Media Law Notes.docx

Constitutional Regulation of Freedom of Expression It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some curbs on this freedom for the maintenance of social order. No freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) 358 and 359, the state may make a law imposing restrictions on the exercise of the right to freedom of speech and expression „in the interest of‟ the security of state. (i) During Normal Times: Reasonable Restrictions During normal times freedom of expression con be restricted, under Article 19(2), only in the interest of security of the Stare, friendly relations with foreign States, public order, decency or morality, in relation to contempt of court defamation or incitement as an offence. These restrictions intend to strike a proper balance between the liberty guaranteed under Article 19(1) (a) and the social interest specified under Article 19(2). The court’s commitment to the freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. It is settled law that the anticipated danger should not be remote, conjectural or far-fetched. It should have a direct nexus with expression. It should be intrinsically dangerous to the public interest. There is a heavy burden in the State to prove that the restriction is reasonable. Of these restrictions, the one most habitually used by the State to justify curtailing the liberty of its citizens is the ground of decency or morality. Very often, artistic depictions of the human body or sexuality, showing two men kissing each such art to be indecent or obscene other or M. F. Hussain‟s paintings, have come under the frenzied hand of the State claiming. Similarly, the State has also justified legislating on banning dances in bars, as in the opinion of the State they are obscene, vulgar, and indecent. The hypocrisy of the State is exposed when they allow dances in movies that are viewed by a huge audience, but shun same dances in bars performed in front of a restricted adult audience, and when the State allows movie posters or fashion shows with women wearing skimpy clothes but shuns paintings of art that depict nudity or sexuality on the grounds or religion, morality and obscenity. The pertinent question is that how and who decides what is vulgar indecent, lewd, obscene and not acceptable by society, thereby justifying a „reasonable democracy? The eight grounds of restriction which are mentioned in clause (2) of Article 19 are: a. Security of the State b. Friendly Relations with Foreign State. c. Public Order. d. Decency or Morality. e. Contempt of Court. f. Defamation. g. Incitement of an offence. h. Sovereignty and integrity of India. “Security of the State” means ‘the absence of serious and aggravated forms of public disorder’, as distinguished from ordinary breach of ‘public safety’ or ‘public order’ which may not

involve any danger to the State itself. Thus, security of the state is endangered by crime of violence intended to overthrow the government.1 “Friendly relations with foreign states” the object of this expression to the freedom of speech and expression is to prevent libels against foreign states in the interest of maintaining friendly relations with them. “Public order” this ground was added by the Constitution (1st Amendment) Act, 1951, in order to meet the situation arising from the Supreme Court’s decision in Romesh Thapper’s case. 2 In this case, it was held that ordinary or local branches of public order were no grounds for imposing restriction on the freedom of speech and expression guaranteed by the Constitution. The Supreme Court said that ‘public order’ is an expression of wide connation and signifies “that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.” Law and order, public order and security of State are different and could not be understood synonymous. In Kishori Mohan v. State of W.B.3 the Supreme Court explained the differences between three concepts and Court said, it can be explained by three functional concentric circles, the largest representing law and order, the next public order, and the smallest, the security of State. Every infraction of law and order but not necessarily public order and an act may affect public order but not necessarily security of State and an act may fall under two concepts at the same time affection public order and security of State. “Decency and morality” the words “morality and decency” are words of wide meaning. The word “obscenity” of English law is identical with the word “indecency” under the Indian Constitution. The test of obscenity is “whether the tendency of matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences” and into those hands a publication of this sort is likely to fall. Thus a publication is obscene if it tends to produce lascivious thoughts and arouses lustful desire in the minds of substantial numbers of that public into whose hands the book is likely to fall. This test was laid down in an English case of R. v. Hicklin.4 Section 292 to 294 of Indian Penal Code provides instances of restrictions on the freedom of speech and expression in the interest of decency and morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. But the Indian Penal Code does not lay down any test to determine obscenity. In Ranjit D. Udeshi v. State of Maharashtra,5 accepted the test laid down in English case of R. v. Hicklim to judge he obscenity of a matter. In P.K. Somnath v. State of Kerala it was held that even a nude body, whether male or female, cannot be regarded as an object of obscenity without something more. That ‘something more’ is in facial expression or the pose in which it is photographed. It is to the subjective tastes of the viewer and does not base it on an objective criteria or an artful depiction or just as an expression. The word ‘morality’ too has not been defined. The conception or morality differs from places to places and time to time. Therefore, it is imperative that the freedom of speech and liberty should 1

Santosh Singh v. Delhi Administration, AIR 1973 SC 1093 AIR 1950 SC 124 3 AIR 1973 SC 1794 4 LR 3 QB 360 5 AIR 1965 SC 881 2

