FREEDOM OF SPEECH IN RELATION TO MEDIA IN INDIA Project Assignment P.G.Diploma in Media Law ( MODULE I )

Submitted by Ms SHUBHANGI MEHTA ID No. MLH23_09 2009-10 NALSAR Proximate Education NALSAR University of Law, Hyderabad

TABLE OF CONTENT

I. INTRODUCTION

II. MEANING OF MEDIA DEMOCRACY

III. SCOPE IN INDIA

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.-

(1) All citizens shall have the right-

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

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

Media ownership concentration

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

As a response to the shortcomings of the mainstream media, proponents of media democracy often advocate supporting and engaging in independent and alternative media, in both print and electronic forms as well as video documentary. Through citizen journalism and citizen media, individuals can produce and disseminate information and opinions that are marginalized by the mainstream media. In the book We the Media: Grassroots Journalism by the People, for the People, Dan Gillmor urges individuals who are concerned about media ownership concentration and the decreasing amount of public-interest broadcasting to use technology like the internet to create and distribute information they believe is not properly reported in the mainstream news media. This book details strategies that individuals and groups can use to democratize the media.Wikipedia and Wikinews as tools of media democracy

Wikipedia has become a powerful[says who?] media democracy tool. Anyone—regardless of educational background, experience, or in-depth knowledge—can edit, expand, or remove content. Individuals do not have to get the approval of an editorial board to post content. While there are administrators on Wikipedia, they have roughly the same powers as ordinary users. Wikipedia also lacks corporate control: Wikipedia operates as a not-for-profit, and accepts no advertising or corporate investment which can influence or silence particular ideas. Operating costs are paid by typically small individual donations.

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.

In 2004, Wikimedia established a site called Wikinews dedicated solely to providing news coverage using wiki technology and the open collaborative philosophy. The site's mission statement commits it to, "present up-to-date, relevant, newsworthy and entertaining content without bias" in the spirit of participatory journalism. Wikinews contains synthesis articles, where a number of news sources are condensed into a single article, and original reporting, where individuals write news stories to fill the gaps of the traditional news media due to various systemic constraints, blind spots, and biases of traditional news media sources do not allow.

SCOPE OF MEDIA DEMOCRACY IN INDIA

India is a Democracy.  In order to be a democracy, certain things are expected to be in place, such as freedom of the press and a little or no censorship.  While one person would find it perfectly adequate to broadcast pornographic material and sexually explicit lyrics to a probing world for anybody to see, while someone else would think that such an act lays a negative influence on a society which can be destroyed by such material.  When two different positions collide in Indian judicial systems, decisions must be made to serve justice.  Reviews of the many cases spawned by these issues are a way to view how individual states and even federal governments construe the law that is currently enacted.  Society desires to eradicate the "black" while replacing it with the "white" in order to create a just environment to live in.  The problem lies in the perception of what is "black" and "white."  What is good to a radical is not necessarily good for a conformist and vice versa.  While the Indian constitution guarantees the basic freedom of speech, it also has been adjusted to protect the rights of the citizens under the law.  Many aspects of these three issues need to be explored such as:  At what point is freedom taken away?  How far should our governing bodies go to protect peoples rights through the limitation of our freedom of speech?  Do people have a right to privacy from the law enforcing agencies of India?  If so, to what extent?  Is censorship a violation of the basic freedoms found in the Indian constitution

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. Inaddition 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 nowestablished 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 thebasic 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 itsdimensions 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 obviousrestriction 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…

Freedom does not mean ‘license’ and what is sought to be madeaccountable is a licentious use of freedom by the media as in the case of all others. Media being the most powerful institution of the society naturally carries more responsibility. Those who resist the device of accountability cloud the fact that it is only the black sheep in the profession who violate the law or the ethics and may be called upon to answer for their misconduct and that too by a body which may have a substantial representation of media itself. It is no use falling back on the experience of the authoritative regimes which tried to muzzle the media. We are now in a democratic regime and the law, if any, made to set up a correcting mechanism will be by the peoples’ representatives which have as much concern for democracy as for the media. The aberrations of the past during the Emergency are not to be treated as a rule. The Emergency itself is a forgotten nightmare today. It should be remembered, on that occasion even the highest court of the land had failed the people. Much water has flowed under the bridge since then.

