CHAPTER - 3

FREEDOM OF PRESS: AN ANALYSIS

Introduction
Freedom of speech is the defensive wall of democratic government. This freedom is
essential for the proper functioning of the democratic process, and in order to
preserve the democratic way of life, it is essential that people should have the
freedom to express their feelings and have the opportunity to make their views known
and disseminated to the people at large. And press being a powerful media of mass
communication plays its role in this process. According to the U.S Supreme Court,
freedom of press includes more than merely serving as a neutral conduit of
information between the people and their elected leaders or as a neutral form of
debate besides creating a fourth institution outside the government as an additional
check on the three branches - executive, legislative and judiciary. It is the prime
function of the press to provide comprehensive and objective information on all
aspects of the country‟s social, economical and political life. 1 Therefore, in U.S.A.,
the first amendment specifically protects a free press. But in India Right to freedom of
the press is not specifically mentioned in Article 19(l) (a) of the Constitution, what is
mentioned is only freedom of speech and expression, which relates to utterances in
writing or in printing or manifestation or representation of feelings, intention of
thoughts in writings by an individual, but not includes freedom of the press. However,
the constituent assembly debates would dispel that it was made clear by Dr.
Ambedkar, chairman of the drafting committee, that no special mention of the
freedom of the press was necessary at all as the press and an individual or a citizen
were the same so far as their right of expression was concerned. 2 Therefore under
Indian Constitution the law of England was followed where it is recognized that the
law of the press was merely a part of the law of libel.3 In Romesh Thappar v. State of

1 New York Times v. Sullivan, 376 U.S. 254

2 Vasant Moon (ed), Dr. Babasaheb Ambedkar : Writings and Speeches, 403 (Vol 13, Dr. Ambedkar
Foundation, Ministry of Social Justice & Empowerment, Govt. of India, 1994, Reprinted 2014 , New
Delhi)
3 Dimming Arnold v Emperor, AIR 1914 PC 116

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Madras,4 and Brij Bhushan v. State of Delhi, 5 the Supreme Court took it for granted
that the freedom of the press was an essential part of the right to freedom of speech
5
and expression. It was observed by Justice Patanjali Sastri in Romesh Thappar that
the freedom of speech and expression included propagation of ideas, and that freedom
was ensured by the freedom of circulation. 6 It is thus clear that the right to freedom of
speech and expression carries with it the right to publish and circulate one‟s ideas,
opinions and other views with complete freedom and by resorting to all available
means of publication. This view was reiterated in Sakal Papers (P) Ltd. v. Union of
Indian,7 and regarded as settled in Bennett Coleman & Co. v. Union of India, 8 as the
right to freedom of speech and expression is guaranteed to a citizen, and not to a
person, a non-citizen running a newspaper, is not entitled to the benefit of freedom of
the press. Moreover, freedom of the press in India stands on no higher footing than
the freedom of speech and expression of a citizen and no privilege attaches to the
press as such as distinct from the freedom of the citizen. 9 As discussed earlier in
Chapter 2 of this research work that the right to freedom of speech and expression is
not absolute and its exercise is subject to the limits permissible under clause 2 of
Article 19 of the Constitution and these limits apply equally to freedom of the press
also.

3.1. The Press: A Historical Insight

The press is the only tocsin of a nation. When it is completely silenced, all means of a
general effort are taken away.

Thomas Jefferson

In a democracy, there are many ways to address genuine grievances of the people and
there is no need to bring personal hardship to people, in the words of the father of the
nation M.K. Gandhi. One of the objects of the newspaper is to understand the popular
feeling and give expression to it; another is to arouse among the people certain

4 AIR 1950 SC 124

5 AIR 1950 SC 129
6 AIR 1950 SC 124, 127
7 AIR 1962 SC 305
8 AIR 1973 SC 106
9 Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, 402

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desirable sentiments; the third is fearlessly to expose popular defects. 10 In Express
Newspapers v. Union of India,11 the Supreme Court said that it is not to be understood,
however, that the freedom of speech and expression includes the liberty to express or
propagate one‟s own views only. It also includes the right to propagate or publish the
views of other people; otherwise this freedom could not have included freedom of
press which is obviously included in it. Expression includes the idea of, „publication,
and distribution or circulation as well as the right to receive the matter distributed.
Freedom of speech and expression would thus include freedom to hold opinions, to
seek, receive and import information and ideas, either orally, by written or printed
matter or by legally operated visual or auditory devices, such as radio, cinematograph,
gramophone, loudspeaker, etc. Edicts and proclamation were an early form of
communication. In India these forms of communication were improved under the
Moghuls. The news - writers in particular became an institution. The manuscript
reports were meant exclusively for official use, but later they were copied for wider
use. An emperor like Aurangzeb allowed great freedom in news reporting and the
reports sent by the news writers were unreliable and led to his failure in the
Deccan.12

Later on, news - writers were in great use under the East India Company, confined in
the beginning to reporting the affairs of the English and occasionally reporting the
grievances of the employees of the company. The company news – writers were under
great control than those under the Moghul Emperors. There could be no free
expression of views or even free communication of news within the prevailing
atmosphere of grabbing and favoritisms and profiteering. The East India Company‟s
establishment in India was close preserve of the company‟s servants and they saw to
it that no true or coherent account of the extra service activities reached the
headquarters in London. There was, thus, no news paper in English though the
company had installed press in Bombay, Madras and Calcutta and provided types and
paper.

10 Dr. Shikha Jain, Good Governance & Media in Bihar, 126 (Ocean Books Pvt. Ltd, New Delhi, 1st
edn. 2016)
11 AIR 1958 SC 578
12 Francois Bernier, Travels in the Mogul Empire, 231 (Oxford University Press, London,1916)
available at: https://archive.org/details/travelsinmogulem00bernuoft

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 The first newspaper in India was started by those who had grievances against the
company and resigned from its service to express their grievances. The first attempt to
start a newspaper in Calcutta was made in 1776 by William Bolts. In 1780, James
Augustus Hickey made history by starting the Bengal Gazette or Calcutta General
Advertiser on Jan 29.13 However, no newspaper had been published until 1780. The
Bombay Herald was Bombay‟s first newspaper. It started publication in 1789. The
Courier was published in 1790; it advertise in Gujarati. The Bombay Gazette Started
Publication in 1791 and Bombay Herdal were merged in it in the following year. Like
the Madras Courier and on the same terms, the new publication was recognized for
the purpose of official notifications and advertisement. There was a difference
between the position of newspapers in Bombay and Madras and newspapers in
Calcutta. In Bombay and Madras, newspapers were on good terms with the
government; they were anxious to win official recognition and secure official favour.
In July 1793 John Morris, Secretary at Bombay, sent two copies of Bombay Courier
to secretary Hay at Fort William with the assurance that they should be regularly
transmitted. There was a further request that a set of Government newspapers
published from Bengal should be sent to Bombay weekly by post. 14 But there were no
known limits to freedom of the press; there was no such freedom; there were no press
laws. There was no democracy of any kind, and when the press was trying to secure
freedom in England, editors in India, usually former employees of the Company, had
to exercise the freedom of freebooters or behave like courtiers and court favour. If a
person who was not liked by the authorities wanted to start a newspaper he could not;
he was prevented or deported. There was both censorship and pre-censorship. If the
editor would not bend, he could be dealt with. There was no sense of libel, though
there was a law of libel. There were evils to be exposed, but when they were exposed,
there could be penalties ranging from fine to prison sentences. The hickeys were
pioneers in many senses. They were pioneers of scurrilous writing and they were
pioneers of freedom. Like the Company itself, the press worked in a no-man‟s land. 15
Therefore, in the early portion of its career, the Indian press had been left to follow its

13 Reba Chaudhuri, The Story of the Indian Press, (The Economic Weekly, Feb. 26, 1955)
14 James Douglas, Glimpses of old Bombay and Western India, 31,(London, 1899)
15 Reba Chaudhuri, The Story of the Indian Press, The Economic Weekly, Feb 26, 1955
16
James Mill, History of British India, 58 ( London , Vol. 3, 1826) available at:
http://oll.libertyfund.org/titles/mill-the-history-of-british-india-vol-3

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own courses, with no other check than that which the law of libel imposed. The
character of the papers of early days sufficiently shows that the indulgence was
abused, and that, while they were useless as vehicles of information of any value, they
were filled with indecorous attacks upon private life and ignorant censures of public
measures.16
In May, 1799 press regulations were issued, requiring a newspaper to carry the name
of the printer, the editor and the proprietor, who were to declare themselves to the
Secretary to the Government and to submit all material published in the news-paper to
his prior scrutiny. There was to be no publication on Sundays. Breach of the rules was
to be punished with immediate deportation. 16 In 1818, permission was granted to John
Burton and James Mackenzie to publish a Sunday newspaper under the name of the
Guardian, on the assurance that the work of the press would be completed on
Saturday night and that moral matters would take precedence over all others. In 1822,
a Persian news paper was started by Rammohan Roy called The Mirat – ul – Akhbar.
Thereafter, the first press ordinance in India was approved by the Court of Directors.
John Adam was responsible for it. The ordinance required that all matters printed in a
press or published thereafter except shipping intelligence, advertisement of sales,
current prices of commodities, rates of exchange, or other intelligence solely of a
commercial nature should be printed and published under license from the Governor -
General in Council signed by the Chief Secretary of the Government. The application
for a license must have the name or names of the printer and publisher and of the
proprietors, their place of residence, the location of the press and the title of the
newspaper, magazine, register, pamphlet or other printed book or paper. If a printer,
publisher or proprietor or the address of any of them or of the printing house was
changed, a fresh application for a license had to be submitted. The Governor -
General had the right to call for a fresh application whenever he deemed it expedient,
such notice invalidating any previous license granted and held. A license did not need
to be revoked or recalled; it became null and void. The penalty for printing and (or)
publishing any literature without the requisite license was Rs 400 for each such
publication and in default imprisonment not exceeding four months. Regulations were
issued by the Governor - General under the ordinance prohibiting the printing of

16 D. Sharma, Modern Journalism Reporting and Writing, 10 , D&D publication, New Delhi , 2005

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books and papers and the use of printing presses without a license and providing a
penalty for infringement of a fine of Rs 1,000 commutable to imprisonment without
labour for a period of not more than six months. These regulations also laid down the
procedure for applying for a license, the authority to which it should be forwarded,
the conditions which the Government may, in each instance, think proper to attach to
such license, the service of notices for the recall of such licenses by the Government
and the penalties which might be imposed in the event of the use of the printing
presses after a license had been recalled. Magistrates were given the power to attach
and to dispose of, as the Government might direct, both unlicensed printing presses as
well as presses which continued to function after notice of recall. All matter printed in
a licensed press was required to bear on the first and the last pages the name of the
printer and of the city, town or place at which the paper was printed and it was further
required that a copy of each publication should be forwarded to a local magistrate on
payment. Penalties were also provided for the circulation of proscribed literature Rs
100 or two months simple imprisonment for a first offence and Rs 800 or four months
simple imprisonment for each subsequent offence. Rammohan Roy‟s, Mirat – ul –
Akhbar attracted the attention for ordinance it was among the newspapers whose
writing were cited in justification of the regulations. In protest Rammohan Roy
ceased publication of the Mirat – ul – Akhbar. The Samachar Darpan, the organ of the
Serampore missionaries was the only Indian language newspaper which was edited by
a non Indian at that time. It avoided political issues and enjoyed the patronage of the
government.17

Thus, freedom of press was the subject of debate in the British Parliament and the
subject of controversy in India. Lord Bentinck was considered one of the founders of
modern India because of the radical reforms he introduced. The abolition of Sati was
one of his the first act. He saw the advantages of newspapers published in the Indian
languages working for social reforms and of relaxing restriction imposed on the press,
instituted enquiries in the circulation and influence of newspaper. A report by A.
Sterling said that between 1824 and 1826 six Indian language newspapers were
published in Calcutta (three Bengali, two Persian, and one Hindi). In Bombay press
too expanded in this period. The Mumbai Samachar was converted onto a daily.

17 Reba Chaudhuri, The Story of the Indian Press, (The Economic Weekly, March 12, 1955)

97
According to a report prepared by Jhon Clark Marshman in 1836 for Lord Auckland
on the press in the Indian languages, the following were in circulations: the Samachar
Chandrika, the Samachar Darpan, the Bunga Dut, the Purnachandradaya, and the
Gayanan Neshun. By 1839, Calcutta had twenty six European newspapers, six of
them dailies, and nine Indian newspapers; Bombay had ten European newspapers and
four Indians; Madras had nine European newspapers; Ludhiana, Delhi, Agra and
Serampore had one newspaper each. The conditions in which the press functioned had
changed. The Company had no longer a monopoly; the English language was being
used largely as the medium of instruction; and the administration was assuming
responsibility for education. Lord Elphinstone, Governor of Bombay, wrote: A free
press seems to be the natural concomitant of free institutions. It is on the other hand
from its very nature antagonistic to despotic rule, and above all, to foreign
domination.

The long and persistent persecution of the press was coming to an end by the time of
India‟s Independence. In spite of the enormous growth, the responses of the press
have not yet been adequate because the press suffers from severe physical limitations
and may suffer from them for several years: the limitation of the high cost of
machinery, which is wholly imported, the limitation of restricted communication, and
the limitation of restricted readership. Independence meant adult suffrage, and while
newspapers are not yet the products of adult suffrage, as the politician is, it has meant
wider expression because of the new social responsibilities inspite of the limited
readership. There were two major measures taken after Independence to help the
Indian press grow in the correct direction were the appointment of the Press
Commission (1952 - 54), the report of which has become a kind of Bible for the press
laying down injunctions for matters ranging from press laws to working conditions of
journalists, and the Small Newspapers Inquiry Committee, which submitted its report
in 1966, nobody seeks growth on any terms. As Jawaharlal Nehru insisted, the
concern should be not only with growth but growth in the right direction. It is realized
that the press is a part of the social and economic processes reflecting them and
guiding them, and to that extent subject to uncertainties. 18 The problem of machinery
and newsprint, which have to be reduced to reasonable costs, if the press has to grow

18 M.Chalapathi Rau., After Independence, 174 (NBT, New Delhi, 1964)

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on a diffused basis and develop in the smaller towns, cannot be allowed to dominate
the problem of standards.

