Académique Documents
Professionnel Documents
Culture Documents
MEDIA IN INDIA
Project Assignment
P.G.Diploma in Media Law ( MODULE I )
Submitted by
Ms SHUBHANGI MEHTA
ID No. MLH23_09
2009-10
I. INTRODUCTION
IV. LIMITATIONS
V. CASE LAWS
VI. BIBLIOGRAPHY
INTRODUCTION :
Freedom of speech is the freedom to speak without censorship and/or limitation. The
synonymous term freedom of expression is sometimes used to indicate not only freedom of
verbal speech but any act of seeking, receiving and imparting information or ideas, regardless of
the medium used. In practice, the right to freedom of speech is not absolute in any country and
the right is commonly subject to limitations, such as on "hate speech".
The right to freedom of speech is recognized as a human right under Article 19 of the
Universal Declaration of Human Rights and recognized in international human rights law in the
International Covenant on Civil and Political Rights (ICCPR). The ICCPR recognizes the right to
freedom of speech as "the right to hold opinions without interference. Everyone shall have the
right to freedom of expression". Furthermore freedom of speech is recognized in European, inter-
American and African regional human rights law.
Though it is different from and not to be confused with the concept of freedom of thought.
PART III of the INDIAN CONSTITUTION guarantees fundamental rights under article
19, which includes freedom of speech and expression
FUNDAMENTAL RIGHTS
Right to Freedom
19. Protection of certain rights regarding freedom of speech, etc.-
Though it is different from and not to be confused with the concept of freedom of thought
MEANING OF MEDIA DEMOCRACY
Media democracy is a difficult term to define, since in addition to being a concept, it is also an
advocacy movement being advanced by a number of academics and grassroots organizations,
each with its own methods and goals.
It is also difficult to define because the term [democracy] itself is contested. Market
liberals would claim that democracy is best served by the media if there is a minimalist state that
allows for private media ownership, does not censor content, or require public-interest
broadcasting. In this way, the market would facilitate technological innovation and provide
whatever fare the consumer demands. By contrast, media democracy advocates argue that
corporate ownership and commercial pressures influence media content, sharply limiting the
range of news, opinions, and entertainment citizens receive. Consequently, they call for a more
equal distribution of economic, social, cultural, and information capital, which would lead to a
more informed community, as well as a more enlightened, representative political discourse.
More radical thinkers argue that media democracy remains an under-defined concept because of
deliberate structural pressures that prevent individuals from questioning the connection between
media and democracy. A leading proponent of this view is Noam Chomsky, who argues that
The concept of “democratizing the media” has no real meaning within the terms of
political discourse in the United States. In fact, the phrase has a paradoxical or even vaguely
subversive ring to it. Citizen participation would be considered an infringement on freedom of the
press, a blow struck against the independence of the media that would distort the mission they
have undertaken to inform the public without fear or favor... this is because the general public
must be reduced to its traditional apathy and obedience, and driven from the arena of political
debate and action, if democracy is to survive.
Despite the difficulties in defining the term, the concept broadly encompasses the
following notions: that the health of the democratic political system depends on the efficient,
accurate, and complete transmission of social, political, and cultural information in society; that
the media are the conduits of this information and should act in the public interest; that the mass
media have increasingly been unable and uninterested in fulfilling this role due to increased
concentration of ownership and commercial pressures; and that this undermines democracy as
voters and citizens are unable to participate knowledgeably in public policy debates. Without an
informed and engaged citizenry, policy issues become defined by political and corporate elites. A
related element of this concept examines the lack of representation of a diversity of voices and
viewpoints, particularly of those who have traditionally been marginalized by mass media.
British and European Cultural Studies has spawned a range of alternative definitions of 'media
democracy', including the idea that media audiences are the source of a new form of creative
cultural politics. These are not simply audiences of public, Internet or alternative media, but
include mass media audiences as well. This radical idea suggests that a cultural democracy
emerges through the everyday experiences and meaning-making of audiences. Clearly, such a
notion of media democracy extends the familiar conception of institutionally-derived
representative democracy. A key theorist in this area is Jeff Lewis (2005), who coined the notion
of a globalizing media sphere..
Key principles
A key idea of media democracy is that the concentration of media ownership in recent
decades in the hands of a few corporations and conglomerates has led to a narrowing of the range
of voices and opinions being expressed in the mass media; to an increase in the
commercialization of news and information; to a hollowing out of the news media’s ability to
conduct investigative reporting and act as the public watchdog; and to an increase of emphasis on
the bottom line, which prioritizes infotainment and celebrity news over informative discourse
.
This concentration has been encouraged by government deregulation and neo-liberal
trade policies. For example, the U.S. Telecommunications Act of 1996 discarded most media
ownership rules that were previously in place, leading to massive consolidation in the
telecommunications industry. Over 4,000 radio stations were bought out, and minority ownership
of TV stations dropped to its lowest point since the federal government began tracking such data
in 1990. In its review of the Telecommunication Act in 2003, the Federal Communications
Commission (FCC) further reduced restrictions and allowed media corporations to grow and
expand into other areas of media.
The past decade has also seen a number of media corporate mergers and takeovers in
Canada. For example, in 1990, 17.3% of daily newspapers were independently owned; in 2005,
1% was. These changes, among others, caused the Senate Standing Committee on Transport and
Communications to launch a study of Canadian news media in March 2003. (This topic had been
examined twice in the past, by the Davey Commission (1970) and the Kent Commission (1981),
both of which produced recommendations that were never implemented in any meaningful way.)
The Senate Committee’s final report[7] , released in June 2006, expressed concern about the
effects of the current levels of news media ownership in Canada. Specifically, the Committee
discussed their concerns regarding the following trends: the potential of media ownership
concentration to limit news diversity and reduce news quality; the Canadian Radio-television and
Telecommunications Commission]] (CRTC) and Competition Bureau’s ineffectiveness at
stopping media ownership concentration; the lack of federal funding for the CBC and the
broadcaster’s uncertain mandate and role; diminishing employment standards for journalists
(including less job security, less journalistic freedom, and new contractual threats to intellectual
property); a lack of Canadian training and research institutes; and difficulties with the federal
government’s support for print media and the absence of funding for the internet-based news
media.
The report provided 40 recommendations and 10 suggestions (for areas outside of federal
government jurisdiction), including legislation amendments that would trigger automatic reviews
of a proposed media merger if certain thresholds are reached, and CRTC regulation revisions to
ensure that access to the broadcasting system is encouraged and that a diversity of news and
information programming is available through these services.
Media democracy advocates argue in favour of such legislative policies that encourage a
stronger commitment to serving the public interest and a commercial framework that facilitates
independent media ownership.
