CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

PRESS FREEDOM AND PRE CENSORSHIP

SUBMITTED TO: DR. ASHOK KUMAR SHARMA

(FACULTY OF LAW RELATING TO INVESTMENT, SECURITIES, CORPORATE

FINANCE AND COMPETITION )

SUBMITTED BY: RAHUL

RAJ(14121037)

[5TH YEAR, 9TH SEMESTER]

1|Page
 ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges I have

ever faced. Though this project has been presented by me but there are many

people who remained in veil, who gave their all support and helped me to

complete this project.

First of all I am very grateful to my subject teacher without the kind support

and help of whom the completion of the project was a herculean task for me.

She donated her valuable time from her busy schedule to help me to complete

this project and suggested me from where and how to collect information and

data.

I am very thankful to the librarian who provided me several books on this

topic which proved beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice

which was very useful and could not be ignored in writing the project. I want

to convey a most sincere thanks to my parents for helping me throughout the

project.

2|Page
Contents
HISTORY OF THE PRESS IN INDIA ............................................................................................................ 4
FREEDOM OF THE PRESS/MEDIA IN INDIA ......................................................................................... 4
CURRENT POSITION ............................................................................................................................ 5
CONCLUSION....................................................................................................................................... 5
CONSTITUTIONAL ASPECT OF PRESS FREEDOM ................................................................................. 6
FREEDOM OF SPEECH AND EXPRESSION ............................................................................................ 6
CONSTITUTIONAL ASPECT................................................................................................................... 8
RIGHT TO INFORMATION .................................................................................................................... 9
ROLE OF MEDIA IN DEMOCRACY AND GOOD GOVERNANCE ........................................................... 10
CONCLUSION..................................................................................................................................... 12
PRESS FREEDOM AND RESPONSIBLE JOURNALISM .............................................................................. 13
ROLES OF PRESS AND JUDICIARY ...................................................................................................... 13
FREEDOM OF PRESS IN DEMOCRACY ............................................................................................... 14
IMPORTANCE OF FREEDOM OF PRESS ............................................................................................. 15
SOCIAL RESPONSIBILITY AND FREEDOM OF THE PRESS ................................................................... 16
PRE CENSORSHIP AND CENSORSHIP OF FILMS ..................................................................................... 18
Press ................................................................................................. Error! Bookmark not defined.
Films ................................................................................................ Error! Bookmark not defined.
BIBLIOGRAPHY ...................................................................................................................................... 26

3|Page
 HISTORY OF THE PRESS IN INDIA

The Indian press is deeply rooted in Indian history and had its beginnings under the aegis of
the British Raj. During the Indian struggle for freedom, various acts were enacted by the British
government to censor press coverage of parties such as the Congress which were in the
forefront of the independence movement. These acts included the Indian Press Act (1910),
Indian Press (Emergency) Act (1931-32) and the Defence of India Act during the Second
World War (1939-1945).

FREEDOM OF THE PRESS/MEDIA IN INDIA

With the advent of independence, Indian leaders laid out the Constitution of India which
guaranteed certain rights to all its citizens as part of being a democracy. While there is no
specific Act in the constitution regarding the freedom of the press, Article 19 (1) a guarantees
the right of freedom of speech and expression to all citizens. The freedom of the press is deemed
to be part of this right. Ideally, this means that the communiqués and expressions in various
media cannot be censored by the government.1

However, there are limitations to this freedom – limitations that apply to both private citizens
and member of the press. The limitations are listed in Article 19 (2) and restrict freedom of
speech and expression if said freedom interferes with the following:

 Security of the State

 Sovereignty and Integrity of India

 Public Order

 Friendly Relations with Foreign States

 Contempt of Court

 Decency or Morality

1
Chowdhury, Shyamal K. "The effect of democracy and press freedom on corruption: an empirical
test." Economics letters 85, no. 1 (2004): 93-101.

4|Page
The offence of sedition as laid out in Article 124A is also something that can be used to curb
the freedom of the media. The article states ‘Whoever by words, either spoken or written, or
by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or
contempt, or excites or attempts to excite disaffection towards the Government established by
law in India, shall be punished with imprisonment for life, to which a fine may be added, or
with imprisonment which may extend to three years, to which fine may be added, or with fine.’

However, this isn’t absolute as laid out in Explanation 3 which states ‘Comments expressing
disapprobation of the administrative or other action of the Government without exciting or
attempting to excite hatred, contempt or disaffection, do not constitute an offence under this
section.’

CURRENT POSITION
Although India is considered the largest democracy in the world, the freedom of the press is
declining in the country. As per the World Press Freedom Index of 2018, India holds a position
of 138 out of 180. This has slipped down two points from 136 in 2017. The highest position
the country achieved was in 2002 when it was ranked at 80. Since then there has been an
alarming decline. Reporter without Borders, the organization that releases the index, cites
growing intolerance and the murders of journalists as the reasons behind this decline.

CONCLUSION
As the world’s largest democracy, India has a duty to ensure that the press has the right to
disseminate information and express opinions without excessive censorship. Unfortunately, in
recent years, this right has been increasingly curbed. This oppression of the press is an alarming
trend as it does not allow for proper checks and balances on the government and its activities.
The Indian people need to remember that in order to have a strong democracy they need a
strong and free press.

