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 obscenity
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:

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.

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.
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
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 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.
5. 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.

Law pertaining to electronic media and cyber obscenity

Concerning the law pertaining to the offence of cyber obscenity, S.67 and S.67A
of the Information Technology Act, 2000 are the first provisions dealing with
obscenity on the internet in India. These sections deal with obscenity in
electronic spheres and provide punishment for publishing or transmitting
obscene materials in electronic form. Punishment for publishing or transmitting
of material containing sexually explicit act etc., in electronic form extends from
three to seven years of imprisonment and fine ranging from five to ten lakh
rupees. However, it must be noted that the test to determine offence of cyber
obscenity as per the Information Technology Act, 2000 has identical ingredients
as provided under Section 292 of the Indian Penal Code, 1860. Even the term
‘indecency’ can be interpreted so as to fall within the preview of the definition of
obscenity. Also, the legal understanding of pornography and obscenity have
often overlapped with each other.

The Code in specific does not lay down any test to determine obscenity. It
merely prohibits the sale or distribution or exhibition of obscene words, etc. in
public places. Hence, this test would involve investigation of whether the
tendency of matter charged as obscene is to deprave and corrupt those whose
minds are open to such immoral influences and into whose hands a publication
of this sort is likely to fall. This test is similar to the test put forth in the ruling of
R. v. Hicklin wherein, the Court held that “a publication or content is obscene if it
tends to produce lascivious thoughts and arouses lustful desire in the minds of
substantial numbers of that public into whose hands the book is likely to fall.
Hence, the freedom of speech and expression are restricted in the interest of
decency and morality.” However, the Supreme Court is of the opinion that there
is no fixed standard to determine what is moral and what is decent. The
standard of morality varies from time to time and from place to place. The
Courts observation cannot be discarded since birth control which was once
considered immoral is now considered moral and a means to control over
population. Similarly, kissing or hugging scene in Indian cinema has now come
to be tolerated by urban viewers but countryside viewers still do not approve
such film scenes.

The Supreme Court again in the year 2007 while recognizing the right to adult
entertainment, reviewed the position of law on obscenity and summarized the
test regarding obscenity. As per this test the picture of a woman in nude/semi-
nude is not per se obscene unless there is something in it which would offend
the taste of an ordinary decent minded person. The court was more referring to
the content. In the sense, the content is regarded as obscene only when
treatment of sex becomes offensive to public decency and morality, judged by
the prevailing standards of morality in the society. The Court did not define
pornography, neither did it explain the meaning of sexually explicit content, but
from the explanation for understanding the meaning of obscenity, it is clear that
not all contents which have some sexual flavor can be regarded as obscene. In
this way, the meaning or interpretation of obscenity can be subjective depending
on the culture. Even the definition of ‘decent minded person’ would also differ as
per culture. In this way, obscenity can take various shades. Cyber obscenity
being one among several others. According to Citron, cyber hate speech and
verbal sexual abuse targeting women is more distressing than other forms of
online offences

Although film and media is a part and parcel of the right to exercise freedom of
speech and expression as per Article 19 of the Constitution, the obscene scenes
in several Indian movies have attracted the attention of social activists who
claim that it is an infringement of women’s right. They activists claim that by
wearing vulgar clothes and by performing obscene scenes the modesty of
woman is at stake. According to them, obscenity in cinema serves no social
purpose. Nevertheless this debate, several girls who wish to be a part of Indian
cinema meet producers, directors, camera men who assure them that they will
give them a break and then in the process they are sexually exploited. Casting
couch syndrome is common in the film industry. One such illustration on the
subject was a case of a lady who was assured a break in a movie only if she
entertained a man. The man being a close friend of the producer. Accordingly,
she entertained the producer’s friend in a hotel room. When they were engaged
in the act, a blue film was shot and in turn the same film was exhibited in
theaters. When she came to know that the blue film was released in theaters she
filed a suit in the court for defamation. Thus, obscenity on a whole was prevalent
even before the arrival of cyber age. The only difference being, arrival of cyber
age provided wider scope for distribution of obscenity in few seconds. Cyber
obscenity has not overruled or defeated obscenity in general. Obscene events
and incidents do take place even outside the preview of cyber world.