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.

Historical Perspective of Mass Media LawsMass Media laws in India have a long history and are deeply rooted in the country’s colonial experience under British rule. The earliest regulatory measures can be traced back to 1799 when Lord Wellesley promulgated the Press Regulations, which had the effect of imposing pre-censorship on an infant newspaper publishing industry. The onset of 1835 saw the promulgation of the Press Act, which undid most of, the repressive features of earlier legislations on the subject. 

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. 

Print

“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

To promote the advancement of education and culture        * To raise and maintain high standards of decency and decorum in all programmes        * To provide programmes for the young which, by variety and content, will inculcate the

       *To promote communal harmony, religious tolerance and international understanding        * To treat controversial public issues in an impartial and dispassionate manner        * To respect human rights and dignity  

*  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.  

*  Direct-to-Home Broadcasting – Direct-to-Home (DTH) Broadcasting Service, refers to distribution of multi-channel TV programmes in Ku Band by using a satellite system and by providing TV signals directly to the subscribers’ premises without passing through an intermediary such as a cable operator. The Union Government has decided to permit Direct-to-Home TV service in Ku band in India.

Film

India is one of the largest producers of motion pictures in the world. Encompassing three major spheres of activity – production, distribution and exhibition, the industry has an all-India spread, employing thousands of people and entertaining millions each year. The various laws in force regulating the making and screening of films are: - 

* The Cinematograph Act, 1952 – The Cinematograph Act of 1952 has been passed to make provisions for a certification of cinematographed films for exhibitions by means of Cinematograph. Under this Act, a Board of Film Censors (now renamed Central Board of Film Certification) with advisory panels at regional centres is empowered to examine every film and

sanction it whether for unrestricted exhibition or for exhibition restricted to adults. The Board is also empowered to refuse to sanction a film for public exhibition.

In K. A. Abbas v. Union of 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 make a copy of the film 

·         To cause the film, in so far, as it consists of visual images, to be seen in public and in so far as it consists of sounds to be heard in public

·         To make any record embodying the recording in any part of the soundtrack associated with the film by utilizing such sound track 

·         To communicate the film by radio-diffusion  

  The Act also makes it a cognizable offence for anyone to sell, hire, distribute, exhibit, possess or view any 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. 

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* 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.

AdvertisingAdvertising 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 the truthfulness and honesty of representations and claims made by advertisements and to safe guard against misleading advertising;

·         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.

Few Complaints filed with ASCI –

*        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;

Sales, where there is element of deception;

All business promotion schemes announcing ‘free gifts’, ‘contests’, etc. where any element of deception is involved;

 Violation of laws existing for protection of consumers; 

Manipulating sales with a view to raising prices.

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

56

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

IN THE SUPREME COURT OF INDIA

Decided On: 25.09.1961

Appellants: Sakal Papers (P) Ltd. and Ors. Vs.Respondent: The Union of India (UOI)

JUDGMENT

Mudholkar, J.

1. A matter of far-reaching importance affecting the freedom of the press is raised in these three petitions wherein the constitutionality of the Newspaper (Price and Page) Act, 1956, and the Daily Newspaper (Price and Page) order, 1960, is questioned.

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.

1. In all these matters, the petitioner-establishments have challenged two

orders viz., Nos. 683(E) and 684(E), both dated 31.8.1989, (hereinafter referred

to as 'Orders') issued by the Central Government under Section 11 of the Working

Journalists and Other Newspaper Employees (Conditions of Service) and

Miscellaneous Provisions Act, 1955 (hereinafter referred to as the 'Act')

accepting and giving effect to the recommendations of the Wage Board Report

dated 26.5.1989 (hereinafter referred to as the 'Report') on various grounds.

