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Expanding Horizon of Freedom of Speech And Expression- Statutory/Judiciary Response
In the Constitution of our Democratic Republic among the fundamental freedoms, freedom of speech and expression shines radiantly in the firmament of Part III. This is a protection given to citizensagainst state suppression or regulation.
It serves the following purposes: -
•Freedom of speech and expression helps in the discovery of truth.
•Freedom of speech and expression is associated with citizen’s participation in a democracy.
•Freedom of speech and expression is an instrument of self fulfillment in the hands of individuals.
•Freedom of speech and expression provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own belief and communicate them freely to others.
Freedom of speech and expression is a cherished right which is recognized not only by the Constitution of India under Article 19(l)(a), but also by international as well as regional human rights documents. It has been held to be basic and indivisible for a democratic polity.It is the foundation of a democratic society.It is essential for the rule of law and liberty of citizens.
In Romesh Thappar v. State of Madras ,Patanjali Shastri, C.J. observed:
Freedom of speech and of the press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.
Thus, the importance of freedom of speech and expression becomes relevant when the question of accountability of the government comes in. As Dr. B.R. Ambedkar had said that in any representative democracy, the root concerns are two, viz. Stability and Responsibility. The government that the system throws up should enjoy the strength and stability necessary for the security, development and welfare of the people and those called upon to govern should remain responsible to the people and to their representatives.
The present work is an incisive examination of the law relating to freedom of speech and expression. In due course of time, several species of rights unremunerated in Article 19 have branched off from the genus of the Article through the process of interpretation by the Apex Court. The new contours of the freedom of speech and expression would be discussed elaborately.
‘Freedom’ means absence of control, interference or restrictions. Hence, the expression ‘Freedom of press’ means the right to print and publish without any interference from the state or any other public authority. But this, Freedom, like other freedoms, cannot be absolute but is subject to well known exceptions acknowledge in the public interests, which in India are enumerate in Article 19(2) of the constitution.
The prime purpose of the free press guarantee is regarded as creating a fourth institution outside the government as an additional check on the three official branches:-
Restrictions on Freedom of Speech and expression in India
As already stated it is necessary to maintain and preserve press in a democracy. But at the same time it is also necessary to place some restrictions on this freedom for the maintenance of social order, because no freedom can be absolute or completely unrestricted. Accordingly, underArticle 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:-
1. Sovereignty & Integrity of India
2. Security of the State
3. Friendly relations with Foreign States
4. Public Order
5. Decency or Morality
6. Contempt of Court
8. Incitement to an Offence
The grounds mentioned above reveal that they are all concerned with either the national interest or in the interest of the society. The first set of grounds, namely, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are all grounds referable to national interest. Whereas the second set of grounds, namely, decency or morality, contempt of court, defamation and incitement to an offence are all concerned with the interest of the society. However it is the constitutional obligation of the judiciary to ensure that the restrictions imposed by a law on the media are reasonable and relate to the purposes specified in Article 19(2).Because reasonable restrictions contemplated under the Indian Constitution brings the matter in the domain of the court as the question of reasonableness is a question primarily for the Court to decide.
Thus, in Prabhu Dutt vs. Union of India the Supreme Court has held that the right to know news and information regarding administration of the Government is included in the freedom of press. But this right is not absolute and restrictions can be imposed on it in the interest of the society and the individual from which the press obtains information.
They can obtain information from an individual when he voluntarily agrees to give such information.
In Papnasam Labour Union vs. Madura Coats Ltd. the Hon’ble Supreme Court has laid down some principles and guidelines to be kept in account while considering the constitutionality of a statutory provision imposing restriction on fundamental rights guaranteed by Articles 19(1) (a) to (g) when challenged on the grounds of unreasonableness of the restriction imposed by it. Inre Arundhati Roy, the Supreme Court of India followed the view taken in the American Supreme Court (Frankfurter, J.) in Pennekamp vs. Florida in which the United States Supreme Court observed:-
“If men, including judges and journalists, were angels, there would be no problem of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise”.
In Rajendra Sail vs.M.P. High Court Bar Assn. the editor, printer and publisher and a reporter of a newspaper, along with the petitioner who was a labor union activist, were summarily punished and sent to suffer a six months imprisonment by the High Court. Their fault was that on the basis of a report filed by a trainee correspondent, they published disparaging remarks against the judges of a High Court made by a union activist at a rally of workers. The remarks were to the effect that the decision given by the High Court was rubbish and fit to be thrown into a dustbin.
In appeal the Supreme Court upheld the contempt against them, but modified and reduced the sentence. In D.C. Saxena (Dr.) vs. Chief Justice of India the Apex Court has held that no one else has the power to accuse a judge of his misbehavior, partiality or incapacity. The purpose of such a protection is to ensure independence of judiciary so that the judges could decide cases without fear or favor as the courts are created constitutionally for the dispensation of justice.
Freedom of Speech and Expression and the Judicial Response
The freedom of speech and expression under Article 19(1)(a) is a concept with diverse facets, both with regard to the content of the speech and expression and in the means through which communication takes place. It is also a dynamic concept that has evolved with time and advances in technology.
