Professional Documents
Culture Documents
Now, the prevailing reasonable restrictions of 19(2) carries the same rule and in
addition added a few more restrictions like not to promote anything that would harm
the sovereignty and integrity of India besides it gave exclusive power to the court and
no one has the right to criticise or write in their newspapers commenting the
judgement given by a Judge of any Court. The detailed explaination of these
reasonable restrictions is as follows:
aspect 'public safety' means protection of the country from foreign aggression. Under
public order the State would be entitled to prevent propaganda for a state of war with
India.
The words 'in the interest of public order' includes not only such utterances as are
directly intended to lead to disorder but also those that have the tendency to lead to
disorder. Thus a law punishing utterances made with the deliberate intention to hurt
the religious feelings of any class of persons is valid because it imposes a restriction
on the right of free speech in the interest of public order since such speech or writing
has the tendency to create public disorder even if in some case those activities may
not actually lead to a breach of peace. But there must be reasonable and proper nexus
or relationship between the restrictions and the achievements of public order.
4) Decency or morality: The words 'morality or decency' are words of wide meaning.
Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the
freedom of speech and expression in the interest of decency or morality and issues of
obscenity in the context of media. These sections prohibit the sale or distribution or
exhibition of obscene words, etc. in public places. No fix standard is laid down till
now as to what is moral and indecent. The standard of morality varies from time to
time and from place to place.
5) Contempt of Court: Restriction on the freedom of speech and expression can be
imposed if it exceeds the reasonable and fair limit and amounts to contempt of court.
According to the Section 2 'Contempt of court' may be either 'civil contempt' or
'criminal contempt.'
6) Defamation: A statement, which injures a man's reputation, amounts to
defamation. For example If A and B are two parties and due to some problesm or
hatred between the both, if B tells ill about A to C then A is said to be defamed. It
means that if someone says ill about first part to the third party it amounts to
defamation. Every year many cases are filed under Defamatin mentioned in 1PC 499
A. This defamation is of two types
Libel
Slander
Libel means defaming the person through written words and slander means defaming
the person orally which means abusing the person.
Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law
in relating to defamation is still uncodified in India and subject to certain exceptions.
7) Incitement to an offence: This ground was also added by the constitution (First
Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a
right to incite people to commit offence. The word 'offence' is defined as any act or
omission made punishable by law for the time being in force.
8) Sedition: Sediton means defamaning the state through words, or writing which are
calculated to disturb the tranquility and peace of the State and lead ignorant person to
damage the government2. Even poems which advocates overthrowing the government
will come under sedition and those stories or articles or poems will be termed as
seditious. It should be noted that the sedition is not mentioned in clause (2) of Art. 19
as one of the grounds on which restrictions on freedom of speech and expression may
be imposed.
(b)
(c)
(d)
(e)
the state. In Romesh Thapar case6 the Supreme Court pointed out that the
expression does not refer to ordinary breaches of public order which do not
involve any danger to the state itself.
Incitement to commit violent crimes like murder would endanger the security
of the state. Thus, in State of Bihar v. Shailabala Devi7, the law which made
the signs, words or visual representations which caused the incitement of
violence fall squarely within Article 19(2). After the amendment of the
Constitution in 1951 public order was added as a ground for restrictive laws.
3. Friendly relations with foreign states This ground was added by the
Constitution (First Amendment) Act of 1951. The State can impose reasonable
restrictions on the freedom of speech in the interest of friendly relations with
foreign states. The justification is obvious: unrestrained malicious propaganda
against a friendly foreign state may jeopardise the maintenance of good
relations between India and that state.
4. Public Order The preservation of public order is one of the grounds for
imposing restrictions on the freedom of speech and expression. This ground
did not occur in the Constitution as framed in 1950 but was added later by the
First (Amendment) Act, 1951. The expression public order is synonymous
with public peace, safety and tranquillity.8 It signifies the absence of disorder
involving breaches of local significance in contradistinction to national
upheavals such as revolution, civil strife or war, affecting the security of the
state.
