defamatory thereby restricting media and press to achieve their full potential.
Defamation would act like an indirect censorship on the media and press. The
aforementioned rule has a chilling effect on press freedom and will have a influence over
journalism, which is urgently needed. The editors, journalists, and other people will be
treated as accused parties and put through a protracted trial until the media outlets can prove
the veracity of their claims, which will take a very long and laborious process.

The Court has talked extensively on the value of a person's reputation, which is covered by
Article 21, and has decided that it serves as grounds for making defamation a crime.
However, the Court neglects to take into account the individual who has been wrongly
charged in a defamation case's loss of reputation and the ensuing breach of Article 21. In this
situation, even if the complainant's right to their reputation may be harmed, the accused in a
defamation case, who was ultimately found not guilty after a long trial, has a competing right.
Sections 499–500's provisions must also be taken into account from this angle.

2
Ramesh v. State of Madhya Pradesh AIR 1950 SC 124
3
Indian Express Newspaper vs. Union of India 1985(1)SCC 641
Although it affects an individual’s personal rights under article 21, right to life and personal
liberty, the wider effect of defamation must be looked into, such as violation of freedom of
speech and expression and media/ press rights, and keeping in mind the public interest the
government must reconsider the colonial provisions of defamation.

Q4.

Intellectual property, as the word suggests is a property of someone’s brain someone’s

intellectual baby. Like other tangible property, even the product of the brain is granted some
protection, in the form of intellectual property protection laws. Copyright is a form of
protection given to the creator of the intellectual product under various heads,
(a) Literally work, such as contents on a book website, algorithms or any other written
work
(b) Dramatic work, such as movies and plays
(c) Music and artistic work such as, songs and instrumental music, art etc.

These rights are given under section 13 and 14 of the copyrights act and are meant to
protect the expression of ideas rather than the idea themselves. The term "copyright" refers to
a collection of rights that has been exclusively granted by the copyright act to the owner of
copyright, it protects original work, Original simply indicates that no other source has been
used to duplicate the work. These rights may only be exercised by the copyright owner or
another person who has been duly authorised by the copyright owner to do so. These rights
include, among other things, the freedom to modify, duplicate, publish, translate, and interact
with the general public.
Copyright is not just a novelty right for ideas; it is also a right granted to or derived from
works. In essence, copyright guards an author's or creator's original works and forbids others
from stealing them. However, it does not prevent others from using a different method to get
the same conclusion. Ideas don't have any copyright. Only the material form in which the
ideas are translated retains the copyright. A book's plot may be shared by two authors.
However, it is how they articulate themselves, or how they give their ideas a concrete form,
that distinguishes them. A specific notion is not protected; rather, it is the form in which it is
conveyed. The free exchange of ideas is primarily safeguarded through protecting
expressions rather than ideas. There is too much value in ideas to copyright them. The
copyrighting of ideas would ultimately stifle innovation and creativity. Because of this, the
copyright system is built around the freedom to reproduce ideas.

How does one distinguish idea from expression: Indian case study

Differentiating between the two is a significant problem due to the idea-expression

contradiction. Due to the lack of a statutory provision, it is necessary to rely on a number of
case laws that make an effort to draw a distinction between the two. The supreme court in the
case of RG Anand v. Dulex Films4, held that, despite the fact that both stories' ideas were
similar, they were conveyed in quite different ways. Therefore, copyright violation cannot be
claimed. The Bombay High Court reaffirmed that ideas are not protected by copyright in
Mansoob Haider v. Yashraj Films5. After eliminating differences, concepts that are similar
but not identical are what remain, and comparable ideas do not constitute a violation of
intellectual property rights.
It's not like all ideas can be creatively stated. There are many times concepts that can
only be presented in a certain way. In this scenario, copyrighting the expression
will amount to copyrighting the idea, which would impede the free exchange of ideas. what it
means hear is, when an idea has a certain way to express and that idea can only be expressed
in that one way, the copyright cannot be given to that for the mere reason to protect free flow
of ideas. Courts use the Merger Doctrine to determine that there is no copyright in every
instance where the language is required to clearly transmit an idea. The Merger Doctrine
largely focuses on the intersection of ideas and manifestations.

It can be concluded that copyright only protects the expression and not ideas because there
are multiple ways of expressing ideas and to meet the ends of justice and to give free flowing
thoughts and ideas, only the expression of ideas must be given protection.