Article 19(1)(a) covers the right to express oneself by word of mouth, writing, printing, picture or in any other manner. It includes the freedom of communication and the right to propagate or publish one’s views. The communication of ideas may be through any medium, newspaper, magazine or movie including the electronic and audiovisual media. It is noteworthy here that through the judicial creative approach, a list of different rights has flown from the basic freedom of speech and expression. This chapter, thus, studies the judicial response towards the freedom of speech and expression. The honorable Supreme Court has in numerous cases deduced certain fundamental features which are not specifically mentioned in Article 19(l)(a) on the principle that certain unarticulated rights are implicit in the enumerated guarantee. Thus, the judicial craftsmanship owns the credit of widening the horizons of the freedom of speech and expression by including in it certain multifarious aspects like –
•Freedom of press,
•Right to receive information,
•Right to reply,
•Right of convict to express himself
•Right not to speak,
•Freedom of circulation
•Right of access to the source of information,
•No pre-censorship on press,
•Freedom in volume of news,
•Right to fly the national flag,
•Right to broadcast,
•Right to criticize,
•Right to expression beyond national boundaries,
•Right of the press to conduct interviews and the like.
Also, the inter relationship between Article 14, 19 and 21 which has been so finely brought about by the Supreme Court in Maneka Gandhi’s case would be highlighted.
Freedom of Publication
This includes the freedom of propagation of ideas and publication in a printed form. In Romesh Thappar's case, briefly the facts were as follows:
The Government of Madras imposed a ban upon the entry and circulation of the “Cross Roads”, an English weekly published from Bombay, under Section 9(1-A) of Madras Maintenance of Public Order Act, 1949. The petitioner who was the printer, publisher and editor of the journal challenged the said order, being violative of his freedom of speech and expression conferred by Article 19(1 )(a) of the Constitution.
Justice Patanjali Shastri, (as he then was), speaking for the majority 6 of the Supreme Court observed:
There can be little doubt that freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation.
Justice Shastri, assuming that the liberty of press is protected under Article 19(l)(a) as under the First Amendment to the U.S. Constitution, went on to quote from the judgment of the United States’ Supreme Court in the case of Ex parte Jackson.
Liberty of circulation is as essential to that freedom (i.e. of press) as the liberty of publication. Indeed without circulation the publication would be of little value. The learned judge further pointed out that freedom of speech and expression are the foundation of all democratic organizations and are essential for the proper functioning of the processes of democracy.
Shastri, J., further observed that the said order would be violative of petitioner’s fundamental right guaranteed under Article 19(1)(a) unless the impugned Section, under which the said order was issued, is saved by the reservation contained in the restrictive clause (2) of Article 19. On this point, Shastri, J., concluded that the impugned Section fell outside the scope of authorized restrictions under clause (2) and hence void and unconstitutional.
Freedom of Circulation
Freedom of speech includes not only the freedom of publication but circulation also. Indeed without freedom of circulation, the freedom of publication would be of little value. Freedom lies both in circulation and in content.
In 1962, there was pronounced a very important judgment by Supreme Court in Sakai Papers (Pvt.) Ltd v. Union of India, in the sphere of regulation of economic aspects of the press. In this case, the question of freedom of circulation of press was also involved. It may be pointed out that the right to freedom of speech and expression and of press is infringed not only when there is a direct ban on the circulation of publication, but also when action on the part of the Government would adversely affect the circulation of the paper. Here an important question arises which relates to the two aspects of the activity of newspapers. These are dissemination of news and views, and the publication of advertisement etc, which form the commercial income bearing activity.
The learned judge, concluding the case observed:
The right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen. Freedom of speech can be restricted only ininterest of the security of state, friendly relations with foreign states, public order, decency or morality or in relations to contempt of Court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public.
In this regard, it is noteworthy to mention about the Explanation which was added to Section 5(3) of The Press Council (Amendment) Act, 1994, according to which, a newspaper is to be categorized as big, small or medium on the basis of its circulation per issue as the Central Government may notify in the Official Gazette.
Freedom to circulate extends not merely to the matter which the Press is entitled to circulate but also to the volume of circulation. In short, it is both qualitative and quantitative.
In LICv.Manubhai Shah, the Supreme Court reiterated that the ‘freedom of speech and expression’ must be broadly construed to include the freedom to circulate one’s views by word of mouth or in writing or through audio visual media. This includes the right to propagate one’s views through the print or other media. The Court observed:
Freedom to air one’s view is the lifeline of any democratic institution and an attempt to stifle or suffocate or gag this right would should a death knell to democracy and would help usher in autocracy or dictatorship.
The right to circulate encompasses the right to determine the volume of circulation. The freedom of a newspaper or other publication, from the aspect of the volume of circulation, means that (i) it is entitled to propagate its ideas and views and reach any class and number of readers as it chooses, subject, of course, to constitutionally permissible restrictions; and (ii) to print and publish any number of pages it chooses.
Freedom of Press
Romesh Thappar v. State of Madras and Brij Bhushan v. State of Delhi, were amongst the earliest cases to be decided by the Supreme Court declaring freedom of press as a part of freedom of speech and expression.
The strongest affirmation of the spirit of the First Amendment is echoed in Express Newspapers (P) Ltd .v. Union of India. This case arose out of a challenge to the Working Journalists and other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, on the ground that its provisions violated Article 19(l)(a). In the facts of the case, the Court held that the impact of the legislation on the freedom of speech was much too remote and no judicial interference was warranted.
