••

CHAPTER: III

CONSTITUTIONAL GUARANTEE

N Constituent Assembly Debates

1) Framing of Article 19(1) (a)
B) Scope of the Freedom

1) DURING PEACE TIME

1

a) Permissible Restraints
j
i) Sovereignty and Integrity of India
ii) The Security of the State
in) Friendly Relations with Foreign States
iv) Public Order \
V) Decency of Morality
vi) Contempt of Court
vii) Defamation
viii) Incitement to an Offence

II) DURING EMERGENCY

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CONSTITUENT ASSEMBLY DEBATES

Framing of Article 19 (1) (a)

?' ven before India achieved her independence in 1947, the Con-
stituent Assembly had begun its d e l i b e r a t i o n s . As the first great
achievement,the Assembly adopted the historic Objectives Resolution
on 22nd Jan 1947 moved by Pt. Nehru. This formed the basis not only
of various provisions of the Constitution but of its preamble also. The
Assembly declared in its resolution its firm resolve to draw up a consti-
tution, guaranteeing, inter alia. Freedom of thought and expression.''

After adopting the aforesaid resolution, on 24th Jan 1947, the Ad-
visory Committee on Fundamental Rights, Minorities etc came into
existence by a resolution proposed by Pt. Govind Ballabh Pant who
expressed the hope that the Advisory Committee would function keep-
ing in mind the ideals of humanity.^

The Advisory Committe in its first meeting on 27th Febraury 1947.

setup five Sub - Committees including one on Fundamental Rights.
Achariya Kriplani was elected the chairman of Sub - Committee^

1. C.A.DVol. latp.p. 58-59

2. Rao, B.S. : The framing of India's Constitution Select Documents Vol II p.p. 58-63
3. Rajkumari Amrit Kaur, Mrs. Hansa Mehta, M.R. Masani, K.T. Shah, A.K. Ayyar,K.M.
Munshi, Hamam Singh, Maulana A.K. Azad, BR. Ambedkar, Jairamdas Daulat Ram,
and K.M. Panikkarwere the other members of the Sub-committee.
 71

In its meeting on 24th March 1947 the Sub - Ctmmittee consid-

ered the various documents presented before it which consisted of all
proposals, suggestions and memoranda on fundamental rights preparea
by B.N.Rau and others members. The Sub - Committee decided to take
up Munshi's draft for consideration. Article (V) of the draft dealt with
the freedom of expression. It provided:
(1) Every citizen within the limits of the law of the union and in accor-
dance therewith has :
(a) The right of free expression of opinion;
(2) The press shall be free subject to such restrictions imposed by the
law of the union as in its t p i n i t n may be necessary in the interest
of public order and morality.*

The Sub-Committe resolved that the right should be extended only

to the citizens and accordingly the clause was revised and ran as fol-
lowing.

There should be liberty for the exercise of followig rights, subject

to public order and morality: (a) the right of the citizens to freedom o/
speech and expression. The publication or utterances of seditious, ob-
scene, slanderous libelous or defamatory matter shall be actionable or
punishable in accordance with the law.

B.N. Rau, on the basis of recommendations of the Sub - Commit-

tee prepared a draft report and submitted before it on 3rd April 1947
4. Some other drafts were also presented before the Sub.Committee. Dr. Ambakdar's
draft laid emphasis on fundamental rights, he did not feel it necessary to justify the
inclusion of these rights in the constitution as he observed that their necessity and
importance have received an express recognition in almost Contd ;
 72

for its c o n s i d e r a t i o n . T h i s a n n e x u r e of d r a f t r e p o r t c o n t a i n e d two c h a p -

t e r s ; t h e f i r s t c h a p t e r e n u m e r a t e d j u s t i c i a b l e r i g h t s w h i l e the s e c o n d
c h a p t e r i n c l u d e d n o n - j u s t i c i a b l e r i g h t s . T h e r i g h t to f r e e d o m of s p e e c h
a n d e x p r e s s i o n f i g u r e d as j u s t i c i a b l e r i g h t u n d e r c l a u s e (9) w h i c h p r o -
vided.

"There shall be liberty for the exercise of following rights

subject to public order and morality, (a) The right of every citizen

to freedom of speech and expression. The publication or utterances

of seditious, obscene, slanderous, libelous or defamatory mattei

shall be actionable or punishable in accordance with law.^

T h e S u b - C o m m i t t e e d r a f t e d t h e r i g h t s d u r i n g the ten m e e t i n g s
Contd: every constitution of the world.
Prof. K.T. Shah in his note stressed that the basic objective of the
constitution was the protection or guarantee of life, liberty and persuit of happiness
as the birth right of all the human beings. He categorised these rights as political,
civil, economic and social. He placed the 'right of speech' written or by means ot
press' under clause (9) of his draft as Political Right. To give the right more effective-
ness be under caluse (11) freed it from censorship by any public authority
A.K. Ayyar concentrated upon the need for making a distinction between nghts
which were justiciable and rights which were merely intended as a guide and directing
objectives to state policy He was of the opinion that all the justiciable rights should be
formulated in very general and comprehensive terms.
Sardar Hamam Singh's draft on the other hand sought to give express recognition
to the right to equality before the law and the freedom of the press.
Thus all the members highlighted the importance of the fundamental rights and
expressed the view that these rights must be given due constitutional recognition Bui
simultaneously they opined that these rights can not be absolute in nature and restrictions
may be placed upon them, whenever necessary.
5. Commenting on the draft report Prof. Shah observed that freedoms guaran-
teed under Article 9 have been subjected to "public order and morality" He
pointed out with the help of various instances that the term morality is very
vague and its connotation changes from time to time, and in the guise of this
'public morality' in various countries basic freedoms have been denied to the
citizens. He stressed the need for defining the term suitably or to drop this
exception Contd:
 73

held in March - April 1947. Early in the April it passed its tentative conclu-

sions to the Sub-Committee on Minorities of the Advisory Committee. (It has

already drafted its first report on 4th April 1947). Therefore,, considering the

r e c o m m e n d a t i o n s made by Sub-Committee on Minorities and reconsidering

their own draft report, the Sub-Committee on Fundamental Rights submitted

its report on 16th April 1947 to the Advisory Committee.^

Contd: A.K. Ayyar drew the attention of the Sub -Committee towards the fact that few
rights have been made subject to "public morality" while the others have not been
subjected to this qualification. He pointed out that there may be circumstances
ie. war time or a similar emergency where it would be difficult to bring such
cases under public order and morality. In this regard he made a reference to
the Defence of India Act as well as rules made thereunder and desired thai
the words "Security and Defence of the state or National Security" be added
to the words public order. Similarly with regard to freedom of speech and
expression, he stressed the need of examining the provisions in the tight of
Sec. 153 - A of Indian Penal Code. He pleaded for the inclusion of words or
"calculated to promote class hatred" as he feared that in clause 9 (a) refer-
ence to "obscene, slanderous and libelous utterances" migh give an impres-
sion that preaching class hatred might not come under that clause

6. Under this draft report the freedom of speech and expression was guaran
teed under clause (10) in the following words:

There shall be liberty for the exercise of the following rights subject to
public order and morality or to the existence of grave emergency declared to
be such by the Government of the Union or the unit concerned wherby the
security of the Union or the Unit as the case may be, is threatened:
 74

T h e A d v i s o r y C o m m i t t e e on F u n d a m e n t a l Right a n d M i n o r t i e s met

o n 2 1 St A p r i l to d i s c u s s t h e r e c o m m e n d a t i o n s m a d e by t h e S u b - C o m m i t -

t e e o n F u n d a m e n t a l R i g h t s . ^ T h e A d v i s o r y C o m m i t t e e s u b m i t t e d , its

i n t e r i m r e p o r t to t h e C o n s t i t u e n t A s s e m b l y on 2 9 t h A p r i l 1947 The

C o m m i t t e e o b s e r v e d that it h a s g i v e n due c r e d e n c e to the v i e w that

f u n d a m e n t a l rights s h o u l d be m a d e j u s t i c i a b l e a n d laid s t r e s s on the

n e e d to make a d e q u a t e p r o v i s i o n s to d e f i n e the s c o p e of the r e m e d i e s

f o r t h e e n f o r c e m e n t of F u n d a m e n t a l R i g h t s .
T. A.K. Ayyar conveyed his intention of moving certain amendments
to the report submitted by the Sub - Committee. He wanted to include
the words "likely to promote class hatred" in clause (10) of the draft
report. He pointed out that most of the things enumerated are governea
by penal code and, therefore, the words "class hatred have to be added
because it was not covered under "defamation" or "sedition" failing
which people may get licence to promote class hatred.Shyama Prasad
Mukherjee raised his apprehension about the viability of these words
but C. R a j g o p a l a c h a r i vehemently supported A.K. Ayyar as he was of
the view that fundamental peace and orderly progress of the country is
possible only when the communal peace and harmony exist in the coun-
try.
K.M. Munshi while expressing a contrary view felt that the right
of free expression which have the effect of promoting communal ha-
tred should be restricted only when it goes to the extent of causing
violence or crime. B a k s h i Tek Chand also lended his support to this
view. Hence it was decided that it should be limited to the occassion
when there was grave danger to public order and so the original clause
was sufficient to cover the situation. The proposed amendment was
lost and after redrafting by the committee the said right [(which till now
was as clause 10)] was renumbered as clause 8 with amended provisio.
Thus Clause 8 (a) providing for freedom of speech and expression ran into
following words.

There shall be liberty for the exercise of the following rights subject to
public order and morality or to the existence of grave emergency declared to
be such by the Government of the Union or the Unit, as the case may be, is
threatened.

(a) The right of every citizen to freedom of speech and expression

Provisions may be made by law to make the publication or utterance

of seditious, obscene, blasphemous, slanderous, libelous, or defamatory
matter actionable or punishable.
 75

In t h e Constituent A s s e m b l y , Pt. H. N. Kunzru r a i s e d d o u b t s about the

j u s t i c i a b l e c h a r a c t e r of c e r t a i n r i g h t s as the i m p o s i t i o n of v a r i o u s re-

s t r i c t i o n s on t h e e x e r c i s e of r i g h t s destroy t h e i r j u s t i c i a b l e charactor

He r e f e r r e d as an e x a m p l e c l a u s e (8) of the r e p o r t . S o m e other mem-

b e r s a l s o e c h o e d t h e s a m e view. At this J u n c t u r e P a t e l d i s p e l l e d the

d o u b t s of m e m b e r s s a y i n g t h a t it was only a c o n s i d e r a t i o n stage and

the m e m b e r s w e r e f r e e to m o v e a m e n d m e n t s . '

T h e C o n s t i t u e n t A s s e m b l y after discussing the report sent it to the

Constitutional Advisor B.N. Rau alongwith amendments to be incorporated in

the Draft Constitution and for further consideration by Drafating Committee

which it appointed t h r o u g h a resolution which read as:

8. Sardar Patel moved the clause (8) for the consideration of Con-
stituent Assembly but dropped the provision to the said clause Somnath
Lahiri moved an amendment so that follwoing provision may be added
to existing clause 8 (a). "Liberty of the press shall be guaranteed sub-
ject to such restrictions as may be imposed by law in the interest o/
public order or morality, (b) The press shall not be subjected to cen-
sorship and shall not be subsidised. No security shall be demanded foi
keeping a press or the publication of any book or other printed matter.
But the proposal was opposed by some members as in their view it was
quite independent and might be considered later on."
Lahiri's another proposed amendment sought the substitution of
the words "defence of union" in place of the "security of the union" He
also pleaded for the deletion of the word "sedition" from clause (8) He
feared that it was very vague and may be abused by the Government
but Patel pointed out that the word "defence" covered only an external
aspect of the security and did not indicate any thing about the internal
chaos, the amendment was put to vote and consequently lost.
K.M. Munshi sought a change in the opening words of clause (8)
and observed that the words "except in grave emergency" should re-
place the words "to the existence of grave emergency" as the words
sought to be inserted sound a better sense Contd
 76

To scrutnise the draft of the text of Constitution as prepared by

the Constitutional Advisor, giving effect to the decisions, already taken
by Constituent Assembly including ancilliary methods which should be
provided in such a constitution, and to submit to the Constituent As-
0

sembly the Draft Constitution as prepared by the Committee."