not be curtailed unless it causes harm to others only that should be prevented by law. The law should aim to establish minimum and not maximum standards of behavior, showing respect for tolerance and privacy. ‘Contempt of Court’ in the exercise of his rights of freedom of speech and expression, nobody can be allowed to interfere with the due course of justice or to lower the prestige or authority of the court, even in the grab of criticizing a judgment. ‘Defamation’ just as every person possesses the freedom of speech and expression, every person also possesses a right to his reputation which is regarded as property. Hence, nobody can so use his freedom of speech or expression as to injure another’s reputation. Laws penalizing defamation do not, therefore, constitute infringement of freedom of speech. ‘Incitement to an offence’ this ground will permit legislation not only to punish or prevent incitement to commit serious offences like murder which lead to breech of public order, but also to commit an ‘offence’, which according to the General Clauses Act, means ‘ any act or omission made punishable by any law for the time being in force.’ Hence, it is not permissible to instigate another to do any act that which is prohibited and penalizing by any law. ‘Sovereignty and Integrity of India’ this ground has been added as a ground of restriction on the freedom of expression by the 16th Amendment of the Constitution. The object was to enable the State to combat cries for secession and the like from organizations such as the Dravida Kazhagam in the South and the Plebiscite Front in Kashmir, and activities in pursuance thereof which might not possibility be brought within the fold of expression ‘security of State’. It is to be noted that sedition is not mentioned in Article 19(2) as one of the grounds on which restriction on freedom of speech and expression may be imposed. But it has been held in Devi Saren v. State6 those Sections 124-A and 153-A of Indian Penal Code impose reasonable restriction in the interest of public order and is saved by Article 19(2). In Kedarnath v. State of Bihar7 the constitutional validity of Section 124-A I.P.C. was considered by the Supreme Court. The Court held that the gist of the offence of sedition is that the words written or spoken have tendency or intention of criterion public disorder and held the section constitutionally valid. (ii). During Emergency Article 358 and 359 make provision for the suspension of fundamental right during declaration of emergency. Marginal note of Article 358 is “suspension of provision Article 19 during emergencies”. As soon as a Proclamation of Emergency has been issued under Article 352 and so long as it lasts, Article 19 is suspended [subject to new clause (2)] and the power to the legislatures as well as the executive is to that extent made wider. The suspension of article 19 during the pendency of proclamation of emergency removes the fetters created on the legislative and executive powers by article 19 and if the legislature enactments passed and the executive actions taken during the course of the said emergency shall be inoperative to the extent to which they conflict with the rights guaranteed under article 19 because as soon as the emergency is lifted, article 19 which was suspended by the emergency is automatically revived and begins to operate. In other words, the suspension of article 19 is complete during the period in question 6 7

AIR 1954 Pat. 254 AIR 1962 SC 955

and legislative and executive actions which contravene Article 19 cannot be questioned after the emergency is over. RIGHT TO PUBLICATION Although Article 19 does not express provision for freedom of press but the fundamental right of the freedom of press implicit in the right the freedom of speech and expression. In the famous case Express Newspapers (Bombay) (P) Ltd. v. Union of India8 court observed the importance of press very aptly. Court held in this case that “In today’s free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.” The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India. The imposition of censorship on a journal previous to its publication would amount to an infringement of Article 19(1)(a). The question of validity of censorship came up for consideration in the case of Brij Bhushan v. State of Delhi,9 the court observed, “…the imposition of pre-censorship of a journal is a restriction on the liberty of the press which is an essential part of the freedom of the speech and expression declared by Article 19(1)(a).” In Sakal Papers Ltd. v. Union of India10, the Daily Newspapers (Price and Control) Order, 1960, which fixed a minimum price and number of pages which a newspaper was entitled to publish was challenged as unconstitutional by the petitioner on the ground that it infringed the liberty of the press. The Court said, the right of freedom of speech and expression cannot be taken away with the object of placing restrictions on the business activity of a citizen. Freedom of speech can only be restricted on the grounds mentioned in clause (2) of Article19. It cannot, like the freedom to carry on business, be curtailed in the interests of the general public.

8

(1985) 1 SCC 641

9

AIR 1950 SC 129

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AIR 1962 SC 305

Some other aspects of Freedom of Press: In M Hasan v State of Andra Pradesh,11 the Andhra Pradesh High Court has held that denial of permission to a press reporter to interview a willing condemned prisoner on a ground not falling within Article 19(2) is not valid. “Any such denial is deprivation of a citizen’s Fundamental Right of freedom of speech and expression.” In a landmark judgment in Bharat Kumar K Palicha v State of Kerala12 a full Bench of the Kerala High Court has declared “Bandhs” organized by political parties from to time as unconstitutional being violative of the Fundamental Rights of the people. The Court refused to accept it is an exercise of the freedom of speech and expression by the concerned party calling for bandh. When a bandh is called people are expected not to travel, not to attend their work. A threat is held out either expressly or impliedly that any attempt to go against the call for bandh may result in physical injury. Voting at an election is a form of expression.13 A citizen as a voter is the master of his vote. He must have necessary information so that he can intelligently decide in favor of a candidate who satisfies his criterion of being elected as an MP or MLA. Contents of Freedom Of Press Freedom of expression includes the freedom to propagate one’s own views as well as of others and to communicate them to others , it follows that the freedom of the press includes the right : (i) to print and publish news and views[Gopal Dass v. D.M]. (ii) Such views or opinions may be those of the editor or author but also those of other people printed under his direction (Sharma v. Srikrishnan). (iii) To distribute or circulate such printed matter to any other party[Ramesh Thapper v. State of Madras]. (iv) The freedom extends to the discussion and publication of views relating to ‘all issues about which information is needed to enable the members of society to cope with the exigencies of the period ; and is not necessarily confined to ‘political’ or ‘public affairs’. (v) It includes the right to comment on public affairs and to criticize public men and measures and to criticize the government including its defense policy and the conduct of armed forces , without prejudice to national security [ Gravel v. U.S]. (vi) A corresponding right to collect information relating to public affairs or the right of access to the sources of such information [ Newyork Times v. U.S]. (vii) The right of the Press to collect information from diverse sources on a comparative basis , free from any monopolistic control from the government . (viii) The freedom not to publish any news, article, correspondence or any other matter , nor to include anything at the dictate of an authority.

