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Media and Law

Unit-I

Qs. Constitutional position Freedom of Speech and Expression, Freedom of

Press, reasonable restrictions.

Ans. The freedom of speech and expression is a very important fundamental right
under the Constitution. It is indispensible for the development of one’s own
individuality and for the success of parliamentary to democracy. It is said that in a
democracy the right to free expression is not only the right of an individual but
rather a right of the community to hear and be informed.

The freedom of speech and expression is not only guaranteed by the Constitution
or statutes of various states but also by various international conventions like
Universal Declaration of Human Rights, European Convention on Human Rights
and fundamental freedoms, International Covenant on Civil and Political Rights
etc. These declarations expressly talks about freedom of speech and expression.

Origin of Freedom of Speech And Expression

The concept of freedom of speech originated long back. England’s Bill of Rights
1689 adopted freedom of speech as a constitutional right and still in effect. The
French Revolution in 1789 adopted the Declaration of Rights of Man and of
Citizen. This further affirmed the Freedom of Speech as an undeniable right. The
Declaration of Freedom of Speech in Article 11 states:

“The free communication of ideas and opinions is one of the most precious of the
right of man. Every citizen may, accordingly, speak, write and print with freedom,
but shall be responsible for such abuses of this freedom as shall be defined by
law”.

Freedom of speech is guaranteed not only by the constitution or statutes of various

states but also by various international conventions like Universal Declaration of
Human Rights , European convention on Human Rights and fundamental
freedoms, International Covenant on Civil and Political Rights etc. These
declarations expressly talk about protection of freedom of speech and expression.
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Meaning of Freedom of Speech And Expression

The Constitution of India guarantees various fundamental rights to its citizens. One
such important right is right to freedom under Article 19. This includes right to
freedom of speech and expression, right to assemble peacefully and without arms,
freedom to form associations and unions, right to move freely throughout the
territory of India, right to reside and settle in any part of the territory of India and
right to practice and profession or to carry on any occupation, trade or business.

Article 19(1)(a) says that, “All citizens shall have freedom of speech and
expression.

Actually, this is the most important right amongst all rights. It is the right which
helps in conversation. It is a medium of expression of thoughts.

Speech and expression means- expression your views by way of words, articles,
signs, representation, etc.

There can also be other way of expression, and all such medium shall be deemed to
be expression.

‘Lawell Vs Giffin’ [(1938) 303 U.S. 444]- numbers, signs, symbols, etc. were held
to medium of expression.

‘Tata press Ltd. Vs Mahanagar Telephone Nigam Ltd.’ (A.I.R. 1995 S.C.
2438)- commercial speech and expression shall be deemed to be part of speech and
expression under Article 19(1) (a).

Romesh Thappar v State of Madras (AIR 1950 SC 124), the Supreme Court of
India held that the freedom of speech and expression includes freedom to
propagate ideas which is ensured by freedom of circulation of a publication, as
publication is of little value without circulation.

Indian Express Newspapers (Bombay) P. Ltd v. Union of India (‘86) A.SC.

515, are of great significance. In these cases, the corporations filed a writ petition
challenging the constitutional validity of notifications issued by the Government.
After much deliberation, the Courts held that the right to freedom of speech cannot
be taken away with the object of placing restrictions on the business activities of
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citizens. However, the limitation on the exercise of the right under Article 19(1)
(a) not falling within the four corners of 19(2) is not valid.

State of Uttar Pradesh v. Raj Narain has held that Article 19(1)(a) of the
Constitution guarantees the freedom of speech and expression to all citizens in
addition to protecting the rights of the citizens to know the right to receive
information regarding matters of public concern.

Freedom of Press:

Freedom of speech and expression includes freedom of press- Any person may
express his views by articles, cartoons, advertisements, etc. in a newspaper. To
preserve the democratic way of life it is essential that people should have the
freedom of express their feelings and to make their views known to the people at
large. The press, a powerful medium of mass communication, should be free to
play its role in building a strong viable society. Denial of freedom of the press to
citizens would necessarily undermine the power to influence public opinion and be
counter to democracy.

Freedom of press is not specifically mentioned in article 19(1) (a) of the

Constitution and what is mentioned there is only freedom of speech and
expression. In the Constituent Assembly Debates it was made clear by Dr.
Ambedkar, Chairman of the Drafting Committee, that no special mention of the
freedom of press was necessary at all as the press and an individual or a citizen
were the same as far as their right of expression was concerned. The framers of the
Indian constitution considered freedom of the press as an essential part of the
freedom of speech and expression as guaranteed in Article 19 (1) (a) of the
Constitution.

Sriniwas Vs State of Madras (A.I.R 1951 Madras 79)- Madras High Court held
that the freedom of speech and expression is not limited to the publicity of views.
It includes the publicity of views of others also which is possible by freedom of
press only.

Whether freedom of press can be restricted? This question has been in

discussion from the beginning-
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Virendra Vs State of Punjab (A.I.R. 1957 S.C. 896)- the Supreme Court has said
that, “Preventing any newspaper from publishing any article of current importance
is encroachment of the freedom of speech and expression.

Ramesh Thappar Vs State of Madras (A.I.R. 1950 S.C. 124)- it was held that,
“A newspaper published in one state cannot be prevented to be delivered in another
state, because freedom of press includes its publicity also.”

Similarly, ‘Maneka Gandhi Vs union of India (A.I.R. 1973 S.C. 597)- it was said
that if the passport of any journalist is withdrawn to avoid him from expressing
views in foreign, then it violates the Article 19(1)(a).

Express Newspaper Pvt. Ltd. Vs Union of India (A.I.R. 1958 S.C. 578)- the
following activities diminishing the freedom of Press were held unconstitutional-

a) Pre-censorship of newspaper,
b) Prohibition on circulation of Newspaper,
c) Prohibition in start of newspaper
d) Government aid to be compulsory for the continuity of newspaper, etc

Grounds of Restrictions
It is necessary to maintain and preserve freedom of speech and expression in a
democracy, so also it is necessary to place some restrictions on this freedom for the
maintenance of social order because no freedom can be absolute or completely
unrestricted. Accordingly, 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 the 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 the power to impose a 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 the security of State. However, the term “security” is a
very crucial one. The term “security of the state” refers only to serious and
aggravated forms of public order e.g. rebellion, waging war against the State,
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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 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 a good and friendly relationship with other countries. Something
which has the potential to affect such relationship should be checked by the
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. 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
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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 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 a decent one. It should not affect the morality of 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 a very important

role. In such situation, it becomes essential to respect such an 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 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 defense.

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 defense if courts are asked to decide contempt proceedings relating to
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contempt proceeding relating to a speech or an editorial or article”. The

qualification is that such defense 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 of another person. A person is known by his reputation more than his wealth
or anything 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 relating to defamation is still uncodified in India and
subject to certain exceptions.

8) Incitement to an offense: 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 offense. The word ‘offense’ 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 the sovereignty and integrity

of a state is the prime duty of government. Taking into it into account, freedom of
speech and expression can be restricted so as not to permit anyone to challenge
sovereignty or to permit anyone to preach something which will result in threat to
integrity of the country.

Judicial Approach

Freedom of Press

Although Article 19 does not express provision for freedom of press but the
fundamental right of the freedom of press implicit in the right the freedom of
speech and expression. In the famous case Express Newspapers (Bombay) (P)
Ltd. v. Union of India court observed the importance of press very aptly. Court
held in this case that “In today’s free world freedom of press is the heart of social
and political intercourse. The press has now assumed the role of the public
educator making formal and non-formal education possible in a large scale
particularly in the developing world, where television and other kinds of modern
communication are not still available for all sections of society. The purpose of the
press is to advance the public interest by publishing facts and opinions without
which a democratic electorate [Government] cannot make responsible judgments.
Newspapers being purveyors of news and views having a bearing on public
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administration very often carry material which would not be palatable to

Governments and other authorities.”

The above statement of the Supreme Court illustrates that the freedom of the press
is essential for the proper functioning of the democratic process. Democracy means
Government of the people, by the people and for the people; it is obvious that
every citizen must be entitled to participate in the democratic process and in order
to enable him to intelligently exercise his right of making a choice, free and
general discussion of public matters is absolutely essential. This explains the
constitutional viewpoint of the freedom of press in India.

Obscenity

Freedom of speech, though guaranteed, is not absolute in India. Unlike the U.S.
Constitution, the text of India’s Constitution clearly sets out restrictions on free
speech. The freedom of speech guaranteed under Article 19(1)(a) can be subject to
reasonable state restriction in the interest of decency or morality. Obscenity in
India is defined as “offensive to modesty or decency; lewd, filthy and repulsive.” It
stated that the test of obscenity is whether the publication, read as a whole, has a
tendency to deprave and corrupt those whose minds are open to such immoral
influences, and therefore each work must be examined by itself .

With respect to art and obscenity, the Court held that “the art must be so
preponderating as to throw obscenity into a shadow or the obscenity so trivial and
insignificant that it can have no effect and may be overlooked .” The Court
concluded that the test to adopt in India, emphasizing community mores, is that
obscenity without a preponderating social purpose or profit cannot have the
constitutional protection of free speech.

Right to Information

Right to know, to information is other facet of freedom of speech. The right to

know, to receive and to impart information has been recognized within the right to
freedom of speech and expression. A citizen has a fundamental right to use the best
means of imparting and receiving information and as such to have an access to
telecasting for the purpose. The right to know has, however, not yet extended to the
extent of invalidating Section 5 of the Official Secrets Act, 1923 which prohibits
disclosure of certain official documents. Even, Right to Information Act 2005,
which specially talks about peoples’ right to ask information from Government
official, prohibits discloser of certain documents under u/s 8 of the Act. These
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exceptions are generally the grounds of reasonable restrictions over freedom of

speech and expression under Article 19(1) of Constitution of India. One can
conclude that ‘right to information is nothing but one small limb of right of speech
and expression.

Voters Have Right to Know About their Candidates

In a landmark judgment in Union of India v. Association for Democratic

Reforms, a three-judge bench held that the amended Electoral Reforms Law
passed by Parliament is unconstitutional as being volatile of citizen’s right to know
under Art. 19(1)(g).

The’ Freedom of Speech and Expression’ Is Indeed A Very High One

In recent judgment of the Supreme Court in Khushboo v. Kannaiammal upholds

the right to freedom of speech and expression. Khushboo’s right to freedom of
speech was violated by the institution of multiple criminal cases against her in
various courts across the country and consequent harassment that she suffered.

Various form of Media

Media simply refers to a vehicle or means of message delivery system to carry an

ad message to a targeted audience. Media like TV, Radio, Print, Outdoor and
Internet are instruments to convey an advertising message to the public.

Types of Media / Media Classication

Media can be classified into four types:

1. Print Media (Newspapers, Magazines)

2. Broadcast Media (TV, Radio)
3. Outdoor or Out of Home (OOH)
4. Media Internet

Print Media

(i) Newspaper

Newspaper is a major source of information for a large number of readers. It may

be National or local, daily or weekly newspaper. Newspapers allow presentation of
detailed messages which can be read at reader’s conveyance. It allows prompt
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delivery of detailed coverage of news and other information with interesting

features for readers. It is a high involvement media as readers are required to
devote some effort in reading the message. It is available to masses at a very low
cost.