It may be noticed that clause (2) uses the words in the interests of public
order and not for the maintenance of public order. A law may not be
designed to directly maintain law and order yet it may be enacted in the
interests of public order. Also, not only such utterances as are directly
intended to incite disorder, but also those that have the tendency to lead to
disorder fall within the expression.9 Thus, a law punishing utterances made
with deliberate intention to hurt the religious feelings of any class is valid,
because it imposes a restriction on the right to free speech in the interest of
public order, since such speech or writing has the tendency to create public
disorder even if in some cases such activities may not lead to the breach of
peace.10 In the case of Virendra v. State of Punjab11 certain safeguards which
compelled the court to hold restrictions as substantively and procedurally
reasonable were:
Restrictionsonthefreedomofmedia
InIndia,therightsofapersonengagedinthemediabusiness arecoveredunder
Article19(1)(g)subjecttorestrictionsunderArticle19(6)whereastherightsofthe
generalpublictofreedomofspeechandexpressionarecoveredunderArticle19(1)
(a),subjecttorestrictionsunderArticle19(2).AccordingtoArticle19(2),reasonable
restrictions on the exercise of the right conferred by Article 19(1) (a) may be
lawfullyenacted.Theeightcircumstancesinwhichthisfundamentalrightmaybe
curtailedarewideranging.Vaguecriteriasuchas'decencyandmorality'and'friendly
relations with foreign states' lay a heavy burden of discretion on the judiciary.
However, some restrictions are necessary as press rights must not be allowed to
overruntherightsofindividualsandtheinterestsofsociety.
Article19(2)doesnotbyitselfcurtailtherighttofreespeechandexpressionit
allowsotherlawstobemadewhichmayhavethateffect.AsclearlystatedinSakal
PapersvUnionofIndia,executiveorderscannotbemadetorestrictArticle19(1)(a)
using 19(2) as justification; the restriction must have the authority of law.
Furthermore,thedeterminationofwhethertherestrictionisreasonableornot6should
bemadeonacasebycasebasis,asageneralstandardcouldnotadequatelycoverthe
rangeofcircumstances inwhichrestrictions mayapply.This willensurethatthe
practicalresultsofactionstakenbythestateareproperlyconsideredtoavoid
casesofdisproportionaterestrictionalong7withtheirlegalform.Entitiesengaged
inthebusinessofnews/mediahaveemergedasaprimesourceofinformation,helping
peopletocultivate opinions onthepolitical, economicandsocialsituationin the
country.Thetraditionalprintmediastillretainsinfluenceandtelevisioniswidely
popular,butpublicopinion,especiallyoftheyouth,canbegaugedthroughsocial
networkingplatformsandthesocalled'newmedia'.Inthisway,themediacontinues
itsroleasakindofnonformaleducator,helpingcitizensto8makejudgments,often
bypresentingviewswhicharecontrarytothoseofthegovernment.Thisvaunted
position occupied by the media, including surveying the judiciary, executive and
legislatureISSUEBRIEFlMediaFreedomandArticle194|www.orfonline.org|
April 2013 alike, does not come without a share of responsibility. Hence the
restrictionsonthebusinessofnews/mediaunderArticle19(6)arenecessarytoensure
an effective protection of the rights of common citizens under Article 19(1) (a).
ContemptofCourtThepressandthejudiciaryhaveacomplexrelationship:onthe
onehand,justicemustbeseentobedone,andthepressarecrucialinproviding
detailsofproceedingsandensuringthatjusticeisadministered.Thesamecoverage,
may, however, interfere with the administration of justice, or influence judges.
Contemptofcourt(whethercivilorcriminal)therebyformsoneoftherestrictionson
Article 19(1)(g), and reasonable means of countering it can be found in the 9
ConstitutionitselfandinotherlegislationlikeTheContemptofCourtsAct,1971.
Civil contempt of court is relatively simple: it involves wilfully disobeying or
breachingajudgmentordirectionofthecourt.Criminalcontempt,however,ismore
nebulously defined. It punishes those acts (including publication), which interfere
with judicial proceedings, and also those, which 'scandalise' the court, thereby
loweringitsauthority.Thedifficultyarisesintryingtodefinewhatwouldscandalise
thecourt,leavingthetermopentointerpretation.Judgesmust,therefore,recognise
whatconstituteslegitimatecriticismanddistinguishitfromattackswhichdemeanthe
court'sdignity.Whiletheprovisionsnotedabovedorestrictfreespeech,theyarealso
necessarytosafeguardjustice,andthefaithofthepeopleintheinstitutionswhich
dispenseit.Thecourtshaveshownthemselvestobeawareofthebalance10required,
andhaveruledthatlimitsofdecencyandfairnessmustapplysothatcontemptlawis
notusedtomuzzlefreediscussion.DefamationAnotheroffencewithbothciviland
criminalaspectswhichthemediafrequentlyencountersisdefamation,andthelaws
protectingreputation.Undersection499oftheIndianPenalCode,defamationisa
criminaloffence,punishablebyafineand/orimprisonment.Defendantsmayrelyon
tenexceptionslistedintheIPC,includingtruestatementsmadeforthepublicgood.