However, the Court did recognise an important principle which is as follows:
Laws which single out the press for laying upon it excessive and prohibitive burdens which would restrict the circulation, impose a penalty on its rights to choose the instrument for its exercise or to seek an alternative media, prevent newspapers from being started and ultimately drive the press to seek Government aid in order to survive, would be struck down as unconstitutional.
Freedom to Comment
In S. Rangarajanv.P. Jagjivan Ram, Everyone has a fundamental right to form his opinion on any issues of general concern. Open criticism of government policies and operations is not a ground for restricting expression. Intolerance is as much dangerous to democracy as to the person himself. In democracy, it is not necessary that everyone should sing the same song.
Right to Criticize
The question of civil liberty arises not when the people of a country obediently carry out the orders of the government. It arises only when there is a conflict between the people and the executive authority. The idea of civil liberty is to have the right to oppose the government. On the other hand, for a public man, press is an essential tool which formulates public opinion and howsoever he may be irritated at times with the press, he must ultimately be inclined to love the press.
Right to receive information
The freedom of 'speech and expression' comprises not only the right to express, publish and propagate information, it circulation but also to receive information. This was held by the Supreme Court in a series of judgement which have discussed the right to information in varied contexts from advertisements enabling the citizens to get vital information about life-saving drugs,to the right of sports lovers to watch cricket and the right of voters to know the antecedents of electoral candidates.
Right to broadcast
The concept speech and expression has evalued with the progress of technology and encompasses all available means of expression and communication. This would include the electronic and the broadcast media.
In Odyssey Communications (P) Ltd .v. Lokvidayan Sanghatana, the Supreme Court held that the right of a citizen to exhibit films on the State channel – Doordarshan is part of the fundamental right guaranteed under Article 19(1)(a). The court held that this right was similar to the right of a citizen to publish his views through any other media such as newspapers, magazines, advertisements, hoardings and so on. In this case, the petitioners challenged the exhibition on Doordarshan of a serial titledHoni Anhonion the ground that it encouraged superstitious and blind faith amongst viewers. The petition was dismissed as the petitioner failed to show evidence of prejudice to the public.
In another similar case Ramesh v. Union of India, a petition was filed to restrain the screening of the film serial TAMAS on the ground that it violates Article 21 and 25 of Indian Constitution and Section 5B of the Cinematograph Act, 1952. The film was based on the novel of Bhisma Sahni, which depicted the event in Lahore immediately before the partition of the country. Two judges of the Bombay High Court saw the film and rejected the contention that it has propagated the cult of violence. The Supreme Court agreed with the High Court and emphasized the need to encourage the telecasting of the film in television as it is a powerful medium.
In another case, the freedom of cinema expression was upheld and restrictions on exhibition of a film were removed on the ground that scenes were not obscene. InBobby Art internationalv.Om Pal Singh Hoon,the Supreme Court drew a distinction between nudity and obscenity. The petition was filed by a member of theGujjarCommunity seeking to restrain the exhibition of the film “Bandit Queen” on the ground that the depiction in the film was abhorrent and unconscionable and a slur on the womanhood of India and that the rape scene in the film was „Suggestive of the moral depravity of the Gujjar Community. The Supreme Court rejected the petitioner’s contention that the scene of frontal nudity was indecent with in Article 19(2) and Section 5-B of the Cinematograph Act, 1952 and held that the object of showing the scene of frontal nudity of the humiliated rape victim was not to arouse prurient feeling but revulsion for the perpetrators.
Right to advertisement (commercial speech)
A product or a service may be advertised through a variety of methods such as hand bills, circulars, direct mail, billboards, signboards, sky signs, roof signs, loudspeakers, mechanical or electric devices, newspapers and magazines, radio, television, the internet and so on.
InTata Press Ltd.v.Mahanagar Telephone Nigam Ltd.,the Supreme Court held that a commercial advertisement or commercial speech was also a part of the freedom of speech and expression, which would be restricted only within the limitation of Article 19(2). The Telephone Nigam permited the contractors to publish telephone directories in „Yellow pages‟ used to be added to the directory published by the Nigam in white pages. The Bombay High Court allowed the appeal of the Nigam, which sought a declaration that it alone had exclusive right to publish telephone directory and the Tata Press has no right to publish the list of the telephone subscribers without its permission as it would be violation of Indian Telegraph Act. The Tata Press went in appeal to Supreme Court. Admitting the appeal, the court said:
The Advertisement as “Commercial Speech” has two facts. Advertising which is no more than a commercial transaction is nonetheless dissemination of information regarding the product-advertised. Public at large are benefited by the information made available through the advertisements. In a democratic economy, free flow of commercial information is indispensable. There cannot be honest and economical marketing by public at large, without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of “Commercial Speech”.
The public at large has a right to receive the commercial speech. Article 19(1)(a) of the constitution not only guaranteed freedom of speech and expression,it also protects the rights of an individual to listen, read and receive the said speech. The Supreme Court emphatically held that the right under Article 19(1)(a) could not be denied by creating a monopoly in favour of the Government. It could only be restricted on grounds mentioned in Article 19(2) of the constitution.
Right to report court proceedings
The right to report judicial proceedings stems for the necessity for transparency. Justice must not only be done, it must be seen to be done. Openness is a safeguard against judicial error and misconduct.
“In the darkness of secrecy sinister interest, and evil in every shape, have full swing only in proportion as publicity has place any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying, under trial.”
The media enjoys privileges on account of the citizen‟s right to be informed on matters of public importance.