The Press Commission discussed the concept of freedom of the press and examined
whether any of the laws required repeal or amendment as not consistent with that
concept. The expression freedom of the press meant, according to the commission,
freedom to hold opinions, to receive and to impart information through the printed
word, without any interference from any public authority. The rights of individuals
had to be harmonised with their duties towards society, and so fundamental rights and
their free exercise must be subject to restrictions. But the concept of freedom with
responsibility should not be pushed to a point where the emphasis on responsibility
becomes in effect the negation of freedom itself. The shape which restrictions take
depends on the state of the development of society in different countries and even in
the same country must depend on the conditions prevailing at different times.
Accordingly, the Constitution has carefully circumscribed under articles 19(2) to
19(6) the field of permissible restrictions. Article 19(2), as it originally stood,
permitted the State to enact any law relating to libel, slander, defamation, contempt of
Court or any matter which offends against decency or morality or which undermines
the security of or tends to overthrow the State. These restrictions have been regarded
as unexceptionable. The Supreme Court,19 however, drew a distinction between Public
order and Security of the State and held that restrictions in the interest of the latter
and not in the interest of the former could be justified. The Indian press, as the Press
Commission recommended, should develop on the basis of a widely diffused
ownership, if it is to serve the needs of Indian democracy. 20

3.2. Legislature versus Freedom of Press

The Government of India, after attaining of Independence, reviewed the position of
the Press in India. A Press Laws Inquiry Committee was set up which submitted its
report in May, 1948.21 It considered comprehensibly the sections of the Indian Penal
Code, the Criminal Procedure Code, the Sea Customs Act, the Indian Telegraph Act,
the Indian Post Offices Act; it discussed the Press and Registration of Books Act, the
19 O. K. Ghosh v. E. X. Joseph, AIR 1963 SC 812 and Supdt. Central Prison v. Dr. Ram Manohar
Lohia, AIR 1960 SC 633
20 M.Chalapathi Rau., The Press, 168 – 193 (NBT, New Delhi, 1964)
21 Partiyogita Darpan, Indian History, 76 (Upkar Parkashan , Agra, 2010)

99
Indian States (Protection against Disaffection) Act, the Indian Press (Emergency
Powers) Act, the Foreign Relations Act, and the Indian States (Protection) Act; and it
reviewed the working of ten provincial acts adopted between 1947 and 1948, in the
interests of public security. The recommendations of the Committee generally favored
the abolition of laws especially concerning the Press and the incorporation of their
major provisions in the ordinary law of the land. In pursuance of this policy, it
advocated the repeal of the two Indian States Acts, the Indian Press (Emergency
Powers) Act, 1931, and the Foreign Relations Act, 1932. It supported the provisions
of the Telegraph Act, 1885 the Post Offices Act 1792 and the Sea Customs Act, 1878
which provided the sight of interception of messages and literature. It recommended
the retention of the Official Secrets Act and the three sections 124A 153A and 505 of
the Indian Penal Code dealing with disaffection, communal hatred and tampering with
the loyalty of the armed forces. It suggested that suitable additions should be made to
exclude peaceful agitation for social or economic change. The Committee went into
the question of contempt of court and contempt of legislature at great length and was
unable to reach a positive decision. It contented itself with remarking that the remedy
for contempt of court and contempt of legislature was so arbitrary and drastic that it
should only be invoked on rare occasions where grave provocation existed. The
recommendations of the Committee, however, were not acted on till 1951 under
conditions which had aggravated relations between the Government and the Press.
The adoption of the constitution in January 1950 created a new situation which
required early attention. The Supreme Court and the High Courts had over ruled the
executive in a number of cases where newspapers had been penalized for publishing
matter tending to cause public disturbances. 22 The position of the Indian press in
regard to Press Laws was stated in a memorandum submitted in 1919 by the press
association of India as under: - 23

The total number of printing presses and newspapers which

were old and had existed prior to the Act and against which
action of some kind or other was taken under the Press Act
was nearly one thousand, among these were 286 cases of

22 S. Natrajan, History of Press in India, 293 (Asia Publication House, Bombay, 1962)
23 Press Association of India, The press law in India: memorandum of the Press Association of India
(Bombay Chronicle, Press, 1919)

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 warning, many of which must have sufficed to cripple small
ventures or blocked their progress and expansion once and for
all. The rest of the 991, namely 705, were cases of the demand
of heavy securities and the forfeitures thereof by executive
orders whenever the Government thought any publication
objectionable. To these have to be added about 70 other cases
of securities and forfeitures of presses and papers started after
the Act.

Mahatma Gandhi had written in 1930, when a press ordinance made the printing of
„Young India‟ impossible and it was issued in cyclo - styled sheets as: 24

I would therefore urge pressmen and publishers to refuse to

furnish security, and if they are called upon to do so, either to
cease publication or challenge the authorities to confiscate
whatever they like. When freedom is actually knocking at our
doors, and when, for the sake of wooing it, thousands have
suffered tortures, let it not be said of press representatives that
they were weighed and found wanting. They (the
Government) may confiscate the type and machinery. They
will not confiscate the pen and still less the speech, but I
recognize they can succeed in stifling, what is after all the
thing that matters, the thought of the nation.

Article 19(l) (a) of the Indian Constitution guarantees freedom of speech and
expression as a fundamental right. Freedom of the press is not explicitly mentioned
by the Constitution but the Supreme Court of India has, through judicial
interpretation, read it into Article 19. 25 It has held that freedom of the press is a
combination of two freedoms - Article 19(l) (a), „the freedom of speech and
expression‟, and Article 19(l) (g), „the freedom to practice any profession, or to carry
on any occupation, trade or businesses. The first is clearly the principal component.
Unfortunately, freedom of speech and expression is hemmed in, and to a significant
extent undone, by Article 19(2). This provides for restrictions on the fundamental

24 M. Chalapathi Rau, The Press, 186 (National Book Trust of India, 1964, New Delhi)
25 M.P Jain, Indian Constitutional Law, 1085 (LexisNexis Butterworths, 6th ed, 2010, Nagpur)

101
right by law some reasonable, most not. Notable among the unreasonable restrictions
that remain on the statute book or in practice are the law of criminal defamation, the
undefined power of contempt of court, unmodified legislative privilege, the
outrageous law of sedition (124A of the Indian Penal Code), other illiberal provisions
of the IPC, 1860 (especially 153A), the
Unlawful Activities (Prevention) Act, and other draconian laws enacted in the name of
fighting extremism and terrorism.26

In October 1952, the Government of India under pressure from the Editors
Conference and the Working Journalists appointed a Press Commission to look into
the conditions of the Press. The personnel under the chairmanship of Mr. Justice G. S.
Rajadhyaksha, consisted of Dr. C. P. Ramaswamy Iyer, Acharya Narendra Deva, Dr.
Zakir Hussain, Dr, V. K. R. V. Rao and Messrs. PH Patwardhan, T. N. Singh, Jaipal
Singh, Jagadish Natarajan, A.R. Bhatt, and M. Chelapathi Rau. The terms of reference
covered a wide range. The Press Commission enquires into the state of the Press in
India, its present and future lines of development and shall in particular examine:-

(1) The control, management and ownership and financial structure of

newspapers, large and small, the periodical press and news agencies and
feature syndicates;

(2) The working of monopolies and chains and their effect on the
presentation of accurate news and fair views;

(3) The effect of holding companies, the distribution of advertisements and

such other forms of external influence as may have a bearing on the
development of healthy journalism;

(4) The method of recruitment, training, scales of remuneration, benefits

and other conditions of employment of working journalists, settlement
of disputes affecting them and factors which influence the establishment
and maintenance of high professional standards;

(5) The adequacy of newsprint supplies and their distribution among all
classes of newspapers and the possibilities of promoting indigenous
manufacture of :- (i) Newsprint and

26 S. Natrajan, History of Press in India, 293 (Asia Publication House, Bombay, 1962)

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 (ii) Printing and composing machinery;

(6) Machinery for :-

(a) Ensuing high standards of journalism and

(b) Liaison between Government and the Press; the functioning of Press
Advisory Committees and organizations of editors and working journalists,
etc.

(7) Freedom of the Press and repeal or amendment of laws not in

consonance with it and to make recommendations thereon.

The Press Commission submitted its recommendations. It recommended the setting

up of a Registrar at the Centre with State counterparts, and a Registrar was appointed
at Delhi. It suggested the setting up of a Press Council under the chairmanship of a
High Court Judge or ex - judge nominated by the Chief Justice of India with
representatives of editors, journalists and proprietors. The Press Council was to deal
with all matters concerning the Press and journalists and was to be a statutory body.
The idea was to have a Press Council actively interested in the growth and
development of a healthy and responsible Press, independent enough to resist
executive encroachments and strong enough to carry weight with the profession. 27
The Press Council of India was first set up in the year 1966 by the Parliament on the
recommendations of the First Press Commission with the object of preserving the
freedom of the press and of maintaining and improving the standards of press in
India. The present Council functions under the Press Council Act, 1978. It is a
statutory, quasi judicial authority functioning as a watchdog of the press, for the press
and by the press. It adjudicates the complaints against and by the press for violation
of ethics and for violation of the freedom of the press respectively. 28 The Commission
discussed the concept of freedom of the press and examined whether any of the laws
required repeal or amendment as not consistent with that concept. The expression
freedom of the press meant, according to the commission, freedom to hold opinions,
to receive and to impart information through the printed word, without any
interference from any public authority. The rights of individuals had to be harmonized

27 S. Natrajan, History of Press in India, 293 (Asia Publication House, Bombay, 1962)
28 The Press Council of India, Press Council's Powers, Practices and Procedures, New Delhi.
Available at: http://presscouncil.nic.in/Content/65_1_PressProcedures.aspx

103
with their duties towards society, and so fundamental rights and their free exercise
must be subject to restrictions. But the concept of freedom with responsibility should
not be pushed to a point where the emphasis on responsibility becomes in effect the
negation of freedom itself.29 A novel proposal put forward by the Commission was the
price - page schedule. Justifying this on the ground that it would affect an increase in
the number of newspapers in the country, the Commission recommends regulating the
minimum and minimum pages that can be given by a newspaper in a week at a
particular price and the minimum of news and editorials it should carry. It supports
the case with the following argument:-

As matters stand at present a paper with a large circulation

because of its lower cost of production per copy enjoys
certain advantages over other papers with smaller circulation.
Similarly a paper with large capital resources behind it is free
from certain handicaps which affect another paper with
limited capital. Papers of long standing which have been able
to build up a large and stable volume of advertisement
revenue are in a very advantageous position as compared to
others who have just entered the field. It is true that such
economic advantages and handicaps exist in a number of
industries but their presence in the newspaper industry is not,
in our opinion, conducive to the even and healthy
development of the press. Newspapers serve as media for the
free exchange of information and of ideas. The proper
functioning of democracy requires that every individual
should have equal opportunity in so far as this can be
achieved, to put forward his opinions. We consider it
therefore essential that measures should be adopted to reduce
the differences due to economic advantages or other causes,
and to enable newcomers to start with a fair chance of
achieving success. After examining various schemes that
have been put forward for this purpose, we feel that to fix a

29 M. Chalapathi Rau, The Press, 190 (National Book Trust of India, 1964, New Delhi)

104
 minimum price at which papers of a particular size can be
sold would be the most effective measure to bring about this
end.30

Later on an Act to establish a Press Council for the purpose of preserving the freedom
of the Press and of maintaining and improving the standards of newspapers and news
agencies in India was enacted by the parliament of India in 1978. The Press Council
created the Norms of Journalistic Conduct. 31 The Norms prescribe guidelines that
practicing journalists are required to follow. The Press Council Act and the norms
incorporate the privacy principles as well as exceptions to the right to privacy, as
instances of when disclosure is and is not allowed. Traditionally the Press Council Act
has only regulated offline media, but in 2012 the Press Council of India publicly
announced the need to amend the Press Council Act to include electronic media.
Citing the incident of a viral SMS threat to individuals from the North East in
Bangalore, which resulted in a mass exodus from the city, the Press Council
recognized that unregulated electronic media is playing havoc with the lives of the
people. 32 Public figures who hold public office, and by their own conduct give scope
to criticism from the media, cannot issue complaints against such criticism. 34 This
provision does not specify if the same standard would be extended to all public
figures or if it is limited to public figures that hold public office. A public person
cannot expect to be afforded the same degree of privacy as a private individual.
Despite this, the families of public figures are not considered to be legitimate
journalistic subjects, especially if children are concerned. If there is a situation where
„public interest‟ could outweigh the child‟s right to privacy, the journalist must first
seek consent from the parents.35 In this sense, it is necessary that the press
understand and adhere to the distinction between matters of „public interest‟ and
matters „in public interest.‟ 33

30 S. Natrajan, History of Press in India, 317 (Asia Publication House, Bombay, 1962)
31 Press Council of India, Norms of Journalistic Conduct 2005 & 2010
32 Press Council of India., Press Release: PCI resolves for more powers and conversion to Media
Council of India, (PR/2/2012 2013-PCI, New Delhi, 28 - 2 - 2012) 34 Section 4(v), Press Council
Regulations 2010 35 Section 7 (iv), Press Council Regulations 2010.
33 Press Council Regulations 2010., Section 3 (ix)

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3.3. The Press Council of India
The Press Council of India was constituted in 1966 under the Press Council Act 1965.
This was made to preserve the freedom of the press and to maintain and improve the
standards thereof. This Act was repealed with the promulgation of the publication of
„objectionable matter ordinance‟ of 1975. This then became the prevention of
Publication of Objectionable Matter Act in 1976. Simultaneously was passed the
Press Council (Repeal) Act 1976 and the Parliamentary Proceedings (Protection of
Publication) Repeal Act 1976. The Prevention of Publication of Objectionable Matter
Act was repealed in 1977 and the Parliamentary Proceeding (Protection of
Publication) Act 1977 was passed. This was supported by the 44th Amendment 1978,
which inserted Article 361A into the constitution. The Press Council Act 1978 was
enacted reestablishing the Press Council. The Press Council Act 1965 that was
repealed got replaced by the above said Act. The object of this enactment (i) is to
preserve the freedom of the Press (ii) to maintain and improve the standards of
newspaper and news agencies in the country. The Press Council created the Norms of
Journalistic Conduct in 2012 the Press Council of India publicly announced the need
to amend the Press Council Act to include electronic media. Citing the incident of a
viral SMS threat to individuals from the North East in Bangalore, which resulted in a
mass exodus from the city, the Press Council recognized that unregulated electronic
media is playing havoc with the lives of the people.