5|Page
CONSTITUTIONAL ASPECT OF PRESS FREEDOM

Democracy is a government of the people, for the people and by the people and which gives
equal chance to all the citizens to participate and play a significant role in the political process,
ensures and guarantees certain rights and freedoms to the people constituting the policy. It is a
form of government which is subject to popular sovereignty. Of the fundamental freedoms that
the citizens enjoy, freedom of speech and expression is one of the most important ones as it
gives substance and meaning to ‘participation’ of the people.

A democratic system to run in its full potential need wide participation on the part of general
masses which is impossible without the people being informed about the various issues. Thus
reliable information sources form an important constituent of a democratic society. This is
where the role and importance of media arises2.

The media has undoubtedly evolved and become more active over the years. Mass media has
a great influence on human life in the present century. They have provided information and
entertainment to people across countries. Print media has been the leader of mass media over
a considerable period of time. But now it has got competition from Television, which is
reshaping many of the social responses. Radio apart from providing news and views has also
developed a flair for entertainment, thereby getting a lot of acceptance. There is also the new
media with the internet being its flag bearer. The Internet has indeed made it possible to
disseminate information and ideas in real time across the globe.

FREEDOM OF SPEECH AND EXPRESSION

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all
liberties” – John Milton.

The freedom of speech is considered as one of the first condition of liberty. It occupies an
important and preferred position in the hierarchy of the liberty, It is also said that the freedom
of speech is the mother all liberties. Freedom of speech means the right to express one’s own
convictions and opinions freely by words of mouth, writing, printing, pictures or any other
mode. In the modern era, right to freedom of speech is one of the essence of free society and it

2
Besley, Timothy, and Robin Burgess. "The political economy of government responsiveness: Theory
and evidence from India." The quarterly journal of economics 117, no. 4 (2002): 1415-1451.

6|Page
must be protected at all time. Liberty to express opinions and ideas without any hindrance, and
especially without any fear of punishment plays an important role in that particular society and
ultimately for the state.

‘Freedom’ means the absence of control, interference or restriction. Hence the expression
‘freedom of the press’ means the right to print and publish without any interference from the
state or any public authority. Since, in India, freedom of expression is guaranteed
by Art.19(1)(a) of the constitution, and it has been held by the Supreme Court that freedom of
the press is included in that wider guarantee, it is unnecessary to plead for the freedom of the
press in this country. Freedom of speech is not only guaranteed by the constitution of statutes
of various states but also by various international conventions such as by Universal
Declaration of Human Rights, European Convention on Human Rights and Fundamental
Freedoms, International Covenant on Civil and Political Rights etc. These declarations
discuss freedom of speech and expression.

Freedom of speech enjoys special position as far as India is concerned. The importance of
freedom of expression and speech can be easily understood by the fact that preamble of the
constitution itself ensures to all citizens inter alia, liberty of thought, expression, belief, faith,
and worship. The constitutional significance of the freedom of speech consists in the preamble
of the constitution and is transformed as a fundamental and human right in Article 19(1) (a) as
“freedom of speech and expression. With the explanation of the scope of “freedom of speech
and expression”, the Supreme Court has said that the words must be broadly constructed to
include the freedom to circulate one’s views by words of mouth or in writing or through
audiovisual instrumentalities3. Freedom of Speech and Expression means the right to express
one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or
any other mode. It thus includes the expression of one’s own idea through any communicable
medium or visible representation, such as gesture, signs, and the like.

Moreover, it is important to note that liberty of one must not offend the liberty of
others. Patanjali Shastri J., in A.K. Gopalan case, observed, ‘man as a rational being desires
to do many things, but in a civil society his desires will have to be controlled with the exercise
of similar desires by other individuals’. It, therefore, includes the right to propagate one’s views

3
Minattur, Joseph. Freedom of the press in India: constitutional provisions and their application.
Springer, 2012.

7|Page
through the print media or through any other communication channel e.g.; the radio and the
television. Every citizen of this country therefore has the right to air his or their views through
the printing and or the electronic media subject of course to permissible restrictions imposed
under Article 19(2) of the constitution. In sum, the fundamental principle involved here is the
people’s right to know. Freedom of speech and Expression should, therefore, receive generous
support from all those who believe in the participation of people in the administration.

CONSTITUTIONAL ASPECT

Art.19 (1) (a) secures to every citizen the freedom of speech and expression. This has to be
read with clause (2) which provides that the said right shall not prevent the operation of law
relating to the matters specified therein. The freedom of the press is not confined to
newspapers, and periodicals, but also includes pamphlets, leaflets, circulars, and every sort of
publication which affords a vehicle of information and opinion. There is no need to emphasis
that a free press, which is neither directed by the executive nor subjected to censorship, is a
vital element in a free state; but in particular, a free, regularly published, political press is
essential in the modern democracy.

Therefore the press keeps and enlightens the citizens to make political decisions, know the
opinion of others to weigh them up against each other. The press, thus provides the information,
adopts its own point of view, and thus works as a direction giving force to the public debate. It
stands as a permanent means of communication and control between the people and their
elected representatives in Parliament and Government. Banning of publication in any
newspaper of any matter relating to any particular subject or class of subjects would be
obnoxious to the right of free speech. It is certainly a serious encroachment on the valuable and
cherished right to freedom of speech.