Classification of Newspapers

I. National Newspapers
II. Daily newspapers (Local/Regional)
III. Special Audience newspapers

(ii) Magazines

A Magazine is a specialized advertising media that serves educational,

informational, entertainment and other specialized needs of consumers, businesses,
and industries. A Magazine allows presentation of a detailed ad message along
with photos, illustrations, colours etc. It is a high involvement media as readers pay
a premium price for it and magazines are not dumped after reading. Magazines can
be classified into Local/Regional/National or Weekly/Monthly/Quarterly
Magazines.

Types of Magazines

Consumer magazines – Magazines bought by general public for information and

entertainment. It can be used to reach a specific target audience. It may be a –

I. General Interest Magazine

II. Glamour Magazine
III. Film Magazine
IV. Special Interest Magazine
V. Women Lifestyle Magazine

Business Publications – Business magazines includes publications such as trade

journals for businesses, industries or occupations. It may be published weekly
monthly or quarterly. Generally, readership includes business managers and
executives, businessmen, business students etc. It may be categorized into –

I. Business Publications
II. Professional Publications
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III. Trade Journals

IV. Industrial and Institutional Publications

Broadcast Media

(i) Television Advertising

TV is a principal source of information and entertainment for people exposed to

mass media. It is believed to be the most authoritative, influential, exciting medium
for reaching very large audience. It combines visual images, sound, motion and
colour to achieve viewer’s empathy. It allows development of creative and
imaginative ad messages in a unique way. It is considered intrusive in nature as the
audience have no control over the nature and pace of advertisements.

(ii) Radio

Radio is a premier mass medium for users and advertisers. It has a wide spread
reach. It delivers the ad message to a large number of people across the length and
breadth of a country. Commercial broadcasting is undertaken in major cities even
rural areas. Radio time in India is usually sold in slots of 7, 10, 15, 20 or 30
seconds. It is one of the most personal medium and offers selectivity, cost
efficiency and flexibility advantages over other media. Efficiency of a radio ad
depends upon the precision of script, accompanying sounds and level of distortion

Support Media

(i) Outdoor advertising

It is usually used as a supportive medium by advertisers. It includes bill boards,

boarding, neon signs posters etc. It can generate considerable reach and frequency
level at low cost. Useful when introducing a new product. Helps to remind the
customers. Helps to generate sales at point of purchase/point of sale.

(ii) Transit Advertising

Uses billboards, neon signs and electronic messages. It is targeted at users of

various modes of transportation. Advertising rates depend on the amount of traffic
which passes every day.

(iii) Cinema and Video Advertising

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Cinema is a popular source of entertainment comprising of audience from all

classes and socio-economic groups of society. Films are watched by a significant
number of people everyday. It involves use of cinema halls and video tapes to
deliver the ad message. Commercials are shown before films and previews
carrying ad message. Advertisers may prepare a presentation for projection or
35mm ad films based on a script. Similar to TV, it also combines sight, sound,
colour and movement to deliver a creative message. Video rentals include
messages by local advertisers. Advertisement can also be displayed by cable
operators.

Internet

Internet is a worldwide medium that provides means of exchanging information

through a series of interconnected computers. It is a rapidly growing medium of
advertising. It is a future medium which offers limitless advertising opportunities.
It involves use of world wide web to showcase a website or e-commerce portal to
the world. Advertising through internet involves email marketing, social media
marketing, online ads and mobile marketing. It provides a sophisticated graphic
user interface to users. It is accessible to anyone with a computer and broadband
connection.

Unit-II

Qs. Media and Legislature- Legislative privileges.

Ans. Press and Electronic media has to report the proceedings of the Parliament
and State Legislatures. In the process they may confront the privileges of the
parliamentarians. Any defiance of legislative order or any scandalization of
legislative conduct can be viewed as contempt of House for which House has
authority to punish. The Constitution provides several privileges to the
parliamentarians. Article 105(1) provides freedom of speech in parliament with an
assurance that there would be no legal action for defamation even if what was said
was not relevant to the business of the House. There will be no liability for
anything said or any vote given by him in Parliament or any Committee thereof.
Article 105(2). There will be no liability in respect of publication of any report,
paper, votes or proceedings by/or under the authority of either House. The
publication without authority is not protected and may incur the contempt liability.
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Privileges of an MP and MLA

According to the Constitution, the powers, privileges and immunities of Parliament

and MP’s ar to be outlined by Parliament. No law has to this point been enacted in
this respect. In the absence of any such law, it continues to be ruled by British
Parliamentary conventions.

The privileges individually enjoyed by the members are:

Freedom of speech in parliament:

The members of the parliament are provided with the liberty of speech and
expression. As the actual essence of our democracy is certainly a free and fearless
discussion, something said by them expressing their views and thoughts are
exempted from any liability and cannot be tried in the court of law.

The freedom of speech and expression certified to a national citizen under Article
19(2) is completely different from the liberty of speech and expression provided to
a member of the parliament. It has been ensured under Article 105(1) of the Indian
constitution. But the liberty is subject to rules and orders that regulates the
proceedings of the parliament. This right is given even to non-members who have
a right to speak in the house. Example, attorney general of India. So that, there’s a
fearless participation of the members within the dialogue and each member will
proposes his thought.

Freedom from Arrest:

According to the Article 361 of the Constitution of India, the members enjoy
freedom from arrest in any civil case 40 days before and after the adjournment of
the house and also when the house is in session. No member is perhaps arrested
from the proceedings of the parliament without prior permission of the house to
that he/she belongs in order that there’s no hindrance in performing their duties.

If the detention of any members of the parliament is made, the chairman or the
speaker should be informed by the concerned authority, the reason for the arrest.

But a member may be arrested outside the limits of the house on criminal charges
against him under The Preventive Detention act, The Essential Services
Maintenance Act (ESMA), The

National Security Act (NSA) or any such act.

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Freedom from appearing as a witness

The members of the parliament relish special privileges and are exempted from
attending court as a witness. They are given complete liberty to attend the house
and perform their duties with no interference from the court.

Privileges Provided to the Members Collectively as Part of Parliament:

 Right to prohibit the publication of proceedings:

As stated in Article 105(2) of the Constitution, no one shall be held responsible for
publications of any reports, discussions etc. of the house under the authority of the
member of the house. For predominant and national importance, it is essential that
the proceedings should be communicated to the public to aware them about what is
going on in the parliament.

But, any partial report of separate a part of proceedings or any publication created
with malice intention is disentitled for the protection. Protection is merely granted
if it reflects the actual proceedings of the house. If any expunged proceedings are
printed or any false statement or misreporting is found, it is held to be the breach of
the privilege and contempt of the house.

 Right to Exclude Strangers:

The members of the house have the authority and right to exclude strangers who
are not members of the house from the proceedings. This right is essential for
securing free and fair discussion within the house. If any breach is reported then
the punishment in the form of admonition, reprimand, or imprisonment can be
given.

 The Right to Regulate the Internal Affairs of the House:

Each house has a right to regulate its proceedings in the way it deems fit and
proper. Each house has its own jurisdiction over the house and no authority from
the other house will interfere in regulation of its internal proceedings. Under
Article 118 of the Constitution, the house has been empowered to conduct its
regulation for proceedings and cannot be challenged in the court of law on the
ground that the house is not in accordance with the rules made under Article 118.
The Supreme Court has further held that this is often general provision and also the
rule isn’t binding upon the house. They can deviate or amend the rule anytime
correspondingly.
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Punishments for breach of privileges or contempt of the house

1. Imprisonment – If the breach committed is of a grave nature the, penalty will

be given within the variety of the imprisonment of any member or person.
2. Imposing fine – If within the view of the parliament, the breach or contempt
committed is of economic offence and any monetary gain has been made of
the breach then, the parliament can impose fine on the person.
3. Prosecuting the offenders – The parliament also can prosecute the one
committing the breach.
4. Punishment given to its own members – If any contempt is committed by the
members of the parliament then, he is to be penalized by the house itself that
might also result in the suspension of the member from the house.

Powers of media article 361A

Article 361A provides qualified privilege to media for publishing the brief,
accurate and fair reporting of the proceedings, but it will not immune the media
from the liability under contempt of House in case of breach of privilege by the
media. Article 361A is not an exception to the immunity guaranteed to the
legislators under Article 105(3) and 194(3).

The law of privileges affects the press and media. They may be either liable for
breach of privilege or contempt of house. The media persons may confront the
following problems.

1. Violation of any of the rules of procedures framed by the House.

2. Breach of any privileges of legislators

3. Publication of comments or other statements which undermine dignity of the

House or shake the confidence of the public in legislature, which can be punished
as contempt of house.

According to the first possibility mentioned above,

I. the House has total control over the presence or otherwise of persons within
the House.
II. It can regulate the entry of media persons into it. It can prohibit a part of
proceedings from being reported.
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III. Press Gallery Committee decides the entry permissions to accredited

journalists.
IV. It can be withdrawn or cancelled either by Chairman of Rajya Sabha or by
Speaker of Lok Sabha.
V. If withdrawal is ordered under rule 387, disobedience may result in forcible
withdrawal or arrest and it may also constitute contempt.

In case of MSM Sharma v S,K.Sinha AIR 1959 SC 395, the editor of Search
Light newspaper published an expunged remark from the proceedings of Bihar
Assembly, for which breach of privilege was issued. The Editor approached the
Supreme Court under Article 32 contending that the notice of action under breach
of privilege violates his fundamental right under Article 19(1)(a) and also interfere
with the his personal liberty under Article 21 if arrested in pursuance of the
privilege motion. The Supreme Court with majority opinion ruled that the
Assembly had the right to claim the said privilege under Article 194(3) of the
Constitution as was enjoyed by House of Commons.

Sanjeeva Reddy Case:

The speaker of Lok Sabha Mr N. Sanjeeva Reddy has criticised the observations of
Tej Kiran, who was the follower and admirer of Jagadguru Shankaracharya Swamy
of goverdan Peeth Puri. It was reported that Shankaracharya supported
untouchability and walked out while National Anthem was played. On this, Mr
Sanjeeva Reddy, Y B Chawan and others made some strong remarks, which were
complained to be defamatory by Tej Kiran. The High Court rejected the plaint of
Tej Kiran claiming Rs 26,000 as damages from Sanjeeva Reddy and others for
making defamatory remarks. The Supreme Court ruled that parliament has
complete immunity to make fearless remarks on any matter and the courts had no
say in the matter.

Qs. Media and Courts – Contempt of Court Act

Ans. The Media freedom is curtailed when it tends to insult the state under
Sedition which is a crime under I.P.C., if it results in loss of reputation of an
individual i.e., defamation, and when it creates contempt of judiciary i.e., the
contempt of court. Thus the Constitution imposes a valid ground for imposing
reasonable restrictions on the fundamental rights of citizen under 19(2) which
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includes Contempt of Court among other things. Among the varied classes of
contemners the editors, publishers and printers of newspapers frequently fall foul
of the law. The press has no privilege, whatsoever, to criticize any person in any
manner without making itself accountable to the law.