3.3.1. Composition of the Press Council

Press Council as contemplated in the Act is a „body corporate‟. It consists of one

chairman and 28 other members. The Chairman is nominated by a committee
consisting of the Speakers of Rajya and Lok Sabha and a person elected by the
members of the Council. Of the other 28 members, 13 are working journalists of
whom 6 are editors of newspapers and the remaining 7 are working journalists. Six of
them are nominated from among persons who own or carry on the business of
management of newspapers. One member is nominated from among persons who
manage news agencies. Three are persons having special Knowledge or practical
experience in respect of education or science, law and literature and culture of which
respectively one each is nominated by UGC, Bar Council of India and Sahitya
Academy. Five are MPs of whom 3 are nominated by the Speaker from among the
106
members of the Lok Sabha and 2 are nominated by the Chairman of the Rajya Sabha
among its members. In practice, since the Council performs quasi - judicial functions,
it was considered desirable to appoint a person with legal background as its
Chairman. Justice A.N. Grover was the first Chairman of the Council appointed in
April 1979. The term of the Chairman is three years and he can be re - nominated for
one more term. An analysis of the constitution of the Council which is heavily loaded
with journalists shows that it is dominated by media professionals. Therefore, looking
into its structure, it can be easily predicted that PCI cannot balance the interests of the
public and the press. Having person dealing with law on the subject, the Chairman
one cannot believe that it will decide cases in favour of public. The objective of the
Council is not reflected in the composition of the Council. Apart from these, the
members of parliament in the Council by their presence may give political overtones
to the decisions of the Council. Justice Madholkar, the first Chairman of the Press
Commission in his Tagore Law Lectures expressed doubts about the political
influence of these MPs in the Press Council.34

3.3.2. Objects and Functions of the Press Council

The Act has laid down various responsibilities and duties of the Council. In order to
maintain independence of press, as categorically stated in the Act. In pursuance of
this, the PCI has evolved a code of ethics to ensure the maintenance of high standards
of public taste and to have a due sense of freedom and to encourage the growth of a
sense of responsibility and public service.35

3.3.3. Powers of the Press Council

Section 14 gives the PCI power to warn, admonish and censure the press. These are
the only weapons available with the PCI for enforcement purposes. Therefore, the
PCI Act limits the PCI from taking stringent actions. It is supposed to be only a
selfregulatory organ as the government always felt that freedom of press should be
protected. For performing its functions, under section 14, the Council has been given
the same powers as vested in a Civil Court while trying a case under the CPC. 36 Along
with this the PCI (Procedure for enquiry) Regulations, 1979 deal with the procedure

34 Sita Bhatia, Freedom of Press, 255 (NPP, New Delhi, 1997)

35 Press Council of India, Norms of Journalistic Conduct, 101 (New Delhi, 2010)
36 Section 15, The Press Council of India Act, 1978

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for conducting enquiry. Any complaint under section 14 (1) and section 13 or the
complaint taken up by the PCI Chairman suo - motu have to follow the procedures
stated in the above rules. Under the rules an enquiry committee is to be constituted by
the Council under section 8 (1) of the Act. Going through the bare provisions, it is
clear that the Chairman does not have much of discretion. Even in the case of
decisions, it is the majority‟s opinion that forms the judgment. And as the majority of
the enquiry committee consists of members of the media itself, the decision of the
committee is bound to be dominated by them. This shifts the balance towards the
press rather than forming any independent view. Therefore, it can be stated that PCI
was never intended to control the press rather it is only a form of self regulatory
system. Therefore, the PCI procedures are more of an advisory rather than a judicial
proceeding, though the Act states under section 15 (3) that every enquiry held by the
Council shall be deemed to be a judicial proceeding.

3.3.4. Revealing the Source of Information

The PCI Act clearly states in section 15 (2) that no newspaper, news agency, editor or
journalist shall be deemed to be compelled to disclose the source of any news. When
we study this theory of protection of source of news in relation to India, it would be
useful to look into the US position also. In British Steel Corp v. Cleveland Bridge and
Engineering Co Ltd,37 Justice Douglas expressed that the judge was not convinced
with the argument by the press, in favor of protection of confidential news sources.
The American Newspapers Guild has adopted a Code of Ethics, which states that
newspaper men shall refuse to reveal confidences or disclose sources of confidential
information in Court or before Judicial or investigating bodies. 38 British Steel Corp
v. Cleveland Bridge and Engineering Co Ltd. 39 the House of Lords held that there is
no absolute immunity for journalists from disclosing their sources of information and
if the judge needs it for justice, journalists cannot claim immunity.

The Law Commission of India in its 93 rd report on Protection of Mass Media in

respect of confidential information has recommended that an absolute immunity be
given to reporters in respect of sources of information obtained by them in

37 Branzburg v. Hayes, (1972) 408 U.S. 663

38 Dr. Sebastian Paul, Forbidden Zone – Essays on Journalism, 74 (Pranatha Books, 2005)
39 (1984) QBD UK

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confidence. However, it recommended an amendment to the Evidence Act whereby
the Courts are to be vested with the discretion not to compel a reporter to make such
disclosure.40 In India, the PCI follows the procedure under the Civil Procedure Code
1908 and the Indian Evidence Act 1872, which gives no immunity to journalists,
when it comes to evidence taking. They are treated on par with any other witness or
accused. The Second Press Commission Report in 1982 has opined that there is no
absolute immunity for journalists from disclosing their sources of information. The
reason given is that this provision could be used by the Press to keep secret its own
confidential sources while at the same time trying to break the confidentiality of
others. Presently in India the journalists are not normally asked to reveal their
sources. While at the same time if circumstances demand, the Court can ask for it. As
such there is no law prohibiting the Court from asking the press to divulge the
sources. Public interest demands that truth should be revealed in some cases but at the
same time it is also in public interest that individual privacy and confidence should be
protected in the society.

3.3.5. Press Council of India: Code of Ethics

Until recently PCI had not formulated any code of ethics for journalists. It is only in
2010 after its inception in 1978; PCI has come up with a code of ethics. Absence of
code of ethics was justified by the former Chairman of the Council, Justice A.N. Sen
in the 1986 Annual Report 2, in the following words:-

I, feel that defining a code of conduct in clear terms

may be impractical and in my view seeking to lay
down the code of conduct which must necessarily be
in broad an general terms may have the effect of
interference with the freedom of press.41

The Press Council while deciding a complaint filed by Government of Tamil Nadu
4243
against the illustrated Weekly of India alleged that an article written by Cho
Ramaswamy making various allegations of corruption against Chief Minister - M.G.

40 Law Commission of India, 93rd Report on Disclosure of Sources of Information by Mass Media,
(September, 1983)
41 Press Council of India, Foreword by the Chairman, (Annual Report 2, 1986)
42 T.K. Mahadevan, New Delhi c.a. Illustrated Weekly of India, Jan 1982 P.C.I. Rev 41, 49, 69
43 APC, p.12 (Exception to section 499 IPC)

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Ramachandran and his government was defamatory. In this case the PCI made certain
observations on the defense pleas taken by the press against impugned publications.
The press pleaded that it was done in good faith. At the same time it does not protect
untrue statements of facts even if it is of public interest. In Government of Goa v.
Blade,46 in regard to government servants of Goa, PCI held that it won‟t constitute
libel if the Press comes with evidence and in good faith. It held that constant
publication of certain indecent or defamatory writings with the object of extracting
money by blackmail by the editor will result in censure. 44 The Second Press
45
Commission suggested in its report in 1982 that Section 13 (1) (c) of the PCI Act
1978 should be amended by adding after the words the maintenance of high standards
of public taste the words including respect for privacy. In the case regarding the
46
murder of two nuns belonging to the Snehasadan in Mumbai, while reporting the
murders the Indian Express, Times of India, The Free Press Journal and Samna had
stated that on the basis of postmortem and police reports, both had regular sexual
intercourse and one of them had sexually transmitted disease. The Council found that
these impugned reports were manifestly injurious not only to the reputation, personal
dignity and privacy of the murdered nuns but also had a tendency to affect the
reputation of Snehasadan, an institution for the care of destitute children. The Council
was disturbed by the media„s irresponsibility and warned the papers for reporting
unauthenticated news as these papers had given their own opinion on facts stated in
the postmortem report which did not find mention in the postmortem examination
report.

3.3.6. Norms of Journalist Conduct of Press Council of India

Press Council of India in 2010; came up with its norms of Journalistic conduct. 47 The
Code of Ethics elaborates upon right to privacy and privacy of public figures. 51 It
talks about taking caution against defamatory writings. The press is not allowed to
intrude into the privacy unless outweighed by genuine overriding public interest not
being a prurient or morbid curiosity such as:-
44 Rajkumari, Primary School Teacher at Hissar c.a. Bharti Leader, Jan. 1983 P.C.I. Rev. 55, 83, 96
45 Second Press Commission Report (1982) Vol.1, Chapter 6, p 67 -77, para 41 - 44
46 Sister Cyrilla, Superior, Franciscans of St Mary of the Angels, Snehasadan, Bombay v. Indian
Express, Times of India, Free Press Journal and Samna,92 (Annual Report. 1991- 92)
47 Norms of Journalistic Conduct , Press Council of India, , (New Delhi, 2010)
51
Norms 6 and 7, Press Council of India

110
 1. Special caution is essential in reports likely to stigmatize women.

2. Caution is to be taken in matters concerning a person‟s home, family, religion,

health, sexuality, personal life and private affairs are covered by the concept of
privacy except where any of these impinges upon the public or public interest.

3. Caution is required to be taken against revealing the identity of victims while

reporting crime involving rape, abduction or kidnapping of females or sexual
assault on children and raising questions touching their chastity, privacy,
names and publication of photographs of the victims.

4. It is the duty of Press that when it concerns privacy of public figures that it
should be confirmed that it is of public interests through fair means, verified
and then reported.

5. The families of public figures are generally not journalistic subjects. There are
certain restrictions regarding recording of interviews and phone
conversations.48

6. In cases of criticizing judicial acts, except in camera or if the Court directs

otherwise, the Court proceedings are open to Press. Caution is to be taken to
ensure that the publication in any form does not obstruct, impede or prejudice
seriously the administration of justice or the personal character of the accused
standing trial.49

7. Newspapers shall not publish or comment on evidence collected as a result of

investigative journalism, when after the accused is arrested and charged the
Court becomes seized of the case.50

Under the rules, obscenity and vulgarity is to be eschewed even if it serves any social
or public purpose in relation to art, painting, medicine or reform of sex because the
press is not the appropriate place for it.51 The Indian reader is mature and to copy the
west by promoting the so called popular permissiveness may defeat the very aim of
the press, to create awareness rather than to boost circulation. The rules also state the
48 Norm 8, The Press Council of India
49 Norms 12 and 41, The Press Council of India
50 Norms 26 and 41, The Press Council of India
51 Norm 17,The Press Council of India

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basic elements of investigative journalism, they states that it has to be the work of the
reporter and that public importance should be served through it and the reporter
should prove that an attempt has been made to hide the truth from the people which
the reporter has brought to public notice. The reporter in such cases must not act as a
prosecutor; the principle that a person is innocent unless the offence is proved should
not be forgotten.52 On the basis of a writ petition no CMP 52/2008 filed by the
National Network of Positive People in the juvenile court Thiruvanathpuram; the
Court came heavily on the media for visually screening of two children, Bency and
Benson, who were children of HIV parents. As a result the PCI framed rules
prohibiting reporting of HIV/Aids connected children.53

3.3.7. Power of the Press Council of India to Review

The Press Council has two enquiry committees, and these proceedings are open to the
public. The parties are allowed to be represented by lawyers, and government also
makes its own representations. The case of Gudiya, 54 a perfect example of channel
interrogation, here „Gudiya‟ was the name of a muslim woman who became a widow
within a month of her marriage and got married to another person. But her first
husband had actually not died but was behind bars in Pakistan, of which she was
unaware. He later returned from the Pakistani jail. But by then she was already
pregnant through her second husband. At that juncture the media took over this
matter. It organized a „live panchayat‟ on the channel, where the families concerned
and some clerics were brought together. The program was titled „Kiski Gudiya‟?
With the subtitle „yeh Kaissa Bandhan‟? It was a live telecast and the panchayat was
conducted under the Shariat law. The object of the channel was clear when the anchor
announced isi majilis mein faisla hoga (this case will be settled here itself). In this
case what mattered to the channel was not Gudiya‟s life but viewership rating. But
this matter is outside the purview of PCI as it has not been given control over
channels and cables. The government had evolved the Cable Television Networks
(Regulation) Act in 1995 to give the government power to initiate action against cable
television operators and broadcasting channels. The government came up with
another system of setting up district level surveillance committees under the Cable
52 Norm 26,The Press Council of India
53 C.M.P. 52/2008, Press Council of India, 10 (Annual Report, April 2008 – March 2009)
54 The Press Council of India, 23 (Annual Report, 2005 -2006)

112
Television Networks (Regulation) Act. It will consist of DSP, Principal of a Women‟s
College and the District Public Relation Officer, headed by District Magistrate. If the
committee detects a violation, the District Magistrate can under Section 20 of the
above Act confiscate the equipment or initiate action under IPC. Other than this Cable
Television Networks (Regulation) Act, 1995, there is no other legislation to regulate
these sorts of offences by the electronic media.

3.3.8. Adjudication of Complaints by Press Council of India

PCI has been given the power to adjudicate on complaints received by it. It can in this
process censure, warn or admonish the paper concerned. 55 Defamation cases
constituted 32 complaints in 2004 - 05 of which the Press was found guilty in 10
cases.56 The complaints against the press have been on the rise, and in the year
200708 this has raised upto 60% of these complaints, 70% constituted defamation
57
cases and in 28 cases, the press was found guilty. The Report stated that certain
sections of the Press have been imitating western culture by publishing vulgar
photographs, which boast of no public interests. In such cases, the Council took suo -
motu action in 5 cases of obscenity, of which 2 were upheld. The number of
complaints has further risen in 2008-09, with defamation cases itself amounting to
73.58 Further in 2014 – 2015 the numbers of complaints reported were 77%. In 7.7%
of cases P.C.I has taken Suo – motu cognizance. During the course of the year under
reviews, the Council received 105 new complaints against the Press for the alleged
violation of journalistic norms. Besides, there were 821 matters pending from the
previous year.
Thus, the Council was to consider in all 1871 complaints against the press during the
year under review. Of these, 727 matters were disposed off through adjudications or
through disposal at the preliminary stage, either for the reason of settling these to the
satisfaction of the parties or for lack of substance or on account of non prosecutions,
etc. Thus 1144 matters were pending in this category at the close of the financial year
under review.59 The ambit of the power of PCI is limited to warning and censure.