The Freedom of speech and Expression includes the freedom of propagation of ideas and is
ensured by the freedom of circulation. ‘The right to freedom of speech cannot be taken away
with the object of placing restrictions on the business activities of a citizen. Freedom of speech
can be restricted only in the interests of the security of state, friendly relations with the foreign
states, public order, decency or morality, or in relation to contempt of court, defamation or
incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the
interests of the general public’.

8|Page
‘It is the duty of the state to protect the freedom of expression since it is a liberty guaranteed
against the state. The state cannot plead its inability to handle the hostile audience problem. It
is its obligatory duty to prevent it and protect the freedom of expression’.

RIGHT TO INFORMATION

Right to know, to information is other facet of freedom of speech. The right to know, to receive
and to impart information has been recognized within the right to freedom of speech and
expression. A citizen has a fundamental right to use the best means of imparting and receiving
information and as such to have an access to telecasting for the purpose. The Right to
Information Act, 2005, especially talks about people’s right to ask information from
Government official, which prohibits discloser of certain documents under section 8 of the Act.
These exceptions are generally the grounds of reasonable restrictions over freedom of speech
and expression under Article 19(1) of the Constitution of India. By saying we can conclude
that ‘right to information is nothing but one small limb of right of speech and expression’4.

The right to receive and right to impart has been established as a part of freedom of speech and
expression guaranteed by subclause (a) of clause 1 of Art.19 of the Constitution subjected to
reasonable restrictions.

It has been held by the Supreme Court in Secretary, Ministry of I & B, Government of India
v. Cricket Association Of Bengal that, “The freedom of speech and expression includes right
to acquire information and to disseminate it. Freedom of speech and expression is necessary,
for self-expression which is an important means of free conscience and self-fulfillment. It
enables people to contribute to debates on social and moral issues. It is the best way to find a
truest model of anything since it is only through it that the widest possible range of ideas can
circulate. It is the only vehicle of political discourse so essential to democracy. Equally
important is the role it plays in facilitating artistic and scholarly endeavors of all sorts.

The right to communicate, therefore, includes right to communicate through any media that is
available whether print or electronic or audio-visual such as advertisement, movie, article,
speech, etc. That is why freedom of speech and expression includes freedom of the press. The
freedom of the press in turn includes right to circulate and also to determine the volume of such

4
Minattur, Joseph. Freedom of the press in India: constitutional provisions and their application.
Springer, 2012.

9|Page
circulation. This freedom includes the freedom to communicate or circulate one’s opinion
without interference to as large a population in the country, as well as abroad, as is possible to
reach.”

ROLE OF MEDIA IN DEMOCRACY AND GOOD GOVERNANCE

Good governance is an indeterminate term used to describe how public institutions conduct
public affairs and manage public resources. Governance is the process of decision making and
the process by which decisions are implemented (or not implemented)”.[8] Good governance
is about the processes for making and implementing decisions. Its not about making ‘correct’
decisions but about the best possible process for making those decision. The concept of “good
governance” centres around the responsibility of governments and governing bodies to meet
the needs of the masses as opposed to select groups in society.

Media usually refers to mass media, which is any medium that provides citizens with
information regarding all the current affairs of any area at a large scale. It is unbiased reporting
of facts through print, television, radio or Internet.

Traditionally and constitutionally, the media has no defined role in governance. It doesn’t have
the power to change any decisions made by the various arms of a state––the legislature,
executive and the judiciary. Yet, the media plays one of the most important roles in the
functioning of any society. It amplifies the voice of citizens and communicates their opinions
to the lawmakers.5

Access to information is essential for a democratic society because it ensures that citizens make
responsible, informed choices rather than acting out of ignorance or misinformation and
information also serves a checking function. It is well known that media overlaps other
functional areas of democracy and governance. For example, support for media may yield
results in governance activities, particularly those related to decentralization, anti-corruption,
and citizen participation in the policy process. The rule of law may be further institutionalized
by support for an independent media that keeps a check on the judiciary, reports on the courts,
and promotes a legal enabling environment suitable for press freedom. Free and fair elections

5
Ganguly, Sumit. "India Under Modi: Threats to Pluralism." Journal of Democracy 30, no. 1 (2019):
83-90.

10 | P a g e
conducted through transparent processes require a media sector which gives candidates equal
access, and reports the relevant issues in a timely, objective manner.

“If it were left on me to decide whether we should have a government without newspapers or
newspapers without a government, I should not hesitate a moment to prefer the latter.” –
Thomas Jefferson

According to the first Press Commission in India freedom of the Press refers to hold opinions,
to receive and to impart information through the printed word without any interference from
any public authority. Thus it is the right of the citizen o publish without any prior permission
from the government or any other public authority, subject only to the legal liability for what
he has chosen to publish. Freedom of press has three essential features; namely freedom of
publication, freedom of access to all sources of information and freedom of circulation. Press
freedom, thus plays a vital role in the formulation of public opinion on issues of public
importance.

If media is to have any meaningful role in democracy and governance it must be free and
independent from the control of government. The ultimate goal of media is to serve the public
interest. The public interest is defined as representing a plurality of voices both through a
greater number of outlets and through the diversity of views and voices reflected within one
outlet.