The Drafting Committee after scrutinising the Draft Constitution and
material before it prepared a draft of the revised Constitution of India
and submitted it to the Constituent Assembly on 21st Feb, 1948. Under
this Draft Constitution the right to freedom of speech and expression
fell under Article 13 which provided:

(1) Subject to the other provisions of this Article, all citizens shah
have the right (a) to freedom of speech and expression

Contd: The amendment was accepted. Thus the Clause(8) as approved by the
Constitutent Assembly after amendment provided.
There shall be liberty for the exercise of follwoing rights subject to
public order and morality and except in grave emergency declared to be such
by the Government of the Union or the unit concered, as the case may be. is
threatened: (a) the right of every citizen to freedom of speech and expres-
sion.
Provision may be made by law to make the publication or utterance oi
seditious, obscene balsphemous, slanderous or defamatory matter action-
able or punishable.
9. Dr. B.R. Ambadkar was elected the Chairman of the Drafting Commit-
tee at its first meeting held on 27th October 1947.
The Drafting Committee decided to revise sub - clause (1) of clause
15 of Rau's Draft and suggested the omission of the reference to the "minori-
ties" from sub - clause (3)
 77

(2) Nothing in sub - clause (a) of clause (1) of this article shall affect

the operation of any existing law or prevent the state from making

any law, relating to libel, slander, defamation, sedition or any other

matter which offends decency or morality or undermines the au-

thority or foundation of the state."^^

10. This Draft C o n s t i t u t i o n prepared by Drafting Committee was pub-

lished and the copies were sent to each member of the C o n s t i t u e n t
A s s e m b l y , P r o v i n c i a l L e g i s l a t u r e , P r o v i n c i a l G o v e r n m e n t , Federal
C o u r t and the High C o u r t s i n v i t i n g c o m m e n t s and s u g g e s t i o n s
After receiving comments and suggestions the Committee again mei
to consider it.

Jaya Prakash Narayan wanted the redrafting of A r t i c l e 13 as ac-

cording to him the rights guaranteed were taken away by subsequent
restrictions. He also wanted to incorporate an independent provision
guaranteeing the freedeom of press. His suggestions could not find
favour as it was made clear by Dr. Ambedkar that freedom of press
was implicit in the freedom of speech and expression. The Drafting
Committee further decided to substitute the words "security of. or tends
to overthrow" for the words "authority or foundation" in sub - clause (2)
of Article 13. The Drafting Committee, therefore, prepared a revised
draft in the light of comments and suggestions and presented to Con-
stituent Assembly for its consideration.

Various amendments were proposed at this stage of consider-

ation by the Constituent Assembly. These amendments were moveo
by Mihir Lai Chatopadhaya, K.T.Shah, Naziruddin, Bhopinder Singh Man
and Seth Govind Das. Most of the proposed amendments were lost
when put to vote.
 78

This Draft Constitution, with the amendments adopted by Assem-

bly, was then referred again to Drafting Committee with instructions to
carry out such renumbering of the articles, clauses, and sub - clauses,
such revision of punctuation and such revision and completion of mar-
ginal notes as might be necessary, and to recommend such formal or
consequential or necessary amendments to the Constitution as might
be required. Thereafter, it was revised and re-numbered as Article 19
which provided:''''
(1) All citizens shall have the right-
(a) to freedom of speech and expression
(2) Nothing in sub - clause (a) of clause (1) shall affect the op-
eration of any existing law in so far as it relates to libel.
slander, defamation, contempt of court or any matter which
offends against decency or morality or which undermines the
security of, or tends to overthrow the state".

Finally the Draft Constitution was adopted on 26th Nov. 1949 and
the president of C o n s t i t u e n t Assembly Dr. R a j e n d r a Prasad
authenciated it by putting his signature so that the Bill became an Act "''^

The deliberations held during the entire drafting of the Constitu-

tion clearly show that almost at every stage the issue of a separate
provision for the press was discussed. But the demand was not accepted
as Dr. Ambedkar did not acceed their demand by saying that "Press is
merely another way of stating an individual or a citizen. The press has

11. When it was finally drafted, it contained 395 Articles and Eight Sched-
ules and was submitted to the President of Constituent Assembly Dr
Rajendra Prasad on 3rd Nonvermber 1949.
12. C.A.D. Vol. XI at p. 995
 79

no special rights which are not to be given or which are not to be exer-
cised by the citizen in his individual capacity. The editor of a press oi
the manager are all citizens and, therefore, when they choose to write
in newspapers, they are merely exercising their right of expression ana
in my judgement, therefore, no special mention is necessary of the free-
dom of press at all/*^

The freedom of speech and expression as enshrined under Ar-

ticle 19 (1)(a) unlike other freedoms guaranteed under Article 19 was
not made subject to the reasonableness of restrictions. The omission OT
the world ' r e a s o n a b l e ' in Article 19(2) conferred wide powers upon the
government leaving little scope for the courts to struck down the re-
striction even if the same was disproportionate than required.

However,The Constitution (First A m e n d m e n t ) Act, 1951,was

made to remove difficulties arising Out of Supreme Court's decisions in
Brij Bhushan and Romesh Thappar cases. The amendment beside re -
arranging the provision dropped the words ' l i b e l ' and slander' but in-
cluded other grounds namely public order, friendly relations with for-
eign states and incitement to an offence and also included the words
"reasonable" and "in the interest of" before the restrictions. Thus, the
amendment clearly brought out the intention of legislatures to empower
the High Courts and the Supreme Court to interfere whenever the free-
dom is encroched on any ground not included under Article 19 (2),and
protect this cherished freedom of the citizens.

13. C.A.D. Vol VII at p. 780

 80

The provision was again amended by Constitution (sixteenth

Amendment) Act, 1963 which added one more ground ie. "the sover-
eignty and integrity of India" in clause (2) of Article 19. And presently
Article 19 run as following -

"19 (1) All citizens shall have the right-

(a) to freedom of speech and expression

(2) Nothing in sub - clause (a)to clause (1) shall affect the operation
of any existing law, or prevent the state from making any law, m
so far as such law imposes reasonable restrictions on the exer-
cise of right conferred by the said sub - clause in the interests ol
the sovereignty and integrity of India, the security of the state,
friendly reltions with foreign states, public order, decency or mo-
rality, or in relation to contempt of court, defamation or mcitemenl
to an offence"
 81

SCOPE OF THE FREEDOM

Constitution of India was enacted, adopted and given to them-

selves by the people of India with a view to constitute India into a sovereign
democratic republic and to secure among other things, liberty of thought and
expression for all its citizens.''^

Article 19 contained in part III of the Constitution guarantees the free-

dom of speech and expression into following words.
Article 19 (1) "All citizens shall have the right

(a) to freedom of speech and expression

(2) Nothing in sub-clause (a) of clause(1) shall affect the operation of any
existing law, or prevent the state from making any law. in so far as
such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interest of sovereignty and
integrity of India, the security of the state, friendly relations with for-
eign states, public order, decency or morality, or in relation to con-
tempt of court, defamation, or incitement to an offence".

A plain reading of Article 19 makes it clear that unlike American Con-

stitution, our Constitution does not contain any guarantee of freedom of press

14. Preamble to the Constitution of India

>
 82

in express terms. The discussion on the Article 1 9 " in the Constituent As-
sembly as well as judicial decisions, however ""^ have proved it beyond any
doubt that the f r e e d o m of press is included in the right to freedom ot
speech and expression.

Article 19, therefore, on the one hand guarantees the freedom of press
but simultaneously, also places reasonable restrictions on the exercise of
this right on the grounds mentioned under Article 19(2). The freedom of press,
thus isnot absolute under Article 19(1)(a) and may be curtailed on the grounds
mentioned under Article 19(2).

Apart from the restrictions which may be placed under Article 19(2)^
the right may be taken away, completely under Article 358 when a
Proclaimation of Emergency is in force. Therefore, for the better understand-
ing of the subject the study may be undertaken as following.
(A) Freedom during peace time; and
(B) Freedom during emergency.

15. The Article was numbered as Article 13 when Drafting Committee presented
it before the Constitution Assembly. It appeared as Article 19 only in the
final Draft Constitution. On 4th Nov. 1948 Dr. Ambedkar. Chairman of Draft-
ing Committee of the Constitution made it clear that the right to freedom of
speech and expression includes the press when some members wanted to in-
clude an express provision guaranteeing the said freedom
16. Right from the Romesh Thappar (AIR 1950 S.C. 124) to Auto Shankar Case
(AIR 1995 S.C. 264) the Supreme Court repeatedly asserted that Article 19
(1)(a) includes the freedom of press.
 83

During Peace Time

The freedom of press as Article 19 (l)(a) envisages, like any other

freedom guaranteed under part llird of the Constitution, is not absolute but
is subject to certain limitations that can be imposed by law. The test to as-
certain whether in a given case the freedom of press has been violated,
is to see whether press is restricted unreasonably by the state action
before or after the publication.

In Romesh Thappar''^ and Brij Bhushan's''® cases the scope of Article

19(1)(a)was raised, for the first time, before the Supreme Court.

In the former case the entry and circulation of a journal "Cross Roads"
printed and published in Bombay, was banned into the State of Madras un-
der Sec 9(1-A) of Madras Maintenance of Public Order Act, 1949 And in
latter case an order was issued under Sec 7(1 )(c) of East Punjab Public
Safety Act, 1949, which required from the editor printer and publisher of the
weekly "organiser" published from Delhi, to submit for scrutiny before publi-
cation all matters i.e. news, views, caricatures etc. relating to Pakistan ex-
cept those provided by the official sources.

Both the orders were challenged before the Supreme Court as viola-
tive of Article 19(1 )(a) of the Constitution.
17. AIR 1950 SO. 124
18. AIR 1950 SO. 129
 84

The Supreme Court held that there can be no doubt that freedom of
speech and expression includes freedom of propagation of ideas and that
freedom is ensured by freedom of circulation. Liberty of circulation is as es-
sential to that freedom as the liberty of the publication. Indeed without circu-
lation the publication would be of little value.

The Court in the later case too, expressed the similar views referring
the Blackstone's Commentaries which say that, "Liberty of the press consists
in laying no previous restraint upon publications and not in freedom from
censure for criminal matter wlien published. Every freeman has undoubteo
right to lay what sentiments he pleases before the public; to forbid this is to
destroy the freedom of the press". Consequently in both the cases orders
interfering with the freedom of press were struck down

It was in Express Newspaper Case"*^ when Supreme Court for the first
time considered in detail the constitutional position regarding the liberty of
the press. In this case validity of working Journalists Act, 1955, was chal-
lenged. The Act was enacted to regulate condition of service of persons
employed in newspaper industry e.g. payment of gratuity, hours of work, leave,
fixation of wages etc. It was contended that the Act would adversely affect
financial position of newspaper which might be forced to close down or ana
curtail circulation and thereby narrow the scope for dissemination of infor-
mation and hence violative of Article 19(1 )(a).