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AIR 1998 AP 35 AIR 1965 SC 311 : (1964) 7 SCR 403 13 PUCL v UOI, (2003) 4 SCC 399 : AIR 2003 SC 2363 12

(ix) The right to refuse advertisement, including a Government advertisement . if however , a newspaper accepts Government advertisement , it would be bound to abide by the terms and conditions of the contract or law relating such contracts. (x) Freedom of choice in the matter of employment / non- employment of the necessary means of exercising the freedom of expression, including employment in the editorial force. (xi) Immunity from any tax specially imposed on the press / on advertisements in a newspaper which was calculated to limit its circulation. Right to circulation Freedom means absence of control, interference/ restriction. Hence, the expression ‘Freedom of Press’ means the right to print and publish without any any interference from the State or any public authority. It is a ‘Basic’ ‘human right’ and also been called as ‘Preferred right’.What is known as the freedom of press is nothing but the freedom of expression of every citizen which is guaranteed by Art 19(1)(a) which includes : (i) the right to lay what sentiments he pleases before the public, or the right to impart information and ideas; (ii) the right to receive information and ideas from others through any lawful medium. Amplitude Of The Freedom Of Circulation Freedom to circulate extends not merely to the matter which the press is entitled to circulate but also the volume of circulation. In short its both quantitative and qualitative.Our constitution guarantees freedom of thought and expression , the only limas being imposed is under Art 19(2).Every newspaper posses the right to publish anything it likes , unfettered either by prior restraint or subsequent punishment in any form . The freedom of the press is hampered if the editorial policy of a newspaper is controlled or influenced either by the State or by private persons , parties or financers whose only object is to secure their respective interests irrespective of the public interests in the dissemination of information and ideas from competing sources , provided , of course , its not unlawful. The freedom of a newspaper or other publication , from the aspect of volume of circulation , means that it is entitled to propagate its ideas and views and reach any class and number of readers as it chooses , subject, of course , to constitutionally permissible restrictions and to print and publish any number of pages it chooses. This freedom would be undermined by any excessive burden imposed on the press which narrows its scope of dissemination of information / renders it so uneconomical as to ultimately compel it to seek Government aid , which would obviously destroy its freedom .the foregoing freedom would thus be effected by any law/ State action : 1) which fixes a max no of pages which a newspaper would be entitled to print. 2) Which prohibits a newspaper to publish a supplement or a new edition without permission of the government – to be granted / refused to be granted , as its unfettered discretion.

In Bennet Colemanns case, the newsprint policy of the government was struck down on this ground : “The newsprint policy which permits newspapers to increase circulation by reducing the no of pages , page area and periodicity by reducing circulation . These restrictions constrict newspapers in adjusting their page no and circulation”. 3) Which fixes a minimum price which a newspaper must charge , according to the no of pages which it is entitled to publish under that law, i.e., by laying down a price – scale varying with the no of pages printed.

In Sakal Papers case , the court held that : “Though the State is entitled to regulate prices of newspapers to ensure fair price to consumers of newspapers , and though the State may be entitled to control unfair competition among newspapers ,as in the case of other business , in India , it would be unreasonable restriction on the Freedom of press , under Art 19(2), if such price fixation is calculated to curtail the circulation of particular newspapers. Thus , where unfair competition between the bigger and smaller newspapers is sought to be achieved by bringing the bigger units to the level of the smaller, by obliging the biggers newspaper to charge a min price according to number of pages it chooses to print , the avowed object and direct effect of such regulation of price according to the volume of the newspaper is to curtail the circulation of a bigger newspaper because it would make the price so unattractively high for a class of people as is likely to deter it from purchasing such newspaper.” 4) Which reduces the space for advertisement; because if the space for advertisement if reduced , earnings will decline , and if the price has to be raised , that would affect circulation. 5) Government making a discriminatory distribution of its own advertisements. 6) The freedom to circulate the printed matter, whether it is a newspaper, pamphlet or handbill, includes the right to distribute it to other persons in any legitimate manner, subject to regulation by the State , in the interest of protecting streets and public places from littering or obstruction of traffic etc. Advertisement and Freedom of Speech and Expression The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restriction, or repression by the government. Advertising is a form of communication for marketing and used to encourage or persuade an audience (viewers, readers or listeners; sometimes a specific group) to continue or take some new action. Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product advertised. Public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow of commercial