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

constituted by the respondent 1-Union Government in 1985 under the chairmanship

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

other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions

(Amendment) Act, 1989 (hereinafter referred to as the "Amending Act") by adding

an Explanation at the end of Section 10(4) and a Schedule at the end of the Act

as being violative of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution.

2. In order to appreciate the challenges, it is necessary to state a few

background facts.

The Act as it was initially enacted was titled the Working Journalists

(Conditions of Service) and Miscellaneous Provisions Act, 1955 (the 'original

Act') since it was confined to the service conditions of the working journalists

only. By an amendment brought into force on 21.12.1974, by the Working

Journalists and other Newspaper Employees (Conditions of Service) and

Miscellaneous Provisions (Amendment) Act, 1974, the scope of the original Act

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

establishments including some of the petitioners herein, under Article 32 of the

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

12 by a Constitution Bench of five learned Judges. To this decision, we may have

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.

3. Before we discuss the challenges to the impugned award, it will be

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

propositions of law laid down in the aforesaid decision.

Section 2(d) defines "newspaper establishment" to mean-

(d) "newspaper establishment" means an establishment under the control of

any person or body of persons, whether incorporated or not, for the production

or publication of one or more newspapers or for conducting any news agency or

syndicate; (and includes newspaper establishments specified as one establishment

under the Schedule).

Explanation - For the purposes of this clause, -

(a) different departments, branches and centers of newspaper establishments

shall be treated as parts thereof;

(b) a printing press shall be deemed to be a newspaper establishment if the

principal business thereof is to print newspaper];

The Schedule referred to above states as follows:

1. For the purposes of Clause (d) of Section 2,

(1) two or more newspaper establishments under common control shall be

deemed to be one newspaper establishment;

(2) two or more newspaper establishments owned by an individual and his or

her spouse shall be deemed to be one newspaper establishment unless it is shown

that such spouse is a sole proprietor or partner or a shareholder of a corporate

body on the basis of his or her own individual funds;

(3) two or more newspaper establishments publishing newspapers 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 State or Union

territory shall be deemed to be one newspaper establishment.

2. For the purposes of paragraph 1(1), two more establishments shall be

deemed to be under common control -

(a)(i) where the newspaper establishments are owned by a common individual

or individuals;

(ii) where the newspaper establishments are owned by firms, if such firms

have a substantial number of common partners;

(iii) where the newspaper establishments are owned by bodies corporate, if

one body corporate is a subsidiary of the other body corporate, or both are

subsidiaries of a common holding company or a substantial number of their equity

shares are owned by the same person or group of persons, whether incorporated or

not;

(iv) where one establishment is owned by a body corporate and the other is

owned by a firm, if a substantial number of partners of the firm together hold a

substantial number of equity shares of the body corporate;

(v) where one is owned by a body corporate and the other is owned by a firm

having bodies corporate as its partners if a substantial number of equity shares

of such bodies corporate are owned, directly or indirectly by the same person or

group of persons, whether incorporated or not, or

(b) where there is functional integrality between concerned newspaper

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

of wages in respect of working journalists and non-journalist newspaper

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

journalists and non-journalist newspaper employees respectively, and they state

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,

which in the opinion of the person making the representation, would be

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

specify when, prospectively or retrospectively, it should take effect. Sub-

section (4) thereof makes an important provision. It enjoins upon the Board

while making the recommendations to the Central Government, to have regard to

the cost of living, the prevalent rates of wages for comparable employment, the

circumstances relating to the newspaper industry in different regions of 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:

Explanation. - For the removal of doubts, it is hereby declared that

nothing in this Sub-section shall prevent the Board from making recommendations

for fixation or revision of rates of wages on all India basis.