CONCEPT OF OBSCENITY The word ‘obscene’ has been derived from the French term ‘obscenite’ and Latin
term ‘obscenus’ originated during the late sixteenth century meaning ill-omened or abominable which also
sums up to something that is offensive to the accepted contemporary standards of decency and morality of the
society in legal terms. Ironically, the term ‘obscenity’ is always considered in pretext of sexual conduct or
something not soothing to the senses but whereas it should be considered the other way round and not given
such a narrow definition and the yardstick for defining obscenity should be something that paralyzes and
poisons the thought process of any person in the society. The word ‘obscene’ or ‘obscenity’ has been nowhere
defined in the Indian Penal Code but set out the parameters the activities or commission of acts which will
amount to obscenity and the Court follows the Commodity Standard Test in determining whether a particular
object, picture, pamphlets contain any obscene material content. The test of obscenity has been laid down by
several countries depending on the moral principles, decency codes and social structure of that particular
country.
OBSCENITY AND FREEDOM OF SPEECH AND EXPRESSION Article 19(1)(a) of the Constitution of India lays down
the provision for freedom of speech and expression which inexplicitly covers freedom of press and media as
held from time to time through various judicial decisions. The rights guaranteed under Article 19 are not
absolute and subjected to reasonable restrictions. Among the various other restrictions mentioned under
Article 19(2) any act which is against decency or morality is vehemently criticised and not accepted and right to
freedom of speech and expression stands restricted on this ground and standards of decency or morality when
not met out is an essential characteristics that constitutes obscenity. The restrictions were laid with the view to
restrict publication of speeches or reports against the morals of the public, which will affect public morality and
tranquillity.
OBSCENITY AND MEDIA:
 In this era of technology, world has become a global village and information can exchanged one swipe away.
Technology is often compared to a coin having both advantage as well as disadvantage and at times the effect
of technology can venomous on the society. It leads to victimization and increase in crimes. With the advent of
globalization and developing media the content and information that is circulated or delivered has become
much vulnerable. Obscenity and pornography are two terms often used interchangeably and due to cut throat
competition amongst various branches and to get hold of viewers and readers to increase TRP’s they often take
the escape channel of calling it as modernity and helping in uplifting the society and bringing in transformation
from following conservative stereotypes practices as the proper definition of obscenity as not been given apart
from stating that the contents affect on average people as a whole who are likely to come across the content.
The television channels now days mostly up with adult contents, the entertainment channels where music
videos are played where a woman is half-dressed whereas to cope up with competition some contents are
shown in the name of news is definitely doesn’t soothe the senses. The advertisements that come up relating
to contraceptives and deodorants of male which always has the catchphrase of “attracting girls” as if apart
from that the deodorants has no purpose to serve and also innerwears which at times are banned because of
the content displayed. The detailed description published regarding rape articles do reach all sections of the
society. It is well accepted fact now in this present century media plays a very important role in shaping our
lives because whether accepted or not the contents displayed has a direct connection with the actual violence
that is committed. Out of ten soaps and daily shows that are played eight project violence or crime stories
which in a way sends a wrong message to the society and engaging in pre-marital sex, marital affairs, carrying
out conspiracy amongst members, if this is not obscenity then what is. Obscenity does not only relate to sexual
conduct but it is always clubbed with indecency, immorality and has a wide ambit and most importantly are we
promoting obscenity in the name of modernity. It’s high time we should give it a thought.

Definitional and Historical aspects of Sedition Laws in the IPC

Definition of Sedition
Sec. 124A of IPC defines sedition as "Whoever, by words, either spoken or written, or by signs, or
by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or
excites or attempts to excite disaffection towards, the Government established by law in India,
shall be punished with imprisonment for life, to which fine may be added, or with imprisonment
which may extend to three years, to which fine may be added, or with fine"[iii]. However, it is
interesting to note that the word "sedition" has been mentioned nowhere in the Section, still the
Indian Penal Code (The Code) made the punishment for the same cognizable, non-bailable, and
non-compoundable in nature.
Requisite elements of sedition

The most important factor in classifying an act as seditious is that it must be carried out by an
individual or group of individuals by use of a gesture, sign, spoken word, or written word.
However, no case for sedition lies without any such clear indication that can be linked back to the
accused.
The roots of the foregoing legal principle can be traced back to the draconian history of IPC when
Bal Gangadhar Tilak was sentenced to death in the infamous case of Queen-Empress v. Bal
Gangadhar Tilak.[iv] To serve the needs of the authoritarian British government, Justice Ames
Strachey came up with a repressive interpretation of Section 124-"The offender must have an
intentional desire to instill in the minds of the people hatred, contempt, or disaffection towards
the government."[v] It is interesting to note that Justice Ames Strachey's failure to define
"intentional desire" provided the British government with another tyrannical tool to stifle political
opponents.
Trials of sedition : pre-Independence
Queen-Empress v. Jogendra Chunder Bose & Ors. (1892)
In this case, Jogendra Chunder bose was an editor of Bangobasi, a Bengali magazine,
and he was charged with sedition for voicing against the British Government’s policies,
ie., the Age of Consent Bill, 1891. The publisher contended that the sedition law only
penalised those who write the seditious article and not those who publish them. He also
challenged the sedition law and held that it goes against the original intention of the law.
The Calcutta High Court held the publisher liable because the magazine’s circulation was
done with the intent to be read by the audience. The Court also distinguished between
the word ‘disapprobation’ ( legitimate criticism) and ‘disaffection’ (which refers to ‘any
feeling contrary to affection’) and concluded that an attempt of disaffection against the
government is punishable. Thus the law of sedition does not take away the right of the
people.

Queen-Empress v. Bal Gangadhar Tilak & Keshav Mahadev Bal (1897)

In this case, Tilak wrote two articles- ‘Shivaji’s Utterances’. Tilak and C.G. Bhanu, a
notable Pune intellectual, spoke on this article at the Shivaji festival. The Bombay
government claimed that through the speech, they incited disaffection that led to the
killing of two British Officials. The Bombay High Court stated that it is the question of
whether these articles can be considered as inciting disaffection against the government
and has nothing to do with the case. Thus it merely reduced the interpretation of the
legal text to ‘incitement of feelings of “disaffection”’. However, after the perusal of the
article, it was observed that it illuminated the political ideology of Tilak as he stood at
the radical side of liberalism. The High Court accepted the definition propounded in the
Jogendra Chunder Bose about the word “disaffection” and opined that bad feeling
against the government is criminal. They also held that it is immaterial whether there
were any consequences. The intention of the offender is the primacy for qualifying for
the offence of sedition.