information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of "commercial speech" and when examined from another angle, the public at large has a right to receive the "Commercial speech". Article (19) (1) (a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements. An advertisement giving information regarding a life saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration. An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Article 19(1) which it seeks to aid by bringing it to the notice of the public. When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas ' social, political or economic or furtherance of literature or human thought; but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines. In such a case, advertisement is a part of business. It was asserted in Hamdard Dawakhana (WAKF) LalKuan, Delhi and Another v Union of India, [SCR 1960 (2) 671]that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Art. 19(1) which it seeks to aid by bringing it to the notice of the public. When RESTRICTIONS: As stated previously, no right can be absolute and without restrictions or else they might not act in the best interest of the public. Advertisement has been considered as an act of communication or expressing one’s views but the said right may be exploited by the advertisers if not guarded. Restrictions on advertisements might be imposed when the advertiser indulges in the following acts: 1. Deception- exists when an advertisement is introduced into the perceptual process of the audience in such a way that the output of that perceptual process differs from the reality of the situation. It includes a misrepresentation, omission or a practice that is likely to mislead. 2. Bait advertising: It means taking advantage of consumer psychology and depriving consumers of a choice. For example, a consumer is lured into a retail outlet by an advertisement for a low cost item and then is sold a higher priced version or to be defective. 3. Advertising of harmful products: Advertising is not restricted to products that are good for people. According to law in India advertisements for cigarettes, liquor, paan masala, products that are harmful to the public continue to find a place despite the ban imposed by the government in private channels, cable, and through the use of surrogates.

Advertising Regulation in India The Government of India has not set up a regulatory body in India to regulate advertisements. Depending on the nature of the grievances, the power to regulate advertisements may be exercised by a vast variety of authorities, including the courts, Central and State Governments, tribunals or the police authorities. In addition to these authorities, is the Press Council of India Act, 1978 which is also empowered to regulate press advertisements? The Council is guided by its “Norms of Journalistic Conduct”. in the regulation of advertisements. The Press Council has the power to hold an inquiry into a complaint against a newspaper and if it finds that the newspaper has violated the standards prescribed by the council, it may warn, admonish or censure the newspaper, the editor or journalist as the case may be. India however, does have a self regulatory body dealing with both online and other forms of advertising. The Advertising Standards Council of India (ASCI) monitors certain standards and fairness in the domain of advertising. It was established in India in 1985. It is a self regulatory voluntary organization whose role and function of the ASCI is to deal with complaints received from consumers and industry against advertisements which are considered as false, misleading, indecent, illegal, leading to unsafe practices or unfair to competition and in contravention to the advertising codelaid down by the ASCI. While safeguarding consumer interests, ASCI also monitors and guides the commercial communications of practitioners in advertising. The aim of advertisement is to promote sales of products or service by affecting a purchasing decision. Although the benefits of advertising are numerous it is one aspect of marketing that is subjected to a severe criticisms. And now there is a new medium for advertisers to explore, the Internet! While there may be no specific legislations governing online advertising in India, ASCI does recognize online advertising. ASCI’s Code of advertising and existing statutes provides necessary guidance and arsenal to combat errant advertisers. Finally, guidance may be sought by simplify reading the Terms and Conditions of the website, the advertiser wants to advertise on. This exercise will avoid any negative repercussions following release of an online advertisement.

Broadcast The broadcast media was under complete monopoly of the Government of India. Private organizations were involved only in commercial advertising and sponsorships of programmes. However, in Secretary, Ministry of I&B v. CAB [6], the Supreme Court clearly differed from the aforementioned monopolistic approach and emphasized that, every citizen has a right to telecast and broadcast to the viewers/listeners any important event through electronic media, television or radio and also provided that the Government had no monopoly over such electronic media as such monopolistic power of the Government was not mentioned anywhere in the Constitution or in any other law prevailing in the country. This judgment, thus, brought about a great change in the position prevailing in the broadcast media, and such sector became open to the citizens. Ø The Broadcasting Code, adopted by the Fourth Asian Broadcasting Conference in 1962 listing certain cardinal principles to be followed buy the electronic media, is of prime importance so far

as laws governing broadcast medium are concerned. Although, the Broadcast Code was chiefly set up to govern the All India Radio, the following cardinal principles have ideally been practiced by all Broadcasting and Television Organization; viz:Ø To ensure the objective presentation of news and fair and unbiased comment Ø To promote the advancement of education and culture Ø To raise and maintain high standards of decency and decorum in all programmes Ø To provide programmes for the young which, by variety and content, will inculcate the principles of good citizenship Ø To promote communal harmony, religious tolerance and international understanding Ø To treat controversial public issues in an impartial and dispassionate manner Ø To respect human rights and dignity Ø Cable Television Networks (Regulation) Act, 1995 basically regulates the operation of Cable Television in the territory of India and regulates the subscription rates and the total number of total subscribers receiving programmes transmitted in the basic tier. In pursuance of the Cable Television Network (Regulation) (Amendment) Bill, 2002, the Central Government may make it obligatory for every cable operator to transmit or retransmit programme of any pay channel through an addressable system as and when the Central Government so notifies. Such notification may also specify the number of free to air channels to be included in the package of channels forming the basic service tier. Ø Direct-to-Home Broadcasting – Direct-to-Home (DTH) Broadcasting Service, refers to distribution of multi-channel TV programmes in Ku Band by using a satellite system and by providing TV signals directly to the subscribers’ premises without passing through an intermediary such as a cable operator. The Union Government has decided to permit Direct-toHome TV service in Ku band in India. Film - India is one of the largest producers of motion pictures in the world. Encompassing three major spheres of activity – production, distribution and exhibition, the industry has an all-India spread, employing thousands of people and entertaining millions each year. The various laws in force regulating the making and screening of films are: The Cinematograph Act, 1952 The Cinematograph Act of 1952 has been passed to make provisions for a certification of cinematographed films for exhibitions by means of Cinematograph. Under this Act, a Board of Film Censors (now renamed Central Board of Film Certification) with advisory panels at regional centres is empowered to examine every film and sanction it whether for unrestricted exhibition or for exhibition restricted to adults. The Board is also empowered to refuse to sanction a film for public exhibition. In K. A. Abbas v. Union of India, the petitioner for the first time challenged the validity of censorship as violative of his fundamental right of speech and expression. The Supreme Court