Television and radio have made a significant achievement in educating rural illiterate masses
in making them aware of all the events in their language. Coverage of exploitative malpractices
of village heads and moneylenders has helped in taking stringent actions against them by
attracting government attention. The media also exposes loopholes in the democratic system,
which ultimately helps government in filling the vacuums of loopholes and making a system
more accountable, responsive and citizen-friendly. A democracy without media is like a vehicle
without wheels.

Pandit Jawaharlal Nehru called media ‘the watch dog of our democracy’. This handed the
media a huge responsibility in the functioning of our society. Thus media plays the role of
communicator in democracy. They make people aware and conscious of their state of affairs
by providing them with in depth insight on important issues concerning people. Though
freedom of press is essential and indispensable for the successful functioning of the Indian

11 | P a g e
democracy, it is very often silenced by the executive, gagged by the legislature, suppressed by
judiciary, repressed and muzzled by the pressure groups.6

CONCLUSION

The role of media in India, the largest democracy of the world is different from merely
disseminating information and entertainment. Educating the masses for their social upliftment
needs to be in its ambit as well. In a country where there is large scale poverty, unemployment
and underdevelopment media has a responsibility towards developmental journalism. It has a
role to play behind the formation of public opinion which can force the political parties to
address the core issues haunting the country’s progress. It is thus referred to as the fourth pillar
of democracy. However; public opinion can be manipulated by vested interests to serve their
own goals.

Good governance is an ideal system which is difficult to achieve in its totality. In other words,
no country or society has ever said to achieve good governance in totality. We can only come
close to this by our activities with the aim of making this ideal a reality. The journey of India
from developing nation to a developed nation will depend on the role played by the media in
the country. It needs to be focused on real matters, which are mostly social and economic in
nature, instead of trying to divert the attention to the known issues. Achieving good governance
requires the understanding and participation of every member of society. The media, their
significant roles, channels and contents, are considered to be the most powerful weapon to
make this achievement a reality.

6
Zlotorynski, Eytan. "Freedom of expression in methylated regions." Nature Reviews Molecular Cell
Biology 20, no. 2 (2019): 66.

12 | P a g e
PRESS FREEDOM AND RESPONSIBLE JOURNALISM

A free press and a free judiciary are two very important cornerstones of a democracy. Together,
they are responsible for ensuring transparency and holding those in power accountable for their
policies and actions. Although their actual functions are different, both institutions act as
checks and balances for the government and, therefore, their roles are complementary.

ROLES OF PRESS AND JUDICIARY

It is the responsibility of the media to bring forth news and facts that will shape public opinion
and allow the citizens of a country to exercise their rights.7 The judiciary’s role is to protect
those rights. Therefore, it becomes clear that in order to function efficiently, both the media
and the judiciary must be independent of any outside influences that may attempt to skew
information or legal decisions.

However, the roles of these two institutions do not end here. The judiciary is also responsible
for protecting the freedom of the press. At the same time, the press is responsible for reporting
facts and events in a manner that helps the judiciary make impartial legal decisions that can
affect the course of a nation. While it is the media’s job to raise important issues and update
the citizens of a country, it is the judiciary’s job to ensure that it can do so without interference.

The two systems also act as checks and balances for each other. The right to freedom of speech
and expression isn’t absolute and it is up to the judiciary to decide when the press is being
denied this right and when it cannot exercise this right. On the other hand, it is up to the media
to ensure that the judiciary dispenses justice in a transparent and effective manner.

There are four pillars that support a working democracy – the executive, legislature, judiciary
and press. Of these, the latter two are vital to the proper functioning of a democracy. Each must
protect and reinforce the other in order for the power to remain in the hands of the people in a
democracy.

7
Minattur, Joseph. Freedom of the press in India: constitutional provisions and their application.
Springer, 2012.

13 | P a g e
A democracy is a system wherein power is supposed to lie in the hands of the people. They
may choose to exercise this power directly or to elect representatives from amongst their
numbers. These representatives then form a governing body such as a parliament.

In order for a democracy to work, it needs to have four solid aspects – free and fair elections,
protection of the people’s human rights, the participation of citizens and the rule of law applied
equally to everyone. However, without the freedom of the press, all of this is moot.

FREEDOM OF PRESS IN DEMOCRACY

There can be no denying the fact that a democracy will only survive if there is freedom of the
press or media. Since a democracy depends upon its citizens, these citizens must be well-
informed so that they can make political decisions and elect their representatives appropriately.
However, it is impossible or creates difficulty for every citizen to go searching for such
information themselves.

This is where the press comes in. It falls upon the news media to collect, verify and disseminate
the information that can help people make the decisions that allow a democracy to work. As
such, the press becomes a powerful tool for the efficient functioning of a democratic
government. By reporting verified facts, the press not only allows people to be knowledgeable
about what is going on but also acts as a check on the government.

It becomes obvious, then, that the press must be free to do its job. It should not have to face
censorship that hides crucial information from the public. The right to freedom of speech and
expression also includes the right of the press to the same freedom. If members of the press are
intimidated and harassed or are discredited without reason, the people lose the only tool they
have to participate effectively in the running of their country.

Without freedom of the press, no government can be considered ‘of the people, by the people
and for the people’. Unfortunately, the past few years have seen increasing curbs, direct or
indirect, on the media and its ability to report. These curbs have come in the form of
harassment, threats and intimidation and are having increasingly disastrous consequences for
the dissemination of unbiased information. Unless this trend is reversed, we may see some of
the most powerful democracies in the world collapsing soon.