The 2004 documentary film Outfoxed: Rupert Murdoch's War on Journalism treats
criticism about corporate media concentration.
Alternative and citizen media in the world
However, there are criticisms. While internet access is pervasive throughout North
America, there is far less access in many other parts of the world. Those without access obviously
cannot benefit from, or add information to, Wikipedia. There is also a concern that Wikipedia’s
content is biased towards a particular group, since a small number of relatively similar individuals
contribute much of Wikipedia’s content. To address this concern, a group of Wikipedia users
have established Wikipedia:WikiProject Countering systemic bias to create articles and further
develop existing articles in neglected subject areas on Wikipedia.
The Indian media must make use of the right to freedom of speech and expression
that it derives from the Constitution ethically and with a sense of responsibility, contends Justice
P B Sawant.
What is construed as the media commonly today is not the entire media but only a part
of it. The media includes both the traditional means of mass communication, such as books and
pamphlets; nautankies, puppet shows, street plays, ballads, kirtans, pulpit and platform and the
modern stage; small and big screen motion pictures; radio, print and the electronic media; SMS;
Internet etc.
There is a whole range of general laws from the Constitution of India—the Press laws,
the Cinematograph Act, the Indian Penal Code, the Criminal Procedure Code etc. which govern
various forms of the media. In
addition to these, there are norms of journalistic ethics prescribed by the Press Council of India,
which govern the newspapers; they are not laws, but professional ethics to be observed by the
print media. There are, however, no such guidelines for the electronic media, since the Press
Council has jurisdiction only over the print media. The electronic media has been consistently
resisting prescription of the ethical code by an independent body like the Press Council. After a
great deal of public pressure, it has now
established an internal body—the News Broadcasting Association (NBA)—to regulate its
conduct. Needless to say, the jurisdiction of this body is confined only to those electronic outfits
which submit to its jurisdiction, and the body itself is accountable to those who accept its
jurisdiction and not to the people.
Democracy is a government by discussion and not by the arbitrary will of an individual or a few
individuals. In the modern day representative democracy, where those entrusted with the task of
governance are far removed from the people, the paramount need is of a bridge of communication
between the people and the governors who manage their affairs.
The communication has to be about day to day governance, as the managers elected by the people
have not been handed over absolute power to deal with their affairs as they desire. The managers
exercise the power of the people and have to do so for the benefit of the people and according to
their wishes. Peoples’ collective wishes can be communicated to them only through their
organizations or by means of mass communication. The media today is the best means of such
communication.
However, this means, though apparently, a mass communicator is capable of being converted into
a sectarian manipulator, as is evidenced in some cases of the present scenario.
The cost of running a media outlet, whether print or electronic, is becoming more and more
forbidding everyday. With the result that only big money bags can afford to operate it. What’s
more, the media has become a profitable business and many a businessmen have been investing
their monies in it for earning profits, as in any other businesses. It is run by them on business
lines with no holds barred. Profit and more and more profit is the only aim
of this gentry. In the process, one of the
basic purposes of media, mainly to act as the informer and the educator of the people, stands
defeated by them. At best, the main object becomes secondary.
There is no law which can compel a media outlet to give full and fair information or prevent:
suppression, varnishing, garbling and distortion of facts or motivated reportage or mixing
comments with facts. Only journalistic ethics may be invoked against such misconduct. And the
body, if any,
entrusted with enforcing the ethics may act against such misdeeds.
The freedom of speech and expression is recognized by our Constitution as a fundamental right
with all its
dimensions as interpreted by the courts. The exercise of this right, however, can be restricted by
the State, as stated in our Constitution, in the interest of the sovereignty and integrity of the
country, security of the State, friendly relations with foreign states, public order, decency or
morality, or in relation to contempt of court, defamation or incitement to offence. Yet another
unstated but obvious
restriction on the said right is the right of privacy and dignity of individuals. The right to freedom
of speech and expression with the aforesaid restrictions is the source of power of media. This
power, as any other, is to be used with a sense of responsibility, and the journalistic ethics are
meant to ensure such conduct. However, though ethics are larger than the law, they are not
enforceable as law . A breach of ethics can at the most be censured, not penalized.
In a democracy, all individuals and institutions whose activities have a bearing on the public
interest are and have to be accountable to the people. However, media which seeks accountability
of all others has ironically been resisting its own accountability to the people on the specious plea
that it will encroach on its right to freedom of speech and expression and thereby endanger
democracy. At the same time, it acknowledges that it may go astray sometimes, but pleads that it
should be left to its internal mechanism to correct itself. Any outside body to correct it smacks of
censorship which is detrimental to democracy. This contention on the part of media is misleading.
Press Council, which is a correcting mechanism and is in existence in many countries, has been
successfully discharging its duties for a long time now and never has one heard of “censorship”
against it in any country. In many countries, either the same body or separate bodies act as
correcting mechanisms for print and electronic media. Secondly, our Press Council, which at
present has jurisdiction only over the print media, is admittedly an independent body and
entertains complaints of the media even against the government. Thirdly, most of the Press
Councils have a majority of their members representing the media. Fourthly, the Press Councils
entertain complaints against the media for violation of professional ethics and the law of the land,
which are both pre-known. Lastly, the Press Council Act of India has been enacted to also
preserve and protect the independence of press and journalists. It is for this reason that during the
1975 Emergency the Press Council Act was suspended by the then government. The present
resistance in our country to the so called external body is from the electronic media. They are
raising a bug bear of “Democracy in Danger”.
It is the Supreme Court which freed the airwaves from the monopoly of the government and
made them available to all by its decision in 1993 (BCCI Vs. Union of India). The use of
airwaves is of course subject to constitutional, legal and ethical restrictions…
Justice P B Sawant is a Former Judge of the Supreme Court of India and a Former
Chairman of the Press Council of India. He started his practice in the Mumbai High Court
in 1957 and was elevated as a judge of the Court in 1973. He became a judge of the Supreme
Court in 1989 from where the retired in 1995. He was appointed the Chairperson of the
Press Council of India in 1995 from where is retired in 2001. He was elected President of the
World Association of Press Council in 1996, which office he relinquished in March 2003.
Members of the international media attending the International Press Institute (IPI) World
Congress and Fiftieth General Assembly in India this January were surprised that the Indian
media did not raise the issue of suppression of free expression in that country.
It's true that there have been alerts over alleged violations. For example, the government-owned
Internet service provider, VSNL, cited national security reasons when it blocked access to
Pakistani sites during the recent India-Pakistan border crisis.