55 Section 14, The Press Council of India, Act 1978

56 The Press Council of India, 73 (Annual Report, 2004 - 2005)
57 The Press Council of India, 89 (Annual Report, 2007 - 2008)
58 The Press Council of India, 53 (Annual Report, 2008 - 2009)
59 The Press Council of India, 34, 35 & 42 (Annual Report, 2014 - 2015)

113
These tools of punishment are very ineffective to regulate the behavior of the Press.
The PCI has stated, that the Press should work within its limits and remember its
responsibility under the rule of law that it should not behave like a prosecutor and
should be guided by the paramount principle that a person is innocent till proved
guilty by the Court of Law.60

3.3.9. Mechanisms to Control Press & Electronic Media

The PCI does not contain any strong provision to ensure compliance to the ethics and
guidelines formulated by it. The reason being, the Parliament expected that the code
of ethics framed by the PCI will be followed in letter and spirit by the media. The
danger of free media is still enhanced with the broadcasting through electronic media.
There is no regulatory mechanism to supervise its working, except the one under the
Cable Television Networks (Regulation) Act of 1995. The ministry of Information
and Broadcasting was keen to bring a Broadcast Services Regulation Bill. But the
Editor‟s Guild of India stated in September 2007, that it did not accept the proposed
bill, the reason being that this would give immense power to government over news
and current affair channels. As a result the Bill did not become an Act. The Bill was to
be introduced during the monsoon session of Parliament in 2007. It was withheld
following protests by media who accused the government of trying to curb its
freedom of expression.61 Later the Ministry issued guidelines to build up a local
mechanism that would enforce the programme code of the Cable Television Networks
(Regulation) Act.62 Just like Film certification 63
the programmes will have to be
certified as Universal (U), which can be shown anytime, universally Adult (U/A), that
can be telecast only between 8 PM and 4 PM and Adult (A) to be shown only between
11 PM to 4 AM. The PCI has stated that to honour the views of the readers, the
newspapers should appoint a Readers Editor. In the present scenario, Readers Editors
are termed also as Ombudsman. Following the practice in the Guardian, The Hindu
has a Readers Editor. It is operational since March 2006. Ian Meyes, Readers‟ Editor
of the Guardian said in his January 2006 Lecture that it made the paper more
responsive to their complaints. Recently, the newspaper gave some figures from

60 The Press Council of India, 173 (Annual Report, 2007 - 2008)

61 Press Council of India, (Annual Report, 2007 – 2008)
62 Press Council of India, (Annual Report, 2005 – 2006)
63 Press Council of India, 29 (Annual Report, 2007 – 2008)

114
March 06 to September 06 regarding public response. In the first two months the
responses exceeded one thousand per month. E-mails formed the main channel of
communication. The data available at the office of The Hindu‟s reveal that between
March 2006 and Feb 2016 as many as 70,519 communications (by email, telephone,
regular mail and fax) were received from readers. During the same period, 8,236
corrections and clarifications were published in a prominent demarcated space – the
opinion page opposite the main editorial page.64 The system of having a Content
Auditor in broadcasting and Readers Editor in written press is limited to its object.
The object is to pacify the complainants by rectifying the errors and straightening the
relationship. But in cases of grave errors, these should not be the course of action.
Pacifying grave mistakes on the part of journalist and press, especially if it is done
purposefully is a wrong practice. These matters are not compensated even by the
Ombudsman of the Paper, i.e. the Readers Editor or by the PCI (The Chief
Ombudsman for all papers). The bruises made and the agony caused is left untreated
by one and all. This continuous act of defiance by the media is bound to cause
deterioration of faith in the Press and can cause negative emotions to boil up. Any
bruise left untreated will cause further harm if left unattended for long.

3.4 Freedom of Press and Journalism

The growth in journalism and increasing freedom the press enjoyed was a symptom of
a more general phenomenon in the development of party systems of government by
the beginning of the 18th century, was an increasingly stable and prosperous country
with an expending empires, techno tune progress in industry and agriculture and
burgeoning trade and commerce. The word Journalist, Journal and Journalism is
derived from the French Journal, which in turn comes from the Latin term Diurnalis
or Daily.65 Journalism has been around since people recognized a need to share
information about themselves with others. Journalists and the organizations for which
they work produce news. In other words, news is both an individual product and an
organizational product. Even freelance journalists - journalists not employed by a
media organization - were dependent until recently on media organizations for the

64 N.Ram, Holding the Newspaper to Account (The Hindu, Feb 29, 2016) available at:
http://www.thehindu.com/todays-paper/tp-opinion/holding-the-newspaper-toaccount/
article8293590.ece
65 Dr.N. Padmanabhan, History of Journalism, 5 (University of Calicut, Kerala, 2011)

115
distribution of their messages. The complex technologies that have been used to
distributed media messages have required resources that few an individual‟s
controlled. The Internet has changed much about the way news is produced and
distributed. Journalists now can do their work on their own and distribute their
messages on their own. While at present, most journalists continue to work for
organizations that distribute news.66 Thus Journalism is the act of the journalists
which goes beyond simple reporting of events in the press. It involves newsgathering
by taking an initiative to get the news. The information in these cases is not easily
available. The extra effort taken for this type of newsgathering is termed investigative
journalism. This is an act of press activism, which if conducted properly can do great
help to any nation. This method of collection of news demands the journalist to be on
his toes always and involves field work rather than seat work. It demands courage and
knowledge of wide variety of things, support from the editor and the management and
protection from antisocial elements. Today this is the mode of operation of most of
the prominent newspapers and television channels all around the world. Therefore,
Journalism comes in several different forms: 67 I.

News

A. Breaking news: Telling about an event as it happens.

B. Feature stories: A detailed look at something interesting that‟s not

breaking news.

C. Enterprise or Investigative stories: Stories that uncover information

that few people knew.

II. Opinion

A. Editorials: Unsigned articles that express a publication‟s opinion.

B. Columns: Signed articles that express the writer‟s reporting and his
conclusions.

C. Reviews: Such as concert, restaurant or movie reviews. Online,

journalism can come in the forms listed above, as well as:

• Blogs: Online diaries kept by individuals or small groups.

66 Karin Wahl Jorgensen (ed), The handbook of journalism studies, 59 (Taylor & Francis, U.K, 2009)
67 Robert Niles, What is Journalisim? (Pasadena, Calif., March 2007)

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 • Discussion boards: Online question and answer pages where
anyone can participate.

• Wikis: Articles that any reader can add to or change.

III. Reporting

How do you get the facts for your news story? By Reporting

There are three main ways to gather information for a news story or opinion piece:-

1. Interviews: Talking with people who know something about the story you
are reporting

2. Observation: Watching and listening where news is taking place

3. Documents: Reading stories, reports, public records and other printed

material.

To sum - up, Journalism is a work of collecting, writing, editing and publishing

material in newspapers and magazines or on television and radio for general
information. In a broader sense, it also refers to works of persons professionally
involved in mass communications, advertising, and public relations.

In India one cannot find that, such hardships are undertaken by the journalists, most
of the material is gained by the journalists sitting in their chair and through local
agents. Also there is no pressure on the media to follow the code of ethics as
formulated by the Press Council of India in 2010.68 The code of ethics in Britain is
strictly adhered to by the media. But in India there are no strong methods or agencies
to make them comply with the norms. As a result of this media is given unrestricted
freedom to use any method whatsoever to get news. This could be in the form of sting
operations using phone tapping, prostitutes, trespass and similar methods. It somehow
gives a feeling to the public that the press is above the law, and their offences are only
to be neglected while a private person has to face the music. In August 2011, In
Britain, the media magnate Rupert Murdoch was questioned by the parliament on the
matter of phone tapping of people which formed the source of their news. As a result
he and his editorial staff had to suffer shame and court cases. This case also involved

68 Press Council of India, Norm of Journalist Conduct, 6, (New Delhi, 2010)

117
police officers, and as a result of all this and the public outcry, he had to finally close
his tabloid „The News of the World‟.69

3.4.1. Era of Sting Investigative Journalism

Sting journalism which works on the principle of obtaining information by deceit

involves impersonation, lying and cheating, not to mention risk. It also requires clever
70
marketing for example in Tehelka case, Bangaru Laxman was the president of
Bharatiya Janata Party; he was caught in camera allegedly taking bribe from fake
arms dealers for facilitating a fictious defense deal case. He was caught on camera
accepting money in a 2001 sting operation conducted by news portal Tehelka com.
The journalists posed as representatives of a fictions UK based company West End
International and were seeking his recommendations to the ministry for supply of
hand held thermal images for the Indian Army. The CBI had alleged that he had
accepted rupees 01 lakh from the fictious company. This sparked political storm
following which he resigned as B.J.P. chief. One of the main accusations against
Tehelka.com was that the organization used deceptive means to make a quick name
for it. It succeeded also. But many did not approve of the methods used. Sting
journalists should be made to understand that it is not easy to always justify violation
of law. A hidden camera or microphone used to surreptitiously record information is
violation of privacy. Use of drugs or call girls to take out information or trap officials
71
is a crime. In Bofors case, Justice J.D. Kapoor observed while pronouncing the
verdict that the case at hand is a good and nefarious example which manifestly
demonstrates how the trial and justice by media can cause irreparable, irreversible and
incalculable harm to the reputation of a person and shunning of his family, relatives
and friends by the society. The Court said such a person is excluded from society,
humiliated and convicted without trial. The Court cited the case of Punjabi Pop Singer
Daler Mehndi whose discharge was sought in a human trafficking case after his
humiliation and pseudo trial through media as they (police) have not been able to find
the evidence sufficient even for filing the charge sheet. There have been many

69 Helen Kennedy, News of the World prints final edition: 'We lost our way', Daily News, July 10,
2011
70 India Today Online, , Tehelka sting case: Former BJP Chief Bangaru Laxman Convicted, (New
Delhi, April, 26, 2012)
71 Dasu Krishnamoorty, the real Victims of Crime reporting, (The Hoot , New Delhi, March, 4, 2005)

118
instances of media reporting which has resulted into nothing positive except cause
pain and hardship to the media focused person. The ISRO espionage case,72 in Kerala
in which the media falsely framed two scientists in an espionage scandal was finally
laid to rest by the Supreme Court of India on April 29 1998. The CBI found nothing
genuine in the case. This was looked at by the Court in bad taste and media generated,
and projected the press as very irresponsible. This is another way of investigative
journalism used by the media, to excite the people by giving them some spicy
information, to think and imagine by which they malign the persons focused and at
the same time increase the circulation of the paper.

1. The Jethmalani’s Case

Statement was made by the media regarding lawyer Ram Jethmalani when he decided
to defend Manu Sharma, a prime accused in a murder case. He was subjected to
severe criticism for defending the accused. A senior editor of the television channel,
CNN-IBN called that decision of Jethmalani, an attempt to defend the indefensible. It
was complained by the press that it was not fair that a prominent lawyer like
Jethmalani should appear for the accused and that only an average lawyer should
argue for the state. Again this is bypassing the private right of an advocate, as to, for
whom he should argue.73

2. The Parliament attack case of December 2001

After the arrest of Mohammed Afzal, in the Parliament attack case of December 2001,
the media started its own trial shortly after his arrest. The opinion of the media was
already fixed, that he is a terrorist and needs death sentence. This sort of discussions
shown on the small screen can definitely prejudice the mind of an ordinary person.
Along with Mohammed Afsal his co-defendant S.A.R. Geelani was also sentenced to
death despite lack of evidence and the media portrayed him as a dangerous and
trained terrorist. But later the Delhi High Court overturned his conviction, which was
a blow to the impression given by media. The Court described the prosecution‟s case
as absurd and tragic. The photograph of south Indian film star, Khusboo, was
74
morphed in such manner, then the Rajya Sabha member and CPM leader Brinda
72 R. Krishnakumar, Requiem for a Scandal, (Frontline, Vol 15, May 9 - 22, 1998)
73 Human Rights Features, Trial by Media, (New Delhi, HRF/164/07 April, 27, 2007)
74 Associated Press, Khushboo in bikini to sue Maxim, (Hindustan Times, Jan 23, 2006) 79
Sachin Parashari, Maxim in trouble over Karat‟s Photo (Times of India, March 8, 2006) 80

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Karat‟s face was morphed. In both the cases, morphing was done by Maxim, the top
selling international men‟s magazine that was given license to start publication in
2005.79 In Parshuram Babaram Sawant v. Times Global Broadcasting

Co. Ltd.,80 Retd.Justice P.B.Sawant‟s photograph was flashed as Justice

P.K.Samantha, Retd. Justice of Calcutta High Court, who was alleged to be involved
in the famous Provident Fund scam of 2008, it gave a false impression among viewers
that the plaintiff was involved in the scam. Though the said channel stopped
publishing the photograph, when the mistake was brought to their notice, no
corrective or remedial steps to undo the damage were taken by the channel on their
own. The plaintiff by his letter dated 15/9/2008 called the defendant to apologize
publicly with damages of Rs 50 crores. By its reply the defendant apologized but no
mention of damages was there. It was a belated action hence plaintiff demanded Rs
100 Crores. The Court held that the defendant was entitled to pay Rs 100 Crores to
the plaintiff. The Bombay High Court ordered the Times to deposit 20 crores in cash
and 80 crores in bank guarantee, before taking up its appeal against the Pune trial
Court in the defamation case. This was upheld by the Supreme Court. In another
instance T.P. Nandakumar, chief editor of Crime magazine was arrested on charges of
defamation, for publishing a defamatory article in the online edition of the magazine.
It was stated that Nandakumar demanded money for not publishing the article.75

3. The President of India’s Case

Three photo journalists were summoned by the police for taking photographs of
President Pratibha Patil on a Goa beach. The media had been asked to keep away
from her. This was countered by the president of the Photo Journalists Association
Goa, who stated that beach is a „public - place‟ and they have every right to be
there.7677 All this gives a very clear idea of the preconceived notion that the media
projects to the people of this country long before the process of law in Court is over.
Therefore when the decision comes in contradiction of the view given by the media,
public tends to think that judges are corrupt and biased. Opinions varies, whether

District Court Pune, Special Suit No: 1984/2008

75 Shaju Philip, Kerala Magazine Editor Held For Report Against NRI, (The Indian Express, July 4,
2010)
76 INAS, Photo Journalist Summoned Over Snapping President on Goa Beach, (Tahindian News, May
77 , 2011)

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journalism is a calling, a public service, an entertainment, a cultural Industry
motivated by profit, or a tool for propaganda, public relations and advertising.
Journalism may be termed as combination of all these or each of this separately.
Opinions are not so varied about the other professions. As a business and trade,
Journalism involves publishing on a regular basis for profit, with news considered as
the primary product. Thus journalism is a form of writing that tells people about
things that really happened, but that they might not have known about already. People
who write journalism are called journalists. They might work at news papers,
magazines, and websites or for TV or radio stations. The most important
characteristic shared by good journalists is curiosity. Good journalists love to read and
want to find out as much as they can about the world around them.