It is not because of any special wisdom, interest or status enjoyed by proprietors, editors or journalists. It is because the media are the eyes and ears of the general public. They act on behalf of general public. Their right to know and the right to publish is neither more nor less than that of the general public. Indeed it is that of the general public for whom they are trustees.
The journalist has a fundamental right to attend proceedings in court and the right to publish a faithful report of the proceedings witnessed and heard in court. This right is available in respect of judicial and quasi-judicial tribunals.
Publicity of proceedings serves another important purpose. It enhances public knowledge and appreciation of the working of the law and the administration of justice. There is also a therapeutic value to the public in seeing criminal trials reach their logical conclusion.
Publicity of proceedings is not an absolute rule. The open justice system must give way when there are higher considerations. For instance, the names of rape victims or riot victims must be protected. Such persons may be reluctant to complaint if their identities are disclosed and trials publicised. It is not only necessary to protect such persons from public humiliation and embarrassment, but also necessary to ensure that the victim gives the best available evidence which she may not be able to provide if she is in the public gaze. Similarly, family disputes warrant privacy, particularly to protect children from unwarranted publicity.
In Naresh Shridhar Mirajkarv.State of Maharashtra, the Supreme Court held that the court may restrict the publicity of proceedings in the interests of justice. The court has the inherent power under Section 151 of Code of Civil Procedure, 1908 to order a trial to be held in camera, but this power must be exercised with great caution and only where the court is satisfied beyond doubt that the ends of justice would be defeated if the case were to be tried in open court.
Right to expression beyond national boundaries
The right to expression transcends national boundaries. The revolution in communications and the electronic media has broken down transnational barriers. It has made possible the transmission of information to any part of the world in a matter of seconds. It is possible via internet and phone.
“Everyone has a right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
In Maneka Gandhi vs Union of India, the Supreme Court considered whether Article 19(1)(a) of Indian Constitution was confined to Indian territory and held that the freedom of speech and expression is not confined to National boundaries.
So electronic media also has right to expression beyond national boundaries under Article 19(1)(a) of Indian Constitution.
Copyright versus the freedom of expression
The law of copyright is indeed to prevent plagiarism and unfair exploitation of creative work. It is a natural extension of the freedom of speech and expression protected under Article 19(1)(a) of the constitution. If an individual enjoys the freedom of speech and expression, he must also be guaranteed protection of the intellectual property in his expression. Absence of such protection would demoralize creative artists and have a chilling effect on creative activity.
Copyright is not a positive right to do something but confers a negative right which restricts others from copying the original work of an author. A right for one person is thus a restriction on another. The laws of copyright protects the right of one person and restrains another from exercising corresponding rights.
The question arises is as to whether the right of the copyright owner infringes the freedom of expression of another person or his freedom of business. Unlike defamation, contempt, morality, decency, incitement to an offence etc., copyright is not one of the specified restrictions imposed under constitution. The right of free expression or free trade cannot be stretched to mean that a person can be entitled to benefit from anothers property or the fruits of anothers labour. This is vital public interest in copyright protection. Writer G. Davies in “Copyright and the Public Interest” observed that copyright serves the public interest in freedom of expression. By enabling the creator to derive a financial award from the work, his artistic independence and right to create and publish according to his own wish and conscience is assured. Alternative methods of rewarding creators, such as patronage, either by the State or by individual carry the risk of control or censorship.
Censorship or Restrictions on Freedom of Speech And Expression
In a modern State, absolute and unrestricted individual rights do not exist, because they cannot exist. Freedom is more purposeful if it is coupled with responsibility. Like any other freedom, the freedom of speech and expression has to be balanced with other social values. The liberty of the individual to do as he pleases even in innocent matters is not absolute. It must frequently yield to common good.
Freedom of the press has to be reconciled with the collective interest of the society, which is known as “public interest”.
The reconciliation of the contest between power and liberty, between the claims of political society and the interests of individual is a perennial problem of political society which curiously persists irrespective of any difference in the form of Government. So, there are certain permitted prior restraints and restrictions on the freedom of the press, in the collective interest of society. Prior restraint meansany kind of interference or control exercised by the State over the freedom of the press at any stage prior to publication of the alleged offending material.
Censorship means a bar on further publication of a journal or of matter of a special kind without “advance approval of an executive official”.
In England it is acknowledged that in times of war when the very existence of the State is in jeopardy, the State has power to prevent the dissemination of such information and comments as would interfere with successful prosecution of the war. In the Indian Constitution Article 19(2) makes no distinction between times of war and of peace. It authorises the State to impose reasonable restrictions for preserving the interests specified there in. These restrictions must be reasonable both substantively and procedurally. The decision of the Supreme Court inVirendrav.State of Punjabis a clear authority for the proposition that pre-censorship even in times of peace is warranted in certain circumstances under Article 19(2) of Indian Constitution.