Meaning:

Its simple literal meaning is disgrace, scorn or disobedience. Whereas in law it

means an offence against the dignity of a court or legislative body. The purpose of
the contempt proceedings is to safeguard the dignity of the court and the
administration of justice. It is quasi criminal in nature. It can also be said to be
partly civil, where the object is to force the condemner to do something for benefit
of the other party, and partly criminal by way of punishment for a wrong to the
public at large as the contemnor interfered with the majesty of the court,

Kinds of Contempt:
There are many kinds of contempt’s. The chief forms of contempt are insults to
judges, attacks upon them, comment on pending proceedings with a tendency to
prejudice fair trial, obstruction to officers of courts, witnesses or the parties,
abusing the process of the Court, breach of duty by officers connected with the
Court and scandalizing the judges or the Courts. The lost from occur, generally
speaking, when the conduct of a person tends to bring the authority and
administration of the law into disrespect or disrepute. In this conduct are included
all acts which brings the court into disrepute or disrespect or which offend its
dignity, affront its majesty or challenge its authority. Such contempt may be
committed in respect of a single judge or a single court but may, in certain
circumstances, be committed in respect of the whole of the judiciary or judicial
system.

Definition :

Section 2(a) of Contempt of Court Act 1971 deals with civil contempt and
criminal contempt. Section 2(b) –‘Civil Contempt’ means willful disobedience to
any judgment, decree, order or other process of a Court of willful breach of an
undertaking given to a Court.
 18

Civil contempt consists of disobeying the orders and criminal contempt is

obstructing the administration of justice. There is some degree of overlap between
these two kinds of contempt.

Section 2(c) – ‘Criminal Contempt ‘ means the publication (whether by words,

spoken or written by signs or by visible representations or otherwise of any matter
or the doing or any other act whatsoever which may: Scandalizes or tends to
scandalize or tends to lower authority of any court; or Prejudices, or interferes or
tends to interfere with, the due course of any judicial proceedings; or Interferes or
tends to interfere with, or obstructs or tends to obstruct the administration of justice
in any other manner.”

Criminal contempt is again of three kinds-

1. Contempt in the face of court, i.e., directly interfering with court proceedings;

2. Contempt in relation to specific, imminent or pending proceedings by doing

something which interferes with the due administration of justice;

3. Contempt by scandalizing the judges.

The press and contempt of court:

As the press generally involves in reporting, writing, criticizing, analyzing the

activity of every system including the judiciary, it is necessary to deal with the
contempt regarding the press publications. The freedom of the journalist is an
ordinary party of the freedom of the subject and to whatever lengths the subject in
general may go, so also may the journalist, but apart from the statute law, his
privilege is not other and no higher. The responsibilities which attach to his power
in dissemination of the printed matter make him more careful But the range of his
assertions, his criticism or his comments, is as wide as, and no wider than that of
any other subject. No privilege attaches to his position.

Scandalizing the court, commenting on the proceedings of a pending criminal case

reflecting on the judge, the parties, their witnesses, or writings affecting the
proceedings of a pending case which has a tendency to prejudice the public,
criticism of the conduct of a judge are some of the publications which amount to
 19

contempt. In cases of speeches, sermons or photographs also these principles are

applicable. Here are some of the examples:

1. Imputing dishonesty to a judge by stating that he controlled the hearing and

manipulating in getting erroneous Judgement from another judge of the same
Bench – C.K.Daphtary Vs. P.Gupta AIR 1971 SC 1132: ( 1971 ) 1 SCC 626.

2. Publishing scandalous matter respecting the court after adjudication calculated

to lower the authority of the court and sense of confidence of the people in the
administration of justice – B.K.Lala v R.C.Dutt AIR 1967 Cal 153: 1967 Cr LJ
350.

3. Allegation that ‘justice is sold’ or ‘justice is auctioned’ Umed v. Bahadur

Singh 1981 Cr LJ NOC 85 (Raj).

4. To say that a judge is a prejudiced judge – B.K.Lala v R.C.Dutt AIR 1967 Cal
153: 1967 Cr LJ 350.

5. Reply to a show-cause notice stating that the respondent’s experience of court

affairs in India is worse and that instead of finding his fault, the court should try to
find whether it adopted an ‘abnormal’ course of justice – State v Ram Dass AIR
1969 Cr LJ 1380.

6. Notice Imputing malice, partially and dishonesty to the judge – Rachapudi v

Advocate General AIR 1981 S 755: (1981)2 SSC 577: 1981 Cr Lj 315.

7. An attack on a judge ascribing to him favouritism in his judicial or official

capacity – Mohd.Vamin v Om Prakash 1982 Cr LJ 322 (Raj).

8. Newspaper article proceeding inter alla to attribute improper motives to the

judges, having a clear tendency to affect the prestige and dignity of the court –
Aswini Kumar Ghosh v Arabinda Bose AIR 1953 SC 75: 1953 Cr LJ 519.

9. Allegation that a particular judge gives judgements or orders always in favour of

the clients of a particular advocate – State v Naranbhal 1982 Cr LJ 1982 (Guj).

10. Aspersions against magistrate in transfer application about conspiracy to

implicate the accused in a false case of theft and acceptance of bribe by him –
State v Ravishankar AIR 1959 SC 102: 1959 lj 251.
 20

11. Unwarranted and defamatory allegations touching the character and ability of
the judge in an application for transfer of a civil proceeding – State v
Chandrakant 1985 Cr LJ 1716 (MP) (DB): (1985)2 Crimes 208.

12. Allegations against judge in transfer application which are scandalous,

scurrilous and made with determined effort to lower the authority of the court –
Court v Ajit 1986 Cr LJ 590 (Punj).

13. Scandalous allegations against Supreme Court judges in affidavit without any
basis – Amrik Singh V State (1971) 3 SCC 215.

14. Charging the judiciary as ‘an instrument of oppression’ and the judges as
‘guided by class hatred, class interests and class prejudices, instinctively favouring
the rich and against the poor’, since it was clearly an attack upon judges calculated
to raise a sense of disrespect and distruct of all judicial decisions, weakening
thereby the authority of law and law courts – E.M.S. Namboodripad V
T.Narayanan Nambiar AIR 1970 SC 2015

Qs. Media and Executive; Official Secrets Act & Right to Information Act
2005

Ans The Executive in Indian Democracy is shielded by a special power to keep the
information secret under the Official Secrets Act. Though the Constitution speaks
about freedom of speech and expression, it provides a form of the oath of secrecy
imposing an obligation on the constitutional office holders not to reveal
information which they come to know during the course of official functioning.
The public servants and officers are under a constitutional and contractual
obligation to keep administrative affairs as secret, even without taking the aid of
Official Secrets Act.
The Official Secrets Act
The Official Secrets Act of 1923, a colonial relic readily adopted by the new
political and bureaucratic class of independent India, clearly comes out as the main
culprit in setting the tone for the culture of secrecy in the country. Experience has
verified the fears of one of India’s foremost statesmen and Jurists when he said in
the Central Legislative Assembly: “Your provisions are so wide that you will have
no difficulty whatever in running in anybody who peeps into an office for some, it
may be entirely innocent enquiry as to when there is going to be the next meeting
 21

of the Assembly or whether a certain report on the census of India has come out
and what is the population of India recorded in that period.” The Official Secrets
Act, 1923 is a replica of the original British Official Secrets Act. While the latter
has been watered down to a great extent, the latter has been retained almost in its
original form, with minor amendments in 1967. The catch all Section 5 of the OSA
is seen to be responsible for most of the state responses in clamping down on all
sorts of information, even to the extent of curtailing people’s fundamental rights. A
case in point often quoted is the use of the Act in the Narmada Valley to prevent
activists and journalists from going there. The cumulative effect of the wide
Sections 3 and 5 of the OSA is to choke the flow of information, howsoever
innocuous.

The relevant sections of the Official Secrets Act,1923 read as under:

Penalties for spying

Section 3 (1) If any person for any purpose prejudicial to the safety or interest of
the state-
(a) approaches, inspects, passes over or is in the vicinity of, or enters any
prohibited place; or
(b) makes any sketch, plan, model, or note which is calculated to be or or might be
or is intended to
be, directly or indirectly, useful to an enemy; or
(c) obtains, collects, records or publishes or communicates to any other person any
secret official code or password, or any sketch, plan, model, article or note or other
document or information which is calculated to be or might be or is intended to be,
directly or indirectly, useful to an enemy or which relates to a matter the disclosure
of which is likely to affect the sovereignty and integrity of India, the security of the
state or friendly relations with foreign states;

He shall be punishable with imprisonment for a term which may extend, where the
offence is committed in relation to any work of defense, arsenal, naval, military or
air force establishment or station, mine, minefield, factory, dockyard, camp, ship or
aircraft or otherwise in relation to the navel, military or air force affairs of
Government or in relation to any secret official code, to fourteen years and in other
cases to three years.

Wrongful communication, etc., of information

5 (1) If any person having in his possession or control any secret official code or
password or any sketch, plan, model, article, note, document or information which
 22

relates to or is used in a prohibited place or related to anything in such a place, or

which is likely to assist, directly or indirectly, an enemy or which relates to a
matter the disclosure of which is likely to affect the sovereignty and integrity of
India, the security of the state or friendly relations with foreign states or which has
been entrusted in confidence to him by any person holding office under
government, or which he has obtained or to which he has had access owing to his
position as a person who holds or has held office under Government, or as a person
who holds or who has held a contract made on behalf of Government, or as a
person who is or has been employed under a person who holds or has held such an
office or contract,
a) willfully communicates the code or password or any sketch, plan, model, article,
note, document or information to any person other than the to whom he is
authorized to communicate it, or a court of justice or a person to whom it is, in the
interest of the State, his duty to communicate it; or
b) uses the information in his possession for the benefit of any foreign power or in
any manner prejudicial to the safety of the state; or
c) retains the sketch, plan, model, article, note, document or information in his
possession or control when he has no right to retain it, or when it is contrary to his
duty to retain it, or willfully fails to comply with all directions issued by lawful
authority with regard to the return or disposal thereof; or
d) fails to take reasonable care of, or so conducts himself as to endanger the safety
of the sketch, plan, model, article, note, document, secret official code or pass
word or information;

He shall be guilty of an offence under this section.