3.5. Freedom of Press and the Protection of Privacy

The right to privacy is, as a legal concept, a fairly recent invention. It dates back to a
Law Review article published in December of 1890 by two young Boston lawyers,
Samuel Warren and Louis Brandeis. Roscoe Pound described this article as having
done nothing less than add a chapter to our law. Fewer than ninety years later it is
surprising to find that this relatively new chapter in our law appears to have fallen
into such disarray that one United States Supreme Court Justice has characterized the
right to privacy cases decided by his Court as defying categorical description.
Paradoxically, a categorical description of the right to privacy was precisely what
Warren and Brandeis invented in 1890. 78 Warren and Brandeis, who were the two
leading American academicians and judges‟ state in their thesis, titled „The Right to
Privacy‟ in 1890 that:-

Intensity and complexity of life, attendant upon advancing

civilization, have rendered necessary some retreat from the
world and man under the refining influence of culture, has
become more sensitive to publicity so that solitude and
privacy have become more essential to the individual, but
modern enterprise and invention has through invasion upon

78 . Dorothy J. Glancy, The Invention of The Right to Privacy, (Arizona Law Review, Vol 21, 1979)
84
Warren and Brandeis, The Right to Privacy, (Harv. L. Rev. Vol: 4, Dec 1990)

121
 his privacy, subjected him to mental pain and distress, far
greater than could be inflicted by mere bodily injury.84

Though, the first step in the area of privacy was taken in Nihal Chand v. Bhagwan
Dei,79 in which the High Court recognized the independent existence of privacy as
emerging from customs and traditions of people. But in India the constitution does not
grant in specific and express terms any right to privacy as such. Right to privacy is
not enumerated as a Fundamental Right in the in the Constitution. However, such a
right has been culled by the Supreme Court from Article 21 and several other
provisions of the Constitution read with the Directive Principles of State Policy. 80
However, for the first time, in 1963, in Kharak Singh v. State of Uttar Pradesh, 87 a
question was raised whether the right to privacy could be implied from existing
Fundamental Rights, such as Art 19 (1) (d),19 (1) (e) and 21. The majority of judges
participating in the decision said that of the right to privacy that our Constitution does
not in terms confer any like constitutional guarantee. On other hand, the minority
opinion (Subba Rao,J.) was in favour of inferring the right to privacy from the
expression „personal liberty‟ in Article 21. In his view the right to personal liberty
takes in not only a right to be free from restrictions placed on his movements. But
also free from encroachments on his private life. It is true our constitution does not
expressly declare a right to privacy as a Fundamental Right, but the said right is an
essential ingredient of personal liberty. Every democratic country sanctifies domestic
life. Efforts has been made and the Supreme Court of India in Gobind v. State of
81
Madhya Pradesh, stated that the right to privacy encompasses and protects the
personal intimacies of the home, the family, marriage, motherhood, procreation and
child rearing. The reasoning given by the Judges is based on the concept that at home
individuals drop their mask and be their real self and not act in a manner that they
might represent themselves outside the home. In this safe sanctuary of a home the
prying eyes of the journalists should be kept away. Even if the person is a public
figure it is a basic right of the individual by birth to be let alone at least at home and
in their personal affairs. This gives relaxation to him and puts his head and body at

79 AIR 1935 All.1002

80 M.P Jain, Indian Constitutional Law,1236 (Lexis Nexis Butterworths, 6th ed, 2010, Nagpur)
87
AIR 1963 SC 1295
81 AIR 1975 SC 1378

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rest. This restful period is needed in every individual so that he can function properly
in his job or responsibility assigned to him in the public. The Press Council of India in
its Journalistic Conduct Norms, 2010 Specify that the Press shall not intrude or
invade the privacy of an individual, unless outweighed by genuine overriding public
interest, not being a prurient or morbid curiosity. So, however, that once a matter
becomes a matter of public record, the right to privacy no longer subsists and it
becomes a legitimate subject for comment by the Press and the Media, among others.
Special caution is essential in reports likely to stigmatize women. Things concerning
a person‟s home, family, religion, health, sexuality, personal life and private affairs
are covered by the concept of Privacy excepting where any of these impinges upon
the public or public interest.82 The freedom of press and the right to privacy came
90
seriously under consideration in R. Rajagopal v. Tamilnadu, in which the prison
authorities attempted to prevent Nakkheeran, a Tamil Weekly, from publishing the
autobiography of Auto Shankar, who had been sentenced to death. It was believed that
publication may uncover the close nexus between the prisoner and several IAS and
IPS officers and politicians. The contention of the respondent was that the alleged
autobiography had not been written by the convict and that the convict had not
authorized the publication. The Court proceeded on the assumption that the prisoner
had neither written his autobiography nor had authorized the petitioner to publish the
same and also that the publication would be highly defamatory of some officers and
politicians. The court held that the government could not maintain a civil action for its
defamation. The court also stated that right to privacy is implicit in Article 21 and it is
a right to be let alone. But once the matter becomes public record or the person
voluntarily submits himself into controversy then it may be a different question. The
court granted the right to publish in so far as the information was gathered from
public records. The court opined that no consent of the convict or authorization is
necessary. The Court warned that if the publishers went beyond that, then they might
be invading the prisoner‟s right to privacy and would be liable to that extent.

Right to Privacy is an inviolable human right. However, the degree of privacy differs
from person to person and from situation to situation. The public person who

82 Press Council of India, Norm of Journalist Conduct, 12, (New Delhi, 2010)
90
AIR 1995 SC 264

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functions under public gaze as an emissary/representative of the public cannot expect
to be afforded the same degree of privacy as a private person. His acts and conduct as
are of public interest („public interest‟ being distinct and separate from „of interest to
public‟) even if conducted in private may be brought to public knowledge through the
medium of the press. The press has however, a corresponding duty to ensure that the
information about such acts and conduct of public interest of the public person is
obtained through fair means, is properly verified and then reported accurately. For
obtaining information in respect of acts done or conducted away from public gaze, the
press is not expected to use surveillance devices. For obtaining information about
private talks and discussion while the press is expected not to badger the public
persons, the public persons are also expected to bring more openness in their
functioning and co-operate with the press in its duty of informing the public about the
acts of their representatives. The interviews/articles or arguments pertaining to public
persons which border on events that are in public knowledge, if reported correctly,
cannot be termed as intrusion into private life. There is a very thin line between public
and private life and public persons should not to be too thick skinned to criticism.
Newspapers are allowed scope of freedom in criticising persons who are in seats of
power because their conduct discloses public interest provided their criticism is not
motivated to gratify private spite of opponent/rival of public figure. The families of
public figures are not valid journalistic subject, more so if it‟s reporting covers the
minors. If public interest overrides the minor‟s right to privacy it will be proper to
seek prior consent of the parents. When the individual concerned himself or herself
reveals facts about private life before a large gathering then the shield of privacy
should be deemed to be abandoned by the individual. 83 Broadly speaking, the right to
the freedom of expression impacts the right to privacy in negotiating such as:-

1. To what categories of data should the freedom of expression be limited in

order to protect privacy?

2. In which context will freedom of expression impinge on privacy?

3. In what circumstances is it necessary that an individual be provided the right to

privacy in order to protect the freedom of speech?

83 Press Council of India , Right to Privacy – Pubic figures and Press, 85 (New Delhi, 2010)
92
2005 (1) SCC 496

124
 Thus, Violations of privacy that can result because of an expression are most
commonly understood as privacy torts and include:

a) Intrusion into an individual‟s personal affairs including public disclosure of a

person‟s private life.

b) Publicity which places an individual in false light in public, and -

c) Use of an individual‟s own name for commercial purposes commonly

understood as the right to publicity.

In District Registrar and Collector, Hyderabad and another v. Canara Bank and
another,92 The Supreme Court of India expressed that internationally speaking the
right to freedom of expression includes within it the right to anonymous speech, i.e.
the right to express oneself without identifying oneself as the source of such
expression. Another aspect of this is the right to pseudonymous speech where again
the author of the information does not give his correct identity. In order for a person
to express his/her thoughts and ideas, political, ethical, or otherwise a person requires
a safe private sphere free from State or private interference. Therefore the right to
privacy which would protect one‟s privacy actually goes hand in hand with the right
to freedom of information and transparency. Thus, the relationship between the
freedom of expression and privacy does not have to be a zero sum game but rather
can be a positive sum game where both rights exist not only to not diminish each
other but actively support and enhance each other. Again in the words of Honb‟le
Supreme Court, the right to privacy has several aspects so there is no hesitation in
holding that right to privacy is a part of right to life and personal liberty enshrined
under Article 21 of the Constitution. Once the facts in a given case constitute a right
to privacy Article 21 is attracted. The said right cannot be curtailed except procedure
established by law.84 The court held that even a woman of easy virtue is entitled to her
privacy and no one can invade her privacy as and when he likes. 94 Similarly right to
procreate is also covered under right to privacy. 95

Therefore, the Press Council of India has guided and instructed the Journalist that
While reporting crime involving rape, abduction or kidnap of women/females or

84 People‟s Union for Civil Liberties v. Union of India, AIR 1991 SC 207
94
State of Maharastra v. Madhukar Naryan Mardikar, AIR 1999 SC 495 95
B.K. Parthasarathi v. State of Andhra Pardesh, AIR 2000 AP 156

125
sexual assault on children, or raising doubts and questions touching the chastity,
personal character and privacy of women, the names, photographs of the victims or
other particulars leading to their identity shall not be published. Minor children and
infants who are the offspring of sexual abuse or „forcible marriage or illicit sexual
union shall not be identified or photographed. Intrusion through photography into
moments of personal grief shall be avoided. However, photography of victims of
accidents or natural calamity may be in larger public interest. And press has to
remember that it is not a prosecutor in any investigation and should be guided by the
paramount principle of a person‟s innocence unless the alleged offence is proved
beyond doubt by independent reliable evidence and, therefore, even within the
constraint of space, the material facts should find space in the rejoinder so that the
public, as the ultimate judge of any matter, is guided by the complete and accurate
facts in forming its opinion. The readers‟ right to know all sides of any issue of public
importance is a natural corollary of the freedom enjoyed by the press in a
democracy.85 Though it appears certain that right to privacy cannot be absolute, yet
the media itself has to show self-restraint, and respect the privacy of the public
figures. Where there is clash between the public person‟s privacy and public‟s right
to know about his personal conduct, activities, habits and traits of character,
impinging upon or having a bearing on public interest, the former must yield to the
latter. The right to privacy has now become established in India, but as a part of
Article 21 and not as an independent right in itself, as such a right, by itself, has not
been indentified under the Constitution. The Court has however refused to define
privacy saying, as a concept it may be too broad and moralistic to define it judicially.
Whether right to privacy can be claimed or has been infringed in a given case would
depend on the facts of the said case. This means that whether the right to privacy can
be claimed or has been infringed in a given situation would depend on the facts of the
said case, and view the Court takes to the matter. None can publish anything
concerning personal matters without consent of the person so concerned except if it
relates to larger public interest, peace and security of the State, whether truthful or
otherwise and whether laudatory or critical. If one does so he or she would be

85 Press Council of India, Norm of Journalist Conduct, (New Delhi, 2010).

126
violating the right to privacy of that of other and would be liable in an action for
damages.86

3.6. Laws enacted by Parliament relating to Press

A. Under Constitution of India

1.Article 19 (1) (a) read with Article 19(2) (Freedom of speech and
expression)

2.Article 361- A (Protection of publication of proceedings of parliament and

State Legislature)

3.Article 105 and 194 (Parliament and Legislatures Privileges)

4.Article 21 (Individual‟s Right to Privacy emanating from Fundamental

Right to life and liberty guaranteed to citizens of India

B. Press Laws and Acts

3.6.1 Indecent Representation of Women (Prohibition) Act, 1986

An Act to prohibit indecent representation of women through advertisements or in

publications, writings, paintings, figures or in any other manner and for matters
connected therewith or incidental thereto. The Indecent Representation of Women
(Prohibition) Act, 1986, has been enacted in order to prohibit indecent representation
of women through advertisements or in publications, writings, paintings, and figures
or in any other manner and for matters connected therewith or incidental thereto. 87
Press plays an integral part in our lives. From the moment we get up we are engulfed
in the media centric world. Our day begins with a newspaper in our hand and the last
thing before retiring to bed is a glance at the latest news. Our choices are being
determined by the media. What brand of food to eat, which brand of clothes to wear,
what type of education to choose for children, where to engage ourselves, what
materials to build our house, whom to vote, which car to buy and the list goes on.
Media accelerates the process of development by involving, persuading and
transforming people. It is an important instrument of social change in the Indian
society. The pervasive effects of the media on the varied spheres of the Indian life
economic, social, cultural, intellectual, religious and even moral values are
86 R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264.
87 Preamble, The Indecent Representation of Women (Prohibition) Act, 1986

127
transforming rapidly. Therefore Communication is vital for women‟s development
and the mass media plays a significant role in shaping social values, attitudes,
perception and behavior.

Manu Smriti mandates that the highest respect and regard must be extended and full
protection should be given to women throughout their life. Women have been
depicted in the most respectable and aesthetic manner on the one hand and, on the
other, they have also been victims of indecent, vulgar and obscene depiction. 88
Women have mainly stayed within the private sphere of the home and men going to
work outside. Years ago men played the roles of women and women hesitated to
expose themselves to media. The public/private division gains credence in the
mainstream communication theorizing which is often divided into the study of
interpersonal communication highlighting areas of male / female intimacy, sex roles,
role playing, friendship, body image, empathy and healthy interaction, styles of
listening, perception processes, self-concept and identity and mass communication -
concerned with issues such as competition, producers and consumers, technology,
political power, audience, content, history, institution, persuasion and policymakers. 89
The Act Prohibits the advertisements containing indecent representation of women
and provides that no person shall publish, or cause to be published, or arrange or take
part in the publication or exhibition of, any advertisement which contains indecent
representation of women in any form.90 But it is observed that in recent time media is
representing women in an indecent way. Media has emerged as a major exploiter of
women. It is seen to flout all norms relating to obscenity, decency and morality. There
is a systematic overdose of nudity and vulgarity. In the media industry, women are
treated as goods to promote sales. Women and their concerns or problems are no
longer visible in mass media; there has been increasing commodification of women in
mass media. There are advertisements where the females are shown in bad light. They
are clad in skimpy clothes even when their presence in the advertisements has no
relevance with the brand.