Emperor v. Bal Gangadhar Tilak (1917)

In this case, Bal Gangadhar Tilak was again tried for sedition. It was contended that the
speech given by Tilak was seditious. The speech was in Marathi, and according to the
respondent, the intent of the speech was lost in translation. The advocated speech was
peaceful and intended to bring about changes in government policies through lawful
means. It was also contended that Tilak was not attacking the government but the civil
services, which was distinct from the British government entity. The Bombay High Court
rejected this contention and held that the civil services derived its authority from the
state itself. However, the HC took a liberal stance regarding the word “disaffection” and
held that it does not only refer to ‘absence of affection’ giving a narrower interpretation.

Mrs Annie Besant v. the Advocate General Of Madras (1919)

The case dealt with Section 4(1) of the Indian Press Act, 1910, framed similarly to
Section 124A. In this, numerous articles were published in New India, the printing press
owned by Annie Beasant, criticising the government’s actions and policies. Taking
exceptions to these articles, the Governor-in-Council of Bombay issued an order
prohibiting Annie Besant from entering the Province of Bombay along with the order for
forfeiture of all copies of New India and the deposit of Annie Besant relating to the
printing press. Annie Besant challenged the order; however, the Madras High Court
dismissed the petition, and the privy council upheld the same.
Sedition Law in independent India

In 1948, KM Munshi moved an amendment to drop the word “sedition” from

the Constitution draft and eventually, it was removed from the Constitution after
discussions of the Constituent Assembly. After Independence, in Tara Singh Gopi Chand
v. The State (1950), the Punjab High Court recognised that Section 124A undeniably
restricts freedom of speech and expression under Article 19 of the Constitution. Thus, it
invalidated the Section. However, the Constitution (First Amendment) Act, 1951,
reimposed the controversial law. The law was not only reimposed but was strengthened
by adding two words, “friendly relations with a foreign state”, “public order”, and
incitement to an offence as grounds for imposing “reasonable restrictions” on freedom of
speech. Initially, the Constitution only contained the State’s security, defamation,
contempt of courts, and decency and morality as grounds for restricting speech.

It was during the Indira Gandhi government, the offence of sedition under Section 124A
was made a cognisable offence for the first time in India’s history. The new Code of
Criminal Procedure, 1973, replacing the old version, sedition can be considered as
cognisable offence authorising the police to arrest the suspect without any warrant.
Further in the landmark judgement, Kedar Nath Singh (1962), the Supreme Court
upheld the validity of Section 124A of IPC. It held that the purpose of the sedition law is
to prevent the government established by the law from being subverted. As for the
stability of the government, its smooth continuous existence is an essential condition. It
also defined the scope of Section 124A and held that to invoke the clause of sedition
there needs to be a pernicious tendency to incite violence. Thus, only those words that
intend to disturb law and order or incite violence are held as seditious.

Problems with Sedition Law

The law should be utilised when there is a severe threat to the security and sovereignty
of the country. However, the law is used to suppress free speech and weaponised as a
tool against political rivalry. It is a de-facto strategy for many ruling governments for
years, whenever they encountered public criticism and protests. There has been an
increase in sedition charges. Since 2010, 10,938 Indians have been accused of sedition
in 816 cases reported by “Article 14”, a media and research group. One can witness that
sedition charges come out clearly during significant events opposing the action of the
government. Such as the street protests against the Kudankulam nuclear power project
in the southern state of Tamil Nadu, when the Congress party was in the majority, and
during the violent protests against the BJP’s Citizenship Amendment Act. According to
the National Crime Records Bureau (NCRB), there has been an increase in sedition cases
by 160%. However, the conviction rate dropped to 3.3% in 2019 from 33.3% in 2016.
Thus this shows that the state authorities are misusing the sedition law, and they are
trying to silence any criticism or dissent against the majority government.

Feigned interpretation of the law

The definition of sedition law is ambiguous. The terms mentioned, such as “bring into
hatred or contempt” or “attempt to excite disaffection”, have the potential to be
interpreted in many different ways. Thus, it empowers the government authorities to
harass innocent citizens who are trying to raise their voices. There is no specific
definition, and what activities are regarded as seditious is not defined; thus, it provides a
broad outline.

In Superintendent Central Prison v. Dr Ram Manohar Lohia (1960), the appeal was
regarding interpreting the word “in the interest of public order” under Article 19 of the
Constitution. The Supreme Court held that the aggravated disturbance of public order
could be used to restrict freedom of speech and expression instead of mere ‘law and
order’, and there should be a proximate connection between the instigation and
aggregate disturbance to the public order. However, the Kedar Nath judgement failed to
take note of this judgement and, by casting the net too wide, held that the sedition is
committed when the actions tending to create public disorder or disturbance of law and
order or public peace is complete. Thus the definition of Section 124A is vague and fails
to define the criminal offence with definiteness.

The issue was highlighted in M/s Aamoda Broadcasting Company Pvt. Ltd. & Anr. v. The
State of Andhra Pradesh & Ors (2021)., where Justice Chandrachud remarked,
“Everything cannot be seditious. It is time we define what sedition is and what is not.”
Justice Chandrachud tried to restrain the Andhra Pradesh government from taking action
against Telugu news channels charged under Section 124 A Of IPC.