Supreme Court, in the paucity of authority in India of precedents, made

reference to American Cases. After a survey of such cases the Court summed
up that in U.S.A;
19. AIR 1958 SO. 578
 85

(a) The freedom of speech comprehends the freedom of the press and the
freedom of speech and press are fundamental personal rights of the
citizens;
(b) The freedom of press rest on the assumption that the widest possible
dissemination of information from diverse and antagonistic source is
essential to the welfare of the public;
(c) Such freedom is the foundation of free government of a free people;
(d) The purpose of such guarantee is to prevent public authorities from
assuming the guardianship of the public mind; and
(e) The freedom of the press involves freedom of employment or non-
empioyement of the necessary means of exercising this right or in other
words, freedom from restriction in respect of employement in the edi-
torial force.

Applying the aforesaid test, the Court said "the necessary corollary
thereof is that no measure can be enacted which would have the effect ot
imposing a pre-censorship curtailing the circulation or restricting the choice
of employement or unemployement in the editorial force. Such a measure
would certainly tend to infringe the freedom of speech and expression ana
would, therefore, be liable to be struck down as unconstitutional".

The Supreme Court on the point of taxing a newspaper industry said

that while no immunity from general laws can be claimed by the press ii
would certainly not be legitimate to subject the press to laws which take away
or abridge the freedom of speech and expression or which would curtail
circulation, or fetter its freedom to choose its means of exercising the right,
or would undermine its independence by driving it to seek government aid
Laws which single out the press for laying upon it excessive and prohibitive
 86

burden which would restrict the circulation, impose a penalty on its right to
choose the instrument for its exercise or to seek an alternative media, pre-
vent newspaper from being started and ultimately drive the press to seek
government aid in order to survive, would, therefore, be struck down as
unconstituional.^

In Hamdard Dawakhana V. Union of India^"*. The Constitutional validity

of Drug and Magic Remedies (Objectionable Advertisement) Act, 1954 was
considered by the Supreme Court under Article 19(1 )(a).

The Parliament had enacted the aforesaid law in order to control the
advertisement of drugs in certain cases and to prohibit them for certain pur-
pose of remedies alleged to possess magic qualities. Sec.3 (d) empowerea
the government to add any disease under Sec.3 " . And Sec. 8 of the Act
empowered the seizure and detention of documents, article or things which
in view of the prescribed authority were in contravention of the Act. " I t was
challenged on the ground that the restriction on the advertisement was a
direct infringment of the freedom of speech and expression guaranteed by
the Constitution.

The Court said that when a provision is challenged as violating a fun-

damental right, it was necessary to ascertain its true nature and character
exploring the history it observed "The object of the Act was to prevent
self-medication and self treatment by prohibiting instrument which may
IJQ. Id at p.p616-17
21. A.I.R. 1960 SO. 554
22. Sec. 3 - " Subject to the provisions of this Act no person shall take any part in
publication of any advertisement referring to any drug Contd;
 87

be used to advocate them or which tended to spread the evil, and not merely
to stop all advertisements offending against morality and decency". As to the
general nature of the advertisements the Court stated that an advertisement
was no doubt a form of speech and expression, its true character was re-
flected by the objects for the promotion of which it was employed. It is only
when an advertisement was concerned with the expression or propagation of
ideas that it could be said to relate to the freedom of speech. And therefore
when it took the form of a commercial advertisement which had an element
of trade or commerce it no longer fell within the concept of freedom of speech
for the object [(of Article 19 (1)(a)] was propagation of ideas social, political
or economic or furtherance of literature or human thought; but in the present
case it was the commendation of efficacy, value and importance in treatment
of particular disease by certain drugs and medicines.

Therefore, in every case one had to see what was the nature of adver-
tisement and what activity is falling under Article 19(1 )(a) it sought to

Contd: in terms which suggests or are calculated to lead to the use of that drug for
(d) The diagnosis, cure, mitigation, treatment or prevention or any veneral disease
or any other disease or condition which may be specified in rules made under this
Act."
This rule making power is provided under Sec 16 of the Act which provide that-
1. The Central Government may by notification in official gazette, make rules for car-
rying out the purpose of this Act.
2. In particular and without pre-judice to the generality of foregoing power such rules
may -
a) Specify any disease or condition to which the provisions of Sec 3 shall apply;
23. Sec 8 of the Act provides "Any person authorised by the State Government,in this
behalf may, at any time seize and detain any, document, article, or things which
such person has reason to believe contains any advertisement which contravenes
any of the provisions of this Act and the court trying such contravention may direct
that such document (including all copies thereof), article or thing shall be forfeited
to the Government.
NOTE - The aforesaid provisions have been amended since then by the Amend-
ment Act (42 of 1963).
 88

further ^*. The advertisement of prohibited drugs and commodities of which

the sale was not in the interest of general public could not be regarded as
speech so as to fall within the concept of 'freedom of speech' under Article
19(1 )(a). However the court found Sec 3(a) of the Act which empowered the
government an impermissible delegation of legislative power and Sec 8^ im-
posing unreasonable restrictions as violative of Article 19(1)(a) and apply-
ing the doctrine of severablity struck down those provisions.

In Sakal Paper V. Union of India " t h e newspaper was started in 1932

and it claimed that its circulation was 52000 copies on week days and 56000
copcies on Sundays in Maharashtra. The daily edition of the newspaper con-
tained six pages a day for five days. This edition was priced at 7 paisa. The
Sunday edition consisted 10 pages and price at 12 paisa. about 40% of the
space in the newspaper was covered by advertisements.

The Newspapers (Price and Page) Act, 1956 and Daily Newspapers
(Price and Page) order, regulated the price and pages of the newspaper Sec
3 of the Act empowered the Government of India to regulate the price ana
pages of the newspaper in relation to their size, prescribe the number of
supplements to be published and prohibit the publication and sale of news-
paper in contravention of any order made under Sec. 3 of the Act^^.

24. Supra note (21) at p. 563

25. AIR 1962 S.C. 305
26. Sub - Sec (I) of Section 3 empowers the Central Government, to regulate the price
of newspapers in relation to their pages and sizes if it is of opinion that it is neces-
sary to do so for the purpose of preventing unfair competition among newspapers
and in particular those published in Indian Languages. It also empowered the
government to regulate the allocation of space to be alloted for advertising matter
 89

The Act also provided the size and area of advertisement matter in
relation to other matters contained in the newspaper. It was challenged be-
fore the Supreme Court as violative of Article 19(1)(a).

It was contended on behalf of the petitioner that an increase in the

price without increase in number of pages would reduce the circulation on
the other hand any decrease in number of pages would reduce the column
space for news, views and ideas.

The respondent took the plea that the petitioner can increase the space
for news by revising the prices and it would not adversely affect the circula-
tion of the newspaper and thus not violative of Article 19(1 )(a).

Delivering the judgement, Mudhalkar, J; observed that, "effect of the

commencement of the impunged Act and coming into force the order woulo
certainly be that a newspaper which had a right to publish any number oi
pages for carrying it's news and views would be restrained from doing so
except upon the condition that it would have to raise the selling price as pro-
vided in the schedule to the order." The learned judge emphasised the im-
portance of the propagation of ideas, news and views when he said that.
"The right to propogate one's idea was inherent in the concept of freedom of
speech and expression. For the purpose of propagating his ideas every
citizen had a right to publish them, to disseminate them and to circulate
them." Further, the fixation of the minimum price for the number of pages
which a newspaper was entitled to publish was obviously not for ensuring a
reasonable price to the buyers of newspapers but for expressly cutting down
 90

the circulation of some newspapers by making the price so unattractively

high for a class of its readers as was likely to deter it from purchasing such
newspaper, and thereby hampered the free propagation of ideas and thus
violated the freedom."

On the contention raised on behalf of the government that the object

of the propagation of ideas could be achieved by reducing the advertise-
ments in the newspapers. In other words the newspaper would be able to
devote more space for news and views if they reduce the advertisements
The Court while rejecting the argument held that if the area for advertise-
ment was curtailed the price of the newspaper would be forced up. If that
happened the circulation of the newspaper would inevitably go down This
would be no remote but a direct consequence of curtailment of advertise-
ment^^. He was of the view that, "The advertisement revenue of a newspaper
was proportionate to its circulation. Thus the higher the circulation of a news-
paper the larger would be its advertisement revenue. So if a newspaper with
a high circulation were to raise its price its circulation would go down and
this inturn would bring down the advertisement revenue. It would create a
vicious circle where a newspaper would be left with no option but to closure
of the newspaper. If on the other hand the space for advertisement was
stated to be to prevent 'unfair' competition, it was thus directed against cir-
culation of newspaper. When a law was intended to bring about this result,
there would be a direct infringement of the right of freedom of speech and
expression.^" To determine the constitutionally protected areas of press freedom
the Court talked of "essential part" of freedom of speech and expression but failed
to disclose as to what constitute this"essential part" and how it is to be determined?
The Court remained trapped in the language of 'direct and inevitable effect' and

wanted to prevent "excessive and prohibitive" burden upon the press.

27. Supra note (25) at p. 313
28. Ibid
 91

Once again the validity of price and size of a newspaper was raised m
Bennett Coleman V. Union of India." Due to the shortage of indigenous news-
print in India, it has to be imported from foreign countries. But as country's
foreign exchange position was not good, a liberal import of newsprint was
not possible to fulfill India's newsprint requirement. In order to achieve that
goal some rules were laid down by the Government of India as Newsprint
Policy for 1972-73. The new import policy was contained in the Newsprint
Control Policy (1972-73), effectuated by the Newsprint Control Order 1972
passed under Section 3 of Essential Commodities Act. The main features of
the impunged policy which was under consideration were:

(a) No newspaper or a new edition be started by a common ownership

even within authorised quota of newsprint;
(b) The maximum number of pages were limited to ten and no adjustment
was permitted between circulation and the pages so as to increase the
pages;
(c) no interchangeability was permitted between different papers of com-
mon ownership units or different editions of the same paper; and
(d) allowence of a twenty percent increase in the page level up to maxi-
mum of ten had been given to newspapers with less than ten pages

The policy was chanllenged as violative of Article 19(1 )(a) of the Con-
stitution.

The government contended that the newprint policy did not "directly
and inevitably" deal with the right mentioned in Article 19(1 )(a). And that
29. AIR 1973 SO. 106
 92

incidental restrictions of newsprint quota policy for newspaper did not con-
stitute any violation of freedom of speech and expression.

It was observed by Justice Ray, delivering the majority opinion for Sikri
C.J., Reddy J, and for himself, that, "Under the policy the newspaper within
the ceiling often pages could get 20% increase in the number of pages They
required circulation more than the number of pages. They were denied the
circulation, on the other hand the big English dailies which needed to in-
crease their pages were not permitted to do so. These features were noi
newsprint control but really newspaper control in the guise of equitable distri-
bution of newsprint. Where a quota is fixed newspaper control could be saia
as post-quota restrictions. The freedom of press is both ^qualitative' and ^quan-
titative'; the freedom guarantees both ^circulation' and ^content '^° The news-
paper must be left free to determine their pages, their circulation, and their
new editions within their quota of what has been fixed fairly.^'^

The Court further observed that,"The individual requirements of the

different dailies render it entirely desireable in some cases to increase the
number of pages than circulation. Such adjustment was necessary to main-
tain the quality and the range of the readers in question. The denial of such
flexibility would hamper the quality, range and standard of the dailies and to
affect the freedom of speech. Therefore, the restrictions on the petitioners
that they could use their quota to increase circulation but not the page num-
ber was violative of Article 19(1 )(a)."