[Emphasis supplied]

Sub-section (1) of Section 12 gives power to the Central Government to make

an order in terms of the recommendations made by the Board or subject to such

modifications as it thinks fit, being modifications which in the opinion of the

Central Government, do not effect important alterations in the character of the

recommendations. Sub-section (2) thereof gives power to the Central Government

to make such modifications in the recommendations, not being modifications of

the nature referred to in Sub-section (1), as it thinks fit, after giving to all

persons likely to be affected thereby an opportunity to make representations or

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

publication or on such date, whether prospective or retrospective, as may be

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,

every working journalist and non-journalist newspaper employee shall be entitled

to be paid by his employer wages at the rate which shall in no case be less than

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

of the essential circumstances to be taken into consideration except in cases of

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

industry to pay, as an essential circumstance.

(2) The capacity of the industry to pay is to be considered on an industry-

cum-region basis after taking a fair cross section of the industry.

(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

possibility of tightening up the organisation so that the industry could pay

higher wages without difficulty and the possibility of increase in the

efficiency of the lowest paid workers, resulting in increase in production,

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

be such as to drive the employer out of business.

(4) The provisions of the Act as they stood then were not violative of the

fundamental rights enshrined in Articles 14, 19(1)(a) and 19(1)(g) of the

Constitution which provided for classification. The classification of the

newspaper establishments on the basis of the gross revenue earned is not bad.

(5) The grouping of the newspaper establishments into chains or multiple

units is justified having regard to the conditions of the newspaper industry in

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

units arises in connection with the capacity of the industry to pay. If a

classification on the basis of gross revenue would be legitimately adopted by

the Wage Board, the grouping into chains or multiple units could also be made.

There is nothing in the Act to prohibit the treating of several newspaper

establishments producing or publishing one or more newspapers, though in

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

standard of employment and conditions of service in several newspaper

establishments under the control of any person or body of persons whether

incorporated or not. For an employer to think of employing one set of persons on

higher scales of wages and another set of workers on lower scales of wages would

by itself be inequitous, though it would be quite legitimate to expect the

difference in scales having regard to the quality of the work required to be

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

necessarily have to be borne in mind by the Wage Board in arriving at its

decision in regard to the wage structure though the relative importance to be

attached to one set or the other, may vary in accordance with the conditions in

different areas or regions where the newspaper establishments are located.

(6) If the industry is divided into different classes, it may not be

necessary to consider the capacity of each individual unit to pay. It would

certainly be necessary to consider the capacity of the respective classes to

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.

5. It is necessary to note some significant amendments which were made to the

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

employees. The second amendment was to the definition of "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

amendment, different departments, branches and centers of a newspaper

establishment were treated as a part of the same establishment and even a

printing press, whose principal business was to print newspaper, was also deemed

to be a newspaper establishment. As per the Schedule introduced, (i) two or more

newspaper establishments under common control were deemed to be one newspaper

establishment; (ii) two or more newspaper establishments publishing newspapers

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

State or Union Territory, were also deemed to be one newspaper establishment;

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

that such spouse was the sole proprietor or partner or a shareholder in a

corporate body on the basis of his or her own individual funds. The third

amendment was an addition of Explanation to Section 10(4) [(former Section

9(1)], enabling the Board to make recommendations for fixation or revision of

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.

6. The main contention of the petitioners in the present cases/petitions is

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

on an industry-region basis, the entire Act would be violative of Constitution.

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

to pay on an industry-cum-region basis. The necessity to read the said

requirement into Section 10(4) has not been changed by the amendments to

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

revenue of the company or other independent companies which are sought to be

clubbed, the provisions of Section 2(d), as amended, would be violative of the

petitioners' right under Articles 19(1)(a) and 19(1)(g) of the Constitution

inasmuch as such fixing up of wages would bring about the situation as it

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

imposed upon weaker unit of a particular newspaper establishment would be

erroneous. Hence it is contended that the amendment to Section 2(d) would be

subject to the provisions of Section 10(4) as it stood and as it stands today.

Section 2(d) is only a definition clause and the provisions of Section 10(4) are

mandatory. Hence, harmonious construction of the provisions of Section 2(d) and

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

decision of this Court.