Thefactthatdefamationhasbeenretainedasacriminaloffenceisoftencriticised,
especiallyfromafreespeechperspective.Theargumenthasalsobeenmadethatthe
internationalstandardisincreasinglyagainstcriminalisationofdefamation.Opinions
onpublicconductofpublicservants,whenmadeingoodfaith,areexemptedfrom
criminaldefamation, butthathas notstopped politicians from using thethreat of
criminalsanctionstosilenceunfavourablemediareports.Whilecriminalsanctions
canbeISSUEBRIEFlMediaFreedomandArticle195|www.orfonline.org|April
2013usedunscrupulously,removingthementirely(ashasbeensuggestedrecently)
wouldplaceaburdenofresponsibilityonthemediatousetheirfreedomwithout
damagingthereputationofinnocentparties.Decriminalisationofdefamationwould
meanthatthecivillawswouldbethesoleresorttodealwiththeissue.Thereisno
statuteclearlydefiningthecivillawofdefamation.Asatort,itisgovernedbycase
law and relies upon principles thus developed. The civil law is overwhelmingly
focussedonlibel,whichmakesthepressparticularlysusceptibletoit.Insuchcases,
theoffendingstatementsmustsatisfyfourrequirements.Theymustbe:false,written,
defamatoryandpublished.Foroffendedparties,inmostcases,damagesaretheonly
recourse.Preventingdefamatorystatementsfrombeingpublishedisverydifficult,
precisely because of the threat to free speech presented by such prepublication
injunctions.Thus,bythetimeactioncanbetaken,thedamagetothereputationofthe
victimisalreadydoneandprintedapologiesandmonetarydamagescanonlybeso
muchconsolation.Furthermore,recoveryofdamagescouldtakeaninordinatelylong
timeconsideringthepaceofthelegalsysteminIndia,whereasacriminalcaseis
likelytoberesolvedmorequickly.Thesituationofprivateindividualsandpublic
figures differs greatly. Public figures executing public duties are bound to be
scrutinised, and the courts have affirmed that debate in this regard should be 11
uninhibited.TheSupremeCourtofIndiaheldinRRajagopalvStateofTamilNadu
thattherightofpublicofficialstosuefordamagesisseverelyrestricted,theymay
onlydosoifthedefamatorystatementsregardingtheirofficialactionsweremade
with 'reckless disregard for the truth' (following the malice requirement from
Sullivan). For private citizens, the difficulties in going up against media groups,
whichmayhavewidereachinginfluenceanddeeppockets,areclear.However,they
arealsoprotectedbyarighttoprivacy,whichformspartoftheirfundamentalrights
guaranteedunderArticle21oftheConstitution.Whileprivacyisnotaconstitutional
protectionexpresslyprovided,thejudgmentinRRajagopalconfirmsthateventrue
statements published without consent may be damaging, reinforcing the idea that
privacy is inherent in the right to personal liberty. The government has tried to
circumventtheselawsbefore.In1988,RajivGandhi,whohadcometopowerwithan
unprecedentedmajority,attemptedtopasstheAntiDefamationBill.Theproposed
Billwasvaguelywordedandwidelyviewedasanattempttocombatthecriticism
levelledathimbythepress.However,itwasmetwithsuchvehementopposition,
including protests involving prominent members of the press, that the idea was
dropped. Sedition Criticism of public officials may be acceptable so long as
truthfulness is involved, but critics must be wary of another type of defamation,
namelydefamationagainstthestate.Betterknownassedition,ISSUEBRIEFlMedia
FreedomandArticle196|www.orfonline.org|April2013defamationofthestateis
anoffenceundersection124AoftheIndianPenalCode,1860,andconvictioncan
leadtolifeimprisonment.Theoffenceisspecifiedinthefollowingterms:Whoever,
by words, either spoken or written, or by signs, or by visible representation, or
otherwise,bringsorattemptstobringintohatredorcontempt,orexcitesorattempts
toexcitedisaffectiontowards,theGovernmentestablishedbylawinIndia,shallbe
punished with imprisonment for life, to which fine may be added, or with
imprisonmentwhichmayextendtothreeyears,towhichfinemaybeadded,orwith
fine.Thescopeoftheprovisionisverywide,bothinterms ofwhatconstitutes
sedition and how seditious acts are determined. The objective may be nobleto
protecttheintegrityofthegovernmentbutitscompatibilitywithfreespeechanda
rigorousfreepressisquestionable.Thedefinitioninsection124Aistroublesome;
accordingtotheexplanatorynotes,disaffectiontowardsthegovernmentincludes
disloyaltyandallfeelingsofenmity.Anycriticismofthegovernmentcouldbeseen
asdisloyalty,butpartoftheroleofthemediaispreciselytocriticiseaspectsofthe
governmentwhichdonotseemtobefunctioninginwaysthatbestservethepeople.