Statutory Enactment in India regarding Freedom of speech and expression
List of Acts and Rules applicable to the media industry -
1.The Press and Registration of Books Act, 1867
2.Registration of Newspapers (Central) Rules, 1956
3.The Press and Registration Appellate Board (Practice and Procedure) Order,1961
4.The Press Council Act, 1978
5.The Press Council Rules, 1979
6.The Press Council (Procedure for Nomination of Members) Rules, 1978
7.The Press Council (Procedure for Inquiry) (Amendment) Regulations, 2006
8.The Press Council (Procedure for Conduct of Meetings and Business) Regulations, 1979
9.The Press Council of India (Grant of Certified Copies) Regulations, 1999
10.The Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955
11.The Working Journalists (Conditions of Service) and Miscellaneous Provisions Rules, 1957
12.The Working Journalists and other Newspaper Employees Tribunal Rules, 1979
13.The Working Journalists (Fixation of Rates of Wages) Act, 1958
14.The Newspaper (Prices and Pages) Act, 1956
15.The Delivery of Books and Newspapers (Public Libraries) Act, 1954
16.The Right to Information Act, 2005
17.The Right to Information (Regulation of Fee and Cost) Rules, 2005
18.The Central Information Commission (Appeal Procedure) Rules, 2005
19.The Central Information Commission (Management) Regulations, 2007
20.The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954
21.The Drugs and Magic Remedies (Objectionable Advertisements) Rules, 1955
22.The Emblems and Names (Prevention of Improper Use) Act, 1950
23.The Emblems and Names (Prevention of Improper Use) Rules, 1982
24.State Emblem of India (Prohibition of Improper Use) Act, 2005
25.State Emblem of India (Regulation of Use) Rules, 2007
26.The Parliamentary Proceedings (Protection of Publication) Act, 1977
27.The Young Persons (Harmful Publications) Act, 1956
28.The Punjab Special Powers (Press) Act, 1956 (Relevant Provisions)
29.Copyright Act, 1957
30.The Dramatic Performances Act, 1876 (Relevant Provisions)
31.The Cinematograph Act, 1952
32.The Cinematograph (Certification) Rules, 1983
33.The Cine-workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981
34.The Cine-Workers and Cinema Theatre Workers (Regulation of Employment) Rules, 1984
35.The Cine-Workers Welfare Cess Act, 1981
36.The Cine-workers Welfare Cess Rules, 1984
37.The Cine-Workers Welfare Fund Act, 1981
38.The Cine-Workers Welfare Fund Rules, 1984
39.The Prasar Bharati (Broadcasting Corporation of India ) Act, 1990
40.The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007
41.The Sports Broadcast Signals (Mandatory Sharing with Prasar Bharati) Rules, 2007
42.The Cable Television Networks (Regulation) Act, 1995
43.The Cable Television Networks Rules, 1994
44.The Radio, Television and Video Cassette Recorder Sets (Exemption from Licensing Requirements) Rules, 1997
45.The Standards of Quality of Service (Broadcasting and Cable services) (Cable Television – CAS Areas) Regulation, 2006
46.The Indian Telegraph Act, 1885 (Relevant Provisions)
47.The Telecom Regulatory Authority of India Act, 1997
48. The Telecom Regulatory Authority of India (Miscellaneous) Rules, 1999
49. The Telecom Regulatory Authority of India (Period for Filing of Application to Authority) Rules, 1999
50. The Telecommunication Interconnection (Port Charges) Regulation, 2001
51. The TRAI (Levy of Fees and Other Charges for Tariff Plans) Regulations, 2002
52. The Telecom Disputes Settlement and Appellate Tribunal (Form, Verification and the Fee for Filing an Appeal) Rules, 2003
53. The Telecommunication Interconnection (Charges and Revenue Sharing) Regulation, 2001
54. The Telecommunication Interconnection Usage Charges Regulation, 2003
55. The Telecom Regulatory Authority of India (Salaries, Allowances and Other Conditions of Service of Chairperson and Whole-time Members) Rules, 2000
56. The Telecom Regulatory Authority of India (Procedure for Conducting Inquiry Against a Member) Rules, 1999
57. The Telecom Regulatory Authority of India (Annual Report and Returns) Rules, 1999
58. The Telecom Regulatory Authority of India (Form of Annual Statement of Accounts and Records) Rules, 1999
59. The Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004
60. The Telecom Regulatory Authority of India (Access to Information) Regulations, 2005
61. The Common Charter of Telecom Services, 2005
62. The Regulation on Quality of Service of Basic and Cellular Mobile Telephone Services, 2005
63. Quality of Service (Code of Practice for Metering and Billing Accuracy)
64. The Standards of Quality of Service (Broadcasting and Cable Services) (Cable Television – CAS Areas) Regulation, 2006
65. The Quality of Service of Broadband Service Regulations, 2006
66. The Telecom Consumers Protection and Redressal of Grievances Regulations, 2007
67. The Telecom Unsolicited Commercial Communications Regulations, 2007
68. The International Telecommunication Access to Essential Facilities at Cable Landing Stations Regulations, 2007
69. The Telecommunication Consumers Education and Protection Fund Regulations, 2007
70. The Direct to Home Broadcasting Services (Standards of Quality of Service and Redressal of Grievances) Regulations, 2007
71. Domestic Leased Circuits Regulations, 2007
72. The Register of Interconnect Agreements Regulations, 1999
73. The Indian Post Office Act, 1898 (Relevant Provisions)
74. The Information Technology Act, 2000 (Relevant Provisions)
75. The Information Technology (Certifying Authorities) Rules, 2000
Laws applicable for information
The list of legislations applicable for Information –
i. Press & Registration of Books Act 1867
ii. Delivery of Books 'and Newspapers' (Public Libraries) Act, 1954
iii. Delivery of Books (Public Libraries) Rules, 1955
iv. Registration of Newspapers (Central) Rules 1956
v. The Newspaper (Prices and Pages) Act, 1956
vi. The Young Persons (Harmful Publications) Act, 1956
vii. The Press and Registration Appellate Board (Practice and Procedure) Order, 1961
viii. The Parliamentary Proceedings (Protection of Publication) Act,1977
ix. Press Council Act, 1978
x. The Press Council (Procedure for Nomination of Members) Rules, 1978
xi. The Press Council Rules, 1979
xii. The Press Council (Procedure for Conduct of Meetings and Business) Regulations, 1979
xiii. The Press Council of India (Grant of Certified Copies) Regulations, 1999
xiv. Press Council (Procedure for Inquiry) (Amendment) Regulations, 2006
The following guidelines and policies are applicable for Information-
1) Central News media Acredition Guidelines, 1999
2) Guidelines for publication of Indian editions of foreign magazines dealing with news and current affairs 3) Guidelines for syndication arrangements by newspapers
4) Advertisement Policy
5) Electronic Media Advertisement Policy
6) Guidelines for Empanelment of Audio-Video Producers with DAVP
7) Policy guidelines for empanelment of private C&S TV Channels for government advertisements by DAVP and Other duly authorized agencies of the ministry of I&B
8) Citizens Charter of Registrar of Newspapers for India
9) Guidelines for foreign investment in Indian entities publishing Scientific /Technical /Specialty Magazines/Journals/Periodicals
10) Guidelines for foreign investment in print media news sector/facsimile editions.