30. Id at p. 130

31. Id at p. 129
 93

It was also pleaded by the government that reduction to page level to

ten pages was not only because of shortage of newsprint but also because
the big newspaper devoted high percentage of space to the advertisements
and if the same is curtailed the adjustment could be made where news ana
views would not suffer. Rejecting the argument Ray, J., (As he then was)
pointed out that advertisements are not only the source of revenue but also
one of the factors for circulation. Once circulation is lost, it would be very
difficult to regain its old level. Because as a cut in page level the space for
advertisement would be less, and this will affect the financial position of the
press on the other hand if advertisements are not sacrificed it will leave not
enough place for news and views. But the loss of advertisement not only
entail the closing down but also affect the circulation and consequently im-
pinge on freedom of speech and expression.

Another issue raised on behalf of the government was that the peti-
tioners were companies, and therefore, could not claim any protection under
Article 19(1){a). Rejecting the contention the Court held that, "No doubt a
corporation can not enjoy the freedom guaranteed under Article 19(1)(a).
nevertfieless the editor, printers and publishers or the share holders all are
citizens and in that capacity they werp entitled to enjoy the freedom."

The government further pleaded that the impunged legislation would

be able to break the monopolistic nature of the press and to create an open
society where there would be a greater freedom of speech and expression
Justice Ray, however rejected the argument even without really considering it

The Court, thus took the view that any rule or policy which seeks
to regulate newspaper publication by eihter fixing the price or the size
 94

of the newspaper having the affect of hampering the growth of press is

violative of Article 19(1)(a) of the Constitution.
Thus, Ray J. adopted the 'broad effect theory* that is what in substance
is the loss or Injury caused to the citizen and alongwith the manner and method
adopted by the State in placing restrictions.
Mathew J. in his dissenting opinion went into wider policy implications
and approved the policy of the Government. In his view ten pages were suf-
ficient to express its views and publish the news and that the petitioners
moved to the Court not because their freedom was abridged , but because
they were deprived of a part of revenue earned by them as profit from com-
mercial advertisements.
The issue of taxing a newsprint industry once again was raised before
the Supreme Court in Indian Express news paper V. Union of India ^^ where
the import duty was imposed under Sec. 25 of the Custom Act, 1962 ^^
The petitioner contended that imposition of such duty has the direct
effect of crippling the freedom of speech and expression guaranteed by the
Constitution as it has led to increase in the price of newspaper and inevi-
table consequence of reduction of their circulation.
Venkataramiah J., for himself, Chinnappa Reddy and A.P.Sen J J con-
sidered thoroughly the question of freedom of press vis-a-vis the state's power
of taxation. Referring various decisions from American Supreme Court and
other literature on the subject, the Court said that, "Newspaper industry en-
joys two of the fundamental rights namely the freedom of speech and ex-
pression guaranteed under Article 19(1 )(a) and the freedom to engage in
any profession, occupation, trade or business, guaranteed under Article
32. AIR 1986 SO. 515
33. Sec 25 (1) of the Custom Act, 1962 provides that, "If the Central Govt, is satisfied
that it is necessary in the public interest to do so, it may by notification in the Offical
Gazette, exempt generally either absolutely or subject to such conditions (to be
fulfilled before or after clearance) as may be specified description from the whole
or any part of the duty of customs leviable thereon."
 95

19 (1) (f), the first because it is concerned with the field of expression
and communication and second because of communication has become an
occupation or profession while there can be no tax on the right to exercise
the freedom of expression, tax is leviable on profession, occupation, trade,
business and industry. Hence, tax is leviable on the newspaper industry"
However, the Court also made it clear that, "When such tax transgress into
the field of freedom of expression and stifles that freedom, it becomes un-
constitutional. As long as it is within reasonable limits and does not impede
freedom of expression, it will not be contravening the limitation of Article 19(2).
The delicate task of determining when it crosses the area of profession, oc-
cupation, trade, business or industry into the area of freedom of expression
and interferes with freedom is entrusted to courts ^*.

On the question of advertisements Supreme Court examined its ear-

lier decisions alongwith the American Case law. Reiterating that though the
commercial advertisement do not form part of freedom of speech and ex-
pression, the court observed that, "It is no doubt true that some of the obser-
vations made in Hamdard Dawakhana case go beyond the need of that case
and tend to affect the right to publish all commercial advertisements." "The
Supreme Court, therefore, expressed the view that all commercial advertise-
ment can not be denied the protection of Article 19(1)(a) merely because
they were issued by the businessmen.

34. Supra note (32) at p.p. 538 - 39

35. Id at p. 548
 96

The Supreme Court's view seems to be that though the commercial

advertisements vy^ere not the part and parcel of the right guaranteed
under Article 19(1)(a), nevertheless that right could not be denied to
the advertisements if they directly affect the right by raising price or
curtailing circulation, unless they fall under Article 19 (2).

The question of levying a tax on newpaper was once again be-

fore the Supreme Court for its consideration in Printers (Mysore) Ltd
V.Asstt. Commercial Tax Officer.^^The facts of the case are following -
Before the amendment of the definition of the expression goods" in
Section 2 ( d ) " by the 1958 (Amendment) Act, the publisher of newspa-
pers [Who held the certificate of registration contemplated under Sec
8(3)(b)]^'were issuing Farm ' C [a declaration under section 8(4)(a)]^^
and on that basis the selling dealer was c o l l e c t i n g from them the
C e n t r a l Sales Tax at the concessional rate of 4% (in case of non declared
goods). After the amendment newspapers were excluded from the perview

36^ (1994) 2 S.C.C. 434

37. Sec 2-ln this Act, unless the context otherwise requires
(d) "good" includes all materials, articles, commodities and all other kinds of
movable property, but does not include newspaper, actions, claims, stokes,
shares, and securities;
38. Section 8(3). The goods referred to in clause (b)
(b) are the goods of class or classes specified in the certificate of registration of
the registered dealer purchasing the goods as being intended for resale by
him or subject to any rules made by Central Govt, in this hehalf, for use by
him in the generation or distribution of electricity or any other form of power
39. Section 8 (4) provides - provisions of sub-section (1) shall not apply to any
sale unless the selling dealer furnishes to the prescribed authority in the
prescribed manner a declaration duly filled and signed by the registered
dealer to whom the goods are sold containing the prescribed particulars in a
prescribed form obtained from the prescribed authority.
 97

of the goods. Thereafter the newspapers were disabled from issuing

Farm'C'hence they became liable to pay tax at the higher rate of 10% on
goods (non declared goods) purchased by them as raw material for produc-
ing (manufacturing) their newspapers. The publishers of the newspaper, there-
fore, questioned the action of Central Sales Tax Authorities before different
High Courts who expressed different opinion. Finally the matter was brouhgt
before the Supreme Court.

The Court w h i l e developing a new approach and taking into ac-

count the spirit of the amendment of the definition "goods" rather than
the form of law prescribed therein concluded that no sales tax can be
imposed on the sale of newspaper in the country. The Court, neverthe-
less, made it clear that it does not mean that the press is immune ei-
ther from taxation or from the general laws of industrial relations or
from the state regulation of the condition of service of its employees
Nor is it immune from the general law of the land. The prohibition is
upon the imposition of any restriction directly relatable to the right to
publish, the right to disseminate information and to the circulation of
newspaper.*"

In Express Newspapers Pvt. Ltd. V. Union of India *\ The petitioners

were engaged in the business of printing and publishing the national news-
paper Indian Express (Delhi Edition) from the Express building constructed
at plot no's 9 & 10 Bahadur Shah Zafar Marg. New Delhi, held through a

40. Supra note (36) at p. 442

41. AIR 1986 S.C. 872
 98

perpetual registered lease under Sec. 3 of Government Grants Act 1895 *^ in the
year 1958 from Union of India. In the year 1980, petitioners received a no-
tice of re-entry upon forfeiture of lease for violating the terms of the lease
deed. Another notice was served upon them to show cause as to why the
Express building should not be demolished (Under Sec. 343 & 344 of D.M.C
Act, 1957) as being unauthorised construction.

The contention of the petitioners was that impunged notices directly

constitute violation of Article 19(1 )(a) of the Constitution.

The apex court allowing the plea held that, "the impunged notices of
re-entry upon forfeiture of lease and the threatened demolition of Express
building are intended and meant to silence the voice of the Indian Express
and, therefore, the impunged notices constitute a direct and immediate threat
to the freedom of the press and thus are violative of Article 19(1)(a)."*^The
Court reminded that "the permissible restrictions on any fundamental right
guaranteed under part III of the Constitution have to be imposed by a duly
enacted law and must not be excessive ie. they must not go beyond what is
necessary to achieve the object of the law under which they are sought to be
imposed". The Court further observed the power to impose the restrictions
on fundamental rights is essentially a power to 'regulate' the exercise of those
rights and not to 'extinct' those rights.

42. Sec. 3 provides that - All provisions, restrictions, conditions and limitations
contained in any such grant or transfer as aforesaid shall be valid and take
effect according to their tenor, any rule of law, statute or enactment of the
legislature to the contrary notwithstanding.
43. Supra note (41) at p. 909
 99

The issue before the Supreme Court in Reliance Petrochemical Ltd V

Indian Express Newspapers Bombay ** was to what extent press is free to
report on the matters of public importance pending before the Court. The
Reliance Petrochemicals Ltd; the petitioner company issued the Public Is-
sue of 12.5% Secured Convertible Debentures of Rs 200/- each for cash at
par aggregating to Rs 539.40 crores (inclusive of retention of 15% excess
subscription of Rs 77.40 crores). It was claimed by the petitioner that the
debentures were issued after obtaining the consent of the Controller of Capital
Issues on the basis of schedule indicated therein, and after complying with
all the requirements of the Companies Act and otherwise.

Several writ petitions were filed in different High Courts challenging

the validity of the grant of consent or sanction for the issuence of aforesaid
debentures. The petitions were transferred to the Supreme Court and an
order was made that the, "Issue of Secured Convertible Debentures be pro-
ceeded with, without let or hindrance, notwithstanding any proceeding insti-
tuted or may be instituted before any court or tribunal or other authority
alongwith the order that any direction, order or injunction of any court, tribu-
nal or any other authority which had already been passed or may be passed,
the operation of the same, is suspended till further orders of this Court "

Later on the respondents published an article claiming that the Con-

troller of Capital Issues had not acted properly and legally in granting the
sai.ction to the issue for various reasons stated therein and it was further
stated that issue was not a prudent or a reliable venture.

il A.I.R. 1989 SO. 190

 100

The petitioner contended that the said article by commenting on a

matter which is sub-judice amount the contempt of court and prayed that the
respondents be prohibited from publising any other article or material on the
subject. The Court issued an order of injunction, restraining all the
respondents from publishing any article, comment, report or editorial in any
of the issues of Indian Express or their related publication questioning the
legality or validity of any of the consents, approval or permissions of control-
ler of Capital Issues. Later on the respondents approached to the Supreme
Court for the vacation of its order.