14 | P a g e
It has been said that the price of liberty is eternal vigilance. The institution that maintains that
vigil is the press or the media. In other words, if the people are to be free, it is the job of the
media to ensure that it keeps a watch on those in power in whose hands the freedom lies. In
order to do so, press that is free of any outside influences or influencers is absolutely vital.

IMPORTANCE OF FREEDOM OF PRESS

The press has a responsibility to act as check and balance for the administration and the
government. It is the press that raises its voice against social ills, malpractices, corruption and
oppression. It is also the press that gathers, verifies and distributes events, facts and information
that allow the people of a country to make sound judgments.

However, none of this is possible if the press itself is silenced or if its voice is only allowed
when those in power permit. The information that comes from the press at such a time becomes
suspect. Worse yet, the press may not be allowed to report news or express opinions that run
contrary to what the people in power want. This means a citizenry that is woefully uninformed
and, therefore, powerless.

This is not mere speculation. Time and time again, recent history has proven that censorship of
the press is one of the most common features of a dictatorship. The censorship may not even
be direct or obvious at first. A government may often start by discrediting the news media and
what is being reported. It may stridently reinforce the notion that the media cannot be trusted
by undermining the news and facts that media presents to the public.

This is when the media begins to exercise self-censorship to avoid outrage manufactured by
the government. As time passes, this self-censorship may become more ingrained or such
distrust for the news media may develop among the people that they call for the government to
intervene8. Of course, once the media is muzzled, there is no one to report truths. In the absence
of those truths, the citizenry has no power to affect the necessary changes and the government
reigns supreme.

8
Sobel, Russell S., Nabamita Dutta, and Sanjukta Roy. "Beyond borders: Is media freedom
contagious?." Kyklos 63, no. 1 (2010): 133-143.

15 | P a g e
No right is absolute. This is true even for the right to freedom of speech or expression.
However, the right does exist and as long as it does, the power lies in the hands of the people.
Since the freedom of the press also falls under this right, it is clear that the press is the tool that
indirectly protects all other rights that a people may enjoy. Curbing the freedom of the press is,
thus, curbing the freedom of the people.

Social responsibility is the obligation to guide one’s actions on the basis of the effect the actions
will have on society, economy, culture and environment. What this means is that everyone has
a responsibility to express themselves in a way that doesn’t harm the social, economic, cultural
and environmental aspects of the world we live in.

SOCIAL RESPONSIBILITY AND FREEDOM OF THE PRESS

The press has a powerful role to play in any setting. It disseminates information and expresses
opinions that guide and shape the public’s opinion and stances. Nowhere can this be seen better
than in the reporting done in the 20th and 21stcenturies across the globe. This is the time that
reporting of facts became widespread and print media came into its own9.

The theory of social responsibility of the press lies between total authoritarianism and
libertarianism. As per the theory, a free press should be allowed without any censorship but the
content should be self-regulated and open to discussion in public panels. It helps establish
guidelines for professionalism in reporting and insists upon high standards of quality in terms
of truth, accuracy and information.

The fact is that media without any fetters can be dangerous. It can report anything, twist any
facts or even present outright lies in order to maintain its influence. It can be manipulated quite
easily and, in turn, can manipulate the very public opinion it is supposed to shape. Responsible
journalism doesn’t only mean reporting facts. It also means placing those facts in context and,
under certain circumstances, even refraining from reporting facts or expressing opinions that
can cause harm.

9
Lerner, Hanna. "Permissive constitutions, democracy, and religious freedom in India, Indonesia,
Israel, and Turkey." World Politics 65, no. 4 (2013): 609-655.

16 | P a g e
Specific Example
The perfect example of this situation is the Mumbai attacks on November 26. When the Rapid
Action Force, Marine Commandos and National Security Guard surrounded the Taj Hotel and
the Oberoi Trident, 67 channels were on hand to broadcast live the proceedings. Thanks to
minute-by-minute updates, the terrorists knew exactly what was going on outside and were
able to plan their defence accordingly. The job of the commandos became infinitely more
difficult as they tried to subdue the terrorists and rescue hostages.

After the event, the Supreme Court ruled that the media had been extremely irresponsible and
endangered the lives of not only the rescue teams but also the hostages. In their bid to increase
their ratings, various TV channels cast aside all common sense and carelessly and ceaselessly
released updates that helped the terrorists while hindering security forces. While freedom of
expression is a right, it isn’t without its limitations and during those fateful days, the news
media flagrantly violated those limitations for revenue.

There can be no doubt that a strong and free press is crucial to the functioning of any
democracy. However, like any other right, the right to freedom of expression must be exercised
with caution lest it does more harm than good. Unfortunately, news media depends on ratings
to generate revenue and has demonstrated time and again that it will cross many moral lines to
get both. In order to be truly effective, the press needs to remember that it has a responsibility
to its audience and to society as a whole to be rational and conscientious in its reporting.

The belief that expressions and communiqués through various media such as print, television
and the internet are a right to be exercised freely without government intervention is known as
freedom of the press and media. This freedom is considered one of the cornerstones of
democracy. In order to keep checks and balances on the government and its activities, the
public must be adequately informed. This information is supposed to be dispensed by the press.