And yet Indians truly believe they have an unfettered and free press, and the country's media
outlets know that they enjoy a level of freedom of expression that has prevailed over occasional
intimidation attempts by the government, politicians and an increasingly powerful underworld.
If members of the Indian press were concerned about the issue, it is highly unlikely they would
choose an international forum to express their concerns. History has taught them that outside
support usually comes with strings attached.
They also tend to agree with Indian Prime Minister Atal Bihari Vajpayee's observation
that international media coverage of India is almost always negative. Such perceptions are not
conducive to building trust.
Sharmini Peries, the executive director of the Canadian Journalists for Free Expression,
attended the IPI congress. She recalled that, in his inaugural speech, Vajpayee was very critical of
the international media's preoccupation with poverty, corruption and India-Pakistan relations,
overlooking the country's positive aspects.
She noted that Vajpayee and almost all other politicians were quick to conclude that there
was really no problem with freedom of expression, given the diversity of Indian media. Since
media licences are easy to obtain, the politicians basically discount any form of state oppression
or censorship.
"This alone is a curious stand for me, considering the Canadian filmmaker Deepa Mehta
faced a lot of trouble filming in India. And then there is the case of the state stopping, without
apology, Indians from accessing Pakistani sites on the Internet during the India-Pakistan crisis,"
said Peries.
United Nations Special Rapporteur on Free Expression Abid Hussein was perceptive in his
observations that a different set of methods used to repress freedom is practised in South Asia. In
his opening remarks at the International Freedom of Expression Exchange (IFEX) South Asia
Regional Round Table - which followed the IPI congress - he noted that freedom of expression
violations manifest themselves under the guise of "national security" issues.
Indians are aware that the right to free expression can easily be revoked. It was in 1977, during a
state of emergency declared by the Indian government - then led by Prime Minister Indira
Gandhi. However, her actions resulted in such severe public backlash that she and her political
party suffered an ignominious defeat in the next election. While it is comforting to know that the
strength of India's democratic traditions have helped preserve its people's freedom of expression
until now, Indian media outlets recognize they have to remain vigilant at all times.
There are no indications that Indian media feel their rights are seriously threatened at the
moment. Journalists continue to write fearlessly: the press criticized the VSNL fiasco as a typical
knee-jerk reaction by a bungling government.
Recently a New Delhi newspaper, Tehelka, brazenly lured senior defence ministry
officials into taking bribes, and then published their pictures on the Internet, with reports
detailing the ease with which the officials fell for the ruse. The newspaper's investigative reports
rocked the fragile coalition government so intensely that it lead to the defence minister's
resignation.
While India's print media have always been a private-sector industry, television stations have
been fully government-owned. However, a few years ago, the Indian government gave up its
monopoly over the airwaves. Since then, privately owned TV channels have proliferated.
Private Internet providers now have to use the government-owned VSNL as a carrier, which
means that their content can be controlled. But the sector is expected to be privatized in the
future. The boom in Internet services offers Indians a source of information that will be difficult
for the government to stop effectively.
Many believe that the Tehelka incident portends the shape of things to come, as the Internet will
be the ultimate preserver of free choice and free expression in India.
This item is posted with permission from the May issue of the CJFE reporter, a newsletter
produced by the Canadian Journalists for Free Expression.
LIMITATIONS ON FREEDOM OF SPEECH OF MEDIA
Mass Media systems of the world vary from each other according to the economy, polity, religion
and culture of different societies. In societies, which followed communism and totalitarianism,
like the former USSR and China, there were limitations of what the media could say about the
government. Almost everything that was said against the State was censored for fear of
revolutions. On the other hand, in countries like USA, which have a Bourgeois Democracy,
almost everything is allowed.
Reasonable restrictions on these grounds can be imposed only by a duly enacted law and
not by executive action.
Security of the State: Reasonable restrictions can be imposed on the freedom of speech and
expression, in the interest of the security of the State. All the utterances intended to endanger the
security of the State by crimes of violence intended to overthrow the government, waging of war
and rebellion against the government, external aggression or war, etc., may be restrained in the
interest of the security of the State It does not refer to the ordinary breaches of public order which
do not involve any danger to the State.
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
and expression, if it tends to jeopardise the friendly relations of India with other State.
Public order: This ground was added by the Constitution (First Amendment) Act, 1951 in order to
meet the situation arising from the Supreme Court’s decision in Romesh Thapar, s case (AIR
1950 SC 124). The expression ‘public order’ connotes the sense of public peace, safety and
tranquility.
In Kishori Mohan v. State of West Bengal, the Supreme Court explained the differences between
three concepts: law and order, public order, security of State. Anything that disturbs public peace
or public tranquility disturbs public order. But mere criticism of the government does not
necessarily disturb public order A law punishing the utterances deliberately tending to hurt the
religious feelings of any class has been held to be valid as it is a reasonable restriction aimed to
maintaining the public order.
It is also necessary that there must be a reasonable nexus between the restriction imposed and the
achievement of public order. In Superintendent, Central Prison v. Ram Manohar Lohiya (AIR
1960 SC 633), the Court held the Section 3 of U.P. Special Powers Act, 1932, which punished a
person if he incited a single person not to pay or defer the payment of Government dues, as there
was no reasonable nexus between the speech and public order. Similarly, the court upheld the
validity of the provision empowering a Magistrate to issue directions to protect the public order
or tranquility.
Decency and morality: The word ‘obscenity’ is identical with the word ‘indecency’ of the Indian
Constitution. In an English case of R. v. Hicklin the test was laid down according to which it is
seen ‘whether the tendency of the matter charged as obscene tend to deprave and corrupt the
minds which are open to such immoral influences’. This test was upheld by the Supreme Court in
Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881). In this case the Court upheld the
conviction of a book seller who was prosecuted under Section 292, I.P.C., for selling and keeping
the book The Lady Chatterley’s Lover. The standard of morality varies from time to time and
from place to place.
Contempt of court: The constitutional right to freedom of speech would not allow a person to
contempt the courts. The expression Contempt of Court has been defined Section 2 of the
Contempt of Courts Act, 1971. The term contempt of court refers to civil contempt or criminal
contempt under the Act. But judges do not have any general immunity from criticism of their
judicial conduct, provided that it is made in good faith and is genuine criticism, and not any
attempt to impair the administration of justice. In In re Arundhati Roy ((2002) 3 SCC 343), the
Supreme Court of India followed the view taken in the American Supreme Court (Frankfurter, J.)
in Pennekamp v. Florida (328 US 331 : 90 L Ed 1295 (1946)) in which the United States
Supreme Court observed: “If men, including judges and journalists, were angels, there would be
no problem of contempt of court. Angelic judges would be undisturbed by extraneous influences
and angelic journalists would not seek to influence them. The power to punish for contempt, as a
means of safeguarding judges in deciding on behalf of the community as impartially as is given to
the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt
of court is a safeguard not for judges as persons but for the function which they exercise”. In
E.M.S. Namboodripad v. T.N. Nambiar ((1970) 2 SCC 325; AIR 1970 SC 2015), the Supreme
Court confirmed the decision of the High Court, holding Mr. Namboodripad guilty of contempt
of court. In M.R. Parashar v. Farooq Abdullah ((1984) 2 SCC 343; AIR 1984 SC 615.), contempt
proceedings were initiated against the Chief Minister of Jammu and Kashmir. But the Court
dismissed the petition for want of proof.