(2) If any person voluntarily receives any secret official code or password or any
sketch, plan, model, article, note, document or information knowing or having
reasonable ground to believe, at the time when he receives it, that the code,
password, sketch, plan, model, article, note document, or information is
communicated in contravention of this Act, he shall be guilty of an offence under
this Section.
(3) If any person having in his possession or control, any sketch, plan, model,
article, note, document or information, which relates to munitions of war,
communicates it, directly or indirectly, to any foreign power or in any manner
prejudicial to the safety or interest of the state, he shall be guilty of an offence
under this section.
(4) A person found guilty of an offence under this section shall be punishable with
imprisonment for a term which may extend to three years, or with fine or with
both.
 23

The Right To Information Act, 2005 section 8 exemption of OSA

8. Exemption from disclosure of information.—
there shall be no obligation to give any citizen,—
(a) information, disclosure of which would prejudicially affect the sovereignty and
integrity of India, the security, strategic, scientific or economic interests of the
State, relation with foreign State or lead to incitement of an offence;

(b) information which has been expressly forbidden to be published by any court of
law or tribunal or the disclosure of which may constitute contempt of court;

(c) information, the disclosure of which would cause a breach of privilege of

Parliament or the State Legislature;

(d) information including commercial confidence, trade secrets or intellectual

property, the disclosure of which would harm the competitive position of a third
party, unless the competent authority is satisfied that larger public interest warrants
the disclosure of such information;

(e) information available to a person in his fiduciary relationship, unless the

competent authority is satisfied that the larger public interest warrants the
disclosure of such information;

(f) information received in confidence from foreign government;

(g) information, the disclosure of which would endanger the life or physical safety
of any person or identify the source of information or assistance given in
confidence for law enforcement or security purposes;

(h) information which would impede the process of investigation or apprehension

or prosecution of offenders;

(i) cabinet papers including records of deliberations of the Council of Ministers,

Secretaries and other officers: Provided that the decisions of Council of Ministers,
the reasons thereof, and the material on the basis of which the decisions were taken
shall be made public after the decision has been taken, and the matter is complete,
or over: Provided further that those matters which come under the exemptions
specified in this section shall not be disclosed;
 24

(j) information which relates to personal information the disclosure of which has
not relationship to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual unless the Central Public
Information Officer or the State Public Information Officer or the appellate
authority, as the case may be, is satisfied that the larger public interest justifies the
disclosure of such information: Provided that the information, which cannot be
denied to the Parliament or a State Legislature shall not be denied to any person.

Secrecy of Executive and Problems of Media

Some Judicial Decisions:

It is very difficult for the media to work for disseminating the information amidst
so many laws creating iron veils of secrecy.

Media and Secrecy of Jails:

Hussainara Khatoon I-VII54
These series of Hussainara Khatoon cases related to the illegal and prolonged
custody of poor under trials in the state of Bihar. In dealing with various aspects of
bail, the Supreme Courts stressed the need for free legal aid to the poor and needy
who are not either not aware of the procedures or not in a position to afford
lawyers, and therefore unable to avail of the constitutional guarantees of legal help
and bail. The Court said, that it is the legal obligation of the judge or the magistrate
before whom the accused is produced to inform him that if he is unable to engage a
lawyer on account of poverty or indigence, he is entitled to free legal aid.

Access to places of custody and prisons

Prabha Dutt Vs. Union of India 55
Media's access to the prisons is within the hands of executive. Administrators of
Jails generally resist the media's requests to interview the prisoners on extraneous
excuses. The Court held in this case that excepting there being clear evidence that
the prisoners had refused to be interviewed; there could be no reason for refusing
permission to the media to interview prisoners in death row. The right to acquire
information includes the right to access sources of information.
Informing the accused
Accused must have the right to information about his charges. The framing of
charges against a person cannot be a secret as to that person. Repeated violations of
civil rights by the police and other law enforcement agencies have compelled the
courts to give, time and again, directions to the concerned agencies for ensuring
transparency in their functioning in order to avoid violations like illegal arrests and
detention, torture in custody and the like.
 25

Sheela Barse Vs. State of Maharashtra 56

The Petitioner, a journalist, approached the courts to bring out the condition of
women prisoners in jails in the state of Maharashtra. These cases had come to her
notice in the course of interviewing women inmates in Bombay Central Jail. The
court gave certain directions to the State Government, including that pamphlets on
the legal rights of arrested persons, in English, Hindi and Marathi (the regional
language of Maharashtra) should be printed in large numbers and circulated as well
as affixed in each cell in a police lock up. Further, the Legal Aid Committee is to
be immediately informed of the arrest. There should be surprise visits to the police
lock ups by a City Session Judge. The relative or friend of the arrested person
should immediately be informed upon the arrest. The magistrate before whom an
arrested person is produced should enquire from the arrested person whether he has
any complaint of ill treatment or torture in police custody and inform him of his
right under the Criminal Procedure Code, to have a medical examination.

Unit-III

Qs. Press Council of India Act

Ans. Media is considered as the fourth pillar of democracy, it is the eyes and ears
of this society and ideally perform the function of a moral watchdog of the public
interests. Correspondingly, proving to be the interpreter between the public and
different organs of our government. For the proper functioning of this organ, it has
to be independent and should be able to withstand the outside pressure and
influence i.e., political parties and various other powerful organizations. Here
comes into play the press council of India with the object of preserving the
freedom of the press and of maintaining and improving the standards of press in
India. It is the autonomous, statutory quasi-judicial body which was first
constituted on 4th July, 1966 and started functioning from November 16 of the
same year (resulting in celebration of National Press Day on this date) by the
Parliament on the recommendations of the First Press Commission under the
chairmanship of Justice J.R Mudholkar (then a Judge of Supreme Court).

Composition of the Press Council of India

The 1965 Act provided for 25 members in the council which was changed to 28
members as per the act of 1978. The term of the Chairman and the members of the
Council is 3 years.
 26

Accordingly, it is a 28 member committee with the Chairman. The 28 members are

as per the following diagram:

Functions of the press council of India

The main functions of the Press Council of India as per the objectives of the Press
Council Act, 1965, are as follows:

 Helping newspapers in maintaining their independence;

 Building up a code of conduct for journalists and newspapers according
to the high professional standards;
 Ensuring that the newspapers and journalists maintain high standards of
public taste and foster a due sense of both the rights and responsibilities
of citizenship;
 Encouraging the growth of a sense of responsibility and public service
among all those engaged in the profession of journalism;
 Reviewing any development which is likely to restrict the supply and
dissemination of news of public interest and importance;
 27

 Reviewing such cases where assistance has been received by any

newspaper or news agency in India from foreign sources, as are referred
to it by the Central Government;
 Promoting the establishment of such common service for the supply and
dissemination of news to newspapers as may, from time to time, appear
to it to be desirable;
 Providing facilities for the proper education and training of persons in the
profession of journalism;
 Promoting the proper functional relationship among all classes of persons
engaged in the production or publication of newspapers;
 Studying developments that may lead towards monopoly or concentration
of ownership of newspapers, including a study of the ownership or
financial structure of newspapers, and if necessary, to suggest remedies.
 Promoting technical or other research.
 Doing such other acts as may be incidental or conducive to the discharge
of the above functions.

Hence, the main function of the Press Council of India is to check the media
practice and to keep an eye on freedom of the press.

Powers of the Press Council of India

Powers of the Press Council is given in section 14 and 15 of the Press Council Act,
1965. Powers to censure are given in section 14 and some general powers are
described in section15.

Power to censure : Section 14

This section provides that if a complaint is made to the council, the council would
give the newspaper, news agency, editor or journalist concerned an opportunity of
being heard and hold an inquiry as provided under the regulations of this act. The
 28

council would not entertain a complaint if in the opinion of Chairman there is no

sufficient ground for holding an inquiry. But this section does not empower the
council to hold an inquiry into any matter in respect of which any proceeding is
pending in the court of law. The decision of the council shall be final and shall not
be questioned in any court of law.

General powers of the Council: Section 15

This section provides that for performing its function or for the purpose of inquiry,
the council shall have the same powers throughout India as are vested in a Civil
court while trying a suit under the Code of Civil Procedure, 1908. But, this cannot
compel any newspaper, news agency, editor or journalist to reveal the source of
any news or information published. Furthermore, every inquiry held by the council
shall be deemed to be a judicial proceeding under sections 193 and 228 of the
Indian Penal Code.

Press Council of India Complaint Procedure

 U/S 14 of PCI: Complaint against newspaper, editor or journalist:

 A complaint with the Press Council can be filed by any person, if there is a
breach of the recognized ethical standards of journalism by the publication
or non-publication of a news-statement or article, cartoon, advertisement, etc
which is published in a newspaper.
 The complainant firstly has to write to the editor of the newspaper drawing
his attention towards what the complainant finds objectionable. This gives
the editor the opportunity to deal with the matter and take the necessary
steps as in many cases the facts are usually misinterpreted by the
complainant, or there is an error which the editor is ready to admit and
correct.
 29

 If the Complainant is satisfied the matter ends here, but if he is not satisfied
then he can take further steps which is to refer to the Press Council.
 The complaint should contain the name and address of the editor, journalist
or newspaper against whom the complaint has been drawn along with this he
has to state in what manner the particular news-article, statement, cartoon,
advertisement, etc is objectionable within the meaning of Press Council
Act,1978 and has to provide all the relevant particulars(copies of
correspondence with the editor and a declaration that no proceedings are
pending in any court of law).
 As per the Press Council (Procedure for Inquiry) Regulations, 1979, the
complaint has to be filed within two months in the case of dailies, news
agencies, and weeklies. In all the other cases it has to be filed within four
months.

Qs. Advertising and Standard Council Act of India

Ans. In India, as in several advanced economies, there is only one body for Self-
Regulation in Advertising – the ASCI, which is concerned with safeguarding the
interests of consumers whilst monitoring/guiding the commercial communications
of Practitioners in Advertising on behalf of advertisers, for advertisements carried
by the Media, in their endeavours to influence buying decisions of the Consuming
Public.

The Advertising Standards Council of India (ASCI)

The Advertising Standards Council of India (ASCI) established in 1985 is a

voluntary self-regulatory council, registered as a not-for-profit Company under
section 25 of the Indian Cos. Act with the objective of ensuring that all advertising
 30

should be legal, decent, honest and truthful along with a sense of social
responsibility to the consumer and to the rules of fair competition.

The sponsors of the ASCI, who are its principal members, are firms of
considerable repute within industries in India, which comprise of advertisers,
media, and advertising agencies and other professional or ancillary services
connected with advertising practice. The ASCI is not a Government body, nor does
it formulate rules for the public or for the relevant industries.

It has adopted a Code for Self-Regulation in Advertising. It is a commitment to

honest advertising and to fair competition in the market-place. It stands for the
protection of the legitimate interests of consumers and all concerned with
advertising – advertisers, media, advertising agencies and others who help in the
creation or placement of advertisements.

Objectives of ASCI:
The main objects to be pursued by the Company on its incorporation are: To
monitor administer and promote standards of advertising practices in India with a
view to.

i. Ensuring the truthfulness and honesty of representations and claims made

through advertising and safeguarding against misleading advertising.

ii. Ensuring that Advertising is not offensive to generally accepted norms and
standards of public decency.
 31

iii. Safeguarding against the indiscriminate use of advertising for the promotion of
products or services, which are generally regarded as hazardous to society or to
individuals or which are unacceptable to society as a whole.

iv. Ensuring that advertisements observe fairness in competition and the canons of
generally accepted competitive behaviour.

v. To codify adopt and from time to time modify the code of advertising practices
in India and implement, administer and promote and publicize such a code.

vi. To provide facilities and machinery in the form of one or more Consumer
Complaints Councils having such composition and with such powers as may be
prescribed from time to time to examine complaints against advertisements in
terms of the Code of Advertising practices and report thereon.

vii. To give wide publicity to the Code and seek adherence to it of as many as
possible of those engaged in advertising.

viii. To print and publish pamphlets, leaflets, circulars or other literature or

material that may be considered desirable for the promotion of or carrying out of
the objects of the Company and disseminate it through any medium of
communication.