Threat to freedom of speech and expression

The law is seen as a compromise to freedom of speech and expression. To put a check
on government authorities, its policies and action, constructive and positive criticism is
an indispensable tool. However, the sedition law has been used as a tool by the
government to regulate citizens’ opinions and indiscriminately wield power. The
government is using the sedition law to suppress the protesting views of the public.
A petition is filed by the former minister Arun Shourie and NGO Common
Cause challenging the validity of Section 124A of IPC,1860 as violative of Articles 14 and
19(1)(a) of the Indian Constitution.

Recent cases of sedition

• In Sanskar Marathe v. The State of Maharashtra (2015), Amit Trivedi is a

political cartoonist and social activist. Through his cartoon, it was argued that
he defamed the parliament, the Constitution of India and the Ashok Emblem.
Therefore an FIR was filed for sedition against him for trying to spread hatred
and disrespect against the government by publishing the cartoon on the ‘India
against corruption’ website. The Bombay High Court held that the citizens
have the right to criticise and comment on the government policies and
measures until and unless it does not incite people to violence against the
Government established by law or create public disorder.
• Recently, in Vinod Dua v. Union of India & Ors, an FIR was lodged against
senior journalist Vinod Dua for sedition, public nuisance, printing defamatory
materials and public mischief by the BJP leader in Himachal Pradesh over a
youtube video criticising the Prime Minister regarding the government’s
response to COVID-19. The Supreme Court quashed the FIR. It was held that
“Every Journalist will be entitled to protection in terms of Kedar Nath Singh, as
every prosecution under Sections 124A and 505 of the IPC must be in strict
conformity with the scope and ambit of said Sections as explained in, and
completely in tune with the law laid down in Kedar Nath Singh”. The act
intending to create disorder, or disturbance of law and order, or incitement to
violence should be limited according to the provision’s application.

Conclusion

The sedition law and its growing misuse by the government ( both ruling and opposition
party) is a severe concern. The police authorities, the ruling party and different
government authorities are misusing the law, and the denial by the trial court to grant
bail in the matter is another serious concern regarding the sedition charges. Personal
liberties and free speech are some of the essential hallmarks of democracy and the
system’s foundation. Expression of criticism should not be considered seditious. Criticism
is an indispensable part of democracy that puts the government in check. The laws of
sedition should be used cautiously, and it is high time that the judiciary reviews the law.
If not abolishing it, one should consider toning it down and limit its ambit.

Further looking at the other laws which restricts the powers of the freedom of speech and
expression is under IPC; sec 499 which states the ��defamation' compiled with sections
500,501,502 of IPC issuing to the punishment of the level of the offence committed. The
statutory provisions are framed for the legal regulations to curb the regulating of the fake
information to the mass. The Information Technology Act also regulates the online platform of
media by framing the regulations based on the offences that are committed online. It is very
important that when people at large are dependent on a social platform and is also a great
source of communication then right information is released. The Information Technology Act
also regulates the offences pertaining to any of the misuse of the technology which also give a
hand to the use of social media. Along with the other statutory laws, the IT act should also be
amended with the day by day upcoming misuse of the media. Lastly it is in the hands of media to
disseminate information and in what manner such information should reach the public. The
information should be open ended and not a conclusive statement that leaves any of the
impression on the minds of the users.

Drawing up the conclusion, if self regulation is done by media, the responsibilities are carried as
it should be then the question of legal regulations would not arise. If the situation is not within
the ambit of the self regulation then the chapter of legal regulations has to be looked upon for
the justification. Therefore, it is the moral as well as legal responsibility of the media to act as per
the code of ethics of media in functioning of their role.

Conclusion
The co- relation of media and defamation cannot be concluded to the end as it is wide topic
having a broad perspective. Media is a sector which is connected with each and every field,
therefore it is very necessary that every aspect of the media is looked upon. With the interest in
every field, it has to be seen that the information revealed is truthful and defamation does not
occur. Defamation and media are two paths of the same road. The usefulness of both the terms
has to be done in such a way that they don't overlap each other and as a result defamation is not
committed. It is very necessary that any information made at a mass level should be beyond
reasonable doubt and as media performs that stage each and every time, the role of media
becomes very crucial. In a democratic country like India, journalism holds the maximum
influential towards the citizens of country. Therefore, if malafide information or the slightest of
doubt arises from the information telecasted then there would be an adverse impact. It has to
be seen that the people forming their views based on the information telecast are not influenced
adversely. Though being a wide sector, it could be concluded that defamation and media are two
sides of the same coin, but the measure that should be taken is that they don't overlap each
other and should perform within its self imposed limits.

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.
In the Bhagwad Gita, For a man of honour a defamation is worse than death ��. It is
considered as great evil. Reputation is a important and integral part of the dignity of individual
and right to reputation is an inherent right guaranteed under article 21 and it is also called
natural rights. Defamation is injury to the reputation of a person. The essence of defamation lies
in the fact that it is an injury to the esteem or regard in which one is held by others. �The legal
system of India constitutes defamatory statement as a offence.