Defamation: The clause (2) of Article 19 prevents any person from making any statement that
injures the reputation of another. With the same view, defamation has been criminalised in India
by inserting it into Section 499 of the I.P.C.
Incitement to an offence: This ground was also added by the Constitution (First Amendment) Act,
1951. The Constitution also prohibits a person from making any statement that incites people to
commit offence.
Sovereignty and integrity of India: This ground was also added subsequently by the Constitution
(Sixteenth Amendment) Act, 1963. This is aimed to prohibit anyone from making the statements
that challenge the integrity and sovereignty of India.
Shifting our view to the Indian perspective and its system of Parliamentary Democracy, it is true
that, the Press is free but subject to certain reasonable restrictions imposed by the Constitution of
India, 1950, as amended ("Constitution"). Before the impact of globalization was felt, the mass
media was wholly controlled by the government, which let the media project only what the
government wanted the public to see and in a way in which it wanted the public to see it.
However, with the onset of globalization and privatization, the situation has undergone a
humongous change.
Before the invention of communication satellites, communication was mainly in the form of
national media, both public and private, in India and abroad. Then came 'transnational media'
with the progress of communication technologies like Satellite delivery and ISDN (Integrated
Services Digital Network), the outcome: local TV, global films and global information systems.
In such an era of media upsurge, it becomes an absolute necessity to impose certain legal checks
and bounds on transmission and communication In the due course of this article, we would
discuss the various aspects of media and the relevant legal checks and bounds governing them.
Thereafter on 18th June 1857, the government passed the ‘Gagging Act’, which among various
other things, introduced compulsory licensing for the owning or running of printing presses;
empowered the government to prohibit the publication or circulation of any newspaper, book or
other printed material and banned the publication or dissemination of statements or news stories
which had a tendency to cause a furore against the government, thereby weakening its authority.
Then followed the ‘Press and Registration of Books Act’ in 1867 and which continues to remain
in force till date. Governor General Lord Lytton promulgated the ‘Vernacular Press Act’ of 1878
allowing the government to clamp down on the publication of writings deemed seditious and to
impose punitive sanctions on printers and publishers who failed to fall in line. In 1908, Lord
Minto promulgated the ‘Newspapers (Incitement to Offences) Act, 1908 which authorized local
authorities to take action against the editor of any newspaper that published matter deemed to
constitute an incitement to rebellion.
The Indian Constitution, while not mentioning the word "press", provides for "the right to
freedom of speech and expression" (Article 19(1) a). However this right is subject to restrictions
under sub clause (2), whereby this freedom can be restricted for reasons of "sovereignty and
integrity of India, the security of the State, friendly relations with foreign States, public order,
preserving decency, preserving morality, in relation to contempt, court, defamation, or incitement
to an offense". Laws such as the Official Secrets Act and Prevention of Terrorist Activities Act
(PoTA) have been used to limit press freedom. Under PoTA, person could be detained for up to
six months for being in contact with a terrorist or terrorist group. PoTA was repealed in 2006, but
the Official Secrets Act 1923 continues.
For the first half-century of independence, media control by the state was the major constraint on
press freedom. Indira Gandhi famously stated in 1975 that All India Radio is "a Government
organ, it is going to remain a Government organ..." With the liberalization starting in the 1990s,
private control of media has burgeoned, leading to increasing independence and greater scrutiny
of government. Organizations like Tehelka and NDTV have been particularly influential, e.g. in
bringing about the resignation of powerful Haryana minister Venod Sharma.
However, the most significant day in the history of Media Regulations was the 26th of January
1950 – the day on which the Constitution was brought into force. The colonial experience of the
Indians made them realise the crucial significance of the ‘Freedom of Press’. Such freedom was
therefore incorporated in the Constitution; to empower the Press to disseminate knowledge to the
masses and the Constituent Assembly thus, decided to safeguard this ‘Freedom of Press’ as a
fundamental right. Although, the Indian Constitution does not expressly mention the liberty of the
press, it is evident that the liberty of the press is included in the freedom of speech and expression
under Article 19(1)(a). It is however pertinent to mention that, such freedom is not absolute but is
qualified by certain clearly defined limitations under Article 19(2) in the interests of the public.
It is necessary to mention here that, this freedom under Article 19(1)(a) is not only cribbed,
cabined and confined to newspapers and periodicals but also includes pamphlets, leaflets,
handbills, circulars and every sort of publication which affords a vehicle of information and
opinion:
Thus, although the freedom of the press is guaranteed as a fundamental right, it is necessary for
us to deal with the various laws governing the different areas of media so as to appreciate the vast
expanse of media laws.
“Our freedom depends in large part, on the continuation of a free press, which is the strongest
guarantee of a free society.”
- Richard M. Schmidt
The Freedom Of Press and the Freedom Of Expression can be regarded as the very basis of a
democratic form of government. Every business enterprise is involved in the laws of the nation,
the state and the community in which it operates. Newspaper publishers find themselves more
‘hemmed in’ by legal restrictions than many other businesses do – despite the fact that the
freedom of press is protected by the Indian constitution. The various Acts, which have to be taken
into consideration when dealing with the regulations imposed upon the Print Media, are:
* The Press and Registration of Books Act, 1867 – This Act regulates printing presses and
newspapers and makes registration with an appointed Authority compulsory for all printing
presses.
* The Press (Objectionable Matters) Act, 1951 – This enactment provides against the printing
and publication of incitement to crime and other objectionable matters.
* The Newspaper (Prices and Pages) Act, 1956 – This statute empowers the Central
Government to regulate the price of newspapers in relation to the number of pages and size and
also to regulate the allocation of space to be allowed for advertising matter.