88 Mamta Rao, Law relating to Women and Child, 223 (Eastern Book Co. 3rd. Ed, Lucknow , 2012)
89 Kiran Prasad, Women, media and society: Recasting communication policy: In Women and media,
Challenging feminist discourse, 5, (The Women Press Delhi, 2005)
90 Section 3, The Indecent Representation of Women (Prohibition) Act, 1986

128
The Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties
and Directive Principles not only grants equality to women, but also empowers the
State to adopt measures of positive discrimination in favour of women. Within the
framework of a democratic polity, our laws, development policies, plans and
programmes have aimed at women‟s advancement in different spheres. India has also
ratified various international conventions and human rights instruments committing to
secure equal rights of women. Key among them is the ratification of the Convention
on Elimination of All Forms of Discrimination against Women (CEDAW) in 1993.
The Act Further Prohibit publication or sending by post of books, pamphlets, etc.,
containing indecent representation of women and provides that no person shall
produce or cause to be produced, sell, let to hire, distribute, circulate or send by post
any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph,
representation or figure which contains indecent representation of women in any
form.91 Also the Indian Penal Code in Section 292, 293, and 294 mentions laws to
curb obscenity. The terms obscenity, indecent, or vulgar are difficult to define, as they
are intricately linked to the moral value in a society. The test of obscenity is whether
the tendency of the matter, charged with obscenity, is to deprave and corrupt those
whose minds are open to such immoral influences and into whose hands a publication
of this sort may fall. Obscenity deal with sale, hire, distribution, public exhibition,
circulation, import, export or advertisement, etc. of any matter which is obscene.
What is important is the need to protect society against the potential harm that may
flow from obscene material and to ensure respect for freedom of expression which
have to be balanced with free flow of information. In spite of all these provisions,
there is growing indecent representation of women or references to women
publications, particularly in advertisements which have the effect of denigrating
women and are derogatory to women. Though there may be no specific intentions of
these advertisements, publications, etc to have an effect of depraving or corrupting
persons. Therefore the Indecent Representation of Women (Prohibition) Act 1986 was
legislated to effectively prohibit indecent representation of women through any
publication, media or advertisement. The National Commission of Women (NCW)
has suggested modifications in the Act and elaborates upon ways to strengthen it and

91 Section 4 , The Indecent Representation of Women (Prohibition) Act, 1986

129
make it workable so that the objectives can be achieved. The case of Ranjit D.
Udeshi v. State of Maharastra,92 laid down what has come to be known as test of
obscenity. It says that obscenity must not be judged by a word, here a passage there.
The work as a whole must be looked into and seen as to how it impacts the society,
reader as a whole. In the words of the court, where obscenity and art are mixed, art
must be so preponderate as to throw the obscenity into a shadow or the obscenity so
trivial and insignificant that it can have no effect and may be overlooked. It is
necessary that a balance should be maintained between freedom of speech and
expression and public decency and morality; but when the later is substantially
transgressed the former must give way. In this case a bookseller was booked under
IPC for selling unedited and expurgated edition of Lady Chatterley‟s lover. However,
if Any person who contravenes the provisions of section 3 or section 4 shall be
punishable on first conviction with imprisonment of either description for a term
which may extend to two years, and with fine which may extend two thousand
rupees, and in the event of a second or subsequent conviction with imprisonment for a
term of not less than six months but which may extend to five years and also with a
fine not less than ten thousand rupees but which may extend to one lakh rupees.93

3.6.2 The Press and Registration of Books Act, 1867

During the era of the British Government in India writing of books and other
informatory material took a concrete shape and with the advent of printing presses
various books on almost all the subjects and periodicals touching every aspect of life
started appearing. Thrust on education gave an impetus to this with the result that lot
of printed material became available. Those in the field of writing, publishing and
printing gave a thought to organize a system for keeping a record of the publications.
The then East India Company was urged to keep a record of the publications. An
attempt was made by the authorities to make a collection of the books and other
publications emanating from the various printing presses throughout India. Board of
Directors of East India Company issued an instruction that copies of every important
and interesting work published in India should be dispatched to England to be
deposited in the library of India House. Such an instruction had a slow impact. Again

92 AIR 1965 SC 881

93 Section 6 , The Indecent Representation of Women (Prohibition) Act, 1986

130
the Royal Asiatic Society in London urged the then Secretary of State for India to
repeat the instruction of the late Board of Directors of East India Company and also
desired that catalogues of all the works published in India should be sent to England.
A system of voluntary registrations of publications was evolved but it failed. It was
found necessary to establish a system of compulsory sale to Government, of three
copies of each work in India. To achieve this purpose a Bill was introduced in the
Legislature for the regulation of printing presses and newspaper for the preservation
of copies of books and periodicals containing news printed in the whole of India and
for the registration of such books and periodicals containing news. It was passed by
the Legislature and came on the statute book as the Press and Registration of Books
Act, 1867 (25 of 1867). The nomenclature of the Act has been given by the Indian
Short Titles Act, 1897 (14 of 1897). 94

The Act provides that all the books or periodicals that are printed in India shall be
printed clearly and legibly and contain details of the printer and publisher, place at
which the book is printed and the place where the book is published. 95 A person shall
furnish a declaration to own any press for the purpose of printing before the District
Magistrate, Presidency Magistrate or Sub-divisional Magistrate. 96 A newspaper shall
be published and circulated in India only according to the rules prescribed under the
Act.97 The newspaper shall consist of the name of the proprietor as well as the editor
and the printer and the person publishing the newspaper shall present a duplicate
declaration as per the prescribed rules. The declaration shall indicate the title and
language of the newspaper, periodicity and such other details necessitated by the
Act.98

If the newspaper is not published within the prescribed time, the declaration shall
become void and a fresh declaration shall be presented according to the specified
rules. The declaration so made shall be authenticated by the magistrate by putting his
signature and seal on two copies of the declaration. Where a person has ceased to be a

94 The Press and Registration of Books Act, 1867, Introduction, Registrar of Newspapers for India)
Available at: http://rni.nic.in/prbact.asp
95 Section 3, The Press and Registration of Books Act, 1867
96 Section 4, The Press and Registration of Books Act, 1867
97 Section 5, The Press and Registration of Books Act, 1867
98 Section 5, RULE 2 A, The Press and Registration of Books Act, 1867

131
printer or publisher after the declaration has been filed and authentication is complete,
such person shall immediately inform the Magistrate that he is no more a printer or
publisher as declared. The editor shall lodge a complaint before the magistrate if his
name appears incorrectly on the newspaper and the magistrate after conducting
necessary inquiry declare that for legal proceedings his declaration shall not be taken
in evidence. The Press Registrar or the Magistrate is empowered to cancel the
declaration made with regard to a newspaper where an application is presented by a
person, after conducting sufficient inquiry. The declaration shall be cancelled on the
ground that it is contrary to the provisions of the Act, the title of the newspaper
resembles another newspaper already being published in India, the printer or
publisher has ceased to be so or the declaration is made concealing certain material
facts.

If the Magistrate refuses to authenticate the copy of the declaration, the aggrieved
person shall prefer an appeal before the Press and Registration Appellate Board. The
Appellate Board shall consist of Chairman and another member appointed on the
recommendation of the Press Council of India as included by the Press Councils Act,
1978.99 The Appellate Board is empowered to regulate its proceedings and its decision
shall be final and absolute. The copies of all books and newspaper printed in
India shall be delivered to the officer of the State Government free of cost without
considering the agreement between the printer and publisher. 100 The Act penalizes a
person for printing newspapers inconsistent with the provisions of the Act with fine
and simple imprisonment. The Act also punishes for non-furnishing of declaration,
false statement, non-conformity with the rules, failure to supply copies to the
Government etc.101

Further the Act provides that State Government shall appoint an officer to be in
charge of catalogue of books that are printed in India where the memorandum of all
the books delivered to the Government shall be registered providing such particulars
as specified under the Act. The Central Government is empowered under the Act to
appoint the Registrar of Newspapers to supervise and regulate the functions of press
registrar. The Registrar shall retain a register in which the details of the newspapers
99 Section 8C, The Press and Registration of Books Act, 1867
100 Section 9, The Press and Registration of Books Act, 1867
101 Section 12 & 13, The Press and Registration of Books Act, 1867

132
published in India shall be included. The Central government and the State
Government are authorized to formulate rules in conformity with the provisions of the
Act. In exercise of the powers conferred by the Act, the Central Government has
framed The Registration of Newspapers (Central) Rules, 1956 and The Press and
Registration Appellate Board (Practice and Procedure) Order, 1961. 102 In 2010, the
Parliament has enacted Press and Registration of Books and Publications Act to
amend the 1867 Act and insert the edition of newspaper using internet and to give
legal recognition to orders of the executive dealing with foreign direct investment. 103

3.6.3 The Dramatic Performances Act, 1876

The Dramatic Performances Act was implemented by the British Raj in India in the
year 1876 to police seditious Indian theatre. India, being a colony of the British
Empire had begun using the theatre as a tool of protest against the oppressive nature
of the colonial rule. In order to check these revolutionary impulses, the British
Government proceeded to impose the Dramatic Performances Act. Following India‟s
independence in 1947, the Act has not been repealed, and most states have introduced
their own modified versions with certain amendments which have in fact, often
strengthened the control of the administration over the theatre. 115 It was a mixture of
things. In the 19th century, there was all this worry about the press, especially in the
Indian languages. There was a lot of paranoia about what kind of seditious messages
might be circulated in the Indian language press. Cinema brought hyper modern
technology at the time, gesturality and that was what made them so worried, because
the colonial authorities saw Indians as a gestural people and felt that they would be
particularly vulnerable to a medium such as cinema.104

The Law Commission of India in its 24th Report in 2014 suggests that section of the
Dramatic Performance Act, 1876, which are violative of constitution shall be repealed
with immediate effect. According to the report the Act empowers the State
Government to prohibit performances that are scandalous, defamatory or likely to

102 Section 19 & 19 A, The Press and Registration of Books Act, 1867
103 Press Information Bureau, Govt of India, Ministry of Information and Broadcasting (Feb 11,
2011). Available at: http://pib.nic.in/newsite/PrintRelease.aspx?relid=69773 115 The Dramatic
Performances Act, (Wikipedia)
104 Sidharth Bhatia, Censorship in India is based on the Paternalistic Idea that Citizens are Not
Mature‟ (the Wire, Cinema, 2016)

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excite feelings of disaffection. Disobeying such prohibitions attracts penalties. It was
enacted during the colonial era and extensively used to curb nationalist sentiments
propagated through dramatic performances. It has no place in a modern democratic
society. States like Delhi and West Bengal have repealed it. In, 2013, the Madras High
Court in N. V. Sankaran alias Gnani v. The State of Tamil Nadu,105 has held that
Sections 2(1), 3, 4, 6 and 7 of the Tamil Nadu Dramatic Performance Act, 1954 and
Rule 4 of the Tamil Nadu Dramatic Performances Rules, 1955 violate Articles 14 and
19 of the Constitution. These provisions are substantially similar to the central
legislation, which should be considered for repeal on these grounds.106

3.6.4 The Indian Telegraph Act, 1898

According to the Press Information Bureau, there have been a number of articles on
the Cabinet Secretary‟s report regarding tapping of telephones which appeared in
some section of the media. 107 Broadcasting in India is governed by the Indian
Telegraph Act, 1885 and by the Indian Wireless Telegraphy Act, 1933. The Indian
Telegraph Act, 1885 gives the Government of India exclusive rights for the
establishment and working of telegraphy using electro - magnetic waves. Governance
of broadcasting has its basis in the powers bestowed on the Government of India by
this Act.108 It contains provisions for authorization of interception of licensed
Telegraph 109110 read with Rule 419(A) of the Indian Telegraph Rules, 1951 as well as
Section 69 of the Information Technology Act, 2000 read with Information
Technology (Directions for Interception or Monitoring or Decryption of Information)
Rules, 2009.

The Hon‟ble Supreme Court has upheld the constitutional validity of interceptions
and monitoring under Section 5(2) of the Act through its order dated 18.12.1996 in
Writ Petition (C) No.256/1991 by People’s Union for Civil Liberties (PUCL) v. Union
of India.122 It has also observed that the right to hold a telephone conversation in the

105 2013 (1) CTC 686

106 Law Commission of India, 248th Report: Obsolete Laws : Warranting Immediate Repeal, 24
(Ministry of Home Affairs, Govt of India, Sep 2014)
107 Press Information Bureau, Clarifications on the Report on Tapping of Telephones (Cabinet
Secretariat, Govt of India, April, 2011)
108 Section 4, The Indian Telegraph Act, 1885
109 Section 5, The Indian Telegraph Act, 1885
110 (9) SCALE 318

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privacy of one‟s home or office without interference can certainly be claimed as
Right to Privacy, and accordingly, held that telephone tapping would infringe the
Right to Life and Right to Freedom of Speech & Expression enshrined in Articles 21
and 19(1) (a) respectively of the Constitution of India, unless it is permitted under the
procedure established by law. The Hon‟ble Court further observed that Section 5(2)
of the Act clearly provides that „occurrence of any public emergency‟ or „interest of
public safety‟ is a sine qua non for the application of these provisions. Neither of
these are secretive conditions or situations. Either of the situations would be apparent
to a reasonable person. For the same, the Hon‟ble Court has recalled its observations
in the case of Hukum Chand Shyamlal v. Union of India and others,111 stating that
„economic emergency‟ is not one of those matters expressly mentioned in the statute,
and further that mere „economic emergency‟ may not necessarily amount to a „public
emergency‟ and justify action under Section 5(2) of the Act, unless it raises problems
relating to the matters indicated in the section. „Public emergency‟ would mean the
prevailing of a sudden condition or state of affairs affecting the people at large calling
for immediate action. It is one which raises problems concerning the interest of public
safety, the sovereignty and integrity of India, the security of the State, friendly
relations with sovereign States or public order or the prevention of incitement to the
commission of an offence. „Public Safety‟ means the state of condition of freedom
from danger or risk for the people at large. It has been stated further that when either
of these two conditions are not in existence, authorities cannot resort to telephone
tapping, even though there is satisfaction that it is necessary or expedient to do so in
the interests of sovereignty and integrity of India, security of the State, friendly
relations with sovereign States, public order or for preventing incitement to the
commission of an offence.