The plea raised on behalf of the respondents was that the pre-stop-
page of newspaper article or publication on matters of public importance
was uncalled for and contrary to the freedom of press enshrined in our Con-
stitution. On the other hand it was also true that the administration of justice
must be unimpaired. Therefore, the Court was required to balance between
the two interests of great public importance that i.e. freedom of speech and
administration of justice.

The Supreme Court while ignoring the contempt application due to

procedural infirmity, adopted the balancing approach and as the issue had
already been over subscribed even before the expiry of last date vacated the
order and held that issue is not going to affect the general public nor any
injury is involved, it would be proper and legal, on an appraisal of ttie bal-
ance of convenience between the risk which will be caused by the publi-
cation of the article and damage to the fundamental right of freedom of knowl-
edge of the people concerned and the obligation of the press to keep people
informed that the injunction should not keep continue any further^^. Misra, J.
45. Id at p. 203
 101

in his concurring opinion held that press may be prevented from publishing
any material (Article, Report, News) in case if the publication had the ten-
dency to defeat the earlier order but only till the time it is necessary and not
beyond that period. Thus in the opinion of the Supreme Court once the commer-
cial interest of the party is protected even before the expiry of deadline, the press
could not be restrained from expressing its views till the date of closure of issues
In L.I.C. of India V. Manubhai D. Shah.*^Supreme Court was provided
with another opportunity regarding the scope of right in respect of a citizen
guaranteed under Article 19(1){a). An executive trustee (The respondent) of
the Consumer Education & Research Centre (C.E.R.C) Ahmedabad, after
undertaking research into the working of Life Insurance Corporation pub-
lished a study paper captioned "A Fraud on Policy Holders - A Shocking
Story." The study paper portrayed the discreminatory practice adopted by
the L L C . by pointing out that unduly high premiums were charged by L I C
from those taking out life insurace policies and thereby denying access to
insurance to a vast majority of people who can not afford to pay the high
premiums. The paper was based upon statistical information and it was widely
circulated. A member of LIC wrote a counter article "LIC and its policy hold-
ers" which was published in The Hindu, a daily newspaper refuting the alle-
gations made by the respondent. The respondent again got published a re-
joinder in The Hindu. The member of LIC then prepared and published his
own counter article in Yogakshema, a LIC house magazine. The respondent
thereupon requested the LIC to publish his own rejoinder also in the said
magazine but his request was turned down by LIC on the ground that it was
a house magazine circulated only among the subscribers who were policy
holders. The respondent filed a petition before Delhi High Court and got a
favourable verdict.
46. (1992)3S.C.C. 637
 102

Before the Supreme Court LIC raised the same plea that the magazine
was a house magazine. Rejecting the petitioners argument the Court ap-
proved the view taken by the Delhi H.C. which turned down LIC contention
that 'Yogakshema' was a house magazine and not put in the market for sale
to general public on two grounds -

(i) It is available to anyone on payment of subscription; and

(ii) members of the public are invited to contribute articles for publica-
tion *^.

The Court observed that the contention of the petitioner that the re-
joinder of respondent has become out dated and hence has lost relevance
can not be accepted as the respondent thinks that the views raised by him
regarding high premium rates were still relevant. The Court further held that
"LIC was under an obligation to publish the rejoinder since it had publishea
the counter to study paper The respondent's fundamental right clearly en-
title him to insist that his views on subject should reach those who read the
magazine so that they have a complete picture before them and not a one
sided or distorted one*^

The Court however, simultaneously made-it clear that merely because

the L.I.C. is a state and running a magazine with public funds it is not under
an obligation to print any matter that any informed citizen may forward for
publication. The view has been taken keeping in view the peculiar facts of
the case.** Stating the scope of Article 1 9 ( 1 ) (a) the Court observed that,

47. id at p. 653 - 54

48. Id at p.655
49. Ibid
 103

"It must be broadly construed to include the freedom to circulate one's views
by the words of mouth or in writing or through audio-visual instrumentalities
It, therefore, includes the right to propagate one's views through the print
media or through any other communication channel e.g. the radio and the
television. Every citizen of this free country, therefore, has right to air his or
her views through the printing and/or the electronic media subject of course
to permissible restrictions imposed under Article 19(2) of the Constitution'°
The immense value of the verdict lies in the fact that it recognised the qualified
privilege of respondent's right to reply.

Once again whatever the Indian Express case has forcefully hinted,
TATA Press Ltd V. Mahanager Telephone Nigam Ltd. brought out in express
terms that a commercial speech is protected under Article 19(1)(a).*'' The
Mahanagar Telephone Nigam Ltd. under rule 458 made under section 7 ot
the Indian Telegraph Act was the sole authority to publish the telephone di-
rectory. Later on when under rule-458 it entrusted the work of printing the
telephone directory to private parties, it allowed them to publish the adver-
tisements under rule 459 in order to meet out the cost of the directory.
The appeallant was also publishing Tata-Pages, a buyers guide com-
prising of a compilations of advertise-ments given by businessmen, traders,
professionals duly classified according to their trade business or profession
alongwith their telephone numbers.
The publication of Tata-Pages was challenged as contrary to the rule
457, and 458 and 459 of the Indian Telegraph Rules 1957 made under sec-
tion 7 of Indian Telegraph Act 1885."

50 id at p. 656
51. A.I.R. 1995 S.C. 2438
52. Rule-458- Except with the permission of the Telephone Authority no person shall
publish any list of telephone subscribers.
Rule-459 "The Telehone Authority may publish or allow the publication o1
advrtisements in the body of telephone directory.
 10^

It was contended on behalf of the appeallant that the said rules were
violative of Article 19(1)(a) as the right to commercial speech is protected
under the aforesaid provision of the Constitution.
The issue before the Supreme Court was whether Tata-Pages was a
telephone directory within the meaning of Rule 458 or was a Buyers Guide in
a broader constitutional aspect and whether "commercial advertisement" fall
within the concept of "freedom of speech and expression" guaranteed under
Article 19(1)(a) of the Constitution.
The Court took into the consideration its earlier verdicts and concluded
that "commercial speech" is a part of freedom of speech and expression guar-
anteed under Article 19 (1) (a) of the Constitution. Examining the aspect
from another angle it observed that "the public at large tias a right to receive
the commercial speech. Article 19(1)(a) not only guarantees freedom oi
speech and expression, but it also protects the right of an individual to listen.
read and recieve the said speech. So for as the economic needs of the citi-
zens are concerned, their fulfilment has to be guided by information dissemi-
nated through advertisements. The protection of Article 19(1)(a) is available
to the speaker as well as to the recipient of the speech."^^

Making difference between appeallant and the respondant's directo-

ries, the Court said that the former's was a Buyer's Guide while latter's was a
telephone directory having a certain format and criterion different from
appeallant's.
The judgement is bound to give further boost to the freedom of press
by enabling it to reach a large number of people as the additional revenue
generated through the advertisements would help in reducing the price ot
the newspapers. The present position, therefore, is that even an advertise-
ment which is purely commercial in nature is protected under Article 19 (1 )(a)
sz. ibid
 105

and the press could not be prevented to publish such an advertisement unless it
falls under clause (2) of Article 19 of the Constitution.
 106

PERMISSIBLE RESTRAINTS:

e foregoing discussion gives a general impression that whenever

the Supreme Court has been approached, to pretect the freedom of Press, it
has responded favourably. But simultaneously the Supreme Court made it
clear that a freedom however important, may never be an absolute dogma
In Express Newspapers V. Union of India, Sen J., rightly observed that, "How-
ever precious and cherished the freedom of speech is under Article 19(1) (a),
this freedom is not absolute and unlimited at all times but is subject to the
restrictions. That must be so because unrestricted freedom of speech ano
expression which includes the freedom of press and is wholly free from re-
straints, amount to uncontrolled licence which would lead to disorder ano
anarchy and it would be hazardous to ignore the vital importance of our so-
cial and national interest in public order and security of state.""

The Costitution under Article 19(2) itself provides for the restrictions
which may be imposed upon the press. Let us examine these restrictions

54. Supra note (41) at p. 909

 107

Sovereignty and Integrity of India

e ground sovereignty and integrity of India was inserted to clause

(2) to Article 19 by the Constitution (16th Amendment) Act, 1963, on the
recommendations of the Committee on National Integration and Region-
alism. The amendment conferred powers on the government to impose re-
strictions against those individuals or organisations who want to make se-
cession from India or the disintegration of India. India is a federation of states
and being union it is indestructible. Though the country and the people may
be divided into different states for the convenience of administration, the
country is one integral whole; its people a single people living under a single
imperium derived from a single source. Accordingly, any expression prejudi-
cial to the sovereignty and integrity of India may be punished by law whose
constitutionality can not be jeopardised because of the new ground of re-
striction.

Though any judicial pronouncement by the apex court is yet to come

but in a significant judgement by the Andhra Pradesh High Court", where
the registration of the 'Telugu Desam' party with the election commission
was challenged under sec. 123 of Representation of People Act and particu-
larly sub-clause (6) to clause (3) of Election Symbols (Reservation and Allot-
lotment) order, 1968 ^ On the ground that the name of the party tends to

55. V.R.V. Sree Rama Rao V. Telgu Desam a Political Party AIR 1984 A.Pat
p.353
56. Sec. 123 (3) of Representation of People Act provides. "The appeal by a
candidate or his agent or by any other person Contd:
 108

propagate secessionist tendency by the use of the word "Desam" and it is

bound to go contrary to the preservtion and maintenance of sovereignty and
integrity of India as envisaged by Article 19(2) of the Constitution.

The Andhra Pradesh High Court however, did not accept this conten-
tion and held that naming the party as "Telgu Desam" did not violate Article
19(2) of the Constitution or any law. It expressed the view that since Telgu is
one of the fifteen official languages in the state and happens to be language
of the majority of the people in Andhra, any party such as Telgu Desam Party
which emphasises linguistic character of the state can not be deemed to be
acting contrary to the intendment of the Constitution including Article 19(2)
thereof. An appeal for the all round development of Telgu language can not
be deemed to be antinational or an activity calculated to disrupt the integrity
or sovereignty of India as envisaged by Article 19(2) of the constitution.

The judgement of the Court seems not to be consistent with section

123(3) of R.P. Act, 1951, though there is no doubt that an appeal to the ail
round development could not be deemed to be anti-national yet the same
appeal would form a corrupt electoral practice by seeking vote on the ground
of language (very cleverly in the guise of development of a language which
is constitutionally recognised), under the aforesaid provisions of the Repre-
sentation of People Act, 1951. The decision of the Court is not laudable on
the issue of corrupt practices under the Act.

Contd: with the consent of the candidate or his election agent to vote or refrain
from voting on the ground of his religion, race, caste, community or language or the
use of, or appeal toreligioussymbols or the use of or appeal to national symbols
such as the national flag or the national emblem, for the furtherence of the pros-
pects of the election of that candidate or for prejudicially affecting the election of
any candidate.
 109

Security of State

"Sthe original Article 19(2) as enacted by the Constituent Assembly in-

cluded the words "undermines the security of, or tends to overthrow the state".
But when the First (Constitutional Amendment) Act, 1951 amended the afore-
said Article, it beside deleting as well as adding few words, re-drafted the en-
tire Article 19(2) and " Security of State' was added as a ground of restriction on
the freedom of speech and expression.

The first two cases which came before the Supreme Court when the Con-
stitution was enforced were Brij Bhushan V. State of Delhi " a n d Romesh Thappar
V. State of Madras."