Consumer Complaints Council:

The Board of Governors shall appoint Consumer Complaints Council, the number
of members of which shall not be more than twenty one. Out of these 21 members,
12 are from civil society and nine from advertising practitioners. The CCC decides
 32

upon the complaints within a period of 4 to 6 weeks. The Consumer Complaints

Council shall examine and investigate the complaints received from the consumers
and the general public, including the members of the Company, regarding any
breach of the Code of Conduct and/or advertising ethics and recommend the action
to be taken in that regards.

Power of the Consumer Complaints Council:

i. Each Council shall be entitled to receive complaints from the Board of

Governors, the Consumers, the general public and members of the Company.

ii. Each Council shall enquire, investigate and decide upon the complaints received
by it within the framework of the Code of Conduct adopted by the Company.

iii. All the decisions of each Council shall be by simple majority, in writing and
may specify the action to be taken in respect of the offending advertisement.

ASCI propagates its Code and a sense of responsibility for its observance amongst
advertisers, advertising agencies and others connected with the creation of
advertisements, and the media. ASCI encourages the public to COMPLAIN
against advertisements with which they may be unhappy for any reason and
ensures that each complaint receives a prompt and objective consideration by an
impartial committee Consumer Complaints Council (CCC) which takes into
account the view point of the advertiser, and an appropriate decision is
communicated to all concerned. ASCI endeavours to achieve compliance with its
decisions through reasoned persuasion and the power of public opinion.
 33

ASCI’s Mission:

ASCI has one overarching goal- to maintain and enhance the public’s confidence
in advertising. ASCI seeks to ensure that advertisements conform to its Code for
Self-Regulation which requires advertisements to be:

i. Truthful and fair to consumers and competitors.

ii. Within the bounds of generally accepted standards of public decency and
propriety.

iii. Not used indiscriminately for the promotion of products, hazardous or harmful
to society or to individuals particularly minors, to a degree unacceptable to society
at large.

Qs. Cinematograph Act

Ans. An Act to make provision for the certification of cinematograph films for
exhibition and for regulating exhibitions by means of cinematographs. This Act
shall come into force on such date as the Central Government may, by notification
in the Official Gazette. . (28th July, 1952)

Definitions

(a) “adult” means a person who has completed his eighteenth year;

(b) “Board” means the Board of Film Certification constituted by the Central
Government under section 3

(bb) “certificate” means the certificate granted by the Board under section 5A
 34

(c) “cinematograph” includes any apparatus for the representation of moving

pictures or series of pictures;

CERTIFICATION OF FILMS FOR PUBLIC EXHIBITION 3

Board of film Certification.—

(For the purpose of sanctioning films for public exhibition, the Central
Government may, by notification in the Official Gazette, constitute a Board to be
called the [Board of Film Certification] which shall consist of a Chairman and 5
[not less than twelve and not more than twenty-five] other members appointed by
the Central Government.

The Chairman of the Board shall receive such salary and allowances as may be
determined by the Central Government, and the other members shall receive such
allowances or fees for attending the meetings of the Board as may be prescribed.
The other terms and conditions of service of the members of the Board shall be
such as may be prescribed.

4. Examination of films

Any person desiring to exhibit any film shall in the prescribed manner make an
application to the Board for a certificate in respect thereof, and the Board may,
after examining or having the film examined in the prescribed manner,—

(i) sanction the film for unrestricted public exhibition: [Provided that, having
regard to any material in the film, if the Board is of the opinion that it is necessary
to caution that the question as to whether any child below the age of twelve years
may be allowed to see such a film should be considered by the parents or guardian
 35

of such child, the Board may sanction the film for unrestricted public exhibition
with an endorsement to that effect; or

(ii) sanction the film for public exhibition restricted to adults; or

(iia) sanction the film for public exhibition restricted to members of any profession
or any class of persons, having regard to the nature, content and theme of the film;
or

[(iii) direct the applicant to carry out such excisions or modifications in the film as
it thinks necessary before sanctioning the film for public exhibition under any of
the foregoing clauses; or

(iv) refuse to sanction the film for public exhibition.

5. Advisory panels.—

For the purpose of enabling the Board to efficiently discharge its functions under
this Act, the Central Government may establish at such regional centers as it thinks
fit, advisory panels each of which shall consist of such number of persons, being
persons qualified in the opinion of the Central Government to judge the effect of
films on the public, as the Central Government may think fit to appoint thereto. At
each regional center there shall be as many regional officers as the Central
Government may think fit to appoint, and rules made in this behalf may provide for
the association of regional officers in the examination of films. The Board may
consult in such manner as may be prescribed, any advisory panel in respect of any
film for which an application for a certificate has been made. It shall be the duty of
every such advisory panel whether acting as a body or in committees as may be
provided in the rules made in this behalf to examine the film and to make such
recommendations to the Board as it thinks fit. The members of the advisory panel
 36

shall not be entitled to any salary but shall receive such fees or allowances as may
be prescribed.

5A. Certification of films

If, after examining a film or having it examined in the prescribed manner, the
Board considers that—

(a) the film is suitable for unrestricted public exhibition, , it shall grant to the
person applying for a certificate in respect of the film a “U” certificate or, as the
case may be, a “UA” certificate; or

(b) the film is not suitable for unrestricted public exhibition, but is suitable for
public exhibition restricted to adults or, as the case may be, is suitable for public
exhibition restricted to members of any profession or any class of persons, it shall
grant to the person applying for a certificate in respect of the film an “A”
certificate or, as the case may be, a “S” certificate,

A certificate granted or an order refusing to grant a certificate in respect of any

film shall be published in the Gazette of India. Subject to the other provisions
contained in this Act, a certificate granted by the Board under this section shall be
valid throughout India for a period of ten years.

5C. Appeals

(1) Any person applying for a certificate in respect of a film who is aggrieved by
any order of the Board— (a) refusing to grant a certificate; or

(b) granting only an “A” certificate; or

 37

(c) granting only a “S” certificate; or

(d) granting only a “UA” certificate; or

(e) directing the applicant to carry out any excisions or modifications,

may, within thirty days from the date of such order, prefer an appeal to the
Tribunal: Provided that the Tribunal may, if it is satisfied that the appellant was
prevented by sufficient cause from filing the appeal within the aforesaid period of
thirty days, allow such appeal to be admitted within a further period of thirty days.
Every appeal under this section shall be made by a petition in writing and shall be
accompanied by a brief statement of the reasons for the order appealed against
where such statement has been furnished to the appellant and by such fees, not
exceeding rupees one thousand, as may be prescribed.

5D. Constitution of Appellate Tribunal

(1) For the purpose of hearing appeals against any order of the Board under section
5C, the Central Government shall, by notification in the Official Gazette, constitute
an Appellate Tribunal.

(2) The head office of the Tribunal shall be at New Delhi or at such other place as
the Central Government may, by notification in the Official Gazette, specify.

(3) Such Tribunal shall consist of a Chairman and not more than four other
members appointed by the Central Government.

(4) A person shall not be qualified for appointment as the Chairman of the Tribunal
unless he is a retired Judge of a High Court, or is a person who is qualified to be a
Judge of a High Court.
 38

(5) The Central Government may appoint such persons who, in its opinion, are
qualified to judge the effect of films on the public, to be members of the Tribunal.

(6) The Chairman of the Tribunal shall receive such salary and allowances as may
be determined by the Central Government and the members shall receive such
allowances or fees as may be prescribed.

(7) Subject to such rules as may be made in this behalf, the Central Government
may appoint a Secretary and such other employees as it may think necessary for
the efficient performance of the functions of the Tribunal under this Act.

(8) The Secretary to, and other employees of, the Tribunal shall exercise such
powers and perform such duties as may be prescribed after consultation with the
Chairman of the Tribunal.

5E. Suspension and revocation of certificate.—

the Central Government may, by notification in the Official Gazette, suspend a

certificate granted under this Part, for such period as it thinks fit or may revoke
such certificate if it is satisfied that—

(i) the film in respect of which the certificate was granted, was being exhibited in
a form other than the one in which it was certified; or

(ii) the film or any part thereof is being exhibited in contravention of the provisions
of this Part or the rules made thereunder.

No action under this section shall be taken except after giving an opportunity to
the person concerned for representing his views in the matter. During the period in
 39

which a certificate remains suspended under this section, the film shall be deemed
to be an uncertified film.

7. Penalties for contraventions of this Part.—

If any person— (a) exhibits or permits to be exhibited in any place—

(i) any film other than a film which has been certified by the board as suitable for
unrestricted public exhibition or for public exhibition restricted to adults or to
members of any profession or any class of persons]and which, when exhibited,
displays the prescribed mark of the Board and has not been altered or tampered
with in any way since such mark was affixed thereto.

(ii) any film, which has been certified by the Board as suitable for public exhibition
restricted to adults, to any person who is not an adult, (c) fails to comply with the
provision contained in section 6A or with any order made by the Central
Government or by the Board in the exercise of any of the powers or functions
conferred on it by this Act.

he shall be punishable with imprisonment for a term which may extend to three
years, or with fine which may extend to one lakh rupees, or with both, and in the
case of a continuing offence with a further fine which may extend to twenty
thousand rupees for each day during which the offence continues:

Qs Regulation of Electronic Media

Ans.

Unit-IV
 40

Qs. Defamation and media

Ans. every person has the right to protect his/ her fame like body and property.

Actually, the right of protection of fame is more important than the right of
protection of body and property.

A person can tolerate the injury of property and body but not the injury of
reputation. This is the reason that injury to the reputation i.e. defamation has been
treated actionable under the law of tort alongwith criminal act.

Definition

Different definition of defamation have been given by different jurists.

According to Underhill, defamation is false statement to blame one’s reputation.

Defamation can be done by words, signs, or scenes. The aim of defamation is to
down plaintiff’s reputation.

According to Salmond, defamatory tort is publishing false statements and the

statements of defamation.

According to Winfeld, defamation is the statements relating to someone which are

published to down one’s reputation. So that right thinking member of society may
despise him.

The word ‘defamation’ is also defined under section 499 of Indian Penal Code
1860 as below-

S/499 of Indian Penal Code provides:

Whoever by words either spoken or intended to be read or by signs or by visible

representation makes or publishes any imputation concerning any person intending
to harm or knowing or having reasons to believe that such imputation will harm,
the reputation of such person, is said except in the case here in after expected to
defame that person.
 41

Explanation 1: it may amount to defamation to impute anything to a deceased

person, if the imputation would harm the reputation of that person if living, and is
intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2; it may amount to defamation to make an imputation concerning a

company or an association or collection of persons as such.

Explanation 3: an imputation in the form of an alternative or expressed ironically,

may amount to defamation.

Explanation 4; no imputation is said to ham a person’s reputation, unless that

imputation directly or indirectly, in the estimation of others, lowers the moral or
intellectual character of that person, or lowers the character of that person in
respect of his caste or of his calling, or lowers the credit of that person, or causes it
to be believed that the body of that person is in a loath some state, or in a state
generally considered aas disgraceful.