however observed that, pre-censorship of films under the Cinematograph Act was justified under Article 19(2) on the ground that films have to be treated separately from other forms of art and expression because a motion picture was able to stir up emotion more deeply and thus, classification of films between two categories ‘A’ (for adults only) and ‘U’ (for all) was brought about. Furthermore, in Bobby Art International v. Om Pal Singh Hoon, the Supreme Court re-affirmed the afore-mentioned view and upheld the order of the Appellate Tribunal (under the Cinematograph Act) which had followed the Guidelines under the Cinematograph Act and granted an ‘A’ certificate to a film. The Copyright Act, 1957 According to this Act, ‘copyright’ means the exclusive right to commercially exploit the original literary, dramatic, artistic, musical work, sound recordings or cinematographic films as per the wishes of the owner of copyright subject to the restrictions imposed in the Act. Although this Act, is applicable to all the branches of media, in some areas it is specific to this particular genre. In the case of a Cinematographed film, to do or to authorize the doing of any of the following acts would lead to the infringement of copyright. Those acts are namely:· To make a copy of the film · To cause the film, in so far, as it consists of visual images, to be seen in public and in so far as it consists of sounds to be heard in public · To make any record embodying the recording in any part of the soundtrack associated with the film by utilizing such sound track · To communicate the film by radio-diffusion The Act also makes it a cognizable offence for anyone to sell, hire, distribute, exhibit, possess or view any unauthorized recordings and prescribes severe penalties, including imprisonment, fines as well as confiscation of the equipment used for the purpose of such recording and exhibition. The Amendments to The Copyright Act also prohibit unauthorized transmission of films on the cable television. Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 This legislation affords a measure of protection to those employed in the industry by imposing certain obligations on motion picture producers and theatre owners concerning the former’s condition of service. Cine Workers Welfare Cess Act, 1981 and the Cine Workers Welfare Fund Act 1981 They seek to create means of financial support to cine employees, the seasonal and unpredictable nature of whose employment often leaves them impoverished and helpless. Besides these, there are also a few local legislations, which affect the film medium. The Bombay Police Act, 1951

It contains provisions empowering the police to regulate the exhibition of films in the state of Maharashtra (formerly Bombay). Bombay Cinemas (Regulation) Act, 1953 It provides a scheme for state licensing of cinema theatres and other places where motion pictures are exhibited The Bombay Entertainments Duty Act, 1923 It imposes a tax on the public exhibition of motion pictures and other forms of entertainment. Freedom of the Press As in other democracies across the globe, freedom of the Press has been given its due importance in our political system also. Though it has not been expressly provided for in the Constitution of India, it is implicit in the Fundamental Right of the “Freedom of Speech and Expression” guaranteed to the citizens under article 19(1) (a) of the Constitution. It has been settled by several judicial pronouncements that Freedom of Speech and Expression includes Freedom of the Press. In the Indian Express Newspapers V Union of India (A.I.R. 1985 SC) the Supreme Court observed: The expression `Freedom of the Press` has not been used in article 19 but it is comprehended within article 19 (1)(a)…The purpose of the Press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. The term “Freedom of Speech and Expression” includes the liberty to propagate not only one’s views but also the right to print matters which have been borrowed from someone else or are printed under the direction of that person and includes the liberty of publication and circulation. As an important medium of communication between the Legislature and the people, it is the foremost responsibility of the Press to inform the people of correct news and true facts. The public is influenced by the factual reports of the happenings inside the Legislature. The Press, being the prime and principal medium for purveying information, must ensure that whatever goes in print must have the hallmark of veracity. Publication of Parliamentary Proceedings Absolute immunity from proceedings in any court of law has been conferred under the Constitution on all persons connected with the publication of proceedings of either House of Parliament, if such publication is made by or under the authority of the House under article 105(2) of the Constitution in respect of Parliament and article 194(2) in the case of State Legislatures. This immunity does not, however, extend to the publication of reports of parliamentary proceedings in newspapers, whether published by a member of the House or by any other person, unless such publication is expressly authorized by either House. Under

the Parliamentary Proceedings (Protection of Publication) Act, 1977*, statutory protection has been accorded to the publication in newspapers or broadcasts by wireless telegraphy of substantially true reports of any proceedings of either House of Parliament, provided the reports are for the public good and are not actuated by malice. Later, the provision was added in the Constitution of India by insertion of article 361A vide the Constitution (Forty fourth Amendment) Act, 1978 w.e.f. 26.6.1979. Article 361A of the Constitution which gives constitutional protection to such publication provides as follows: (1) No person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State, unless the publication is proved to have been made with malice: Provided that nothing in this clause shall apply to the publication of the reports of the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State. (2) Clause (1) shall apply in relation to reports or matters broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station as it applies in relation to reports or matters published in a newspaper. Explanation-In this article `Newspaper’ includes a news agency report containing material for publication in a newspaper. Limitation on Publication of Proceedings This protection has been accorded within the overall limitation that the House has the power to control and, if necessary, to prohibit the publication of its debates or proceedings and to punish for the violation of its orders. In the Lok Sabha, the Secretary-General is authorized to prepare and publish a full report of the proceedings of the House under the direction of the Speaker. The Speaker may also authorize the printing, publication, distribution or sale of any paper, document or report in connection with the business of the House or a committee thereof. Article 118 of the Constitution of India provides that each House of Parliament may make rules for regulating, subject to the provisions of the Constitution, its procedure and conduct of its business. Rule 379 of the Rules of Procedure and Conduct of Business in Lok Sabha empowers the Speaker, Lok Sabha to get a full report of the proceedings of the House, at each of its sittings, published in such form and manner as he may direct from time to time. Each House has the power to control and if necessary, to prohibit the publication of its debates and proceedings. Normally, no restrictions are imposed on reporting the proceedings of the House. But when debates or proceedings of the House or its Committees are reported mala fide or there is wilful misrepresentation or suppression of speeches of particular members, it is a breach of privilege and contempt of the House and the offender is liable to be punished.