Politicaldissentisanecessarypartofavibrantdemocracy,ensuringdynamismand
legitimacy.Thecourtshaverecognisedthis,andnarrowedthecircumstancesinwhich
theprotectionagainstseditioncouldbeused.Theconstitutionalityofsection124A,
whilechallenged,wasupheldinKedarNathSinghvStateof12Bihar.However,the
SupremeCourtheldthataseditiousexpressionwouldhavetoincitepublicdisorder
by acts of violence. This was to be distinguished from legitimate criticism of
governmentpoliciesandlawfulexpressionsofdissatisfaction.Usingtheseditionlaw
tocurtailtheseexpressionswouldbeunreasonablyrestrictingthefundamentalrights
guaranteed under Article 19 of the 13 Constitution, and would make the law
unconstitutional.Themediaseemswellprotectedinthisregard,sinceshortofcalling
foraviolentrevolution,theyarefreetoexercisetheirrights.Thelawforprotection
againstseditionisstillproblematic,however.Recentcaseshaveshownchargesbeing
broughtwithoutthe'incitementtoviolence'requirementbeingsatisfied.Possessionof
MaoistliteraturewasenoughtosentenceDr.BinayakSentolifeinprison.Afew
yearslater,AseemTrivediwaschargedwithseditionfordrawingcartoonsdepicting
thestateascorrupt.Althoughthecourtsthrewthechargesouteventually,theknee
jerkreactionoftryingtouseseditionisdeeplytroublingandindicativeofthemindset
ofthegovernment.India'sstanceonseditionhasbeencriticisedinternationallyand
domestically,asitpresentsseriousquestionsaboutmediafreedom.Towhatextent
can the media comment freely about the actions of the government, and the
implicationsthereoftothenation?Thosewhosupportfreediscussioncouldarguethat
offence is the price to be paid for comprehensive analysis of issues. Drawing a
distinction between the state and its officials and policymakers seems arbitrary;
journalists are free to ISSUE BRIEF l Media Freedom and Article 19 7 |
www.orfonline.org|April2013criticisethelatterbutnottheformerasthatwouldbe
seditious.Allowingdissentingopinionsshowsthestrengthoffreespeech,itmeans
nothing if you only allow what you want to hear. There has been opposition to
seditionlawsinIndiasincetheConstitutioncameintoforce.Nehru,speakingbefore
ParliamentontheissueoftheFirstAmendment,said,...sofarasIamconcernedthat
particularSection[124A]ishighlyobjectionableandobnoxiousanditshouldhave
noplacebothforpracticalandhistoricalreasons,ifyoulike,inanybodyoflawsthat
wemightpass.Thesoonerwegetridofitthebetter.Wemightdealwiththatmatter
inotherways...Nehru'smentionof'historicalreasons'hasparticularresonancein
India,recallingthestringentuseoflaws(includingsedition)toquashdiscussionsof
freedomandindependence.Thesuggestionthattheremightbe'otherways'better
waystodealwithpublicdisorderandviolenceissupportedbythewayArticle19
waswritten.DraftsoftheConstitutionconsideredtheuseoftheword'sedition'when
limiting14freespeech,butthisideawasultimatelyrejected.