11) The Press Council of India's Norms of Journalistic Conduct.
Authorities regulating the press and media industry
i) Ministry of Information and Broadcasting Government of India
The Ministry of Information & Broadcasting, through the mass communication media consisting of radio, television, films, the press, publications, advertising and traditional mode of dance and drama plays a significant part in helping the people to have access to free flow of information. It also caters to the dissemination of knowledge and entertainment to all sections of society, striking a careful balance between public interest and commercial needs, in its delivery of services. Ministry of Information & Broadcasting is the apex body for formulation and administration of the rules and regulations and laws relating to information, broadcasting, the press and films. This Ministry is responsible for international co-operation in the field of mass media, films and broadcasting and interacts with its foreign counterparts on behalf of Government of India.
The mandate of the Ministry of Information & Broadcasting is:
•News Services through All India Radio (AIR) and Doordarshan (DD) for the people
•Development of broadcasting and television.
•Import and export of films.
•Development and promotion of film industry.
•Organisation of film festivals and cultural exchanges for the purpose.
•Advertisement and visual publicity on behalf of the Government of India.
•Handling of press relations to present the policies of Government of India and to get feed-back on the Govt. policies.
•Administration of the Press and Registration of Books Act, 1867 in respect of newspapers.
•Dissemination of information about India within and outside the country through publications on matters of national importance.
•Research, Reference and Training to assist the media units of the Ministry to meet their responsibilities.
•Use of interpersonal communication and traditional folk art forms for information/ publicity campaigns on public interest issues.
•International co-operation in the field of information & mass media.
The following comes under the purview of the Ministry of Information and Broadcasting –
1) Broadcasting policy and administration
2) Cable television policy
6) Advertising and visual publicity
9) Research and reference
10) Various subordinate, autonomous organisations, public sector undertakings
ii) Press Information Bureau
The Press Information Bureau (PIB) is the nodal agency of the Government to disseminate information to the print and electronic media on government policies, programmes, initiatives and achievements. It functions as an interface between the Government and the media and also provides feedback to the Government on people's reaction as reflected in the media.
PIB has its Headquarters in New Delhi. It is headed by the Principal Director General (Media & Communication) who is assisted by a Director General and eight Additional Director Generals. Besides, the Bureau has Officers in the ranks of Director, Joint Director, Dy. Director, Assistant Director and Media & Communication Officer who are attached with different Ministries in order of their rank and Ministry's size, importance and sensitivity.
PIB has a dedicated unit for the publicity and media support to the Prime Minister's Office (PMO). The unit functions on 24X7 basis and compiles media reports on all days including holidays for PMO and Cabinet Secretariat.
iii) Directorate of Advertising & Visual Publicity
The Directorate of Advertising and Visual Publicity (DAVP), established in 1955, is the nodal multi-media advertising agency of the Government of India. Over the past 56 years, it has been catering to the communication needs of almost all central Ministries/Departments, autonomous bodies and PSUs by providing them single window cost-effective service. It informs and educates the people, both rural and urban, about the government's policies and programmes and motivates them to participate in developmental activities, through its various vehicles of communication, viz, Print media advertising, Audio Visual advertising, printed publicity, exhibitions, outdoor publicity and mass mailing.
The DAVP is headed by Director General who is assisted by 2 Additional Director Generals and other officials. At its headquarter it consists of a Campaign Wing. Advertising Wing, Printed Publicity Wing, Exhibition Wing, Electronic Data Processing Center, Mass Mailing Unit, Audio-Visual Cell, a Design Studio and Administration and Accounts Wings.
iv) Registrar of Newspapers for India
The Office of the Registrar of Newspapers for India, more popularly known as RNI came into being on 1st July, 1956, on the recommendation of the First Press Commission in 1953 and by amending the Press and Registration of Books Act 1867. The Press and Registration of Books Act contain the duties and functions of the RNI. On account of some more responsibilities entrusted upon RNI during all these years, the office is performing both statutory as well as some non-statutory functions. Some of the functions are –
•Compilation and maintenance of a Register of Newspapers containing particulars about all the newspapers published.