17 | P a g e
PRE CENSORSHIP AND CENSORSHIP OF FILMS

Meaning of ‘Censorship’

Censorship is of two kinds: -

1. Censorship usual, and
2. Pre-censorship.
The dictionary meaning of the word ‘censor’ is that official with authority to examine letters,
books, periodicals, films, etc. and to cut out anything regarded as immoral or in other ways
undesirable, or, in time of war, helpful to the enemy.
Censorship means an order directing a person not to write or publish anything or deliver any
speech about the matter prohibited to be made public or not to show any objectionable scene
in any film. Nobody shall write anything adverse about the war or hostilities undertaken by the
state is an order of censorship. Nothing shall be spoken or written against declaration of
emergency or any step taken or being taken there under is also an order of censorship. The
order directs that no prejudicial action shall be taken against the government in future as and
from the date of the issue of the order.10

Censorship of films

Films are considered as a great medium of communication with the people. With the
development and progress of the society and also with the progress in the field of science and
technology the films have undergone a sea change and by adopting all the available
technologies have been able to reach the masses and also significantly contributed to the social
and cultural development of the country. In this way the films are equated with the Press as
Press is also considered as a great medium of communication. Both the films and the Press
enjoy the same status and right so far as constitutional freedom relating to expression of ideas
and spreading of ideas and messages are concerned. As is known Article 19(1) (a) of the
Constitution guarantees freedom of speech and expression which is extended to the Press also.
Therefore, both these mediums are regulated under this provision of the Constitution.

10
http://indiatoday.intoday.in/story/pre-censorship-of-films-sc-notice-to-iandampb-min-
censor-board/1/931353.html
18 | P a g e
Simultaneously as these freedoms are not absolute and subject to constitutional restrictions,
both these mediums are also to adhere to this.
As mentioned above, we have the Cinematograph Act, 1952 to see the films fulfill the norms
prescribed by the law. The Act provides for the establishment of a 'Central Board of Film
Certification', the regulatory body for films in India to issue the certificate to the makers of the
film for public exhibition. As per the provision of the law, the Board after examining the film
or having it examined could

(a) sanction the film for unrestricted public exhibition;

(b) sanction the film for public exhibition restricted to adults;

(c) direct such excisions and modifications in the film before sanctioning the film to
any unrestricted public exhibition or for public exhibition restricted to adults; and

(d) refuse to sanction the film for public exhibition.

K.A. Abbas v. Union of India11 is perhaps the first case where the question relating to the
censorship of films arises. In this case, the Supreme Court considered important question
relating to pre-censorship of cinematograph films in relation to the fundamental right of
freedom of speech and expression conferred by Article 19(1) (a) of the Constitution. The
petitioner in this case challenged the decision of the Board of Film Censors in refusing a 'U‟
certificate12 for him film "A Tale of Four Cities". While the case was pending in the Supreme
Court, the Central Government to grant the “U” certificate provided certain cuts were made in
the film. As the petitioner’s grievance was completely redressed, the petitioner applied for an
amendment enabling him to raise the question of pre-censorship in general, in order that
persons who invested money in making films may have guidance on this important
constitutional question. The amendment sought by the petition was allowed for consideration
by the apex court. The following two issues were before the court for consideration:

11
K.A. Abbas v. Union of India, (1970) 2 S.C.C. 780.
12
`U' certificate means it is for universal exhibition. 'A' certificate means it is for viewing by
Adults only.
19 | P a g e
 (a) that pre-censorship itself cannot be tolerated under the freedom of speech and
expression; and
(b) that even if it were a legitimate restraint on the freedom, it must be exercised on
very definite principles which leave no room for arbitrary action.

Taking into consideration all these, Hidayatullah, C.J. made it clear that censorship of films
including pre-censorship was constitutionally valid in India as it was a reasonable restriction
within the ambit of Article 19(2).13
It was also observed that pre-censorship was but an aspect of censorship and bore the same
relationship in quality to the material as censorship after the motion picture has had a run.
However, censorship should not be exercised as to cause unreasonable restrictions on the
freedom of expression. Holding the view that "pre-censorship was only an aspect of censorship
and censorship of cinematograph film was 'universal', Hidayatullah, C.J. went on to observe
that "it had been almost universally recognized that motion pictures must be treated differently
from other forms of art and expression, because a motion picture's instant appeal both to the
sight and to hearing, and because a motion picture had become more true to life than even the
theatre or any other form of artistic representation. Its effect, particularly on children and
immature adolescents was great."14

The court upheld the general principles which had been laid down for the guidance of the
censors and said that the test of obscenity and principles laid down in Udeshi's case15 applied
mutatis mutandis to an obscene cinematograph film.

In S. Rangrajan v. P. Jagjivan Ram16 the Supreme Court again confronted the question of
censorship of films vis-a-vis Article 19(1) (a) of the Constitution. In this case, the Madras High
Court revoked the `U' certificate issued to a film entitled "Ore Oru Gramathile" ("In Just One
Village"), and also banned the exhibition of the film as there was some public protest against
the film. The film was critical of the reservation policy of the Government of Tamil Nadu.