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[1], 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.
�
· � � � � � � � � �In �K. A. Abbas V. Union of India[2], 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.
�
Media Responsibility
Media has always been a leader in communicating to the people, irrespective to any forms of
media. The news which is communicated by the media is at a very great influential level.
Therefore any news which leads to a doubt can create a chaos worldwide. Any form of media
before publishing it at public platform should properly be analysed and should not leave any
doubt of conflict regarding its truthfulness. It is the moral duty of the media to serve the nation
with a clear cut surety of news. Media should show the picture of the actual problem to the
citizens and let them decide whether the successive step is correct or not rather than stating the
conclusive statement. It is not the duty of the media to give a conclusive statement of any of the
issue and make people dominate towards that statement through the circulation. Specially in a
democratic nation environment, the citizens are the main pillar of the nation. Therefore any
wrong impact or any influential information in a negative manner creates a great problem
towards the future of the nation. Before any of the statutory rights, it a moral duty of the media
to safeguard the power of media by accessing it within its ambit of jurisdiction and not creating
an evil impact on the nation.

Further looking at the other laws which restricts the powers of the freedom of speech and
expression is under IPC; sec 499 which states the ��defamation' compiled with sections
500,501,502 of IPC issuing to the punishment of the level of the offence committed. The
statutory provisions are framed for the legal regulations to curb the regulating of the fake
information to the mass. The Information Technology Act also regulates the online platform of
media by framing the regulations based on the offences that are committed online. It is very
important that when people at large are dependent on a social platform and is also a great
source of communication then right information is released. The Information Technology Act
also regulates the offences pertaining to any of the misuse of the technology which also give a
hand to the use of social media. Along with the other statutory laws, the IT act should also be
amended with the day by day upcoming misuse of the media. Lastly it is in the hands of media to
disseminate information and in what manner such information should reach the public. The
information should be open ended and not a conclusive statement that leaves any of the
impression on the minds of the users.

Drawing up the conclusion, if self regulation is done by media, the responsibilities are carried as
it should be then the question of legal regulations would not arise. If the situation is not within
the ambit of the self regulation then the chapter of legal regulations has to be looked upon for
the justification. Therefore, it is the moral as well as legal responsibility of the media to act as per
the code of ethics of media in functioning of their role.

Conclusion
The co- relation of media and defamation cannot be concluded to the end as it is wide topic
having a broad perspective. Media is a sector which is connected with each and every field,
therefore it is very necessary that every aspect of the media is looked upon. With the interest in
every field, it has to be seen that the information revealed is truthful and defamation does not
occur. Defamation and media are two paths of the same road. The usefulness of both the terms
has to be done in such a way that they don't overlap each other and as a result defamation is not
committed. It is very necessary that any information made at a mass level should be beyond
reasonable doubt and as media performs that stage each and every time, the role of media
becomes very crucial. In a democratic country like India, journalism holds the maximum
influential towards the citizens of country. Therefore, if malafide information or the slightest of
doubt arises from the information telecasted then there would be an adverse impact. It has to
be seen that the people forming their views based on the information telecast are not influenced
adversely. Though being a wide sector, it could be concluded that defamation and media are two
sides of the same coin, but the measure that should be taken is that they don't overlap each
other and should perform within its self imposed limits.

Privileges mentioned in the constitution:Freedom of speech and publication under parliamentary

authority

This is defined under Article 105(1) and clause (2). It gives the members of parliament
freedom of speech under clause (1) and provides under Article 105(2) that no member
of parliament will be liable in any proceedings before any Court for anything said or any
vote given by him in the Parliament or any committee thereof. Also, no person will be
held liable for any publication of any report, paper, votes or proceedings if the
publication is made by the parliament or any authority under it.The same provisions are
stated under Article 194, in that members of the legislature of a state is referred instead
of members of parliament.

Both the Articles, Article 19(1)(a) and Article 105 of the Constitution talks about freedom
of speech. Article 105 applies to the members of parliament not subjected to any
reasonable restriction. Article19(1)(a) applies to citizens but are subject to reasonable
restrictions.Article 105 is an absolute privilege given to the members of the parliament
but this privilege can be used in the premises of the parliament and not outside the
parliament.If any statement or anything is published outside the parliament by any
member and if that is reasonably restricted under freedom of speech then that published
article or statement will be considered as defamatory.

Case Law:Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee And Others, AIR 1961 SC 613

The appellant is an elected member of the West Bengal Legislative Assembly. The
appellant had an intention to ask certain questions in the assembly and therefore he
gave the notice for the same. The questions to be asked in the assembly were refused in
compliance with the rules of procedure for the conduct of the business in the assembly.
But the appellant published those questions he was not allowed to ask in the assembly in
a local newspaper called JANAMAT.The first respondent, who was then functioning as a
Sub-Divisional Magistrate and because of whose conduct the matter of questions arose,
filed a complaint against the appellant and two others, the editor and the printer and
publisher of those questions.The petition contained the fact that the appellant had made
slanderous accusations against him with an intention to be read by the members of the
public. These accusations were false and the appellant published them, having an
intention of harming the reputation of the complainant. He also alleged that publishing
such false questions in the journal first requires prior permission by the government in
instituting the legal proceeding against the public servant.

In this case, it was held that the provisions of Article 194 even though disallowed by the
speaker were a part of the proceedings of the house and publication for the same will
not attract any sections of the Indian Penal Code.He will not be prosecuted, as Article
194(1) not only gives them freedom of speech but also give the right to ask questions
and publish them in the press.