The Act contains penalties for Establishing, maintaining or working unauthorised

telegraph. It provides that If any person establishes, maintains or works a telegraph
within [India] in contravention of the provisions of section 4 or otherwise than as
permitted by rules made under that section, he shall be punished, if the telegraph is a
wireless telegraph, with imprisonment which may extend to three years, or with fine,

111 1976 (2) SCC 128

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or with both, and in any other case, with a fine which may extend to one thousand
rupees. The offence under the Act is bailable and Non Cognizable.112

3.6.5 The Representation of the Peoples Act, 1951

An Act to provide for the conduct of elections of the Houses of Parliament and to the
House or Houses of the Legislature of each State, the qualifications and
disqualifications for membership of those Houses, the corrupt practices and other
offences at or in connection with such elections and the decision of doubts and
disputes arising out of or in connection with such elections.113

In May, 2014 the Law Commission of India issued a Consultation Paper on Media
Laws that highlights several issues, including freedom of media, paid news, self
regulation, cross media ownership, and opinion polls. The paper lays stress on
freedom of press, stating that the freedom of press serves the larger purpose of the
right of the people to be informed of a broad spectrum of facts, views and opinions. It
is the medium through which people gain asses to new information and ideas, an
essential component of functioning democracy. Thus, the survival and flowering of
Indian democracy owes a great deal to the freedom and vigour of our press. 114
According to the paper opinion polls conducted by polling agencies and disseminated
widely by television channels and newspapers are an endemic feature of elections in
India today. Several concerns have been raised about such polls, including bias in
choosing sample sizes, the possibility of them being manipulated to favour particular
political parties and the inordinate influence that they exercise on voters‟ minds
especially in multi-phase elections, under the guise of an objective study. Equally,
constitutional concerns have been raised about banning such polls. In an opinion on
8th April, 2004, Soli Sorabjee, Attorney General of India (as he then was) opined that
banning opinion (and exit) polls would be violative of Article 19 (1) (a) of the
Constitution, specifically the public‟s right to know, which has been held by the
Supreme Court to be part of the freedom of speech.115 Further, currently opinion polls
are barred from being published in electronic media for 48 hours prior to an election

112 Section 20, The Indian Telegraph Act, 1885

113 Preamble, The Representation of the People Act, 1951
114 Law Commission of India, “Consultation Paper on Media Laws” , Government of India, May 2014
115 Indian Express v. Union of India, (1981) Supp SCC 87

136
in that polling area116. No other restriction exists. However the Election Commission
of India has strongly argued for further restriction on publication of opinion polls.
Political parties unanimously agreed that publication of opinion poll results should be
117118
prohibited from the date of notification of elections till the end of the elections.
The Constitutionality of a modified version of this provision was endorsed by an
opinion of Goolam E. Vahanvati, the Attorney-General of India on 13 th June 2013. In
his opinion, the learned Attorney - General opined that since there is no real basis for
distinguishing between opinion and exit polls, opinion polls could also be prohibited
from being published from 48 hours before the first phase of an election till after the
last phase of polling is completed, analogous to the restriction on exit polls under
section 126A of the RP Act.

3.6.6 The Working Journalists and Other Newspaper Employees (Conditions of

Service) and Miscellaneous Provisions Act, 1955
As other employees working in different sectors, media journalists, whether they be a
writer for news paper, a news reader, an information collector or a news reporter,
editor and so on, have a major role to play in public and nation life and the
constitution of India provides right to equal pay for equal work, News reporting is not
a simple job as it seems to be it requires a lot of mental and field work therefore need
a special skill or otherwise. In view of all this the legislature has enacted the Working
Journalists and Other Newspaper Employees (Conditions of Service) and
Miscellaneous Provisions Act, 1955; which provides for regulation for certain
conditions of service of working journalists and other persons employed in newspaper
establishments.119The Act provides that for the purpose of fixing or revising rates of
wages in respect of working journalists, the Central Government as and when
necessary shall constitute Wage Board. After receipt of the recommendations of the
Board, the Central Government is required to make an order in terms of
recommendations and this order becomes applicable on the class of news paper
establishments for which the Board has recommended.120

116 Section 126(1), the Representation of People Act, 1951

117 Election Commission of India, “Exit Polls and Opinion Polls - restrictions regarding”, (letter dated
118 th October, 2010 to the Ministry of Law and Justice, Government of India)
119 Preamble, The Working Journalists and Other Newspaper Employees (Conditions of Service) and
Miscellaneous Provisions Act, 1955
120 Section 8, 9, 10 & 12 , The Working Journalists and Other Newspaper Employees (Conditions of
Service) and Miscellaneous Provisions Act, 1955

137
Under the administrative machinery provided under the Act, all the Assistant Labour
Commissioners of the Labour Department have been appointed Inspectors for
121
carrying out the enforcement work under the Act for their respective Districts. The
Deputy Labour Commissioners have been authorized for the recovery of the amount
due to the newspaper employees under the provisions of the Act. The amount can be
recovered by issue of a certificate for the amount to the Collector for recovery of the
amount as arrears of land revenue. Further, for contravention of any of the provisions
of the Act or any rule made there under is punishable with a fine which may extend to
Rs. 200/- and Rs. 500/- for subsequent contravention.122

3.6.7 The Young Persons (Harmful Publications) Act, 1956

Several Publications which were known as Horror Comics containing pictorial stories
of the glorification of crime, violence and vice were being circulated in India.
Dissemination of such stories were encouraging antisocial tendencies among children
and exerting harmful influence on young persons. In order to prohibit the production
in India of such literature or of any variant and its circulation within India the Young
Persons (Harmful Publications) Bill was introduced in the Parliament, passed by both
the Houses of Parliament and it received the assent of the President on 28th
December, 1956. It came on the Statute Book as The Young Persons (Harmful
Publications) Act, 1956 (93 of 1956).

The object of this Act is to prohibit prevent the dissemination of certain publications
harmful to young persons.123 The Act speaks about the harmful publication and
provides that harmful publication means any book, magazine, pamphlet, leaflet,
newspaper or other like publication which consists of stories told with the aid of
pictures or without the aid of pictures or wholly in pictures, being stories portraying
wholly or mainly, the commission of offence or acts of violence or cruelty or
incidents of a repulsive or horrible nature

121 Section 17 –B, The Working Journalists and Other Newspaper Employees (Conditions of Service)
and Miscellaneous Provisions Act, 1955
122 Section 18, The Working Journalists and Other Newspaper Employees (Conditions of Service) and
Miscellaneous Provisions Act, 1955
123 Preamble, The Young Persons (Harmful Publications) Act, 1956

138
in such a way that the publication as a whole would tend to corrupt a young person
into whose hands it might fall, whether by inciting or encouraging him to commit
offences or acts of violence or cruelty or in any other manner whatsoever.124

The Act penalise a person for sale, etc., of harmful publications it provides that if a
person sells, lets to hire, distributes, publicly exhibits or in any manner puts into
circulation, any harmful publication, or for purposes of sale, hire, distribution, public
exhibition or circulation, prints, makes or produces or has in his possession any
harmful publication, or advertises or makes known by any means whatsoever that any
harmful publication can be procured from or through any person, he shall be
punishable with imprisonment which may extend to six months, or with fine, or with
both. The Act further provides that on a conviction under this section, the Court may
order the destruction of all the copies of the harmful publication in respect of which
the conviction was had and which are in the custody of the Court or remain in the
possession or power of the person convicted.125

3.6.8 The Contempt of Courts Act, 1971

Publication in media pertaining to offences and civil disputes has certain advantages.
But at the same time, adverse comments published by media regarding pending or
imminent judicial proceedings may prejudicially influence the judge, witness and
those who are connected with administration of justice making fair and impartial
administration of justice virtually impossible.126 The present Act, replaced the
Contempt of Courts Act, 1952 which was the earlier legislation relating to contempt.
The present Act is an endeavor of the Central Government to control disrespect
towards judiciary by the ordinary person and the judicial officers. The Act also limits
the individuals and institutions from intruding with the administration of justice and
usual proceedings of the Court. The Court directs contempt of court when a person or
institution contravene or disregard the authority of the Court. It is often referred as the
power of the court to avert the Acts which interrupt the proceedings of the court.

In India the Contempt of Court Act, 1971 was enacted with the object to describe and
restrict the authority of the court to penalize disrespect of the Court. 127 The Act
124 Section 2 (a), The Young Persons (Harmful Publications) Act, 1956
125 Section 3 (1) & (2), The Young Persons (Harmful Publications) Act, 1956
126 A - G v Times Newspaper Ltd. [1973] 3 All E R 54, 61
127 Preamble, Contempt of Court Act, 1971

139
divides contempt into Civil Contempt and Criminal contempt, where civil contempt is
the intentional violation of the ruling, verdict, order or direction of the court or
deliberate contravention of a duty imposed by the Court. 128 While criminal contempt
refers to doing an act which disgust the power of court or impedes in the proceeding
of the court or encumbers the effective administration of justice by means of
publication in any manner.129

Further, the act exempts a person from contempt, who publishes a statement in
opposition to the Court during the pendency of litigation, in reality was ignorant of
the fact that the case was pending. A person is not liable to be punished if he
distributes a publication mentioned under the Act unknowingly. Moreover, a person
shall not be guilty if he publishes reasonable and truthful report of the proceedings of
the court. Likewise, just and accurate comment regarding a judicial act or qualities of
the case is not contempt within the meaning of the Act. A person is not guilty of
contempt for publishing a report in good faith with respect to a presiding officer of
the inferior court. 130

The Act further provides that every High Court shall have and exercise the same
jurisdiction, powers and authority, in accordance with the same procedure and
practice, in respect of contempt of courts subordinate to it as it has and exercises in
respect of contempt‟s of itself. Provided that no High Court shall take cognizance of
contempt alleged to have been committed in respect of a court subordinate to it where
such contempt is an offence punishable under the Indian Penal Code (45 of 1860).
Also a High Court shall have jurisdiction to inquire into or try contempt of itself or of
any court subordinate to it, whether the contempt is alleged to have been committed
within or outside the local limits the local limits of its jurisdiction, and whether the
person alleged to be guilty of contempt is within or outside such limits. 131 It punishes
a contempt of court may be punished with simple imprisonment for a term which may
extend to six months, or with fine which may extend to two thousand rupees, or with
both. Provided that the accused may be discharged or the punishment awarded may be
remitted on apology being made to the satisfaction of the court. However, an apology
128 Section 2 (b), Contempt of Court Act, 1971
129 Section 2 (c), Contempt of Court Act, 1971
130 Section 3,4,5, 6,&7, Contempt of Court Act, 1971
131 Section 10 & 11, Contempt of Court Act, 1971

140
shall not be rejected merely on the ground that it is qualified or conditional if the
accused makes it bona fide.132 The law as to interference with the due course of justice
has been well stated by the chief Justice Gopal Rao Ekkbote of Andhra Pradesh High
Court in the case of Y.V. Hanumantha Rao v. K.R. Pattabhiram and Anr. 133, where in it
was observed by the learned judge that when litigation is pending before a Court, no
one shall comment on it in such a way there is a real and substantial danger of
prejudice to the trial of the action, as for instance by influence on the Judge, the
witnesses or by prejudicing mankind in general against a party to the cause. Even if
the person making the comment honestly believes it to be true, still it is a contempt of
Court if he prejudices the truth before it is ascertained in the proceedings. To this
general rule of fair trial one may add a further rule and that is that none shall, by
misrepresentation or otherwise, bring unfair pressure to bear on one of the parties to a
cause so as to force him to drop his complaint or defence. It is always regarded as of
the first importance that the law which we have just stated should be maintained in its
full integrity. But in so stating the law we must bear in mind that there must appear to
be „a real and substantial danger of prejudice. In Naresh v. State of Maharashtra,134
the main issue came for the consideration of the Supreme Court was whether press
could be prevented from publishing report of judicial proceeding held in open court.
The majority adopted the view that that even if the trial is public, publication of
evidence of a particular witness could be prevented because the fear of excessive
publicity may prevent the witness from speaking truth. However in the minority
judgment Sarkar J adopted a different view and opined that such a prohibition is
maintainable only if the proceeding was conducted in camera.

The irony of the majority view was that when the trial is conducted in open court,
though the access of the public, including persons from media could not be prevented,
the media could be prevented from publishing the proceedings held in open court. The
judgment made press freedom secondary. However the minority view placed press
freedom on the same footing with individual freedom with respect to proceedings
conducted in open courts. It seems that the ratio laid down by the minority Judge was
incorporated in the present Contempt of Courts Act. Under the present Act, the

132 Section 12, Contempt of Court Act, 1971

133 AIR1975 AP 30
134 AIR 1967 SC1

141
publication of report of judicial proceeding could amount to contempt of court, only if
the court was sitting in chambers or in camera. In, Sushil Sharma v. The State (Delhi
Administration) and Ors,146 it was held by the Delhi High Court that Conviction, if
any, would be based not on media‟s report but what facts are placed on record. Judge
dealing with the case is supposed to be neutral. Now if what petitioner contends
regarding denial of fair trial because of these news items is accepted it would cause
aspiration on the Judge being not neutral. Press report or no reports, the charge to be
framed has to be based on the basis of the material available on record. The charge
cannot be framed on extraneous circumstances or facts dehors the material available
on record. While framing the charge the Court will from prima facie view on the basis
of the material available on record. To my mind, the apprehension of the petitioner
that he would not get fair trial is perfunctory and without foundation. None of the
news items, if read in the proper prospective as a whole, lead to the conclusion that
there is any interference in the administration of justice or in any way has lowered the
authority of the Court. The Trial Court has rightly observed that after the charge sheet
has been filed, if the Press revealed the contents of the charge sheet it by itself by no
stretch of imagination amounts to interference in the administration of justice.