It is further pointed out that the present Wage Board itself has recognised

this principle and while classifying the newspaper establishments in para 11 of

Section II of Part I of Chapter IX of the Report on the basis of the gross

revenue into 10 classes, it has made an exception in paragraph 6(2) of the said

Section in case of newspaper establishments falling in classes VI to IX by

directing that they will not be stepped up by more than two classes as a whole

in clubbing of gross revenue as is directed in Sub-para (1) of the said para 6.

However, the Board has given no reason why similarly for the establishments

falling in classes IA to V, the same consideration should not be shown. On the

other hand, the Board without giving any reasons, has chosen to treat every unit

of the newspaper establishment falling in the latter classes, viz., classes IA

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

unbearable financial burden and forcing them to close. Such classification

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

first is that while classifying the establishments, the benefit of paragraph 12

of Section II of Part I of Chapter IX is not given to them by ascertaining

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

it has given to its recommendations from 1.1.1988. The burden on the

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

about 76.6 per cent.

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

of Section II of Part I of Chapter IX of its Report has classified the different

newspaper establishments on the basis of their gross revenue as follows:

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

IX Less than Rs. 25 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

inequitable results of the grouping. We may as an illustration refer to the

effect of clubbing of the units of some of the petitioner-establishments which

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

guidelines of the Board in classes I, II and V respectively. Similarly, the

units of the company at Calcutta, Patna, Bangalore and Jaipur are classified in

categories IV, V, V and V respectively, although on the basis of their gross

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

to class IV and V respectively. It is not necessary to multiply these instances.

According to us, in view of the definition of "newspaper establishment" in

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

Newspaper case (supra) as extracted above, the units of an establishment which

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

clubbing of the different units of the same establishment.

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

of Part I of Chapter IX of the Report. Whereas the units of the newspaper

establishments falling in any of the classes VI to IX, as detailed above, on the

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

falling in classes IA to V are all to be classified as belonging to the class to

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

fixing the wage-scales, the units of the newspaper establishments belonging to

classes VI to IX would not be considered as belonging to the said classes but to

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

the establishments belonging to classes IA to V would all be considered as

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

discrimination in question between the newspaper establishments belonging to

classes IA to V and those belonging to classes VI to, IX. The respondents also

could not offer any satisfactory explanation or advance a plausible contention

to defend the said discrimination. We are, therefore, of the view that the

impugned award to be made legally enforceable will have to be modified by

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.

7. As regards the other grounds of attack, we are afraid we see no reason to

interfere with the award on the said grounds. In view of the amended definition

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

classification of the newspaper establishments on all India basis for the

purpose of fixation of wages is not bad in law. Hence it is not violative of the

petitioners' rights under Articles 19(1)(a) and 19(1)(g) of the Constitution.

Financial capacity of an all India newspaper establishment has to be considered

on the basis of the gross revenue and the financial capacity of all the units

taken together. Hence, it cannot be said that the petitioner-companies as all

India newspaper establishments are not viable whatever the financial incapacity

of their individual units. After amendment of Section 2(d) retrospectively read

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

the all India establishments, into one class.

8. The other contentions advanced on behalf of the Indian Express Newspapers

(P) Ltd. are as follows. Firstly, it is contended that the benefit of the

provisions of paragraph 12 of Section II of Part I of Chapter IX is not given to

the petitioner-establishment while classifying it. Secondly, while calculating

the financial capacity, the award has made no provision even for a reasonable

depreciation and to that extent the estimates of the capacity of the

establishment to pay the revised wages are seriously flawed. The third

contention is that the Board has not considered the burden of retrospective

effect it has given to its recommendations from 1.1.1988. Lastly, it is

contended that the award has not taken into consideration the cost of newsprint

which had in the meanwhile gone up by about 76.6 per cent.

9. More or less similar contentions were raised on behalf of other

petitioner-establishments. We have made clear at the very outset that some of

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.

The benefit given in paragraph 6(2) of Section II of Part I of Chapter IX

will extend to all classes of the newspaper establishments as categorised in

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

by all the establishments w.e.f. 1.1.1988 and the respondent-employees should be

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

arrears of wages will be governed by

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