P.V. NARSIMHA RAO v. STATE (1998)

The facts of the case are – some of the MP’s received bribes to vote against the motion
of no-confidence against the Prime Minister P.V. Narsimha Rao. He was charged under
IPC and Prevention of Corruption Act on the grounds that he bribed some MPs to vote
against the no-confidence motion when he was serving as the Prime Minister. In this
case, the question arose that under Article 105(2) does any member of parliament have
any immunity to protect himself in criminal proceedings against him?

It was held by the majority of the Court that under Article 105(2) the members of the
parliament will get immunity and thus, the activity of taking bribe by the MP’s will get
immunity despite anything said by them or any vote given by them in the Parliament.
The Court further explained that the word “anything” here will be interpreted as a wider
term. The Court interpreted the term “anything” in a wider sense and did not prosecute
P.V. Narsimha Rao.
Power to make rules

The Parliament has the power, which is given by the Constitution of India, to make its
own rules but this power is subjected to the provisions of the Constitution. Though it can
make its own rules, the rules should not be made for its own benefit. If they make any
rule which infringes any provision of the Constitution then it would be held as void.

Internal independence/autonomy

For the effective working of both the houses of parliament and their members, internal
independence should exist without the interference of any outside party or person. The
houses can deal with their respective issues internally without any interference of the
statutory authority.

The Indian Judiciary might not interfere with the proceedings or issues dealt in the
parliament or by the members in the course of their business. Nevertheless, it may
interfere in the proceedings if it is found to be illegal or unconstitutional.

Freedom from being arrested

The member of parliament cannot be arrested 40 days before and 40 days after the
session of the house. If in any case a member of Parliament is arrested within this
period, the concerned person should be released in order to attend the session freely.

Right to exclude strangers from its proceedings and hold secret sessions
The object of including this right was to exclude any chances of daunting or threatening
any of the members. The strangers may attempt to interrupt the sessions.

Right to prohibit the publication of its reporters and proceedings

The right has been granted to remove or delete any part of the proceedings took place in
the house.

Right to regulate internal proceedings

The House has the right to regulate its own internal proceedings and also has the right
to call for the session of the Legislative assembly. But it does not have any authority in
interrupting the proceedings by directing the speaker of the assembly.

Right to punish members or outsiders for contempt

This right has been given to every house of the Parliament. If any of its members or
maybe non-members commit contempt or breach any of the privileges given to him/her,
the houses may punish the person.
The houses have the right to punish any person for any contempt made against the
houses in the present or in the past.

Privileges and fundamental rights

Part III of the Constitution contains fundamental rights wherein Article 19(1)(a) grants
freedom of speech to the citizens. It is subjected to reasonable restrictions. These
restrictions are:-

• Sovereignty and integrity of India should be maintained,

• Security of the states should be maintained,
• Public order should not be disturbed,
• Decency and morality should be maintained,
• Defamation should be avoided,
• Incitement to an offence should be avoided,
• Contempt of court should be avoided,
• Friendly relations with foreign states should be maintained.
Where on the other hand the members of parliament have been granted powers,
privileges etc. their powers or privileges are absolute unlike fundamental rights for the
citizens.
The Parliament enjoys mostly all the supreme powers while making laws and exercise its
power to the best possible extent because of the absolute nature of its powers and
privileges.
The powers of the legislators are too wide such as they decide their own privileges,
include points which can breach the laid down privileges, and also decide the punishment
for that breach.
Article 105(3) and Article 194(3) states that the parliament should from time to time
define the laws or pass the laws on the powers, privileges and immunities of the
members of the parliament and members of the legislative assembly.

Case Law

Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P AIR 1952

The facts of the case:- The U.P. Legislative Assembly issued a warrant against the Home
Minister who was arrested from his residence in Bombay on the ground of contempt of
the house. The Home Minister under Article 32 applied a writ of Habeas Corpus on the
ground that his detention under Article 22(2) violates his fundamental right.

The Supreme Court accepted the arguments and ordered his release according to Article
22(2). He was not presented before the magistrate within 24hrs of his arrest or
detention. Not presenting him before the magistrate resulted in the violation of his
fundamental right under Article 22(2). In this case, it was opined that Article 105 and
Article 194 cannot supersede the fundamental rights.

MSM Sharma v. Sri Krishna Sinha AIR 1959 SC395

The facts of the case:-the petitioner is the editor of the English Daily newspaper of
Patna. He published a report on the proceedings of the Bihar Legislative Assembly and
the reports were said to be removed by the speakerThe editor was presented before the
Legislative Assembly to give reasons for the breach of privilege committed by him. At
first, he was held guilty for his conduct. Then, in an appeal, the editor under Article 19
(1)(a) argued that he has a right to freedom of speech. But the Court denied all the
arguments based on Article 19(1)(a) as it is a general provision and Article 194 is a
special provision. If at any time both of these articles come under any conflict the latter
will prevail over the former. As the general provision cannot overrule the effect of the
special provision.

It has also been suggested that if both Articles, Articles 19(1)(a) and 194, are in conflict,
the rule of Harmonious Construction (every statute should be read as a whole and
interpretations consistent of all the provisions of the statute should be adopted when in
conflict of any statute or any part of the statute) should be applied.