Illustration

a) A is asked who stole B’s watch. A points to Z, intending to cause it to be

believed that Z stole B’s watch. This is defamation, unless it falls within one
of the exception.
b) A draws a picture of Z running away with B’s watch, intending to be
believed that Z stole B’s watch, this is defamation, unless it fall within one
of the exception.

Kinds of Defamation:

There are two kinds of defamation-

a) Libel, and
b) Slander

a) Libel- a libel is a publication of false and defamatory statement in some

permanent from tending to injure the reputation of another person without lawful
justification or excuse. In an action for libel the statement complained of must be
false, permanent in nature and published. Winfeld has also considered the libel as
defamation statement in permanent form.
 42

In the case of ‘S.N.M. abdi vs Prafulla Kumar Mohanta’ (A.I.R. 2002 Orissa
75), an article published in a newspaper allegedly defamed plaintiff has been
considered as libel by the Orissa High Court and it was said that the plaintiff is
entitled to get compensation from the defendant.

In the case of libel three items are required to be proved:

i. That the statement published by the defendant was false;

ii. That such statement was permanent , and
iii. That it was defamatory.

b) Slander- a slander is false and defamatory, verbal or oral statement in transitory

forms intending to injure the reputation of another without lawful jurisdiction or
excuse. Slander is not per se actionable. Slander is actionable one on proof of
special damage.

Difference- following differences are there in libel and slander:

1) Libel is either written or published which is addressed to eye or that can be

read and seen, whereas similar slander is spoken or oral which is addressed
to ear and that can be listen.
2) In libel the defamatory matter is in permanent form while slander is
defamation in transit form. (Noor Mohammed vs ziauddin, 1991, MPL
503)
3) Libel is both a civil wrong and criminal offence while slander is a civil
wrong only, although the slander is categorized in both- civil and criminal in
India.
4) Libel shows greater deliberation and raises a suggestion of malice because it
is written whereas a slander may be uttered in that heat of the moment and
under sudden provocation.
5) Libel is always actionable per e i.e. without the proof of any damage
whereas, save in exceptional cases, slander is actionable only on proof of
special damage whereas such special damage is not required to be proved in
India.

In the case of ‘Parwati vs Mannar’ [ILR(1884)8 Madras 175] it has been held
that under the proceedings of slander in India proving of special damage is not
 43

required. This view has been also ratified in the case of ‘Ramdhara vs Phoolwati’
(1969 MPL 483).

Essential Elements of Defamations- now we will discuss the essential elements

of defamation. For the success of sue of defamation, following is required to be
proved.

1) Statement must be defamatory- the first element of defamation s that the

words or statement must be defamatory. Such words or statement may be treated
defamatory by which, in its natural and ordinary sense it tends to excite adverse
opinion or feeling of other persons against the person and people hatred him, by
which a person is injured in his profession, business or trade. Generally, the
following words or statements are considered defamatory-

i. Which tends to holding up to public hatred or excite adverse opinion;

ii. Which tends to libelous to plaintiff and degradation of his reputation;
iii. Which tends to prejudice a person’s private character or credit;
iv. Which tends to injure a person in his profession, business or trade, or
v. Which tends to cause a person to be feared, shunned, disliked or avoided by
the neighbours or others.

One more similar case is of ‘Marrison vs Richi and Co.’[(1902)4 F 645]. In this
case, the defendant ignorantally published this news that two twins have borne
from the plaintiff whereas the plaintiff was married only two months earlier. The
plaintiff filed a suit for defamation against the defendant in which the court while
entertaining it said that without enquiring the truth f facts, the published news
comes under purview of defamation. At all it may be held that ignorance or
unknowness cannot be a base for defence of defamation and there is no importance
of intention in it.

2) The Statement must refer to the plaintiff- the defamatory statements are to be
directed towards the plaintiff or to be made for the plaintiff, is second essential
element. In such cases, the plaintiff has to prove that the statement refer to him.
Such an action can done by referring whole name, brief name, false name,
imaginary name, etc. it is only essential that it may be inferred from such words or
statements that they are referred to plaintiff.
 44

3) the statement must be published- the third essential element of defamation is

publication of such words or statements. Publication means making known the
matter to some person other than the plaintiff. If a person writes a defamatory
matter of plaintiff and puts it into his own pockets or locks it in his drawer, he is
not responsible in action, because there has been no publication.

It may be clarified by us by an example; ‘A’ writes a defamatory note for ‘B’. ‘B’
torns out it after seeing or keeps it in his box. It will not be treated as publication
because that letter was only in the notice of plaintiff. But, if ‘A’ sends a telegram
in place of letter then it will be treated as publication because it has come in to
knowledge of many persons like. Telegram clerk, postman etc.

In the case of Queens vs Adams [(1888)L.R. 22 Q.B.D. 66] the defendant

exhibited indecent expression in a letter and packed in an envelope and send it to
the women. Such exhibition was not considered publication because any other
person was not supposed to know about this.

In Nemchand vs khemrajn (Air 1973 raj. 200) it was held by Rajasthan High
court that the publication be considered defamation only when it decreases the
reputation of someone before other persons.

4) False Statements- initially the onus of proof is on the plaintiff to prove that the
defendant intended to defame him. If such statement is true then it does not cover
under the definition of defamation. Actually the publication of true statements is a
good defence.

5) Publication of Statement by the defendant- finally these statements must be

published by the defendant. If these statement are published by other person by the
name of defendant, it is not defamation.

In the case of ‘Ritnand Balved Education Foundation vs Alok Kumar’ Delhi,

the defendant made false and malice statements against the members of board and
secretly made informations about this to some persons. Where all the defamatory
statements were found to be directed towards the executive board of the plaintiff
society and not against plaintiff society, no damage could be found to have
occurred due to injury to reputation of plaintiff society, the suit was dismissed.
 45

In the case of Vimal Kumar vs Desh Divakar, Madhya Pradesh, the plaintiff was
a minister. It was alleged that the defendant published a circular stating that the
plaintiff was arrested for causes nuisance to the management of a school and he
also took a share from salary of teachers, allegations were found to be correct, act
of defendant was not held to be libelous.

Media Law And Defamation

It is very important that any of the published news is within the purview of the
ethics of the media person or the journalists. One should see that the information
communicated leads to truthfulness and leads the mass in a proper direction and
doesn't create a negative impact. In a society the law endows every person with a
right to maintain and preserve his reputation. The right of reputation is
acknowledged as an inherent personal right of every person. A man's reputation is
his property and perhaps more valuable than any property.

Constitutional Aspect

The constitutional aspect of the media law involves to certain fundamental

freedoms. There is no direct freedom given in concerned with media law but
indirect freedom falls under the Article 19. This article gives the freedom of speech
and if seen in relation to media, Article 19(1) enumerates the freedom of speech
and expression. This fundamental right plays a very vital role in relation to the
freedom of media. The right given to the media person also brings some of the
restrictions to it. One can't use the right to its extreme, the other laws has to be kept
with it at the time of implementation.

Case Laws

In Sakal Papers ltd. V. Union of India in this case, the Daily Newspapers Order,
1960, which fixed a minimum price and number of pages, which a newspaper is
entitled to publish, was challenged as unconstitutional. The state justified the law
as a reasonable restriction on a business activity of a citizen. The Supreme Court
struck down the order rejecting the state's argument. The court opined that, the
right of freedom of speech and expression couldn't be taken away with the object
of placing restrictions on the business activity of the citizens. Freedom of speech
can be restricted only on the grounds mentioned in clause (2) of Article 19.
 46

K. A. Abbas V. Union of India, the petitioner for the first time challenged the
validity of censorship as violative of his fundamental right of speech and
expression. The supreme court however observed that, pre- censorship of films
under the Cinematography Act was justified under Article 19(2) on the grounds
that films has to be treated separately from other forms of art and expression
because a motion picture was able to stir up emotions more deeply and thus,
classification of films between two categories A'(for adults only) and U'(for all)
was brought about.

Defecne of Defamation

1. Publication of true Statement

Truth is greatest defence of defamation. Means if it is proved by the defendant then

he will not responsible for defamation. In India law, the statement must be in the
welfare of public as well as true.

In Alexander v/s N.E Railway (1865) the defendant published a notice stating that
the plaintiff had been convicted or travelling in a train without ticket and sentenced
to a fine of Rs 1 with an alternative of three weeks imprisonment. The defendant
was held not liable, as the statement has been substantially true.

2. Impartial and Just Criticism

The second defence in the case of defamation is impartial and just a criticism. If
defendant proves that whatever he published was impartial and just, then he will
not be held responsible for defamation. But it is necessary that the criticism must
be-

a. In the public welfare

b. In good faith
c. Just and balanced
d. Merely an opinion

3. Privilege
 47

Privilege is third good defence of defamation. Privilege means an excuse or

immunity conferred by law on statement or communication made on certain
occasions called privilege occasions.

Privilege is of two kind;

a. Absolute privilege
b. Qualified privilege

Absolute privilege statement are such statement on which no action lies for them
even thought they are false, defamatory and made with express malice. In public
interest, it is not desirable and necessary to inquire such privilege.

In such privilege statements, following cases are covered:

a. Parliamentary proceeding
b. Judicial proceedings
c. Proceedings of Military and Naval
d. Proceeding of state etc.

Whereas the statement under qualified privilege are such statement which are made
in certain circumstances are not malice. Following statements are deemed to be
included in it:

a. Statement made in performance of a duty

b. Statement made for safely and save interest of others.
c. Fair and accurate report

In the case of Tejkiran Jain v/s sanjiv reddy (AIR 1970 SC) it has been held by
supreme court that the parliament Members cannot be held liable for the statements
made in Parliament under Article 105(2) of the constitution.

T. Gopalankutty v/s M. Sankunni (AIR 1971 Keral) it has been held that the
statement made by a judge, advocate, witness or party before the court during
judicial proceedings cannot be held liable for defamation whether there is not
suitability of such statements.

4. Apology
 48

Sometime apology is also considered in the shape of defence. The amount of

compensation may be reduced by the apology. But it is required that the apology
must be-

a. At the earliest opportunity

b. Absence of malice, and
c. Free from any condition

Hence, by adopting above defences one may be saved from the tort of defamation.

Qs, Media and obscenity

Ans. Obscenity is a kind of mind pollution and a social problem affecting the
society at large. It can be defined as any picture, photograph, figure, article, write
up, video, etc. or a public act which depraves or corrupts the mind and which
appeals to the prurient interests or which is against the acceptable social moral
standards would be called obscene and vulgar.

Off late, the media has played a major role in promoting obscenity by way of semi-
nude ads, video-graphy, news in the form of soft-porn and much more. They are
certainly putting at stake the values of an entire generation just for a little more
circulation, readership, viewership and a little more money.

What is obscdentiy

Obscenity is a legal term that refers to anything that offends a person’s morals.
This may be doing something that is indecent, lewd, or obscene. Obscenity is
commonly used in reference to pornography, though it pertains to much more. The
courts have found determining just what qualifies as obscenity, as it is subject to
each individual person’s moral values. The term often applies to erotic content in
books, magazines, and films, as well as nude dancing. To explore this concept,
consider the following obscenity definition.