3.6.9 The Press Council Act, 1978

An Act to establish a Press Council for the purpose of preserving the freedom of the
Press and of maintaining and improving the standards of newspapers and news
agencies in India.147 Press Council as contemplated in the Act is a „body corporate‟. It
consists of one chairman and 28 other members. The Act has laid down various
responsibilities and duties of the Council. In order to maintain independence of press,

146
1996 CriLJ 3944
147
Preamble, The Press Council of India Act, 1978
as categorically stated in the Act. 135 In pursuance of this, the Press Council of India
has evolved a code of ethics to ensure the maintenance of high standards of public
taste and to have a due sense of freedom and to encourage the growth of a sense of
responsibility and public service.136 The Act further provides power to warn,
admonish and censure the press. These are the only weapons available with the PCI

135 Section 4 ,5 & 13, The Press Council of India Act, 1978
136 Press Council of India, Norms of Journalistic Conduct, 101 (New Delhi, 2010)

142
for enforcement purposes.137 Therefore, the PCI Act limits the PCI from taking
stringent actions. It is supposed to be only a self-regulatory organ as the government
always felt that freedom of press should be protected. For performing its functions,
under section 14, the Council has been given the same powers as vested in a Civil
Court while trying a case under the CPC.138

3.6.10 Right to Information Act, 2005

An Act to provide for setting out the practical regime of right to information for
citizens to secure access to information under the control of public authorities, in
order to promote transparency and accountability in the working of every public
authority, the constitution of a Central Information Commission and State Information
Commissions and for matters connected therewith or incidental thereto. Whereas
democracy requires an informed citizenry and transparency of information which are
vital to its functioning and also to contain corruption and to hold governments and
their instrumentalities accountable to the and whereas revelation of information in
actual practice is likely to conflict with other public interests including efficient
operations of the governments, optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information; and whereas democratic
ideal; it is necessary to harmonies these conflicting interests while preserving the
paramountcy of the now. Therefore, it is expedient to provide for furnishing certain
information to citizens who desire to have it. Thus an Act to provide for setting out
the practical regime of right to information for citizens to secure access to information
under the control of public authorities, in order to promote transparency and
accountability in the working of every public authority, the constitution of a Central
Information Commission and State Information Commissions and for matters
connected therewith or incidental thereto is enacted by the parliament in its 56 th year
of republic of India.139

Under the Act Information means any material in any form, including records,
documents memos, opinion, e-mails, advises, press release, circular, logbooks,
contracts, reports, papers, samples, models, data material held in any electronic form

137 Section 14, The Press Council of India Act, 1978

138 Section 15, The Press Council of India Act, 1978
139 Preamble , The Right to Information Act 2005

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and information relating to any private body which can be assessed by any public
authority under any other law for the time being enforce. 140 Further for an individual
Right to information under the Act means information accessible under the Act which
is held by any public authority and includes right to inspection of work, documents,
records, taking notes, extract or certified copies of document, and records, taking
certified samplers of material, obtaining information in form of diskettes , floppies,
tape, videos cassettes or in any other electronic form or through printouts where such
information is stored in a computer or in any other device.141

A person who desires to obtain any information shall make a request in writing or
through electronic means in English or Hindi or in the official language of the area in
which the application is being made; accompanying such fee as may be prescribed.
The person seeking information need not to disclose the reason for need of such
information;142 On receipt of a request for the information the central public
information officer or the state information officer shall expeditiously as possible and
in any case within 30 days or where the information is subjected to the life and liberty
of individual then within 48 hours, provide the same.143 If not provided then the
applicant can go in appeal to the appellate authority under the Act. Like any other
legislation, the Act also provides for the exemptions of the government from discloser
of information which would cause a breach of parliamentary privileges, harms the
competitive position of a third party, endanger the life and safety of a person, impede
the process of investigation, personal information which has no relationship to any
public activity or interest.144 However, if without any reasonable cause, the
concerned authority refuses to provide the requisite information or will provide
information which is false, incorrect or incomplete. A penalty of Rs 250 each day till
the application is received or information is furnished. However the total amount of
such penalty shall not exceed Rs 25000. Also the disciplinary action can be taken
against such officer.145

140 Section 2 (f), The Right to Information Act 2005

141 Section 2 (j) The Right to Information Act 2005
142 Section 6, The Right to Information Act 2005
143 Section 7, The Right to Information Act 2005
144 Section 8, The Right to Information Act 2005
145 Section 20, The Right to Information Act 2005

144
3.7 Judiciary versus Freedom of Press

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:- 1. Legislative

2. Executive

3. Judiciary

The Indian judiciary‟s approach to issues involving freedom of expression has been
inconsistent over the past few years. Seen in the backdrop of the Supreme Court‟s
early jurisprudence in favour of the freedom of expression and the press, judgments
and orders in some of the recent cases from the Supreme Court and the High Courts
have given rise to concern that the judiciary‟s commitment to free speech is not as
robust as it was earlier. In his autobiography, the late former Supreme Court judge,
Justice O Chinnappa Reddy observes that no case of any journalist being denied the
right to express himself has come before the Supreme Court, but there can be no
denial of the fact that press barons do control the free expression of views by
journalists. Indeed, the control exercised by the editors of newspapers and magazines
over the free expression of views by the journalists, in their group publications and
elsewhere, on the ground of their employment flies in the face of Constitutional
guarantees of liberty of thought and expression. A journalist is like any average reader
of a newspaper or a magazine and has views over and above what he or she could
express in the ordinary course of his or her duties as a journalist. If the duties involve
reporting of events or issues, professional norms would require that a journalist keeps
out his/her views. But should the journalist always censor his or her views in order to
satisfy the professional norms or enjoy some limited freedom like any reader, to
contribute to opinion making, with the best of his abilities and competence? It is
because right to read is not an empty right, but includes within itself the right to
express one‟s views on what one reads. Beyond this, a journalist also has a duty to
inform the reader what he or she might have missed to know because of limitations of
journalism. It is not unusual to find instances when these rights and duties are resisted
from within by those at the helm of the media organizations under the guise of
hierarchy and unjustified hidden professional norms, without any accountability.

145
Those who brazenly defy the Constitutional guarantees do so because they are non
State actors, and the journalists who suffer have no courage to expose them, for the
fear of facing further professional harassment. Unfortunately, such cases do not come
before the Judiciary, and we don‟t really know how such issues could be legally
resolved.146 The Madras High Court Chief Justice A.P. Shah told the 2008 batch of
student at the Asian College of Journalism on 17, July 2007. That it is essential to
preserve the freedom of both the press and the judiciary, two of the most important
indices of democracy. He quoted the former Supreme Court judge, H. R. Khanna, said
that it was essential the two institutions should understand each other and appreciates
their complementary role in the preservation their complementary role in the
preservation of democracy values. Points of conflict between the two should be
avoided as far as possible.147 During the Emergency, when a sweeping order was
issued and publisher to submit all material indented for publication to an officially
appointed Censor for clearance before publication, the Bombay High Court in Binod
Rao v. Minocher Rustom Masani, 148 has held that it is not for the censor to inject (into
this) lifelessness of forced conformity.

In Romesh Thappar v. State of Madras,149 and Brij Bhushan v. State of Delhi,150 the
Supreme Court took it for granted that the freedom of the press was an essential part
of the right to freedom of speech and expression. It was observed that the freedom of
speech and expression included propagation of ideas, and that freedom was ensured
by the freedom of circulation.151 It is thus clear that the right to freedom of speech and
expression carries with it the right to publish and circulate one‟s ideas, opinions and
other views with complete freedom and by resorting to all available means of
152
publication. This view was reiterated in Sakal Papers (P) Ltd. v. Union of Indian,
and regarded as settled in Bennett Coleman & Co. v. Union of India,153 as the right to

146 Chinnappa Reddy, the Court and the Constitution of India: Summits and Shallows, 196 (OUP,
Delhi , 2008)
147 Special Correspondent, Freedom of press, judiciary vital for preserving democratic values: Shah,
(The Hindu, July 17, 2007, Chennai)
148 (1976) 78 BOMLR 125
149 AIR 1950 SC 124
150 AIR 1950 SC 129
151 AIR 1950 SC 124, 127
152 AIR 1962 SC 305
153 AIR 1973 SC 106

146
freedom of speech and expression is guaranteed to a citizen, and not to a person, a
non-citizen running a newspaper, is not entitled to the benefit of freedom of the press.
Moreover, freedom of the press in India stands on no higher footing than the freedom
of speech and expression of a citizen and no privilege attaches to the press as such as
distinct from the freedom of the citizen. 154 Article 19(2) of the constitution of India in
its original form did not have the word „reasonable‟ before the word „restriction‟,
and it was inserted by the Constitution (First Amendment) Act, 1951. The result is
that a law is protected in so far as it imposes reasonable restrictions on the exercise of
rights conferred by article 19 (l) (a). To the extent a restriction is reasonable it
becomes a justifiable issue. What is “reasonable” has been explained by the Supreme
Court in
State of Madras v. V.G. Row, 155 as under:-

It is important in this context to bear in mind that the test of

reasonableness, wherever prescribed, should be applied to each
individual statute impugned, and no abstract standard or general
pattern of reasonableness can be laid down as applicable to all
cases. The nature of the right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions at the
time, should all enter into the judicial verdict.

In Virendra v. State of Punjab,156 the Supreme Court has faced the question that
whether pre-censorship of a newspaper could be justified as a reasonable restriction
on the right to freedom of speech and expression in the interests of public order. In
this case constitutional validity of the Punjab Special Powers (Press) Act, 1956
challenged as unconstitutional because they infringed the right of the petitioner under
article 19(l) (a) and were not saved by the protective provisions of clause 2 of Article
19 were. A notification 28 under section 2 clause 1(a) was issued against the editor,
printer and publisher of „Daily Pratap‟ published from Jullundur prohibiting him
from printing and publishing any article, etc. relating to or connected with the „save
154 M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC
155 AIR 1952 SC 196
156 AIR 1957 Pun 1

147
Hindi agitation‟ for two months. Another notification was issued under section 3
against the editor, printer and publisher of „Daily Pratap‟ and „Veer Arjun‟ published
from Delhi prohibiting the bringing into the Punjab of these newspapers printed and
published in Delhi. It was argued that the restrictions so imposed were not reasonable.
The problem then was whether the prevailing circumstances required some
restrictions to be placed on the right to freedom of the press and to what extent. The
impugned statute was enacted for preserving the safety of the State and for
maintaining the public order. The prevailing circumstances which led to the passing
of the statute, the urgency and extent of the evil of communal antagonism and the
hatred, the facility with which the evil might be aggravated by partisan news and
views published in daily newspapers having large circulation convinced the Supreme
Court lo hold section 2 as imposing reasonable restrictions on the exercise of the
rights guaranteed by article 19(l) (o) in the interests of public order. K.A. Abbas v.
Union of India,157 which concerned the constitutionality of pre - censorship of cinema
films, Justice Hidayatullah indicated the making of substantial allowance in favour of
the freedom, thus leaving a vast area for creative art to interpret life and society. This
approach is a welcome shift from the Virendra case, and suggests judicial review of
censorship of cinema films due to their different content and importance. So should
be the case with censorship of the press.

In Express Newspaper Ltd. v. Union of India,158 certain provisions of the Working

Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1956, whose
object was to secure the amelioration of conditions of the working journalists and
other persons employed in newspaper establishments, was challenged as interfering
with the right of the freedom of the press. It was urged that as the provisions of the
Act specified the wages and conditions of service of the working journalists, it would
impose heavy financial burdens on the newspaper establishments, which did not have
the resources to meet the new financial responsibilities and might have to close down.
It had, therefore, the effect of having a direct and preferential burden on the press and
had a tendency to curtail circulation and thereby narrow the scope of dissemination of
information. However, this contention was not accepted by the court. Justice

157 AIR 1971 SC. 481, 495 - 497

158 AIR 1958 SC 578

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Bhagwati delivering the judgment observed that:-
Those employers, who are favorably situated, may not feel
the strain at all while those of them who are marginally
situated may not be able to bear the strain and may in
conceivable cases have to disappear after closing down their
establishments.
That, however, would be a consequence which would be
extraneous and not within the contemplation of the
Legislature. It could, therefore, hardly be urged that the
possible effect of the impact of these measures in
conceivable cases would vitiate the legislation as such. All
the consequences which have been visualized in this behalf
would be remote and depend upon various factors which
may or may not come into play. Unless these were the direct
or inevitable consequences of the measures enacted in the
impugned Act, it would not be possible to strike down the
legislation as having that effect and operation. A possible
eventuality of this type would not necessarily be the
consequence which could be in the contemplation of the
Legislature while enacting a measure of this type for the
benefit of the workmen concerned.
159
In Printers (Mysore) Ltd. v. CTO, the Supreme Court has reiterated that though
freedom of the press is not expressly guaranteed as a fundamental right, it is implicit
in the freedom of speech and expression. Freedom of the press has always been a
cherished right in all democratic countries and the press has rightly been described as
the fourth chamber of democracy. In R. Rajagopal v. State of T.N,160 the Supreme
Court of India has held that freedom of the press extends to engaging in uninhabited
debate about the involvement of public figures in public issues and events. But, as
regards their private life, a proper balancing of freedom of the press as well as the
right of privacy and maintained defamation has to be performed in terms of the

159 (1994) 2 SCC 434

160 (1994) 6 SCC 632

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democratic way of life laid down in the Constitution. In Rajendra Sail v. M.P. High
Court Bar Assn,161 The editor, printer and publisher and a reporter of a newspaper,
along with the petitioner who was a labour 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 is 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)
v. Chief Justice of India,162 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. In Hindustan Times v. State of U.P,163 in this case the executive orders issued
by a state government under Article 162 directing deduction of an amount of 5% from
bills payable to news papers having circulation of more than 25000 copies for
publication of government, advertisement for implementation of its pension and
social security Scheme for full time Journalists has been held to be ultra - vires. The
Court observed that advertisements in newspapers play an important role in the matter
of revenue of the newspapers and have direct nexus with its circulation by making the
newspapers available to the readers at a price at which they can afford and they have
no other option available but to collect more funds by publishing commercial and
other advertisements and as such the State cannot, in view of the equality doctrine
contained in Article 14 of the Constitution, restore to the theory of take it or leave it.
Every executive action cannot interfere with the rights and liabilities of any person
unless the legality thereof is supportable in any Court of law.
The Supreme Court in Sahara India Real Estate Corporation v. Securities and
Exchange Board of India,164 gave judges the power to order postponement of
publication on a case - by - case basis, the test being, where there is a real and

161 (2005) 6 SCC 109

162 (1996) 5 SCC 216
163 (2003) 1 SCC 591
164 (2012) 10 SCC 603

150
substantial risk of prejudice to fairness of the trial or to proper administration of
justice‟. However, this is a very general test which does not clarify what publications
would fall within this category, leaving it entirely contingent on the content and
context of the offending publication. This leaves the higher judiciary with wide
discretionary powers to decide what amounts to legitimate restraints on media
reporting. Due to the possibility of such subjective interpretation, postponement
orders could be used by influential parties as a tool to abuse the process of law.
Therefore, the jurisprudence of postponement might be transported into defamations
suits, when the application of such order should be sought strictly as a constitutional
remedy.

3.8 Conclusion
Journalism is the act of the journalists which goes beyond simple reporting of events
in the press. It involves newsgathering by taking an initiative to get the news. The
information in these cases is not easily available. The extra effort taken for this type
of newsgathering is termed investigative journalism. This is an act of press activism,
which if conducted properly can do great help to any nation. This method of
collection of news demands the journalist to be on his toes always and involves field
work rather than seat work. It demands courage and knowledge of wide variety of
things, support from the editor and the management and protection from antisocial
elements. Today this is the mode of operation of most of the prominent newspapers
and television channels all around the world. In India one cannot find that, such
hardships are undertaken by the journalists, most of the material is gained by the
journalists sitting in their chair and through local agents. Also there is no pressure on
the media to follow the code of ethics as formulated by the Press Council of India.
The Tehelka issue and ISRO espionage case have raise questions on the means and
tools used in investigative journalism. The cases of media trial like Arushi murder
case, and the parliament attack incident have been taken as irresponsible by the
Hon‟ble Supreme Court in view of this case, it is essential that the new guidelines
may be issue so that media is regulated properly and it works for the support of
democracy rather than the opposite.

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