Privileges and the law courts

Article 143 confers the power on the President to consult the Supreme Court if at any
time it appears to the President that a question of fact or a law arises or may arise in
future. Also, such questions must be of public importance or it must be advantageous to
seek the opinion of the Supreme Court. And after such hearing, if the court thinks it
relevant, it may give its opinion to the President.The house of parliament though have a
lot of powers, privileges and immunities but despite all these advantages it cannot act or
perform similar to a Court. The Courts are the one who interprets the laws or acts
passed by the parliament. For instance, if any offence is committed even in the house of
parliament the jurisdiction vests with the ordinary Courts.

Case Law

In Keshava Singh v. Speaker, Legislative Assembly

The facts of the case – Keshava Singh, who was a non-legislative member of the
assembly, printed and published a pamphlet. Because of the printing and publishing of
the pamphlet, the Speaker of the U.P. Legislative assembly criticized him for contempt
and breach of the privilege of one of the members. On the same day, Mr Keshava being
present in the house committed another breach by his conduct.

As a result of his conduct in the house, the speaker directed him to be imprisoned,
issued a warrant for the same and ordered his detention in jail for 7 days. Under Article
226, a writ of Habeas Corpus was applied in his petition. The petition claimed that the
detention in jail is illegal and is done with malafide intentions. The petition also stated
that he was not given any chance to explain or defend himself. The petition was heard
by the 2 judges who gave them interim bail.

As a result of the decision in Keshava’s case, the assembly passed a new resolution.

In this resolution, it was laid that the 2 judges entertained the writ filed by the petitioner
and his lawyer. In its resolution, the assembly issued a contempt notice to present the
two judges and the lawyer before the house and explain the reasons for their conduct. It
also ordered that Keshava should be taken into custody. Under this, they moved
petitions under 226 and filed a writ of mandamus before the Allahabad High Court to set
aside the resolution passed by the assembly.It was held by the majority of the Supreme
Court that the conduct of the 2 judges does not amount to contempt.
The Court further explained that if in the matters of privileges stated under Article
194(3) then the house will be considered as the sole and exclusive judge provided that it
should be stated in that. But if any such privilege is not mentioned in the article then it’s
the Court who has to decide upon it.

Conclusion

After analysing Article 105 and 194, one can clearly infer their absoluteness. These
special provisions are granted to the Parliament for its effective functioning. These
articles also impose duties upon them to make effective laws which do not harm the
rights of others. The parliament or the Legislative Assembly though can exercise their
powers, privileges and immunities, cannot act as an ordinary Court of justice.

Official Secrets Act, 1923

The Official Secrets Act, 1923, deals broadly with the issue of spying and putting the
country’s confidential details at risk of revelation. This act divides secret information into
official codes, passwords, sketch, plan, model, article, document, etc, but it does not
define what a “secret” document is. With time, debates have arisen on whether to
review, amend, or repeal. The Law Commission in 1971, in its report on ‘Offences
Against National Security’, observed that every secret document should not attract the
provisions of this Act unless it is of national emergency. But they didn’t suggest any
changes. Where the Second Administrative Reforms Commission (ARC) wanted to get
the Act repealed and included in a part of the National Security Act. The Official Secrets
Act was said to be against the ideals of a transparent government in a democratic
society.

Definitions

Extending to the whole nation, officials of government, and citizens of India, the Official
Secrets Act, 1923, put forth several definitions under Section 2. Some of the definitions
are:

• While Section 2(1) describes a place belonging to Government’ as the place

inhabited or under the control of the government even without it being
endowed with some rights, Section 2(6) puts forth that any employment
opportunity under a specified division of the government is known as “office
under Government.” Subsection (10) further mentions the office of a
“Superintendent of Police” which has a police officer vested with certain
powers by the Central Government.
• Any aspect referring to the disclosing the communication or receiving of any
information of certain plan, model, document, sketch, etc, or obtaining and
accommodating such information would also comprise of “transfer or
transmission of the sketch, plan, model, article, note or document” under
Section 2(2).
• “Munitions of war” under the Act is meant to comprise any part or whole of a
ship, tank, submarine, arms, torpedo, and such other material or devices
which is used or recommended to be used for war.
 • Thereafter, a “prohibited place” is defined by Section 2 (8). It could comprise
of a place owned or used by the government, whose damage and revelation of
any information would be advantageous for the enemy; any place which even
if does not belong to the government has arms, sketches, models, plans,
ammunitions, etc, being made, stored, structures, formed under a contract
made on behalf of the government: any means of communication on land or
water or any place which has a source of electricity and water for public
purposes or a place where plans, models, war arms, etc, are stored on behalf
of the government are declared to prohibited places as information about it or
damage caused to it could be beneficial for any enemy.