13
http://ieg-ego.eu/en/threads/european-media/censorship-and-freedom-of-the-press
14
http://14.139.60.114:8080/jspui/bitstream/123456789/688/36/Censorship%20of%20the%20
Press.pdf
15
Ranjit D. Udeshi v. State of Maharashtra, A.I.R. 1965 S.C. 881
16
S. Rangrajan v. P. Jagjivan Ram (1989) 2 S.C.C. 574.
20 | P a g e
During the pendency of the case, the film received the National Award by the Directorate of
Film Festival of the Government of India.
After the decision of the Madras High Court, the matter went to the Supreme Court on an appeal
and the court reiterated the importance of the freedom of speech and expression and the role of
films as a legitimate media for its exercise. The Court was of the opinion that
"If exhibition of the film cannot be validly restricted under Article 19(2), it cannot be
suppressed on account of threat of demonstration and precessions or threat of violence. That
would tantamount to negation of the Rule of Law and surrender to blackmail and intimidation.
It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed to
handle the hostile audience problem. It is its obligatory duty to prevent it and protect the
freedom of expression”.17

Again in Bobby Art International v. Om Pal Singh Hoon,18 case, better known as the Bandit
Queen case, the Supreme Court considering the censorship issue upheld the freedom of
expression through films and removed the restrictions imposed on the exhibition of the film
"Bandit Queen"19 on the ground of obscenity. In this case, the petitioner Om Pal Singh Hoon
filed a petition asking the court to quash the certificate of exhibition for screening the film
"Bandit Queen" and also to restrain its exhibition in India. It was contended in the petition that
the depiction of the life story of Phoolan Devi in this film was "abhorrent and unconscionable
and a slur on the womanhood of India." The way the rape scenes were depicted and the manner
in which such scenes were picturised was also questioned and it was also contended that the
depiction of Gujjar community in those scenes amounts to moral depravity of that particular
community. The Delhi High Court quashed the order of the Tribunal granting 'A' certificate to
the film on the ground that the rape scenes were obscene. When the matter went to the Supreme
Court by way of appeal, allowing the appeal, the Supreme Court reversed the decision of the
High Court and upheld the decision of the Tribunal in granting the 'A' certificate to be valid.
The court was of the opinion that:

17
Ibid 8.
18
(1996) 4 S.C.C. 1
19
'Bandit Queen' depicts the life story of Phoolan Devi, the dreaded dacoit of yester years
who was brutally gang raped and sexually assaulted. Subsequently she retaliated and took the
revenge by killing many people who were involved in the assault.
21 | P a g e
"The film must be judged in its entirety from the point of overall impact. Where theme of the
film is to condemn degradation, violence and rape on women, scenes of nudity and rape and
use of expletives to advance the message intended by the film by arousing a sense of revulsion
against the perpetrators and pity for the victim is permissible.” [10]
The court rejecting the challenge under the provisions of the Cinematograph Act, 1952 went
on to observe that:
“We do not censor to protect the pervert or to assuage the susceptibilities of the over sensitive.
„Bandit Queen' tells a powerful human story and to that story the scene of Phoolan Devi's
enforced naked parade is central. It helps to explain why Phoolan Devi became what she did,
her rage and vendetta against the society that had heaped indignities upon her.”

Pre-censorship is valid for films and not for press

After discussing in detail about the censorship of films, one question automatically comes to
our mind, i.e. why censorship of films, not the press? This question was dominating the Indian
scenario for quite a long period. To find a clear cut answer we have to take in to consideration
several other factors and aspects along with some of the important decisions of the Supreme
Court.20
The freedom of speech and expression guaranteed under our Constitution most probably draws
its inspiration from the First Amendment of the American Constitution. The First Amendment
which deals with freedom of the press is as follows:

“Congress shall make no law respecting an established religion, or prohibiting the free
exercise thereof, or abridging the freedom of speech, or of the Press; or the right of the people
peaceably to assemble and to petition the Government for a redress of grievances.”

The American Supreme Court in Associated Press v. U.S.,21 referring to the First Amendment
observed that: “it is the purpose of the First Amendment to preserve an uninhibited market
place of ideas in which truth will ultimately prevail, rather than to countenance
monopolisatation of that market whether it be by the Government itself or a private licensee.”

20
https://thewire.in/125084/amol-palekar-film-censorship-supreme-court-petition/
21
326 U.S. 1
22 | P a g e
If we analyse the American First Amendment it is clear that in the first place it advocates for
the freedom of the press, and secondly no restrictions are imposed on the freedom of the press.
But on the other hand Article 19 (1) (a) of the Indian Constitution guarantees to all the citizens
the right to “freedom of speech and expression” and this freedom includes the right to express
one’s own views and opinions at any issue through any medium he likes. This right also
includes the freedom of the press or the freedom of the communication and the right to
propagate or publish opinion. But unlike American Constitution, this freedom is not absolute,
and is subject to restrictions imposed by Article 19 (2) of the Constitution.

Despite the restrictions, in our country the citizens and the press in real practice enjoy this
freedom to a large extent because in a democratic set up, such freedoms are necessary and quite
helpful for the proper functioning of the democratic process. It has been rightly remarked by
Justice Bhagawati in Maneka Gandhi v. Union of India22 in the following words:
“Democracy is based essentially on free debate and open discussion, for that it is the
only corrective of Government action in a democratic set up. If democracy means Government
of the people, by 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
choice, free and general discussion of public matters is absolutely essential”.