•Issue of Certificate of Registration to the newspapers published under valid declaration;
•Scrutiny and analysis of annual statements sent by the publishers of newspapers every year under Section 19-D of the Press and Registration of Books Act containing information on circulation, ownership etc;
•Informing the District Magistrates about availability of titles, to intending publishers for filing declaration;
•Ensuring that newspapers are published in accordance with the provisions of the Press and Registration of Books Act 1867 and the Rules made there under.
•Verification under Section 19-F of the PRB Act, of circulation claims furnished by the publishers in their Annual Statements; and
•Preparation and submission to the Government on or before
•31st December each year, a report containing all available information and statistics about the press in India with particular reference to the emerging trends in circulation and in the direction of common ownership units etc.
v) Press Council of India
Press Council is a statutory quasi-judicial authority mandated by the Parliament to preserve the freedom of the press and maintain and improve the standards of newspapers and the news agencies in India. It is an autonomous body with equal quasi judicial authority over the authorities and the press persons.
The Council discharges its functions primarily through adjudications on complaint cases received by it, either against the Press for violation of journalistic ethics or by the Press for interference with its freedom. Where the Council is satisfied, after inquiry that a newspaper or a news agency has offended against the standards of journalistic ethics or public taste or that an editor or working journalist has committed any professional misconduct, the Council may warn, admonish or censure them or disapprove of their conduct. The Council is also empowered to make such observations as it may think in respect of the conduct of any authority, including Government, for interfering with the freedom of the press. The decisions of the Council are final and cannot be questioned in any court of law.
The Press Council of India has been entrusted by the Parliament with the additional responsibility of functioning as an Appellate Authority under Section 8 (c) under the PRB Act 1867 and the Appellate Board comprising of the Chairman of the Council and another member meet regularly to hear the Appeals before it.
Vi) Film Certification Appellate Tribunal
The Film Certification Appellate Tribunal (FCAT) is a statutory body, constituted vide Section 5D of the Cinematograph Act, 1952 under the Ministry of Information and Broadcasting, Government of India. The Tribunal hears the appeals filed under Section 5C of the Act under which any applicant for a Certificate in respect of a film who is aggrieved by an order of the Central Board of Film Certification (CBFC), can file an Appeal before the Tribunal. The Tribunal has its headquarters in New Delhi. The Tribunal has a Secretary to look after its day to day affairs.
vii) Central Board of Film certification
Central Board of Film certification (CBFC) with its headquarters at Mumbai is responsible for certifying the films produced in India as well as outside the country suitable for public exhibition. The Board gives four categories of certificates "U" for unrestricted public exhibition, "A" for public exhibition restricted to adults only, "UA" for unrestricted public exhibition with parental guidance for children below the age of 12 and "S" for exhibition to restricted audience such as doctors etc. These certificates are issued through the Regional Offices of the Board located at Bangalore, Calcutta, Chennai, Cuttack, Guwahati, Hyderabad, Mumbai, New Delhi and Thiruvananthapuram. Appeal against the decision of the Board lies with the Film Certification Appellate Tribunal. The enforcement of the penal provisions of the Cinematograph Act, 1952 is with the State Governments/Union Territory Administrations, since exhibition of films is a State subject.
viii) The Advertising Standards Council of India
The Advertising Standards Council of India (ASCI) is a self regulatory voluntary organization of the advertising industry. It was set up in October 1985. The ASCI and its Consumer Complaints Council deals with complaints received from consumers and industry, against Ads which are considered as False, Misleading, Indecent, Illegal, leading to Unsafe practices, or Unfair to competition, and consequently in contravention of the ASCI Code for Self-Regulation in Advertising. The representatives of Indian Society of Advertisers, the Advertising Agencies Association of India and the Indian Newspapers Society have set up the Council to self-regulate the content of advertisements. The Code of the Council for Self-Regulation in Advertising specifies that all advertising should be truthful, honest, decent, legal and safe for consumers particularly minors, and fair to the competition.
ix) Copyright Board
The Copyright Board, a quasi-judicial body, was constituted in September 1958. The jurisdiction of the Copyright Board extends to the whole of India. The Board is entrusted with the task of adjudication of disputes pertaining to copyright registration, assignment of copyright, grant of Licenses in respect of works withheld from public, unpublished Indian works, production and publication of translations and works for certain specified purposes. It also hears cases in other miscellaneous matters instituted before it under the Copyright Act, 1957. The meetings of the Board are held in five different zones of the country. This facilitates administration of justice to authors, creators and owners of intellectual property including IP attorney’s near their place of location or occupation.
x) Telecom Regulatory Authority of India
The entry of private service providers brought with it the inevitable need for independent regulation. The Telecom Regulatory Authority of India (TRAI) was, thus, established with effect from 20th February 1997 by an Act of Parliament, called the Telecom Regulatory Authority of India Act, 1997, to regulate telecom services, including fixation/revision of tariffs for telecom services which were earlier vested in the Central Government. TRAI's mission is to create and nurture conditions for growth of telecommunications in the country in a manner and at a pace which will enable India to play a leading role in emerging global information society. One of the main objectives of TRAI is to provide a fair and transparent policy environment which promotes a level playing field and facilitates fair competition.