Main provisions

The Official Secrets Act, 1923, extended its provisions to protect the privacy and secrecy
of the governance of the country especially for the national security of the country. The
Act lays down several provisions out of which some are:

• Section 5 puts forth the provision of offense caused by “wrongful

communication of information.” If someone reveals a secret official code or
password or any sketch, plan, model, article, note, document or information, a
prohibited place or a similar place, whose sufficient information could help a
potential enemy, or a high official under a government who has been conferred
with the responsibility of protecting such confidential information, or a person
employed under such an official or bound by a contract or holds a contract on
behalf of the government if fails to properly conduct himself and cause harm
to the information held, uses such details and knowledge for helping a foreign
power or in a way ‘prejudicial to the safety of the State,’ or purposefully
communicates such details to someone who is not authorized is held to be
guilty under this section.
• Section 4 highlights that “foreign agent” means any person who has
reasonable grounds for being suspected as he or she is employed by a foreign
power by any means, for the purpose of carrying out an act with or without
compliance to the safety of the state [India], prejudicial to the safety or
interests of the State, or who can be suspected for committing or trying to
commit the act for the interest of the foreign power.
• Section 4(c) further highlights that any location or address with the perfect
reason of being suspected for receiving communications for an agents purpose
or where a foreign agent resides, gives or receives information, or could be
where he carries out any business, maybe assumed as an address of a foreign
agent, and communications addressed is to be known as connecting with a
foreign agent.
• Under Section 6 if any person for getting entry or helping another to enter a
prohibited area which goes against the safety of the state while doing so if
wears an official uniform or a resembling uniform without legal authority for
deceiving and representing himself to be someone with authority, or, gets an
oral or written declaration or document or makes any false statements, or,
deceiving someone represents himself to be an official employed by the
government to receive secret and classified information, etc, is held guilty for
committing an offense under this Section. Section 6(3) imposes imprisonment
for a term of three years, or with a fine, or both for committing an offense
under this section.
In the case of State v. Jaspal Singh Gill, Captain Jasjit Singh on 24th March 1983, had
informed the then Air Vice Marshal, Shri S. Raghavendran that AVM (Retd.) K.H. Larkins
was trying to convince him to deliver secret manuals of aircraft used by the Indian Air
Force for Rs. 20,000 per document. Shri S. Raghavendran reported this and thereafter,
the movements of Mr. K.H. Larkins were tracked and observed. In 1983 raids were
conducted at K.H Larkins’ house and as well as the residence of his brother F.D. Larkins.
During interrogation, it was confessed by them that they were delivering classified
information to a foreign agency. F.D. Larkins had also confessed that Lt. Col. (Retd.)
Jasbir Singh was his sub-agent for acquiring these documents and information on
armaments. On arrest and interrogation of Jasbir Singh, he had confessed that he had
been passing on information and documents to Major General (Retd.) F.D. Larkins and
Jaspal Singh Gill, for monetary gains. On conducting a search at Jaspal Gill’s house,
confidential documents with the Defense telephone directory connected to the Army
were recovered. It was also said that the respondents had passed on the information to
a U.S. Intelligence Operator which was confirmed from the 13 invitation cards from the
Intelligence Operator for parties seized from Jaspal Gill’s residence.

All 4 accused had committed offenses punishable under sections 3, 5, and 9 of the
Official Secrets Act, 1923 along with section 120-B of the Indian Penal Code also F.D.
Larkins and Jasbir Singh were also accused of committing offenses punishable
under section 6 of the Official Secrets Act, 1923. The criminal revision petition filed by
the accused was disposed of by the case.

• If any person going against and not considering the safety and interest of the
state if approaches and tends to enter a prohibited place, makes a sketch or
plan useful for enemies, collects and communicates secret code, password,
document, plan, notes, etc, useful for the enemy not considering the safety
and sovereignty of the state shall be punishable with imprisonment for a term
of 3 years which may extend in case of an offense related 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 naval, military or air force affairs of Government or in relation to any
secret official code” 14 years. Whereas Section 10 puts forth the provision of
penalties for cover and accommodating a spy. Any person harbors a spy who
has committed an offense under Section 3 of the Act or fails to provide the
authorities with information of such people and commits an offense under
Section 10 which is punishable with imprisonment for a term of three years or
with fine or both.

Landmark judgments

Asif Hussain v. State (2019)

In the case of Asif Hussain v. State, the appellant Asif Hussain was identified to be a
Pakistani national living in Kolkata and delivering sensitive information on the Indian
Army. Seized documents were verified and proved that they were for restricted and
official purposes. The appellant was convicted and sentenced to a period of 9 years of
imprisonment for being charged of an offense under Section 3 of the Official Secrets Act,
1923 and another term of four years with a fine of ₹10,000 for an offense under Section
474 of the IPC. The court had held that the sentences awarded to the appellant had to
work “concurrently and not sequentially.”

Case laws likho

Conclusion
Applying to every Indian government official and every Indian citizen living inside or
outside of the country, the Official Secrets Act, is a comprehensive statute maintaining
the security and integrity of the country by protecting it from spies sent by enemies or
the wrongful communication of sensitive information to anyone other than the
authorized official. This British-era law was initially introduced to repress the voice and
activities of national newspapers to try to go against the rule of the Raj. Often questions
are raised on the validity of the Act in the 21st century. The classification of secret
documents put forth by the Act has been in question. It sometimes is considered that
this Act is just a way to stop the citizens from questing about the doings of the
government. The Officials Secret Act is considered to be violating the Right to
information. Even though precedents have shown the superiority of the RTI, there are
still cases where unfair and wrongdoings are hidden under the covers of national
interest. With the instances of spies getting caught and sensitive information being
revealed, the quashing of this Act would leave the country on unsafe grounds. Therefore,
what is needed is reviewing and amendments.