It is clear now that the freedom of press certainly enjoys importance in our democratic process
as it seeks to advance public opinion and matters of public interest by publishing it which
enables them to form a responsible judgment. Our Supreme Court through various judgments
also upheld the dignity of the press and freedom it enjoys by nullifying the attempts to put a
curb on it. Accordingly imposition of pre-censorship on a newspaper as held in Brj Bhusan
case,23 or prohibiting the newspaper from publishing its own views as in Virendra,24 or
imposing a ban on the entry of newspapers and its circulation as in Sakal Papers case,25 and in
Romesh Thapper case,26 or trying to put restrictions in some way or other in Express News

22
(1978) 1 S.C.C. 248
23
Brij Bhusan v. State of Delhi, A.I.R. 1950 S.C. 129
24
Virendra v. State of Punjab, A.I.R. 1957 S.C. 896
25
Sakal Papers (P) Ltd. v. Union of India, A.I.R. 1962 S.C. 30
26
Romesh Thapper v. State of Madras, A.I.R. 1950 S.C. 124
23 | P a g e
paper case27 and the Bennett and Coleman case,28 were held by the Supreme Court as
encroachment in freedom of speech and expression and opposed to Article 19 (1) (a). In print
media, pre-censorship means a bar on publication of a journal or of matter of a specified kind
without ‘advance approval of an executive official’. Under an order of censorship, the matter
to be published has to be submitted to a Government authority by the editor, or published of a
newspaper prior to its printing or publication. The standard applied by the officer is not subject
to judicial review. A government official becomes the guardian of the people’s mind, ideas and
expression, which acts as a deterrent to the creation of new thoughts.

In the USA, the constitution provides freedom of the press in absolute terms but it has been
judicially recognized that in times of war when the security of the nation is in danger previous
restraint including censorship may constitutionally be imposed. The American Supreme Court
in Associated Press v. U.S.,29 referring to the First Amendment observed that:
“It is the purpose of the First Amendment to preserve an uninhibited market place of ideas in
which truth will ultimately prevail, rather than to countenance monopolisatation of that market
whether it is by the Government itself or a private licensee.”

In England also, it is acknowledged that in times of war when the very existence of the state
is in jeopardy the state has power to prevent the dissemination of such information and
comments as would interfere with successful prosecution of the war.

In India, Article 19 (2) of the constitution makes no distinction between times of war and
peace. It authorizes the state to impose reasonable restrictions for preserving the interest
specified therein. These restrictions should be reasonable. In virendra v. state of Punjab,30 it
has been observed that pre-censorship even times of peace are warranted in certain
circumstances under Art. 19(2). Our Supreme Court through various judgments also upheld the
dignity of the press and freedom it enjoys by nullifying the attempts to put a curb on it.

In all the above mentioned cases the Supreme Court has maintained that the freedom of the
press cannot be taken away and it would not be legitimate to subject the press to the laws which

27
Express Newspapers (P) Ltd. v. Union of India, A.I.R. 1958 S.C. 578
28
Bennett Coleman & Co. v. Union of India, (1972) 2 S.C.C. 788
29
326 U.S. 1
30
virendra v. state of Punjab, (1958 SCR 306)
24 | P a g e
take away or abridge the freedom of speech and expression. In the words of Justice Mudholkar
who gave his opinion in Sakal Papers (P) Ltd. v. Union of India31 as:
“….the Courts must be ever vigilant in guarding perhaps the most precious of all the
freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech
and expression of opinion is of paramount importance under a democratic Constitution which
envisages changes in the composition of Legislatures and Governments and must be
preserved.”32

So far as censorship of films are considered, censorship is required because of its mass appeal,
the way the presentation and above all, the impact it leaves in the minds of the persons both
young and adult. Expression of one’s own idea, through the medium he likes is permissible
under Article 19 (1) (a) of our Constitution. The medium is vast. But using the films as a
medium of expression should be treated differently because this medium is not the same as
reading a book or reading a newspaper or magazine. So in the larger interest of the community
and the country restrictions as envisaged in Article 19(2) can be imposed. The framers of our
Constitution deemed it essential to permit such reasonable restriction as they intended to strike
a proper balance between the liberty guaranteed and the social interests specified in Article 19
(2).33

31
A.I.R. 1962 S.C. 305
32
Sakal Papers (P) Ltd. v. Union of India, A.I.R. 1962 S.C. 305, at pp. 314-15
33
Santokh Singh v. Delhi Administration, (1973) 1 S.C.C. 659
25 | P a g e
BIBLIOGRAPHY

1. Hocking, William Ernest. "Freedom of the Press." (1948).

2. Chowdhury, Shyamal K. "The effect of democracy and press freedom on corruption: an

empirical test." Economics letters 85, no. 1 (2004): 93-101.

3. Mehrotra, Sri Ram. Towards India's freedom and partition. Vikas Publishing House, 1979

4. Minattur, Joseph. Freedom of the press in India: constitutional provisions and their
application. Springer, 2012.

5. Besley, Timothy, and Robin Burgess. "The political economy of government

responsiveness: Theory and evidence from India." The quarterly journal of economics 117, no.
4 (2002): 1415-1451.

26 | P a g e