In Brij Bhushans case a weekly paper organiser was asked by the Chief
Commissioner of Delhi under Sec 7(1 )(c) of the East Punjab Public Safety Act,
1949''. To sumbit for scrutiny before publication till further orders all com-
munal matter and news and views about Pakistan, including photographs
and cartoons except received from official agencies. The aforesaid order
was challenged before the Supreme Court as violative of Article 19 (1 )(a)
of the Constitution.

57 Supra note 18
58. Supra note 17
59. Sec 7 (1) (c) of East Punjab Public Safety Act provided that, "The Provincial
Government or any authority authorised by it in this behalf, if satisfied that such
action is necessary for preventing or combating any activity prejudicial to public
safety or the maintenance of public order may by order in writing addressed to a
printer, publisher or editor require that any matter relating to a particular subject
or class of subjects shall before publication be submitted for scrutiny.
 110

Since there is no provision under the Constitution prohibiting prior cen-

sorship, the Supreme Court followed common law principle, it rejected the con-
tention of the State that the law was saved by Article 19(2), and said that, "There
can be no doubt that the imposition of pre-censorship on a journal is a
restriction on the liberty of the press, which is an essential part of the
freedom of speech and expression declared by Article 19(1)(a)" and held
that pre-censorship of journal fell outside the scope of constitutional provision,
and therefore, not only the order but also the law under which the order was
made, was unconstitutional.

Once again in Romesh Thappar V. State of Madras where a weekly jour-

nal Cross Roads publishd and printed from Bombay was denied entry into, or
the circulation, sale or distribution in the State of Madras under Sec. 9 (1 -A)**of
Madras Maintenance of Public Order Act 1949. The said Act was challenged as
violative of Article 19 (1) (a) of the Constitution. The Court struckdown the
impunged provision on the ground that unless the law restricting the free-
dom of speech and expression is directed solely against the undermining
the security of the state or at overthrowing it, such law could not fall within
The reservation clause (2) of Article 19 even though the restrictions it sought to impose
may have been conceived generally in the interest of public order. It further observed
that the impunged law which authorises imposition of restrictions for the wider purpose
of securing public safety or the maintenance of public order fell outside the scope of
authorised restrictions under clause (2), and was, therefore, void the unconstitutional

60. Sec 9 (1A) of the Madras maintinance of Public Order Act, 1949, authorised the
Provincial Government to prohibit or regulate the entry into, or the circulation
sale or distribution in, the province of Madras any document or class of docu-
ments for the purpose of securing the safety or the maintenance of public order
in the province.
 Ill

In both Romesh Thappar and Brij Bhushan cases the issue be-
fore the Supreme Court was the constitutional validity rather than the
executive action taken thereunder. The Court held that the expression
"public order" and "public safety" covered much voider fields than were
contemplated by the use of the words, "undermines the security of, or
tends to overthrow the state. The Court expressed the view that in many
circumstances and on most occassions a danger to public order or pub-
lic safety would also be a danger to the security of the state, but that
many acts prejudicial to public order or public safety would not be as
grave as to endanger the security of the state. The constitutional provi-
sion justifying legislative abridgement of freedom of expression would
cover only those grave offences against public order which would en-
danger the security of the state and not all offences against public or-
der.

Thus the ratio decidendi of the judgement would seem to be that

unless the danger that the exercise of the right was likely to create
would be so serious as to undermine the security of state or to tends to
overthrow it, restrictions on the right to freedom of speech and expres-
sion could not be justified.

However, the observations expressed by Fazal All J. in his dissenting

opinion could not be ignored. He while recognising the importance of the right
given to a citizen, said that liberty of press is not to be confused with its
"licentiousness". The Constitution itself has prescribed certain limits for the
exercise of the freedom of speech and expression and this Court is only called
upon to see whether a particular case comes within those limits. In my opin-
 112

ion the law impunged (East Punjab Public Safety Act, 1949) is fully saved by
Article 19(2). *'' It is, therefore, clear that in Fazal All's J. opinion the term
undermining the secutiry of or tends to overthrow the state includes "public dis-
order" though it may not be grave enough as to undermine the security or
tends to overthrow the state.

Placing emphasis on the word "solely" in the judgement, some of the

High Courts "interpreted that the impunged law would be invalid unless it
was directed solely against the freedom of speech and expression undermin-
ing the security of the state or tending to overthrow it. But later on when the
Supreme Court decided the Press Bharti Case®^ it pointed out that the deci-
sions in Romesh Thappar and Brij Bhushan have been more than once mis-
applied and misunderstood and have been construed as laying down a wide
proposition that restriction of a nature imposed by Sec. 4(1 )(a) of the Indian
Press (Emergency Powers) Act,**or of a similar character are outside the
scope of Article 19(2) of the Constitution as much as they are conceived gen-
erally in the interest of public order. The Court while upholding the constitu-
tional validity of this section, further observed that, "expression on the part
of an individual inciting to, or encouraging the commission of violent
offences like murder could not but be matters which would undermine
the security of the state or lead to its overthrow and fall within the ambit
of a law permitted by the Article 19 (2)."

61. Supra note (57) at p. 133

62. A.I.R. 1951 Pat. 12, A.I.R. 1951 Mad. 70. A.I.R. 1951 Pun. 18, A.I.R.1951,
Saura. 09
63. A.I.R. 1952 S.C. 329
64. The Sec. 4 (1)(a) of Indian Press (Emergency Powers) Act, 1931 dealt with
words or signs or visible representation which incite to, or tend to incite or
encourage the Commission of any offence of murder or any congnizable of-
fence involving violence.
 113

Explaining the difference between Romesh Thappar and the present

case, Supreme Court said that in earlier case the question was whether the
impunged Act (Madras Maintenance of Public Order Act, 1949), authorising
the Provincial Government to take certain s t e p s " t o secure the public safety
and maintenance of public order was a law relating to any matter which un-
dermined the security of or tend to overthrow the state (which in the Court's
opinion was not, as public safety and public order had wider concept than
undermining the security of or tends to overthrow the state). But the restric-
tions imposed by sec 4 (1 )(a) of Indian Press (Emergency Powers) Act,on the
freedom of speech and expression are solely directed against the undermin-
ning the security of state or the overthrow of it and are within the ambit of
Article 19(2) of the Constitution.
Thus in the light of the Supreme Court's interpretation a legislation
restricting the freedom of speech and expression in relation to incitement to
aggravated forms of prejudicial activity or commission of violent crimes like
murder which would undermine the security of the state is protected under
Article 19(2), however the same provision could not protect a legislation cov-
ering the large field of public order and incitement to crimes, not of an aggra-
vated nature and which may not undermine the security of State*®.
The Constitutional Amendment Act, 1951, not only introduced public
order as a ground under Article 19(2) but two other subjects namely friendly
relations with foreign states and incitement to an offence with retrospective
effect. In other words the amendment enalrged the sweep of legislative
abridgement of this right. In addition, the qualifying word "reasonable" was
added to the legislative restrictions. As a result of this amendment the re-
strictions to be imposed must be reasonable, which means that the courts will
be entitled to examine whether restrictions imposed by law are reasonable or
not.
65. Supra note (63)
66. J. Minattur: Freedom of Press in India at p. 44
 114

Friendly Relations With Foreign States

(-|3lt is the need of the time that in the close but disturb world of today
the friendly relations with foreign states should be established and maintained
in the national and international interest of political stability, economic devel-
opment and world peace. Therefore, this ground as reasonable restriction
was added by the First Amendment Act, 1951."

Clause (2) of the Constitution (Declaration as to Foreign States) Order,

1950 was interpreted by Supreme Court in Jagannath Sahu V. Union of In-
dia.®* The petitioner was detained under Sec. 3 of the Preventive Detention
Act, 1950 ®*as he was likely to act further in a manner pre-judicial, inter alia,
to the relations of India with foreign powers. The allegation against him was
that he used to sent for publication to a foreign newspaper despatches of
news and views containing false, incomplete, one sided and misleading in-
formation about the state of Jammu and Kashmir. These despatches were not
only pre-judicial to the Government of India vis-a-vis Pakistan but obviously
67. Under Article 367of the Constitution the word Foreign States has been defined The
Article provides that "for the purpose of this Constitution 'foreign state' mean any
state other than India, provided that, subject to provisions of any law made by Parlia-
ment, the President may by order declare any state not to be a foreign state for such
purpose as may be specified in the order."
Exercising the power as provided under Article 367, the Constitution(D6elaration as
to Foreign States) Order 1950 was issued. Clause (2) of the order provides that
"subject to a law of parliament, every country within the commonwealth would not be
foreign state for the purpose of this Constitution.
Sa. AIR 1960S.C. 625
69. Under Sec.3 of the Act the Central Govt, or the State Govt, if satisfied with respect to
any person, with a view to preventing him from acting in any manner pre-judicial to
the defence of India, the relation of India with foreign powers or the security of India,
make an order directing that such person be detained, if it thinks it necessary to do
so.
 115

to the relations of India with foreign powers in general. The detention was
challenged inter alia that Pakistan being a member of a Commonwealth is not
a foreign state within the terms of the order, and therefore, there is no ques-
tion of his acts being pre-judicial to the relations of India with foreign powers.
Rejecting the argu ment the Court expressed the view that though for the pur-
pose of the Constitution, in view of the order, Pakistan was not a foreign state
but a distinction had to be made between a country not being regarded as a
foreign state for the purpose of Constitution and that a country being a for-
eign power for other purposes. In their relations with each other and coun-
tries out side Commonwealth, the member of Commonwealth must be regarded
as foreign powers-their affairs between themseleves were foreign affairs.
Again, the expression "foreign affairs" under item 9 in list I of Seventh Sched-
ule of the Constitution includes the relation of India with foreign powers In
this context, Pakistan though a member of commonwealth, was a foreign power
for the purpose of the Act. Accordingly the order of 1950 was not applicable
in the case of the petitioner.^"

70. It was explained by Dr. Ambedakar in the Parliament when moving the
1st Amendment that it was simply the extention of another ground namely
the 'defamation' then it would cover only the heads of the states, their
families and their representatives. Again if it wanted to protect Paki-
stan from malicious propaganda by press it was not possible as in view
of Constitution (Declaration as to Foreign States) Order, 1950 it was
not a foreign state. The amendment was sharply criticised as it was felt
that the language was very wide and could be exploited for preventing
or curbing even legitimate criticism of foreign policies of Government.
This view was also supported by the Press Commission. In case if it is
an aspect of Government's foreign policy and the inclusion of this sub-
ject in Article 19 (2) tends to help the Government in silencing or re-
straining criticism of their policy, the provision can not be regarded as
being in consonance with the concept of freedom of press.
 116

PubllcOrder

^ l a r m e d by the decisions of the different High Courts in the light of

Supreme Court's judgements in Romesh Thappar and Brijbhushan cases, the
first Constitutional Amendment was made without waiting to hear from apex
court any thing about the appeals against the decisions of the High Courts.
The amendment inserted 'public order' as a ground upon which restrictions
might be imposed on the press.