It is also a breach of privilege and contempt of the House to publish any part of the proceedings or evidence given before, or any document presented to a Parliamentary Committee before such proceedings or evidence or documents have been reported to the House. Each House of Parliament, as also a House of the Legislature of a State is the sole judge of its privileges and accordingly it has the power to punish any person for a breach of privilege or contempt of the House and commit the offender to custody or prison. The House may also decide to refer the matter forthwith to the Committee of Privileges. The Parliament and State Legislatures possess not only the power to punish for their contempt Publication of Expunged Portion – A Breach of Privilege Before proceeding further, it may be mentioned that apart from the privileges specifically provided in clauses (1) and (2) of article 105, clause (3) of article 105 lays down as follows: In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-Fourth Amendment) Act, 1978. The provisions of the Constitution as originally enacted provided that the privileges of members of Parliament were to be the same as those of the British House of Commons, its members and committees at the commencement of the Constitution until our Parliament defined them in whole or in part, by law. In other words, if Parliament enacted any provision relating to any particular privilege at any time, the British precedents would not, to that extent, be applicable to our Parliament. This clause (clause 3) was amended in 1978, to provide that in respect of privileges other than those specified in the Constitution, the powers, privileges and immunities of each House of Parliament, its members and committees shall be those of that House, its members and committees immediately before the coming into force of Section 15 of the Constitution (FortyFourth Amendment) Act 1978 w.e.f. 20 June 1979. Normally, no restrictions are imposed on reporting the proceedings of the House. However, publication of such portions of the debates as have been expunged from the proceedings of the House by the order of the Speaker is a breach of privilege and contempt of the House and accordingly punishable. In Pandit M.S.M Sharma v. Shri Krishna Sinha[xiii], popularly known as Searchlight case proceedings for the breach of privilege had been started against an editor of a newspaper for publishing those parts of the speech of a member delivered in Bihar legislative assembly which the speaker had ordered to be expunged from the proceedings of the Assembly. The editor in a writ petition under Article 32 contended that the House of Commons had no privilege to prohibit either the publication of the publicly seen and heard proceedings that took

place in the House or of that part of the proceedings which had been directed to be expunged. The Supreme Court by a majority of four to one rejected the contention of the petitioner. Das C.J., who delivered the majority judgment, observed that the House of Commons had at the commencement of our Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that took place within the House. A fortiori the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate version of such debates or proceedings. The Court said that the effect in law of the order of the Speaker to expunge a portion of the speech of member might be as if that portion had not been spoken. Now Article 361-A inserted by the 44th Amendment Act, 1978 with effect from June 20, 1979, provides that no person shall be liable to any proceedings civil or criminal for reporting the proceedings of either House of Parliament or a State Legislature unless the reporting is proved to have been made with malice. This provision does not apply to the reporting of proceedings of secret sittings of the Houses.

Two sides of the same coin – the right to privacy and freedom of expression Freedom of speech and expression is one of the important pillars of democracy. Free expression is indispensable to the unadulterated exchange of thoughts and ideas needed to regulate the democratic machinery in India. These free thoughts lead to ideas that formulate public policy. There is need for free expression so as to build political stability and check abuse of power by public officials. Freedom of press can be said to be a subset of freedom of speech and expression. In the case of Romesh Thappar v. State of Madras , it was observed by Justice Shastri that, “freedom of speech and the press lay at the foundation of all democratic organizations, for, without free political discussion no public education, so essential for the proper functioning of the processes of the popular government is possible.” In the case of Union of India v. Motion Picture Association , freedom of speech was advocated profoundly. The said judgment upheld free speech as a foundation of democratic society. It is the only kind of freedom, which makes it possible for the people to formulate their own opinion on a proper basis in order to exercise their social, economic and political rights in their free society in an informed manner. Democracy cannot prosper unless people go out and express their views. Freedom of speech and expression also means freedom to propagate ideas by way of circulation of press. Liberty of circulation is as important as publication by the print media or press. Without circulation, the publication would be worthless. Nothing in this world is absolute; hence freedom of speech and expression is also subjected to certain restrictions. No person has the right to speak or express any views towards any person or organization if it is not true. This would lead to defamation, which is punishable under both