When dealing with this statute, it will be worthwhile to mention about the case of Sakal Papers
Ltd. v. Union of India. In this case, the Daily Newspapers (Price and Control) Order, 1960, which
fixed a minimum price and number of pages, which a newspaper is entitled to publish, was
challenged as unconstitutional. The State justified the law as a reasonable restriction on a
business activity of a citizen. The Supreme Court struck down the Order rejecting the State’s
argument. The Court opined that, the right of freedom of speech and expression couldn’t be taken
away with the object of placing restrictions on the business activity of the citizens. Freedom of
speech can be restricted only on the grounds mentioned in clause (2) of Article 19.
* Defence of India Act, 1962 – This Act came into force during the Emergency proclaimed in
1962. This Act aimed at restricting the Freedom Of The Press to a large extent keeping in mind
the unrest prevailing in India in lieu of the war against China. The Act empowered the Central
Government to issue rules with regard to prohibition of publication or communication prejudicial
to the civil defence/military operations, prevention of prejudicial reports and prohibition of
printing or publishing any matter in any newspaper.
* Delivery of Books and Newspapers (Public Libraries) Act, 1954 – According to this Act,
the publishers of books and newspapers are required to deliver, free of cost, a copy of every
published book to the National Library at Calcutta and one copy each to three other public
libraries specified by the Central Government.
* The Working Journalists and other Newspaper Employees (Conditions of Service and
Miscellaneous Provisions) Act, 1955 – It lays down the minimum standards of service
conditions for newspaper employees and journalists.
* Civil Defence Act, 1968 - It allows the Government to make rules for the prohibition of
printing and publication of any book, newspaper or other document prejudicial to the Civil
Defence.
* Press Council Act, 1978 – Under this Act, the Press Council was reconstituted (after 1976)
to maintain and improve the standards of newspaper and news agencies in India.
Although on one hand, the Constitution confers the fundamental right of freedom of the press,
Article 105 (2) provides certain restrictions on the publications of the proceedings in Parliament.
In the famous Searchlight Case, the Supreme Court held that, the publication by a newspaper of
certain parts of the speech of members in the House, which were ordered to be expunged by the
Speaker constituted a breach of privilege.
Due to the restrictive scope of this Article, it is not possible for us to delve into all the other
statutes; however, a few of the legislations, which are worth mentioning are the Contempt of
Courts Act, 1971 and The Official Secrets Act, 1923.
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 1[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.
1
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; wiz: -
* To ensure the objective presentation of news and fair and unbiased principles
* 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.
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 India2[8], 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
about3[9].
Furthermore, in Bobby Art International v. Om Pal Singh Hoon4[10], 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 authorise the doing of any of
the following acts would lead to the infringement of copyright. Those acts are namely: -
· 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
The Act also makes it a cognizable offence for anyone to sell, hire, distribute, exhibit, possess or
view any unauthorised 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.
2
3
4
* 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; viz.
* 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.
Advertising
Advertising communication is a mix of arts and facts subservient to ethical principles. In order to
be consumer-oriented, advertisement will have to be truthful and ethical. It should not mislead the
consumer. If it so happens, the credibility is lost.
In order to enforce an ethical regulating code, the Advertising Standards Council of India was set
up. Inspired by a similar code of the Advertising Standards Authority (ASA) UK, ASCI follows
the following basic guidelines in order to achieve the acceptance of fair advertising practices in
the interest of the consumer: -
· To ensure that advertisement are not offensive to generally accepted standards of public
decency;
· To safeguard against indiscriminate use of advertising for promotion of products which are
regarded as hazardous to society or to individuals to a degree or of a type which is unacceptable
to society at large; and
· To ensure that advertisements observe fairness in competition so that the consumers need
to be informed on choices in the market places and canons of generally accepted competitive
behaviour in business are both served.
* HLL’s Clinic All Clear Dandruff shampoo claimed that it had ZPTO, the special ingredient
in Clinic All Clear that stops dandruff. This claim was found to be untrue since ZPTO is a micro
biocide, when in reality, dandruff is known to be caused by several other factors, besides,
microbes. HLL’s multi-crore research wing ‘clearly overlooked’ this aspect. The advertisement
has been withdrawn.
* Novartis India claimed that their disposable contact lenses ensure there is no protein build-
up. This claim was found to be totally false. The truth is that build up is a natural biological
phenomenon with all contact lenses. The ad was discontinued.
The other legislations affecting the area of advertising are: -
* Drug and Magic Remedies (Objectionable Advertisement) Act, 1954 – This Act has been
enacted to control the advertisements of drugs in certain cases and to prohibit the advertisement
for certain purposes of remedies alleged to possess magic qualities and to provide for matters
connected therewith.
In Hamdard Dawakhana v. Union of India5[12] the Supreme Court was faced with the question as
to whether the Drug and Magic Remedies Act, which put restrictions on the advertisements of
drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing
diseases, was valid as it curbed the freedom of speech and expression of a person by imposing
restrictions on advertisements. The Supreme Court held that, an advertisement is no doubt a form
of speech and expression but every advertisement is not a matter dealing with the expression of
ideas and hence advertisement of a commercial nature cannot fall within the concept of Article
19(1)(a).
However, in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd6[13], a three judge bench of the
Supreme Court differed from the view expressed in the Dawakhana case and held that
‘commercial advertisement’ was definitely a part of Article 19(1)(a) as it aimed at the
dissemination of information regarding the product. The Court, however, made it clear that the
government could regulate commercial advertisements, which are deceptive, unfair, misleading
and untruthful.
* Monopolies and Restrictive Trade Practices Act, 1969 - Section 36 A of the Act deals with 5
major Unfair Trade Practices: -
Any misleading, false, and wrong representation either in writing (i.e. in advertisements,
warranty, guarantee etc.) or oral (at the time of sale) actual or intended, even if actual injury or
loss is not caused to the consumer/buyer constitutes as unfair trade practices;
All business promotion schemes announcing ‘free gifts’, ‘contests’, etc. where any element of
deception is involved;
Parle’s mango drink ‘Maaza’ gave the advertisement of Maaza mango and the MRTP issued a
notice against Parle Exports Pvt. Ltd. The advertisement implied that the soft drink was prepared
from fresh mango while actually preservatives were added to it. The company had to suspend
production pending enquiry.
Conclusion
In this age of media explosion, one cannot simply remain confined to the boundaries of the
traditional media. The media world has expanded its dimensions by encompassing within its
5
6
orbit, the widening vistas of cyber media etc. As a consequence, the laws governing them are also
numerous. It is not within the scope of this Article to deal with the whole subject of media laws,
but this Article makes a person aware of the various important legislations affecting the various
branches of Media Communication, making him aware of his rights and facilitating him to
exercise them within the framework of law existing in India and in the end furthering the cause of
“Freedom Of Speech And Expression” and “Dissemination of Knowledge”.
CASE LAWS
JUDGMENT
Mudholkar, J.