In Ramji Lai Modi V. State of U.P ^^ the editor, printer and publisher of
a monthly magazine Gaurakshak v^as convicted for publishing an article with
the deliberate and malicious intention of out raging the religious feelings of
Muslims. The question before the Court was whether Sec 295-A^^of Indian
Penal Code could be supported as a reasonable law saved by Article 19(2).
The plea r a s e d on behalf of the appeallant was that the law in question had
no bearing on the maintenance of public order or tranquility and consequently
it could not claim protection of saving clause under Article 19(2). But the
Supreme Court v ^ i l e upholding the constitutional validity said that funda-
mental rights guaranteed under Articles 25 & 26 are expressly subject to
public order. It could not, therefore, be predicted that freedom of religion should
71. AIR 1957 S O . 620
72. 8.295 - A - Provide that," vi4x) soever with deliberate and malicious intention of outraging
the religious feefings of any dass of citizens of India, by words either spoken or written, or by
signs or visible represerrtations or otherwise, insults or attempts to insult tfie religious beliefs
of that dass, stiaJl be punished with imprisonment of either description for a term which
may extend to three years, or with fine, or with both."
 117

have some or no bearing whatever on the maintenance of public order or that

a law creating an offence relating to religion could not, under any cir-
cumstances, be said to have been enacted in the interest of public or-
der. Thus the Supreme Court came to conclusion that the impunged law
had a bearing on the maintenance of public order and law of the nature
of the impunged provision could be enacted in the interest of public
order. The Court further observed that the law penalises only aggra-
vated forms of insult to religion which are perpetrated with a deliberate
and malicious intention of outraging the religious feelings of a class of
citizens, when such insult have a tendency to disturb public order.

The bold and broad view expressed in Brij Bhushan's Case came
under the cloud in Virendra V. State of Punjab " where in mid 1957 a
'Save Hindi Agitation' was started in Punjab and the petitioners began
p u b l i s h i n g c r i t i c i s m s a n d n e w s c o n c e r n i n g t h e a g i t a t i o n in two
newspapers,Viz, Daily Pratap and Vir Arjun, published simultaneously
from Jullandhar and New Delhi. The first petitioner was editor, printer
and publisher of the paper published from Jullandhar and second was
editor, printer and p u b l i s h e r of the paper p u b l i s h e d f r o m New Delhi.
As t h e a g i t a t i o n g a i n e d m o m e n t u m some u n w a r r a n t e d incidents
t o o k p l a c e . The G o v e r n m e n t of Punjab, therefore, issued notifica-
tion against the first petitioner p r o h i b i t i n g him f r o m p r i n t i n g and
publishing news and o t h e r m a t t e r s r e l a t i n g to the a g i t a t i o n for a
period of two months under Sec. 2 ( 1 ) (a) of Punjab Special Powers

73. AIR 1957 S.C. 896

 118
(Press) Act, 19567*The first step was taken to combat calculated and persis-
tent propaganda carried on in the two newspapers published from Jalladar
The government also issued to the second petitioner two identical notifica-
tions under Section 3(1) of the aforesaid Act, ^* prohibiting the entry into
Punjab, of the newspaper published from Delhi

The crucial issue in this case that fall for the consideration before the
Supreme Court was that whether the State Government was the proper au-
thority to determine whether circumstances at any given point of time require
some restrictions to be placed on the freedom of press and to what extent i.e.
whether Sec. 2(1) (a) of the said Act imposed reasonable restrictions on the
freedom of press.

74. Sec 2 (1)(a) of the Act empowered the State Government or any named au-
thority to issue an order to the printer, publisher or editor prohibiting the printing
or publishing of any matter in any document or classs of documents relating
to a particular subject or class of subjects for a specified period or in a par-
ticular issues of a newspaper or periodical for the purpose of preventing and
combating any activity prejudicial to the maintenance of communal harmony
affecting or likely to affect public order. It also provides for the period of two
months during which the said order may remain in force along with a right to
presentation against the order within ten days of making such order The
section also authorised the Government, or any named authority to modify,
conform or rescind the order

75. Sec. 3(1) empowered the Government or any named authority to prohibit the bring-
ing into Punjab of any newspaper, periodical, leaflet or other publication for the
aforesaid purpose.
 119

Expressing agreement with state's plea the Court held (Das. C.J)
that it was for the State Government, which was charged with the duty of
preserving law and order in the state, to arrive at decision. Therefore, it had
to be in possession of all material facts and whould be the best authority to
investigate the circumstances and assess the urgency, the determination of
the time and extent to which the restrictions should be imposed on the press
must of necessity be left to the judgement and discretion of the State Govern-
ment. Thus the Court upheld the legislation and the exercise of this power
after talking of the extensive influence of the press on the public order ^*. It
(public order) was seen as being very important and it was not considered
unreasonable to give it priority over the freedom of the press^^.

The judgement thus extended the sweep of the restrictions. According

to H.M. Seervai, this decision clearly shows that "restrictions more stringent
than pre-censorship could be imposed in the interest of public order and the
publication of certain matters could be totally prohibited for a limited period
of time ''* Prof. D. K. Singh's view "censorship should be restored to only when
the fabric of the society is in jeapardy ^^ is supported by Rajiv Dhavan who
even though recognising the wide scale agitation expresses fear of emer-
gency like situation when he said "suppose the existence of such a state of
affairs was not publicly known beyond a carefully guarded affidavit in court.
For a short duration, the government could exercise absolute powers akin to
those it can exercise during an emergency when civil liberties are threat-
ened.

76. Supra note (73) at p. 899

77. Rajeev Dhavan: The Press and the Constitutional guarantee of freedom of speech
and Expression JILI \/ol.28 NO. 3, 1986 at p. 325
78. Seervai, H.M: Constitutional Law of India vol. 1 at p. 365
79. Singh D.K: Freedom of Expression and the Press"Press and the Law 10 (1968)
P.I.I, publication.
 120

The ground "public order" was graphically examined by the Supreme

Court in Suprintendent, Central Prison V. Ram Manohar Lohia.*° where the
c o n s t i t u t i o n a l v a l i d i t y of Sec. 3 of Uttar Pradesh Special Powers Act
1 9 3 2 ' ^ w a s s u c c e s s f u l l y c h a l l e n g e d before the S u p r e m e Court.

The case arose out of Dr. Lohia's, (a prominent opposition leader) pros-
ecution on account of making two speeches instigating the audience not to
pay enhanced irrigation rates to the government. The UP. Government had
enhanced the rates for water supplied to cultivators and the Socialist Party of
India under Dr. Lohia's leadership had resolved to start an agitation against
the enhancement for the alleged reason that it was unbearable burden on the
cultivators.

The Supreme Court took into consideration the interpretations made

by it in earlier decisions in Romesh Thappar and Brij Bhushan on the words
"public order" alongwith the first constitutional amendment in Article 19(2).
Subba Rao. J. delivering the opinion of the Court rejected the plea of the
state of "public order" and observed that in Article 19(2) the wide concept of
"public order" was split up under different heads. The amended clause (2)
enables Parliament to impose reasonable restrictions on the exercise of the
right to freedom of speech and expression in the interests of 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 an offence. All

80. A.I.R 1960 S.C. 633

81. Sec. 3 of U.P. Special Powers Act provided "Whoever by words, either spo-
ken or written, or by signs or by visible represenatation or otherwise, instigates
expressly or by implication, any person or class of persons not to pay or defer
payments of any liability and whoever does any act, with intent or knowing it to
be likely that any words, signs or visible representation containing such instiga-
tion shall thereby be communicated directly or indirectly to any person or class
of persons, in any manner whatsoever, shall be punishable with imprisonment
which may extend to six months, or with fine, extending to Rs. 250, or with both"
 121

these grounds, said the Court, could be brought under the general head "public
order" in its most comprehensive sense. But the juxtaposition of the different
grounds indicate that they must be intended to exclude each other. Public
order is something which is demarcated from the others. In that limited sense,
it could be postulated that public order is synonymous with public peace,
safety and tranquility. Another conclusion in the case derived by the Supreme
Court was that any remote or fanciful connection between the impunged Act
and public order would not be sufficient to sustain its validity and pointed out
that in Virendra V. State of Punjab, the Court made a distinction between a
law which expressly and directly purported to maintain public order and the
one which did not but left it to be implied from it, and between a law which
directly maintained public order and the one which indirectly brought about
the same result. The distinction did not ignore the necessity of intimate con-
nection between the law and the public order '^.

In view of the above observations, the Court held that the impunged
section was of very wide sweep. Even innocuous speeches and writings were
prohibited by threat of punishment. Nobody would accept that in a demo-
cratic setup there was no scope for agitational approach that if a law was bad
the only course was to get it amended by democratic process and that any
instigation to break the law was in itself a disturbance of public order. If this
view is accepted without obvious limitations would destroy the freedom of
speech and expression the very foundation of democratic way of life '^.
It may be submitted that the decision in this case narrowed the sweep
of Virendra's case and into the words of Setalvad, "It is refreshing to turn
82. Supra note. (80) at p.p. 639 - 40
83. Ibid
 122

next to Ram Manohar Lohia's case" which in his opinion indicates, "a more
liberal appraoch by the Court in judging of the validity of legislation compe-
tent under Article 19(2)."** However, the view of the Court that any instiga-
tion to break a law may not always be an offence is untenable.

In Babu Lai Parate ** the constitutional validity of Sec. 144 of Code of

Criminal Procedure'® was challenged on the ground that it places unreason-
able restriction on the right of freedom of speech and expression. It was held
by the Court that this section read as a whole clearly showed that it was in-
tended to secure the public weal and order by preventing disorders, obstruc-
tions and annoyances and the orders that could pass under it by responsible
magistrate were only of temporary nature. The Court also did not accept the
plea of 'clear and present danger' evolved in Schenck V. United States '^
that previous restraints on the exercise of fundamental right were permis-
sible only if there was a clear and present danger, stating that it has no appli-
cation in India since the rights guaranteed under Article 19(1) were not abso-
lute but subject to the restrictions under clause (2) of Article 19. Thus the
Court once again followed the test expressed in Virendras case and allowed
extensive preventive and other powers to local officials as long as some pat-
tern of control existed.

84. Setalvad, M.C : The Indian Constitution at p. 72

85. AIR 1961 B.C. 885
86. Sec. 144 Or. PC. says a Magistrate, If he is of the opinion that there is sufficient
ground for immediate prevention, can by a written order direct a person or persons
to abstain from certain acts if he considers that such direction is likely to prevent a
disturbance of pubic tranquility or a riot or an affray.
87. Schenck V. U.S. 249 U.S. 47 (1919)
 123

In Kedar Nath V. State of Bihar " . Once again the scope of public
order was under consideration when the constitutional validity of Sec. 124-A
and 5 0 5 ' ' w a s challenged.

The Supreme Court, perhaps to point out that though the sedition un-
der Article 19(2) was not a ground upon which the restrictions could be placed
on freedom of speech and expression, but the concept was not altogather
dropped by the Assembly, referring several Indian and English decisions
alongwith the opinion of Fazal Ali. J. (who expressed a dissenting opinion in
Romesh Thappar and Brij Bhushan Cases) the Court also quoted the follow-
ing observations of Federal Court in N.D. Majumdar V.Emperor *".

88. A.I.R 1962 SO. 955

89. Sec. 124 - A of I.P.O. Provides: Whoever by words, either spoken or written, or by
signs, or by visible representation, brings or attempts to bring into hatred or con-
tempt, or excites or attempts to excite disaffection towards the Government estab-
lished by law in India, shall be punished with imprisonement for life, to which fine
may be added, or with imprisonement which may extend to three years, to which
fine may be added, or with fine.
Explanation 1
The expression "disaffection" includes disloyality and ill feelings of enmity.
Explanation 2
Comments expressing disapprobation of the measures of the Government
with a view to obtain their alteration by lawful means, without exciting or
attempting to excite hatred, contempt or disaffection, do not constitute an
offence under this section.
Explanation 3
Comments expressing disapprabation of the administrative or the other ac-
tion of the Government without exciting or attempting to excite hatred, con-
tempt or disaffection, do not constitute an offence under this section.