LEGAL PROVISIONS

Various legal provisions including sections, acts and codes have been discussed for
highlighting Indian scenario against obscenity. The legal provisions against
obscenity are as follows:
 49

Indian Penal Code, 1980

Section 292 of the Indian Penal Code, laid down three tests to understand the
term obscenity which are as follows:-

A book, pamphlet, paper, writing etc., shall be deemed to be obscene if it is:

1. lascivious; or
2. appeals to the prurient interest;or
3. if its effect or where it is more than one item, the effect of any one of the
items, if taken as a whole, is such as to rend to deprave and corrupt persons
who are likely, having regard to all the relevant circumstances to read, see or
hear it.

If all the above conditions are fulfilled then the matter would be considered as
obscene and the same would be punishable under law.

Cable Television Networks (Regulation) Act, 1995

This act prohibits the transmission of advertisements on the cable network which
are not in conformity with the Advertisement Code. The Advertisement Code is set
out under Rule 7 of the Cable Television Network Rules, 1994. Contravention of
these provisions attracts liabilities. The Advertisement Code states that no
advertisement shall be permitted which derides any race, caste, colour, creed and
nationality.

The Information Technology Act, 2000

This particular act has been brought about aims to facilitate the development of a
secure regulatory environment for electronic commerce. Thus while, it is
admittedly a statute leaning towards regulation of commercial activities, it has
several provisions, which refer to penalties and offences. The legislators very
clearly intend this to be the fundamental umbrella legislation to govern computer-
related activity in India. There is a separate chapter for Offences and for the
purposes of this paper the most important provision is section 66 which is as
follows: – whoever publishes or transmits or causes to be published in the
electronic form, any material which is lascivious or appeals to the prurient interest
or if its effect is such as to tend to deprave and corrupt persons who are likely,
having regard to all relevant circumstances, to read, see or hear the matter
contained or embodied in it, shall be punished

The Cable Television Network Act, 1995

 50

This act clearly mentions that 24 hours NO ADULT programme can be shown on
television.

The Indecent Representation Of Women [Prohibition] Act, 1986

This act states that depiction of the figure, body, or any part of a woman’s body,
which is denigrating women or likely to corrupt Public Morality is a punishable
offence. The Act punishes the indecent representation of Women , which means
“the depiction in any manner of the figure of a woman; her form or body or any
part thereof in such way as to have the effect of being indecent, or derogatory to, or
denigrating women, or is likely to deprave, corrupt or injure the public morality or
morals.

Tests for Obscenity

1. Hicklin test

The Hicklin's test was laid down in English law in the case of Regina v. Hicklin.
On Application of Hicklin's test, a publication can be judged for obscenity based
on the isolated part of the work considered out of the context. While applying
Hicklin's test the work is taken out of the whole context of the work and then it is
seen that if that work is creating any apparent influence on most susceptible
readers, such as children or weak-minded adults.

2. Roth Test

In 1957, a new test was developed by US courts to judge obscenity in case of Roth
v. United States, In this case it was held that only those sex-related materials which
had the tendency of exciting lustful thoughts were found to be obscene and the
same has to be judged from the point of view of an average person by applying
contemporary community standards. This test was sharper and narrower than the
Hicklin's test as it does not isolate the alleged content but limits itself to the
dominant theme of the whole material and checks whether, if taken as a whole, it
has any redeeming social value or not.

Indian Courts on Obscenity:

Indian Judiciary for the first time defined obscenity in the case of Ranjit D.
Udeshi v. The State of Maharashtra. In this case Hon'ble Supreme Court
observed that the test of obscenity is, whether the tendency of the matter charged
as obscene is to deprave and corrupt those whose minds are open to immoral
 51

influences, but the test of obscenity must agree with the freedom of speech and
expression guaranteed under our Constitution. Therefore, sex and nudity in art and
literature cannot be regarded as evidence of obscenity without something more. 2

The Court went on to admit that obscenity has been understood in the following
terms:

(1) That which depraves and corrupts those whose minds are open to such immoral
influences.

(2) That which suggests thoughts of a most impure and libidinous character.

(3) That which is hard-core pornography.

(4) That which has a substantial tendency to corrupt by arousing lustful desires.
That which tends to arouse sexually impure thoughts.

(6) That which passes the permissive limits judged of from our community
standards.

In this case the Hicklin test was applied and given due regard by the court to judge
obscenity.3 After this case Hicklin test was continuously liberalized and applied
until the recent case of Aveek Sarkar.

In another such case, K.A. Abbas v. Union of India and Anr, the Hon'ble
Supreme Court validated the pre-censorship of content as exception to the right to
freedom of speech and expression. However, the court observed that "the censors
need to take into account the value of art while making their decision. The artistic
appeal or presentation of an episode robs it of its vulgarity and harm and also what
may be socially good and useful and what may not."

While determining that whether a thing presented in a film is obscene or not it

should be considered with the context in which that thing is being portrayed and it
should not be isolated from the context. Based on this same concept as mentioned,
the Supreme Court in case of Bobby Art International & Ors. v. Ompal Singh
Hoon while dealing with the question of obscenity in the context of film called
Bandit Queen, ruled that the scenes depicting must not be scene in isolation.
Hon'ble court said that the so called objectionable scenes in the film have to be
considered in the context of the whole film and with the context that film is
seeking to transmit in respect of society.
 52

Further, In Chandrakant Kayandas Kakodar vs The State of Maharashtra, the

Supreme Court observed that the standards of contemporary society in India are
fast changing. The adults and adolescents now have available to them a large
number of classics, novels, stories and pieces of literature which have a content of
sex, love and romance. In the field of art and cinema also the adolescent is shown
situations which even a quarter of century ago would be considered derogatory to
public morality, but having regard to changed conditions, are more taken for
granted without in any way tending to debase or debauch the mind.

In case of Director General, Directorate General of Doordarshan & Others v.

Anand Patwardhan and Another in this case an independent filmmaker
challenged doordarshan's refusal to telecast his documentary, giving reason that it
contain scenes that could promote violence and it's telecast would be against the
policies of doordarshan. The court held that tough, there are some scene of
violence and social injustices in the film but because of this it cannot be said that
the filmmaker supports any of that, and this depiction is only meant to convey that
such social evils still exist. The Court also held that a documentary couldn‟t be
denied exhibition on Doordarshan simply on account of its "A" or "UA"
certification. the Court held that a film must be judged from an average, healthy
and common sense point of view.

In case of Maqbool Fida Husain vs Raj Kumar Pandey Delhi High Court while
dealing with the issue of whether a nude painting depicting 'Bharat Mata' can be
said to be obscene or not. The court answered this in negative and went on
observing that "nudity or sex alone cannot be said to be obscene."

High Court of Bombay in case of state of Maharashtra v. Joyce Zee alia

Temiko observed that, A .customer, above the age of eighteen, who goes to a
hotel, where a cabaret show is run, looks forward to be entertained by obscenity
and cannot complain of annoyance to which, if any, he shall be deemed to have
given his consent.

In the recent land mark judgment of Aveek Sarkar v. State of West

Bengal Hon'ble Supreme Court while dealing with the issue of obscenity finally
disapproved the Hicklin's test and adopted the Roth test. The issue was revolving
around a picture which was alleged to be obscene in nature.

Qs. Privacy and Media

Ans. India, at present, does not have an independent statute protecting privacy; the
right to privacy is a deemed right under the Constitution. The right to privacy has
 53

to be understood in the context of two fundamental rights: the right to freedom

under Article 19 and the right to life under Article 21 of the Constitution.
The higher judiciary of the country has recognised the right to privacy as a right
“implicit in the right to life and liberty guaranteed to the citizens of this country by
Article 21”. The Indian law has made some exceptions to the rule of privacy in the
interest of the public, especially, subsequent to the enactment of the Right to
Information Act, 2005 (RTI). The RTI Act, makes an exception under section 8 (1)
(j), which exempts disclosure of any personal information which is not connected
to any public activity or of public interest or which would cause an unwarranted
invasion of privacy of an individual. What constitutes an unwarranted invasion of
privacy is not defined. However, courts have taken a positive stand on what
constitutes privacy in different circumstances.
Constitutional Framework of Privacy
The right to privacy is recognised as a fundamental right under the Constitution of
India. It is guaranteed under the right to freedom (Article 19) and the right to life
(Article 21) of the Constitution. Article 19(1) (a) guarantees all citizens the right to
freedom of speech and expression. It is the right to freedom of speech and
expression that gives the media the right to publish any information. Reasonable
restrictions on the exercise of the right can be imposed by the State in the interests
of sovereignty and integrity of the State, 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.
Article 21 of the Constitution provides, "No person shall be deprived of his life
or personal liberty except according to procedure established by law." Courts
have interpreted the right to privacy as implicit in the right to life. In R.Rajagopal
v. State of T.N. and PUCL v. UOI the courts observed that the right to privacy is
an essential ingredient of the right to life.
For instance, in R. Rajagopal v State of Tamil Nadu, Auto Shankar — who was
sentenced to death for committing six murders — in his autobiography divulged
his relations with a few police officials. The Supreme Court in dealing with the
question on the right to privacy, observed, that the right to privacy is implicit in the
right to life and liberty guaranteed to the citizens of the country by Article 21. It is
a ‘right to be left alone.’ "A citizen has a right to safeguard the privacy of his own,
his family, marriage, procreation, motherhood, child-bearing and education among
other matters.” The publication of any of the aforesaid personal information
without the consent of the person, whether accurate or inaccurate and ‘whether
laudatory or critical’ would be in violation of the right to privacy of the person and
 54

liable for damages. The exception being, when a person voluntarily invites
controversy or such publication is based on public records, then there is no
violation of privacy.
In PUCL v. UOI which is popularly known as the wire-tapping case, the question
before the court was whether wire-tapping was an infringement of a citizen’s right
to privacy. The court held that an infringement on the right to privacy would
depend on the facts and circumstances of a case. It observed that, "telephone
conversation is an important facet of a man's private life. Right to privacy
would certainly include telephone-conversation in the privacy of one's home
or office. Telephone-tapping would, thus, infract Article 21 of the Constitution
of India unless it is permitted under the procedure established by law." It
further observed that the right to privacy also derives from Article 19 for "when a
person is talking on telephone, he is exercising his right to freedom of speech
and expression."
In Kharak Singh v. State of U.P where police surveillance was being challenged
on account of violation of the right to privacy, the Supreme Court held that
domiciliary night visits were violative of Article 21 of the Constitution and the
personal liberty of an individual.
Right to Privacy Under Article 21

In India, the law of privacy evolved due to the challenge raised on police
surveillance. The Court, struck down a regulation permitting surveillance and
equated ‘personal liberty’ with ‘privacy’, and observed, that “the concept of liberty
in Article 21 was comprehensive enough to include privacy. and that a person’s
house, where he lives with his family is his ‘castle’ and that nothing is more
deleterious to a man’s physical happiness and health than a calculated interference
with his privacy”. The law of privacy is the recognition of the individual’s right to
be let alone and to have his personal space inviolate.