Freedom of speech and expression is the mother of all liberties and freedom of press can be regarded as the very business of a democratic form of government. Richard M. Schmidt has rightly said “our freedom depends in large part, on the continuance of a free press, which is the freedom of speech and expression of individual or press”. But it is not unfettered. Such freedoms are subjects to reasonable restrictions and one such restriction is censorship. Article 19 (2) of the constitution of India provides basis for imposition of restrictions in the form of censorship. Consequently so many laws have been enacted which provides for censorship viz. the Press Council of India Act,1978,the Press (Objectionable Matters)Act,1951,theIndian Cinematographic Act, 1952 etc. These laws are of such a nature that if they will not be used with caution, may lead to total deprivation of freedom of speech and expression. Thus, it becomes incumbent upon the judiciary to strictly scrutinize restrictions in the form of censorship and allow such restrictions only in a situation where there is no other option left with the Courts. Often the grounds on which censorship is imposed are of vague in nature. So, Courts should give narrow interpretation to those terms. By doing so it may be able to protect such a noble and cherished value like freedom of speech and expression.
End-Notes # Article 19 (1) (a) of the Constitution of India reads that all citizens shall have the right to freedom of speech and expression.
# The Supreme Court inM. Nagarajv.Union of India, (2006) 8 SCC 212 at 214 has held that the concept of open government is the direct result from the right to know which is implicit in the right of free speech & expression guaranteed under Article 19(1) (a).
# Article 19,Universal Declaration of Human Rights; Article 19(2), International Covenant on Civil and Political Rights; Article 13, Convention on the Rights of the Child; ArticlelO,European Convention for the Protection of Human Rights and Fundamental Freedoms; Article 13, American Convention on Human Right ; and Article 9(2),African Charter on Human and Peoples Rights.
# Secretary, Ministry of I & Bv.Cricket Association of Bengal, AIR 1995 SC 1236 at 1293.
# Union of Indiav.Motion Pictures Association,AIR 1999 SC 2334.
# AIR 1950 SC 124.
# Babulal Parate vs. State of Maharashtra [(1961) 3 SCR 423].
# AIR 1982 SC 6
# (1995) 1 SCC 501
# (2002) 3 SCC 343
# 328 US 331 : 90 L Ed 1295 (1946)
# AIR 2005 SC 2473 per Y.K. Sabharwal, J. (for himself and Tarun Chatterjee, J.)
# (1996) 5 SCC 216
# Madhavi Goradia Divan,Facets of Media Law5 (Eastern Book Company, Lucknow, 2010).
# S. Rangarajanv.P. Jagjivan Ram(1989) 2 SCC 574.
# AIR 1950 SC 124.
# The First Amendment to the U.S. Constitution reads: “The Congress shall make no law... abridging the freedom of speech or of the press”.
# AIR 1962 SC 305.
# Bennett Colemanv.Union of India,AIR 1973 SC 106 at 249, (paras 40, 42-43); (1972) 2 SCC 788.
# (1992) 3 SCC 637.
# Secretary, Minister of Information and Broadcastingv.Cricket Association of Bengal,(1995) 2 SCC 161 at 208, (para 43).
# AIR 1958 SC 578.
# (1989) 2 SCC 574.
# Nehru,Selected Works, Vol. 7, p. 428, 439.
# Tata Press Ltd.v.Mahanagar Telephone Nigam Ltd., (1995) 2 SCC 161.
# Union of Indiav.Association for Democratic Reforms, (2002) 5 SCC 294.
# (1988) 3 SCC 410.
# AIR 1988 SC 775.
# (1996) 4 SCC 1.
# (1995) 5 SCC 139.
# Bentham quoted inScotv.Scott, (1911) All ER 1, p. 30; quoted with approval inNaresh Shridhar Mirajkarv.State of Maharashtra, AIR 1967 SC;Vineet Narainv.Union of India(1998) 1 SCC 226.
# Lord Donaldson inAttorney Generalv.Guardian Newspapers Ltd.(No. 2), (1988) 3 All ER 595, p. 600.
# Saroj Iyerv.Maharashtra Medical (Council) of Indian Medicine, AIR 2002 Bom 97.
# Kartar Singhv.State of Punjab(1994) 3 SCC 569.
# AIR 1967 SC 1.
# Universal Declaration of Human Rights, 1948, Article 13.
# (1978) 1 SCC 248.
# The Constitution of India, 1950, Article 19(1)(a).
# Adkinsv.Childrens Hospital, 1923 261 US 525.
# Gitlowv.New York, (1925) 263 US 652 andKochuniv.State of Madras, AIR 1960 SC 1080.
# The Statesman 8-1-1983.
# AIR 1957 SC 896
# www.mib.nic.in – Ministry of Information and Broadcasting, Govt. Of India
# www.pib.nic.in – Press Information Bureau
# www.davp.nic.in - Directorate of Advertising & Visual Publicity
# https://rni.nic.in/ - Registrar of Newspapers for India
# http://presscouncil.nic.in/ - Press Council of India
# http://mib.nic.in/fcat/default.htm - Film Certification Appellate Tribunal
# www.cbfcindia.gov.in - Central Board of Film certification
# http://www.ascionline.org/ -Advertising Standards Council of India
# www.copyright.gov.in – Copyright office, India
# http://www.trai.gov.in/ - Telecom Regulatory Authority of India