2. The first petition is by a private limited company carrying on business inter alia of
publishing daily and weekly newspapers in Marathi named "Sakal" from Poona and by
two persons who are the only shareholders in that company. The second and third
petitions are preferred by two readers of "Sakal" who also challenge the constitutionality
of the Act. Certain parties were allowed to intervene. They supported the Union of India,
the respondent, in all these petitions and sought to uphold the validity of the Act and the
Order. In view of the common argument adduced before us it would be convenient to
deal with the first petition only in full.
3. The newspaper "Sakal" was started in the year 1932 and it is claimed that it has a net
circulation of 52,000 copies on week days and 56,000 copies on Sundays in Maharashtra
and Karnataka and as such plays a leading part in the dissemination of news and views
and in moulding public opinion in matters of public interest.
4. The daily addition of the newspaper contains six pages a day for five days in a week
and four pages on one day. This edition is priced at 7 nP. The Sunday edition consists of
ten pages and is priced at 12nP. About 40% of the space in the newspaper is taken up by
advertisement matter and the rest is devoted to news, articles, features, views etc. It is
claimed on behalf of the petitioners that one of the special features of the newspaper is
coverage of foreign news and despatches on foreign affairs. It is claimed on behalf of the
petitioners that this paper is not aligned with any political party.
Indian Express Newspapers (P) Ltd. Etc. Etc. vs Union Of India And Others Etc.
Etc. on 23/9/1994
ORDER
P.B. Sawant, J.
orders viz., Nos. 683(E) and 684(E), both dated 31.8.1989, (hereinafter referred
Order No. 683(E) deals with wage-scales and grades, and Order No. 684(E) deals
with House Rent Allowance and City Compensatory Allowance. The Wage Board was
of Shri Bachawat and hence the Report given by it is known as Bachawat Award.
Both the orders are challenged on the ground of violation of the fundamental
rights under Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India.
The petitioners also challenge the amendment of Sections 2(d) and 10(4) of
the Act brought about by Sections 2(i) and 3 of the Working Journalists and
an Explanation at the end of Section 10(4) and a Schedule at the end of the Act
background facts.
The Act as it was initially enacted was titled the Working Journalists
Act') since it was confined to the service conditions of the working journalists
was expanded to include the other newspaper employees. Under the original Act,
which was confined to the working journalists only, a Board headed by Shri
Divatia was appointed under Section 9 of the Act, and the said Board gave its
award in May 1957 which is known as Divatia Award. The recommendations made by
the said Board and the provisions of the Act were challenged by some
Constitution, and these challenges were dealt with in the decision of this Court
in Express Newspaper (Pvt.) Ltd. and Anr. v. Union of India and Ors. [1959] SCR
occasion to refer later. Suffice it to say for the present that certain
propositions of law which were laid down by this decision were followed not only
by the later Wage Boards appointed under the Act by all industrial adjudicators
in the country.
After the Divatia Wage Board, three more wage boards were appointed, viz.,
Bhandarkar Wage Board, Snide Wage Board and Palekar Wage Board in 1958, 1963 and
1975-76 respectively. They gave their respective awards in 1959,1967 and 1980.
They followed the principles laid down in the aforesaid decision of this Court,
Then came the present Wage Board, viz., Bachawat Wage Board and its impugned
award.
necessary to examine the relevant provisions of the Act, the changes brought
about in the Act after the decision in Express Newspaper case (supra) and the
any person or body of persons, whether incorporated or not, for the production
same or similar title and in the same language in any place in India or bearing
the same or similar title but in different languages in the same State or Union
or individuals;
(ii) where the newspaper establishments are owned by firms, if such firms
one body corporate is a subsidiary of the other body corporate, or both are
not;
(iv) where one establishment is owned by a body corporate and the other is
(v) where one is owned by a body corporate and the other is owned by a firm
of such bodies corporate are owned, directly or indirectly by the same person or
establishments.
The bracketed addition in Section 2(d) and the Schedule referred to therein
were inserted by the Amending Act 31 of 1989 which came into force
retrospectively on 28th August, 1989. The provisions of Section 2(i) of the said
Amending Act in terms state that the said bracketed portion "shall be deemed
always to have been inserted at the end" of the original Section 2(d) of the
Act. Section 8 and Section 13B give power to the Central Government to fix rates
employees respectively, and to revise from time to time the rates of wages
fixed, at such intervals as it may think fit. Section 9 and Section 13C lay down
the procedure for fixing or revising the rates of wages in respect of working
that for the purpose, the Central Government shall as and when necessary,
constitute a Wage Board. Sub-section (1) of Section 10 read with Section 13D
lays down the procedure which the Wage Board is required to follow while fixing
or revising the rates of wages. The provision says that the Board shall, by
notice published in such manner as it thinks fit, call upon all interested
persons to make such representations as they may think fit as respects the rates
of wages which may be fixed or revised under this Act. Sub-section (2) of
Section 10 states that every such representation shall state the rates of wages,
reasonable, having regard to the capacity of the employer to pay the same or to
any other circumstance, whichever may deem relevant to the person making the
representation. Sub-section (3) thereof states that the Board shall take into
account the representations so made and after examining the materials placed
before it, make such recommendations as it thinks fit to the Central Government
for the fixation or revision of rates of wages and any such recommendation may
section (4) thereof makes an important provision. It enjoins upon the Board
the cost of living, the prevalent rates of wages for comparable employment, the
country and to any other circumstances which to the Board may seem relevant. An
Explanation was added to the said Sub-section (4) by the same Amending Act of
1989 which has a bearing on one of the challenges made to the impugned Award. It
states:
nothing in this Sub-section shall prevent the Board from making recommendations
[Emphasis supplied]
the nature referred to in Sub-section (1), as it thinks fit, after giving to all
to refer the recommendations or any part thereof to the Board, as it thinks fit.
Sub-section (3) states that every order make by the Central Government together
with the recommendations of the Board shall come into operation on the date of
specified in the order. Section 13 read with Section 13D states that on the
coming into operation of the order of the Central Government under Section 12,
the rates of wages specified in the order. Section 13A gives power to the
Central Government to fix interim rates of wages after consulting the Wage
Board.
4. We may now refer to the propositions of law laid down by this Court in the
decision in Express Newspapers Ltd. case (supra). They are, among others, as
follows -
(1) For the fixation of rates of wages which include within its compass,
the fixation of scales of wages also, the capacity of the industry to pay is one
bare subsistence or minimum wages where the employer is bound to pay the same
irrespective of such capacity. Under the provisions of the Act, it is not only
open to, but incumbent upon the Wage Board to consider the capacity of the
(3) The proper measure of weighing the capacity of the industry to pay
should take into account the elasticity of the demand for the product, the
considered in conjunction with the elasticity of the demand for the product
against the ultimate background that the burden of the increased rate should not
(4) The provisions of the Act as they stood then were not violative of the
newspaper establishments on the basis of the gross revenue earned is not bad.
the country. There is nothing in the Act which militates against such grouping.