Q5. Discuss the evolution of right to privacy in India through 4 case studies.
4
RG Anand v. Dulex Films :AIR 1978 SC 1613
5
Mansoob Haider v. Yashraj Films: 2014 (59) PTC 292 (Bom)
Every citizen must be granted with some basic rights, these rights is what makes a human
society different, and the duty to uphold and promote this lies with the government. The
question of privacy being a fundamental right today doesn’t seem like an issue, at least after
the landmark judgement, all these were possible only after the legal fight for the freedom of
privacy, which in today’s time is even dreadful to think of without it.

The right to privacy now has become a fundamental right, this card can be used to safeguard
certain personal information against the state, journalists or in this case even the nosey
neighbors. Let us now look at the legal timeline via cases to understand the evolution of right
to privacy in India.

The first case in the regards to privacy was, M.P. Sharma V Satish Chandra 6 case,
which relates to the investigation on the Dalmia Group of companies for malpractice. It was
alleged that the companies rigged their balance sheet and other accounting books to display
false information and fraud, leading to with an FIR was filed against the company for
malpractice by the government and an order for investigation was made, a massive search
and seizure took place at the locations of the office. Dalmia group challenged the
investigation on the grounds that with the companies documents the personal documents of
the promoters are also being investigated at and challenged this under the right to privacy.
Eight (8) judges constitution bench of the supreme court held that the right to privacy was not
a fundamental right under the Indian constitution, relying on the 4 th amendment of the U.S
constitution, the supreme court observed that a search and seizure is a temporary interference.
The second case is, Kharak Singh v. State of U.P 7, in this case kharak Singh is
arrested for the offence of Dacoity, but due to the posity of any substantial evidence was
released. The police in this matter to collect evidence and proof of Dacoity imposes
surveillance over kharak Singh under the U.P. Police Regulation, when this surveillance is
imposed on anyone, the police can suspect anyone who is in contact with the accused, two,
can conduce domiciliary visit, essentially the police can visit the house of the accused at any
point in time and third, tracking, meaning the police can monitor any movement, income or
expense of the accused. kharak Singh being irritated by the imposition put on him, files a writ
petition challenging the surveillance and monitoring by the U.P police under the fundamental

6
M.P. Sharma v. Satish Chandra, 1954 SCR 1077
7
Kharak Singh v. State of U.P., (1964) 1 SCR 332
right to movement and right to personal liberty. A six-judge bench of the supreme court
upheld the validity of all the imposition put on kharak Singh except for the domiciliary visit,
reiterating that there is no mention or system of right to privacy in the Indian constitution.
The most important element/ take away from this judgement was the opinion of hon’ble j.
Subba Rao, in the dissenting opinion said, “anyone can enjoy freedom of movement
anywhere for personal purposes. If the movement has been tracked then it cannot be said to
be free”, whereas the judgment said, that only a physical restriction would be violative and
not mentoring.

Other judgements such as Govind v. State of M.P. 8, which held the constitutional
invalidity of domiciliary visit, the State v. Charulata Joshi 9case, where the court held that
consent of the person interviewed must be obtained and court cannot pass order otherwise, R.
Rajgopalan v. state of T.N10., held that right to privacy is inscribed in right to life and
personal liberty, the court in all these cases have upheld right to privacy, but have been
overshadowed by bigger constitutional benches.

11
The recognition of right to privacy was sowed in the case of PUCL V. UOI case,
was a case of telephone case, where the court held that tapping telephone by the government
officials amounts to violation of article 21 as the telegraphic conversation is private
information and violates privacy and recognized right to privacy is a part of right to life and
personal liberty. Although the right to privacy is not explicitly stated in the Indian
Constitution, its foundations may be found in Article 21, and it can be taken away only by the
procedure established by law.

Addressing the elephant in the room, the Aadhar judgement 12 has been one of the
most appreciated judgements in the recent days, a nine-judge bench of the supreme court of
India, held right to privacy as a fundamental under part III of the constitution, this right stems
from the fundamental right of life and personal liberty under article 21 as well as in the
context of freedom and dignity recognized and protected under part III of the constitution.
This has been the journey of right to privacy.

8
Govind v. State of M.P :1994 AIR 826, 1994 SCC Supl. (1) 536
9
State v. Charulata Joshi, (1999) 4 SCC 65
10
Rajgopalan v. state of T.N: 1995 AIR 264, 1994 SCC (6) 632
11
PUCL v. Union of India, (2019) 15 SCC 748
12
K.S. Puttaswamy v. Union of India, (2015) 10 SCC 92