Freedom of Expression and information U/A 19(1) (a)

The right to impart and receive information is a species of the right to freedom of
speech and expression. A citizen has a Fundamental Right to use the best means of
imparting and receiving information. The State is not only under an obligation to
respect the Fundamental Rights of the citizens, but also equally under an obligation
to ensure conditions under which the Right can be meaningfully and effectively be
enjoyed by one and all. Freedom of speech and expression is basic to and
indivisible from a democratic polity.
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In Kaleidoscope (India) (P) Ltd. v. Phoolan Devi, the trial Judge restrained the
exhibition of the controversial film Bandit Queen both in India and abroad. The
trial court reached a prima facie view that the film infringed the right to privacy of
Phoolan Devi, notwithstanding that she had assigned her copyright in her writings
to the film producers. This was upheld by the Division Bench. The Court observed
that even assuming that Phoolan Devi was a public figure whose private life was
exposed to the media, the question was to what extent private matters relating to
rape or the alleged murders committed by her could be commercially exploited,
and not just as news items or matters of public interest

Right of privacy and Right to know under Article 21

Article 21 enshrines right to life and personal liberty. The expressions “right to life
and personal liberty” are compendious terms, which include within themselves
variety of rights and attributes. Some of them are also found in Article 19 and thus
have two sources at the same time. In R.P.Limited v Indian Express
Newspapers the Supreme Court read into Article 21 the right to know. The
Supreme Court held that right to know is a necessary ingredient of participatory
democracy.

Safeguarding Identity of Children

The Juvenile Justice (Care and Protection of Children) Act lays down that the
media should not disclose the names, addresses or schools of juveniles in conflict
with the law or that of a child in need of care and protection, which would lead to
their identification. The exception, to identification of a juvenile or child in need of
care and protection, is when it is in the interest of the child. The media is
prohibited from disclosing the identity of the child in such situations.
Similarly, the Convention on the Rights of the Child (CRC) stipulates that:
Article 16

1. No child shall be subjected to arbitrary or unlawful interference with his or her

privacy, family, or correspondence, nor to unlawful attacks on his or her
honour and reputation.
2. The child has the right to the protection of the law against such interference or
attacks.

Article 40 of the Convention, states that the privacy of a child accused of

infringing penal law should be protected at all stages of the proceedings.
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Safeguarding Identity of Rape Victims

Section 228A of the Indian Penal Code makes disclosure of the identity of a rape
victim punishable. In the recent Aarushi Talwar murder case and the rape of an
international student studying at the Tata Institute of Social Sciences (TISS) the
media frenzy compromised the privacy of the TISS victim and besmirched the
character of the dead person. In the TISS case, the media did not reveal the name
of the girl, but revealed the name of the university and the course she was
pursuing, which is in violation of the PCI norms. In addition to revealing names of
individuals, the PCI norms expressly states that visual representation in moments
of personal grief should be avoided. In the Aarushi murder case, the media
repeatedly violated this norm.
Righy of privacy and Sting Operations
Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the Cable
Television Network Rules (hereafter the Cable Television Networks Act),
stipulates that no programme can be transmitted or retransmitted on any cable
service which contains anything obscene, defamatory, deliberate, false and
suggestive innuendos and half truths. The Rules prescribes a programming code to
be followed by channels responsible for transmission/re-transmission of any
programme.
International Conventions
Internationally the right to privacy has been protected in a number of conventions.
For instance, the Universal Declaration of Human Rights, 1948 (UDHR) under
Article 12 provides that:
"No one shall be subjected to arbitrary interference with his privacy, family,
home or correspondence, or to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference
or attacks."
The UDHR protects any arbitrary interference from the State to a person’s right to
privacy. Similarly, International Covenant on Civil and Political Rights, 1976
(ICCPR) under Article 17 imposes the State to ensure that individuals are protected
by law against “arbitrary or unlawful interference with his privacy, family, home
or correspondence, nor to unlawful attacks on his honour and reputation. [7]
Thus, ensuring that States enact laws to protect individual’s right to privacy. India
has ratified the above conventions. The ratification of the Conventions mandates
the State to take steps to enact laws to protect its citizens. Although, human right
activists have periodically demanded that the State take adequate measures to
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protect human rights of the vulnerable in society, the right to privacy has received
little attention.

Qs. Trial by Media

Ans. Trial by media is a phrase popular in the late 20th century and early 21st
century to describe the impact of television and newspaper coverage on a
person's reputation by creating a widespread perception of guilt or innocence
before, or after, a verdict in a court of law. Media has been the voice of thousands
through which a platform is provided for the common man. In rapidly changing
socio economic conditions like in India ( largest democratic country) media has
gained prominence and hence referred as a fourth pillar of democracy. Of course
sometimes a drop of ink dropped down from the journalist's pen might be more
powerful than a bullet from the soldier's gun. According to criminal jurisprudence
a suspect/accused is entitled to a fair trial until proven guilty/innocent by the court
of law.
IMPACT OF MEDIA TRIALS
MEDIA TRIALS vs. FREEDOM OF SPEECH AND EXPRESSION

Freedom of speech plays a crucial role in the formation of public opinion on social,
political and economic matters. Similarly, the persons in power should be able to
keep the people informed about their policies and projects, therefore, it can be said
that freedom of speech is the mother of all other liberties.

In Printers (Mysore) Ltd. v. CTO the Supreme Court has reiterated that though
freedom of the press is not expressly guaranteed as a fundamental right, it is
implicit in the freedom of speech and expression. Freedom of the press has always
been a cherished right in all democratic countries and the press has rightly been
described as the fourth chamber of democracy.

In R. Rajagopal v. State of T.N the Supreme Court of India has held that freedom
of the press extends to engaging in uninhabited debate about the involvement of
public figures in public issues and events. But, as regards their private life, a proper
balancing of freedom of the press as well as the right of privacy and maintained
defamation has to be performed in terms of the democratic way of life laid down in
the Constitution.

Therefore, in view of the observations made by the Supreme Court in various

judgments and the views expressed by various jurists, it is crystal clear that the
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freedom of the press flows from the freedom of expression which is guaranteed to
all citizens by Article 19(1)(a). Press stands on no higher footing than any other
citizen and cannot claim any privilege (unless conferred specifically by law), as
such, as distinct from those of any other citizen. The press cannot be subjected to
any special restrictions which could not be imposed on any citizen of the country.

MEDIA TRIAL vs. FAIR TRIAL

Trial by media has created a “problem” because it involves a tug of war between
two conflicting principles – free press and free trial, in both of which the public are
vitally interested. The freedom of the press stems from the right of the public in a
democracy to be involved on the issues of the day, which affect them. This is the
justification for investigative and campaign journalism.

At the same time, the “Right to Fair Trial”, i.e., a trial uninfluenced by extraneous
pressures is recognized as a basic tenet of justice in India. A journalist may thus be
liable for contempt of Court if he publishes anything which might prejudice a ‘fair
trial’ or anything which impairs the impartiality of the Court to decide a cause on
its merits, whether the proceedings before the Court be a criminal or civil
proceeding.

In Zahira Habibullah Sheikh v. State of Gujarat, the Supreme Court explained

that a “fair trial obviously would mean a trial before an impartial Judge, a fair
prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or
prejudice for or against the accused, the witnesses, or the cause which is being
tried is eliminated.”

MEDIA TRIAL vs. RIGHT TO BE REPRESENTED

Through media trial, we have started to create pressure on the lawyers even — to
not take up cases of accused, thus trying to force these accused to go to trial
without any defense. Is this not against the principles of natural justice? Every
person has a right to get himself represented by a lawyer of his choice and put his
point before the adjudicating court and no one has the right to debar him from
doing so. For an instance, when eminent lawyer Ram Jethmalani decided to defend
Manu Sharma, a prime accused in a murder case, he was subject to public derision.
A senior editor of a television news channel CNN-IBN called the decision to
represent Sharma an attempt to “defend the indefensible”.

IS MEDIA TRIAL A CONTEMPT OF COURT?

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Trial by Media is Contempt of Court and needs to be punished. The Contempt of

Court Act defines contempt by identifying it as civil[36] and criminal[37].

Criminal contempt has further been divided into three types:

1. Scandalizing
2. Prejudicing trial, and
3. Hindering the administration of justice.

Prejudice or interference with the judicial process: This provision owes its origin to
the principle of natural justice; ‘every accused has a right to a fair trial’ clubbed
with the principle that ‘Justice may not only be done it must also seem to be
done’. There are multiple ways in which attempts are made to prejudice trial. If
such cases are allowed to be successful will be that the persons will be convicted of
offences which they have not committed. Contempt of court has been introduced in
order to prevent such unjust and unfair trials. No publication, which is calculated to
poison the minds of jurors, intimidate witnesses or parties or to create an
atmosphere in which the administration of justice would be difficult or impossible,
amounts to contempt.[38] Commenting on the pending cases or abuse of party may
amount to contempt only when a case is triable by a judge. [39] No editor has the
right to assume the role of an investigator to try to prejudice the court against any
person.

Bed Impact of Media trial

Pro-Plaintiff Media Bias

Litigation involving well-known companies or individuals always has grabbed the

attention of the news media, especially when it involves sensational charges. The
magnitude of the coverage and the filter through which the media reports on
litigation can create a “clear plaintiff bias in civil cases.” While small companies
can find themselves under the media spotlight in a particularly novel or “bet the
company” suit, the media tends to focus on allegations against established and
respected corporate defendants. These larger companies tend to have household
names, and allegations against them can make good “copy” – even if the
allegations are seemingly spurious, commonplace or unproven. The same is true
for litigation involving celebrity defendants

The Nature of Bias in High-Publicity Cases

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A larger issue is the complex nature of juror bias and how that bias predisposes a
juror toward one side in a case. It is no secret that we all have biases. The difficulty
comes from understanding how those biases may ultimately affect the viewing of
evidence and the deliberations in a case. Judges are also Human Beings they too
care about the reputation and promotion. That time is gone when judges are not
considered as social because it will harm their reputation. Now days Judges are
social and being an human being they care about their promotions and
remunerations. In high profile cases they tend to be bias and give verdict as per as
media reports just to be in lime light . this will surely help them to get a promotion
before other competitive judges. Media is so much into our daily life’s that judges
too can’t stay away from it and they usually tend to give verdict as per media
reports.

The Additional Pressure on Judges in High-Publicity Trials

The media create a series of unconscious pressures on a juror in a high-profile trial.

Jurors know that they are being watched by the world. They are not only making a
decision for themselves, but they are making a statement for their family, co-
workers, community, and society as a whole. This elevates their verdict to a level
beyond the evidence.

Conclusion

Though media act as a watchdog and act as a platform to bring people voice to the
notice of society and legislatures. But now days media is so much sensationalized
and they just do for their salaries and TRP’s. there are few reporters those showing
only those news for what they have been paid by political parties. From the above
account it becomes clear that the media had a more negative influence rather than a
positive effect (except for a few exceptions here and there). The media has to be
properly regulated by the courts. The media cannot be granted a free hand in the
court proceedings as they are not some sporting event..