The real difficulty however in the matter of grouping into chains or multiple
the Wage Board, the grouping into chains or multiple units could also be made.
different parts of the country, as one newspaper establishment for the purpose
of fixing the rates of wages. It would not be illegitimate to expect the same
done, the conditions of labour in different regions of the country, the standard
of living in those regions and other cognate factOrs. All these conditions would
attached to one set or the other, may vary in accordance with the conditions in
bear the burden imposed on them. A cross section of these respective classes may
have to be taken for careful examination and all relevant factors may have to be
borne in mind in deciding what burden the class considered as a whole can bear.
original Act after the aforesaid decision. The first such amendment, as stated
above, was to include within the scope of the Act, the non-journalists newspaper
establishment" in Section 2(d) and as pointed out earlier, it was the addition
of the bracketed portion in the said definition and the Schedule. With this
printing press, whose principal business was to print newspaper, was also deemed
bearing the same or similar title and in the same language in any place in India
or bearing the same or similar title, but in different languages in the same
and (iii) two or more establishments owned by an individual and his or her
spouse were also deemed to be one newspaper establishment, unless it was shown
corporate body on the basis of his or her own individual funds. The third
rates of wages on all India basis. It has to be noted that this amendment was
made after the publication of the award impugned in the present case.
that this Court in Express Newspaper case (supra) has accepted the contention
that in the absence of the requirement of looking into the capacity of industry
Hence the Court had in that case read into the provisions of Section 10(4) [the
then Section 9(1)] the requirement of looking into the capacity of the industry
Sections 2(d) and 10(4). If it is held that the amendment to Section 2(d) would
permit an all India fixation of wages, taking into consideration the gross
prevailed under the first Wage Board resulting in ignoring the economic
viability of the weaker units of the company rendering it impossible to run the
said units. It would also make it impossible for the companies to start new
newspapers since they would not be viable and would not be in a position to
complete with other publications in the same locality. The grouping of the
newspapers into chain or multiple units did not imply that the weaker units in
those groups must be treated on par with the stronger units. Any such principle
of fixation of wages without taking into consideration the burden that would be
Section 2(d) is only a definition clause and the provisions of Section 10(4) are
Section 10(4) is necessary. Construed thus, it would enable the Wage Board to
fix the wages on all India basis taking into consideration the industry as a
whole and at the same time, the capacity of individual unit. That would enable
the Wage Board to classify the individual unit first into its proper class and
then upgrade it reasonably if it belongs to a multiple or chain group. In this
connection, it is pointed out that all the Wage Boards in the past except the
Palekar Wage Board which dealt with the question on a different footing, fixed
wages on the above basis. The said Wage Boards thus implemented the aforesaid
It is further pointed out that the present Wage Board itself has recognised
revenue into 10 classes, it has made an exception in paragraph 6(2) of the said
directing that they will not be stepped up by more than two classes as a whole
However, the Board has given no reason why similarly for the establishments
other hand, the Board without giving any reasons, has chosen to treat every unit
to V as being of the same class to which the establishment itself belongs on the
basis of its gross revenue. This has manifastly resulted in the weaker units of
the newspaper establishments belonging to the said classes being ranked with the
highest in the same class, thus, crippling the weaker units with the heavy
directly offends the petitioners' rights under Articles 19(1)(a) and 19(1)(g) of
the Constitution.
Among the other infirmities which are pointed out in the impugned award, the
whether their advertisement revenue is less or more than 45 per cent of its
gross revenue. If this was done and where it was found that it was less than 45
per cent of the gross revenue, the concerned establishments would have been
placed in the class next below that in which they are classified on the basis of
their gross revenue. Secondly, the award while calculating the financial
capacity, has made no provision even for a reasonable depreciation and to that
extent the estimates of the capacity of the establishments to pay are seriously
flawed. Thirdly, the award has not considered the burden of retrospective effect
establishments from 1.1.1988 to 31.12.1989 is enormous and the Board was duty-
bound to calculate the said burden to find out whether the establishments were
capable of bearing the same. Lastly, the award has also not taken into
consideration the costs of news- print which had in the meanwhile gone up by
We find much substance in the contention - that the Board has arbitrarily
clubbed together the different units of the same establishment and classified
all of them with the highest of the class to which its top-most unit belongs so
far as classes IA to V are concerned and has not followed in respect of those
classes, its own guideline given in the said paragraph 6(2) in respect of the
establishments which belong to classes VI to IX. The Wage Board in paragraph 11
Class Gross Revenue IA Rs. 100 crores and above I Rs. 50 crores and above but le
ss than Rs. 100 crores II Rs. 20 crores and above but less than Rs. 50 crores II
I Rs. 10 crores and above but less than Rs. 20 crores IV Rs. 5 crores and above
but less than Rs. 10 crores V Rs. 2 crores and above but less than Rs. 5 crores
VI Rs. 1 crores and above but less than Rs. 2 crores VII Rs. 50 lakhs and above
but less than Rs. 1 crore VIII Rs. 25 lakhs and above but less than Rs. 50 lakhs
In Annexure V of the Report, the Board has catalogued the effect of clubbing
the different units of the same establishment at different places on the basis
of average gross revenue for the past 3 years. The Annexure itself depicts the
are mentioned there. Taking the case of Bennett Coleman & Co. Ltd., it has its
units at Bombay, Delhi, Ahmedabad, Calcutta, Patna, Jaipur, Pune, Madras and
also printing presses at Madras, Patna, Jaipur and Lucknow and its total gross
revenue is Rs. 10,238.72 crores. Its Bombay, Delhi and Ahmedabad units have been
classified as IA, although their gross revenue is less Rs. 100 crores, 50 crores
and 5 crores respectively and they would properly fall according to the
revenue they would fall in the categories of VI, VII, VII and IX respectively,
Coming now to the second establishment, viz., Express Newspapers, they have
their two units at Bombay, one at Madurai and another at Hyderabad. The gross
revenue of all the units was Rs. 7,918.18 crores. They are all consigned to
class I, although their main unit at Bombay and their unit at Madurai belong to
class II and their subsidiary unit at Bombay and their unit at Hyderabad belong
Section 2(d) and the Explanation to Section 10(4) of the Act and also in view of
the fifth and sixth propositions of law laid down by this Court in Express
has branches all over India, can be clubbed together for the purpose of fixation
of wages on all India basis. Since all the units of an establishment are not
expected to fare similarly, uniform pay-scales for the employees in all the
units can be prescribed taking into consideration the financial capacity of the
establishment as a whole. The instances pointed out above are the result of the
However, there is much force in the contention of the petitioners that the
principle of fixation of the wages on all India basis has not been applied by
the Board with uniform yardstick as is evident from paragraph 6(2) of Section II
basis of their own gross revenue are, for the fixation of wages not to be
stepped up by more than two classes, the units of the newspaper establishments
which the said establishment belongs on the basis of the gross revenue of all
the said units. The result of this discrimination is that for the purposes of
the classes which are only two grades above the class to which the said units on
the basis of their own revenue properly belong. On the other hand, the units of
belonging to the class to which the establishment itself belongs. The Board has
not given any reason as to why while applying the principle of uniform wage-
scales to all units of an establishment on all India basis, it has made the
classes IA to V and those belonging to classes VI to, IX. The respondents also
to defend the said discrimination. We are, therefore, of the view that the
extending the limitation of up gradation upto the maximum of two classes laid
down in the said para 6(2) also to the newspaper establishments falling in
classes IA to V.