Indian Penal Code, 1860 as well as the law of torts. But in case where a person in good faith believes that certain facts are true about another person or organization then it would not be considered as an offence. Sometimes, when the press meddles in certain court proceedings which hamper the fair process of trial and delivering of justice then the press can also be charged for contempt of court under Contempt of Court Act, 1971. The press should not try to create an opinion among the people as well as the judges towards a certain case, where the outcome may be prejudicial to the interest of the accused. It can be seen that pre-trial publications have not been given importance in the existing laws dealing with contempt. The Law Commission of India in its 200th Report condemned it and said even pre-trial reports should be brought under the purview of contempt laws. They suggested that arrest should be taken as the starting point of pendency of criminal proceedings and not charge sheet or challan. The Law Commission’s Report can be quoted as under: “a publication made in respect of a person who is arrested but in respect of whom a charge sheet or challan has not yet been filed in a Court, in our view, prejudices or may be assumed by the public to have prejudiced the Judge, and in that case a procedure, such as the one permitted by Section 3(2) read with Explanation of the Contempt of Courts Act,1971, does not prescribe a procedure which is fair, just and equitable, and is arbitrary and will offend Article 14 of the Constitution of India.” In the case A.K Gopalan v. Noordeen , the Supreme Court held that a publication made after “arrest” of a person could be considered as contempt if it was prejudicial to the suspect or accused. According to the Law Commission this is the correct approach and the existing law is flawed. It is to be remembered that the press has no right to intrude into the private matters of an individual unless it is a matter of public interest and moreover not by a mere whim. The movement towards the recognition of the “Right to Privacy” in India started with Kharak Singh v. State of Uttar Pradesh and Others , wherein the apex court observed that it is true that our Constitution does not expressly declare the “Right to Privacy” as a fundamental right, but the said right is an essential ingredient of personal liberty. After an elaborate appraisal of this right in Gobind v. State of Madhya Pradesh and Another , it has been fully incorporated under the umbrella of right to life and personal liberty by the humanistic expansion of the Article 21 of the Constitution. The observations of the Supreme Court in R. Rajagopal and Another v. State of Tamil Nadu and Others are a true reminiscence of the limits of freedom of press with respect to the right to privacy. "A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. No one can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.”

Article 21 of the Indian Constitution lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. In Maneka Gandhi v. Union of India , the court necessitated that to deprive a person of his life and liberty; such procedure must not only be established by law but must also be fair, just and reasonable. Thus right to a fair trial emanates from Article 21 which gives to a citizen the fundamental right to protection of life and personal liberty where there should not be any bias made due to the prior one sided or vague news propagated by the press and media . For a court trial to be just and fair it has to be free from bias and the accused has to be given a fair opportunity to prove his innocence. RIGHT TO INFORMATION AND ROLE OF JUDICIARY IN INDIA Right to Information is just like oxygen for democracy. It stands for transparency. Transparency in dealings, with their every detail exposed to the public view, which is meant for curtailing corruption in public life. Information would lead to openness, accountability and integrity. In democratic set up of Government, every citizen is having right to know regarding the functions of the government. Right to Information Act, is also meant for checking maladministration. So, the need for Right to Information has been widely felt in all sectors of the country and this has also received judicial recognition through some landmark judgments of Indian courts. As the transparency is the culture required for good governance, secrecy directly means disempowerment. Whenever, the executive interfered with the freedom of speech and expression through its executive orders or legislative measures, the press knocked the doors of justice in apex court and the resultant judgments paved way for the jurisprudence of information rights. The development of the right to information as a part of the constitutional law of the country started with petitions of the press to the Supreme Court for enforcement of certain logistical implications of the right to freedom of speech and expression such as challenging governmental order for control of newsprint, bans on distribution of papers etc. Let us examine some of the provisions of the RTI Act which is having some lacunae for the better protection of the right of the citizens especially right which is related to administration as recognised as public right. The shortcomings in the Act are critically examined through interpretation of the Sections and the aim of the law maker. At the outset, if the provisions of the Section 3 of the Right to Information Act, 2005,is interpreted elaborately we find that this right is available to all citizens. It does not make provision for giving information to corporations, associations and companies, which are legal person but not the citizens. However, if an application is made by an employee or office bearer of any corporation, association, company, NGO, who is also a citizen of India, information shall be supplied to his/her full name. It will be presumed that a citizen has sought information at the address of corporation. It is suggested here that the word ‘every person’ should be used instead of ‘citizens’. Similarly, Section 2(1)(b) of the right to Information Act, 2005, defines Public Authority which means any authority or body or institution of self government established or constituted by or under the Constitution, by any other law made by Parliament, by any other law made by State Legislature; by notification issued or order made by the appropriate government and includes anybody owned, controlled or substantially financed ; nongovernment organisation substantially financed directly or indirectly by funds provided by the appropriate government . the very first doubt, which arises, is whether the definition of public authorities includes the government departments. The expression ‘public authorities’ does not tell out clear that all governmental departments are public authorities and the same has to be inferred from the language used as one constituted or established under the Constitution or any State law. It is suggested that the government departments may be specified in the definition at the very commencement of the definition. The next peculiar feature of this Act is that judicial intervention is strictly prohibited. The court has no