of the "newspaper establishment" under Section 2(d) which came into operation
retrospectively from the inception of the Act and the Explanation added to
Section 10(4), and in view further of the fact that in clubbing the units of the
establishment together, the Board cannot be said to have acted contrary to the
law laid down by this Court in Express Newspaper case (supra), the
purpose of fixation of wages is not bad in law. Hence it is not violative of the
on the basis of the gross revenue and the financial capacity of all the units
India newspaper establishments are not viable whatever the financial incapacity
with the addition of the Explanation to Section 10(4), the old provisions can no
longer be pressed into service to contend against the grouping of the units of
(P) Ltd. are as follows. Firstly, it is contended that the benefit of the
the financial capacity, the award has made no provision even for a reasonable
contention is that the Board has not considered the burden of retrospective
contended that the award has not taken into consideration the cost of newsprint
these contentions raised disputed questions of facts and Ors. mixed questions of
facts and law and hence we will not entertain them. In addition, as far as
Indian Express Newspapers (Pvt.) Ltd. is concerned the record shows that the
said petitioners had not produced any material before the Board in support of
its aforesaid contentions which are for the first time advanced before this
Court. In fact, the company had virtually boycotted the proceedings of the
Board.
10. In view of what we have held above, we allow all the Writ Petitions and
Transfer Cases except T.C.N. 6 of 1990, only to the extent indicated below.
paragraph 11 of the said Report and the units of the newspaper establishments in
all the said classes shall not be stepped up by more than two classes over and
above the classes to which they belong according to their own gross revenue.
In view of our above conclusion, the award as modified, should be implemented
paid wages w.e.f. the said date i.e., 1.1.1988. Where, however, there have been
settlements between the management and the employees the payment of wages and of
In Romesh Thapar v. State of Madras Patanjali Shastri, CJ observed: “ Freedom of speech and
of the press lay at the foundation of all democratic organisations, for without free political
discussion no public education, so essential for the proper functioning of the process of popular
government, is possible.”
The Supreme Court observed in Union of India v. Assn. for Democratic Reforms “Onesided
information, disinformation, misinformation and non information, all equally create an
uninformed citizenry which makes democracy a farce. Freedom of speech and expression
includes right to impart and receive information which includes freedom to hold opinions”.
In Indian Express v. Union of India it has been held that the press plays a very significant role
in the democratic machinery. The courts have duty to uphold the freedom of press and invalidate
all laws and administrative actions that abridge that freedom. Freedom of press has three essential
elements. They are:1. freedom of access to all sources of information 2. freedom of publication,
and 3. freedom of circulatioN
In India, the press has not been able to exercise its freedom to express the popular views. In Sakal
Papers Ltd. v. Union of India,the Daily Newspapers (Price and Page) Order, 1960, which fixed
the number of pages and size which a newspaper could publish at a price was held to be violative
of freedom of press and not a reasonable restriction under the Article 19(2). Similarly, in Bennet
Coleman and Co. v. Union of India, the validity of the Newsprint Control Order, which fixed
the maximum number of pages, was struck down by the Court holding it to be violative of
provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2). The Court
struck down the plea of the Government that it would help small newspapers to grow.
In Romesh Thapar v. State of Madras (1950 SCR 594, 607; AIR 1950 SC 124), entry and
circulation of the English journal “Cross Road”, printed and published in Bombay, was banned
by the Government of Madras. The same was held to be violative of the freedom of speech and
expression, as “without liberty of circulation, publication would be of little value”. In Prabha
Dutt v. Union of India ((1982) 1 SCC 1; AIR 1982 SC 6.), the Supreme Court directed the
Superintendent of Tihar Jail to allow representatives of a few newspapers to interview Ranga and
Billa, the death sentence convicts, as they wanted to be interviewed.
There are instances when the freedom of press has been suppressed by the legislature. The
authority of the government, in such circumstances, has been under the scanner of judiciary. In
the case of Brij Bhushan v. State of Delhi (AIR 1950 SC 129), the validity of censorship
previous to the publication of an English Weekly of Delhi, the Organiser was questioned. The
court struck down the Section 7 of the East Punjab Safety Act, 1949, which directed the editor
and publisher of a newspaper “to submit for scrutiny, in duplicate, before the publication, till the
further orders , all communal matters all the matters and news and views about Pakistan,
including photographs, and cartoons”, on the ground that it was a restriction on the liberty of
the press. Similarly, prohibiting newspaper from publishing its own views or views of
correspondents about a topic has been held to be a serious encroachment on the freedom
of speech and expression.
BIBLIOGRAPHY
• Callamard, Dr. Agnes, Freedom of Speech and Offence: Why Blasphemy Laws
Are not the Appropriate Response, (18 June 2006), www.google.com (as a pdf)
• Cohen, Henry, C.R.S. Report for Congress: Freedom of Speech and Press:
Exceptions to the First Amendment, (27 August 2003), www.google.com ( as a
pdf ).
• Liang, Lawrence, Reasonable Restrictions and Unreasonable Speech, (2004),
www.google.com ( as a pdf ).
• Pandey, J. N., Constitutional Law of India, 42nd ed. (2005), Central Law Agency,
Allahabad.
• Singh, M. P., Constitution of India, 10th ed. (2001), Eastern Book Co., Lko.
• Tiwari, Dr. Mahendra, Freedom of press in India: Constitutional Perspectives,
(2006), www.supremecourtcases.com