power to entertain any suit or application or proceedings in respect of any order made under this Act. The Act provides for the rule making power both Central and State governments and such rules that were framed shall be laid before parliament in case of Central government and State government. There have been grievances of the applicants that information is not provided t them in their regional language. This is against the stator spirit contained in Section 6 (1) of the Act which makes it clear that information is to be provided in Hindi and English or in the official language of the area in which the application is being made. It is suggested here that penalty must be imposed , who violate the provision of Act. So far as Section 6 of the Right to Information Act, 2005 is concerned, a person can obtain information by accompanying such fee as may be prescribed. The provision of taking fees for disclosing the information seems to be against the spirit of the right and the Act too. It is quite paradoxical that a person has to pay for availing information which is a fundamental human right, which has been consecrated even by the Constitution. Being a legislation which is socially oriented, it strikes wrong chord at this place, by creating a hiatus between people on the economic basis. Information can be easily accessed by the affluent classes whereas same is not so comfortable for the students and lower strata of middle class. According to the Public Records Act, 1993, the government shall maintain records while classifying them as top secret, confidential and restricted. As there is no exception in Section 8 of the Right to Information Act, 2005. The Public Information Officer is competent to decide the large public interest to be served while disseminating the information that was restricted under different classification. Logical reasons for the rejection of the requests seeking information are not being provided as required by Section 7 (8) of the Act. Moreover, exemption clause contained in Section 8 of the Act is being misused to veil the misdeeds in the name of secrecy essential for national security, integrity etc. Although the inclusion of a public interest override is a huge step forward, the fact that the exemptions only contain a low level harm test requiring that relevant interests are only harmed prejudicially affected could be used to block a lot of applications at the initial stages. To conclude, RTI Act is a unique legislation in many spheres. It provides right to the citizen to know the details of government with some limitations. It is just like a watchdog for the rule of law, the dynamic concept. The objective of this Act is empowerment to public to know what is going on under the guise of administration and should not be treated as an enactment providing penalties and punishments. Without any hesitation it can be said that this Act should be the voice of so called voiceless in our society. Simply making an enactment is not sufficient there must have efficacy of the same. Mass awareness is indispensable for accomplishing the purpose of the Act. The downtrodden people of the society who are deprived very much of benefits, programmes, schemes launched by the government should be given top priority in making them aware with regard to benefits of this legislation from being victims of corruption and maladministration.

The Salient Features of the Right to Information Act, 2005 The salient features of this unique, yet path breaking legislation are as follows: 1. The object of this Act is to promote transparency and accountability in the working of every public authority and to strengthen the democratic republic. Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to stop corruption and to hold Governments and their instrumentalities accountable to the governed. It was, therefore, considered expedient to provide information to the citizens who desire to have it. 2. Section 2 of the Right to Information Act comprises the definition clause. It is a well settled principle of interpretation of statutes that when the definition clause is added to an Act, the

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definitions of the words given therein merely define the meaning of the words to make the terms definite in the sense in which these are used in the various sections of the Act. If in the definition, the word 'means' is used, it implies the exhaustive definition and if the word 'includes' is used, it implies that it includes certain matters which an ordinary definition of the word might not have included. It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of the Act. This rule of statutory construction is only one element in deciding what the true import of the enactment is, and to ascertain the true import, it is necessary to have regard to the purpose behind the particular provision and its setting in the scheme of the statute. The presumption that the same words are used in the same meaning is not proper if sufficient reasons can be assigned to construe a word in one part of an Act in different sense from that what it bears in another part of the Act. Under section 3 of the RTI Act, every citizen of India has been given a right to information. This is necessary for promoting transparency and accountability in the working of every public authority. Without adequate information, a citizen cannot form an informed opinion. Democracy cannot survive without free and fairly informed citizens. The Supreme Court of India has held that the right to information is a fundamental right, which is covered under 'freedom of speech and expression', guaranteed under Article. 19(l)(a) of the Constitution. Before passing of this Act, the Supreme Court has already laid down in many cases that a citizen has a right to receive information regarding matters of public concern,6 and that citizens have the right to know about the affairs of the Government, which, having been elected by them, seek to formulate sound policies of governance aimed at their welfare. 7 In Union of India v. Association for Democratic Reforms, 8 the Supreme Court held that a voter has a right to know about the antecedents of his candidate as a part of his right under Article. 19(l)(a). Public in general has a right know the circumstances under which their elected representatives got allotment of retail outlets, distributorships and dealerships of petroleum products. This right is different from right to information about public affairs or right to receive information through press or electronic media. One-sided information, disinformation, misinformation and non-information will equally create an improperly informed citizenry, which makes democracy a farce, as democracy requires properly informed citizens who can make positive contributions in governance. In order to give information to the citizens, section 4 has made it obligatory for every public authority to maintain all its records properly that is, the records should be properly catalogued and indexed in a manner and in a form which facilitates the right to information under this Act. All records should be computerized and connected through a network all over the country on different systems so that access to such records is facilitated. It shall be a constant endeavor of every public authority to take steps to provide as much information suo moto to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information. Section 5 of this Act has laid down that every Public Authority shall designate as many officers as Central or State Public Information Officers and Central or State Assistant Public Information Officers in all administrative units or offices under it as may be necessary to provide information to persons requesting for the information or appeals under this Act. Every such Central or State Public Information Officer shall deal with requests from the persons seeking information and render reasonable assistance to the persons seeking such information. In order to obtain information, section 6 provides that every citizen shall make a request in writing or through electronic means to the Central or State Public Information Officer or to the Central or State Assistant Public Information Officer specifying the particulars of the information

sought by him along with such fee as may be prescribed. Different fees as well as different modes of payment have been prescribed by the Centre and the States. Sub-section (2) of section 6 has laid down an important provision that an applicant-making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.