Sec. 505 of l.P.C makes it a punishable offence to make rumours or reports

among the members of armed forces with intent to cause mutiny or an of-
fence against public tranquility, or to induce one class or community to com-
mit an offence against another.
90. A.I.R. 1942 F.C. 22
 124

The first and most fundamental duty of every government is the preser-
vation of order since order is the condition precedent to all civilisations and
the advance of human happiness. This duty has no doubt been sometimes
performed in such a way as to make the remedy worse than the disease; but
it does not cease to be a matter of obligation because some on whom the
duty rests have performed it ill. It is to this aspect of functions of the govern-
ments that in our opinion the offences of sedition stands related.

It is answer of the state to those, who for the purpose of attacking or

subverting it seek to disturb its tranquility, to create public disturbance
and to promote disorder, or who incite others to do so Public
disorder, or the reasonable anticipation or liklihood of public disorder, is thus
the gist of an offence. The acts and words complained of must either incite to
disorder or must be such as to satisfy reasonable man that this is their inten-
tion and tendency.*"*

The Court in the light of above observations upheld the constitutional-

ity of Sec. 124 - A. The Court said that the expression "in the interest of public
order" was of wide amplitude and much more comprehensive than the ex-
pression " for the maintenance of public order." In the opinion of the Court,
Sec. 124 - A read as a whole alongwith the explanations appended to it leaves
no doubt that the section aimed at making penal only such activities as would
be intended, or have a tendency, to create disorder or disturbance of public
peace by resort to violence.

91. Quoted in AIR 1962 SO. 955 at p. 964.

 125

The Supreme Court in view of above observations also upheld the con-
stitutionality of Sec. 505 I.P.C. It however, added that each one of the con-
stituent element of the offence under this section had reference to, and a
direct effect on, the security of the state or public order. Hence its provisions
did not exceed the bounds of reasonable restrictions on the freedom of speech
and expression and consequently saved by Article 19 (2).''^

The Court thus by adopting the well known principle severability, up-
held the section by restricting it to the narrower meaning propounded by the
Federal Court (Which infact had been turned down decisively by the Privy
Council).

After Ram Manohar Lohia's Case the Supreme Court in Kishori Mohan
V.State of West Bengal once again explained the term law and order, public
order and security of state. The Court made it clear that in case if an indi-
vidual is affected, it would effect 'law and order' however another act though
of a similar kind may have such an impact that it would disturb even the tempo
of the life of the community in which case it would be said to affect 'public
order' the test being the potentiality of the act in question.

92. Id at p.p. 967 - 70

 126

Decency or Morality

he development of a society depends upon the high standards of

decency and morality because without following them, it is bound to be af-
fected by lower instincts of the society. The Geneva Conference of 1923 on
Suppression of Circulation, and Traffic in. Obscene Publication raised this
issue with vigour. The need therefore, was felt to include the ground "de-
cency or morality" in Article 19(2), in the absence of which the freedom might
have been frequently abused.

Article 19(2) of the Indian Constitution permits legislative abridgement

of the right to freedom of speech and expression in the interest of decency or
morality. The expression "indecency" apparently seems to be easily
interchangable with "obscenity". However.there is some difference between
the two. The indecency includes any thing which an ordinary man or woman
would find to be shocking, disgusting and revolting where as the obscenity
contains the prurient appeal as an essential element. It is evident, therefore,
that indecency has a wider concept than obscenity. A horror movie may be
indecent for a young person but not obscene, but an obscene object almost
certainly must be indecent.*^

The law of obscenity in India is contained in S.s 292 to 294 of Indian

Penal Code, 1860. The law under these sections make it an offence to sell,let
~9Z. Basu D.D. : Law of the Press at p.p. 100 - 01
 127

to hire, distribute,publicly exhibit, export, import any book, pamphlet, paper

drawing, painting or participation in any activity as provided under the provi-
sions.

In India, it was Ranjit D. Udeshi's Case ^ where for the first time the
Supreme Court had an occassion to explain the meaning of obscenity when
the constitutional validity of Sec. 292 of I. P. C. was challenged. The appeallant
was convicted as he had exhibited for sale the unexpurgated edition of The
Lady Chatteriey's Lover by D.H. Lawrence at his book stall. The plea raised
on his behalf was that Sec. 292. I.PC. is violative of Article 19(1){a) as the
meaning of the term "obscene" was too vague, or as at any rate, it applied
only to the writings, pictures etc. intended to arouse sexual desire. The mere
treating with sex and nudity in art or literature was not per se, evidence of
obscenity.

The Supreme Court while upholding the constitutional validity of the

impunged law adopted the Hicklin's test laid down by Cockburn C.J.in Queen
V. Hicklin which runs into following words.*'

"Whether the tendency of the matter charged as obscene is to deprave

and corrupt those whose minds are open to such immoral influences, and into
v ^ o s e hands a publication of this sort may fall It is quite certain that it
would suggest to the minds of the young of either sex, or even to persons of
more advanced years, thoughts of most impure and libidinous charcter.®*

94. AIR 1965 SO. 881

95. (1868) 3 Q.B. 360
96. Quoted in AIR 1965 B.C. 881 at p. 887
 128

The Court was of the view that in judging a work stress should not be
laid upon a word here and a word there, or a passage here and a passage
there. Though the work as a whole must be considered, the obsence matter,
however must be considered by itself and seperately to find out whether it
was so gross and its obscenity so decided that it was likely to deprave and
corrupt those v^ose minds were open to the influences of this sort. Where
obscenity and art were mixed. The art must be so preponderant as to throw
obscenity into a shadow or the so trivial and insignificant that it could have
no effect and might be over looked.

The judgement of the Supreme Court traversed a substantial corpus of

authority, English®^ as well as American^ . Ultimately Hidayatullah, J. rested
his decision upon the authority of Hicklin, though he acknowledged the con-
tinuing shift in standards and values. He did not, however, enquire deeply
into the uncertainities of meaning in the words 'deprave and corrupt' and
strongly emphasised the relevance of contemporary community standards
The issues decided by the Court may be summarised as following.

1) The Hicklin test is still correct test to be applied in establishing ob-

scenity and it should continue to apply.

2) The test was the tendency to deprave and corrupt and not the intention
or the knowledge, as they are not mentioned in the section.

3) Though the expertopiniDn is adm 3ssi)]e b u t n o t c o n c i a s i v e because

97. a) Queen V. Hicklin (1868) 3 Q.B. 360(b) R.V. Curl (1708) 11 Mod 142 Case
No. 205 (0) R.V. Reiter (1954) Q.B. 16, (d) R.V. Martin Seeker and Warburg Ltd.
(1954) WLR, 1138
98. a) Roth VU.S. (1957) 354 U.S. 478 (b) Manuel Enterprises Inc VJ. Edward
Ray (1962) 370 U.S. 478 (c) Nico Jacobellis V. State of Ohio (1964) 112 Penn. L.
Rev 834.
 129

the offending novel and the portions which are subject to charge must
judged by the Court in the light of section 292 IPC and the provisions of
the Constitution and not in the light of the expert opinion.

4) A balance should be maintained between freedom of speech and ex-

pression and decency or morality. But when the latter was substantially
transgressed, the former must give way.

The Hicklin test and the observations made there- under were fol-
lowed in Chandrakant Kakodkar V.State of Maharashtra*® where the appeallant
was the author of a story 'Shama' published in a monthly Marathi magazine
'Ramba' of Diwali issue in 1962. The story dealt with the relationship of three
women who came into the frustrated life of the male character, Nishikant.
One of the women who entered into the life of Nishikant after realising that
her love could not be consummated as her parents would not allow her to
marry with her lover, encourages him to bring it to a culmination point. The
story was adjudged obscene and the author was convicted under Section 292
of Indian Panel Code.

Before the Supreme Court the impunged section was challenged as

ultra-vires to the Article 19(1 )(a) of the Constitution. The apex court once
again following the Hicklin's test observed that. In obscenity cases the courts
were bound to see whether alleged material caused the likely reader to suf-
fer in their moral outlook or depraved them on reading it or arouse Impure
and lecherous thoughts' in their minds. If it was so the impunged material
could be judged as obscene."

99. AIR 1970 SO. 1390

 130

However, realising the changes through which the society at present is

passing the Court further made some thoughtful observations on the
issue involved in obscenity cases.
"The concept of obscenity would differ from country to country de-
pending upon the standards of morals in contemporary society. What is
considered as a piece of literature in France may be obscene in En-
gland and what is considered in both countries not harmful may be ob-
scene in our country. If the writers were always expected to write in
accordance with the adolescents only, then they would be deprived of
the opportunity to write for adults and, therefore, the Court finally de-
clared that it was only ^class of persons' and not isolated cases of
young and adolescents' which should be taken at the time of deter-
mining the 'debasing and debauching' effect of any work.

In Samresh Bose V. Amal Mitra""*", . A novel Prajapati, published

in the annual Puja number of well known Bengali magazine 'Desh' had
main character Sukhen depicted as a person who hates hypocracy, political
leaders who thrive on others, teachers who do not devote themselves for the
welfare of the students etc. It contained several obscene passages. The
main theme of the book charged as obscene had the character and
mental order of its hero Sukhen who because of his unhappy life at
home of his parents turns restless causing him to be involved in a n u m -
ber of s e x u a l e p i s o d e s w h i c h were described in the book in inhibited
manner. In the novel Sukhen is shown involved in catching a butterfly but
attempt was t h w a r t e d by girl Shikha lying in the bed with a scanty dress
on. He n o t i c e s it.At this moment he remembers how few days back he
had an affair with another girl about 14 years of age during a picnic.

100. Samaresh Bose V. Amal Mitra AIR 1986 S.C. 967

 131

His reminiscences of that affair were held obscene by trial court and the High
Court. There were other episodes suggestive of sex ie. Sukhen and his
friends's sister Manjari and affair of his brother with the maid servant's daugh-
ter. The author and the publisher were prosecuted under Sec 292 of Indian
Panel Code, 1860. The Conviction and sentence was maintained by Calcutta
High Court.
The Supreme Court showing disagreement with the view of
Calcutta High Court once again expressed its opinion in favour of dominant
theme and held the book as not obscene. It opined that references to kissing,
descriptions of the body and figures of female character in the alleged book
with suggestions of acts of sex by themselves did not have the effect of de-
praving, debasing and encouraging the readers of any age to lasciviousness.''"^
However it was admitted by the Court that there were certain episodes sug-
gestive of sex but they were vulgar and could not be equated with obscenity.
Making a distinction between vulgarity and obscenity the Court said vulgar-
ity arouse only feeling of 'disgust', 'revulsion', and 'boredom' and did not pos-
sess to have the effect of depraving, debasing and corrupting the morals of
any reader, whereas the obscenity has a tendency to deprave and corrupt
those whose minds were open to such immoral influences. Thus the Court
once again affirmed the Hicklin's test.^°^
Another important point decided by the Court is the relevance of expert
testimony . It was observed by Sen J. that though the Court was not altogather
bound to rely on the oral evidence of experts but it may be necessary to rely
upon to certain extent on the evidence and views of leading literati on that
subject particularly when a book is in a language with which the Court is not
conversant.^°^ However, it made it clear that such an opinion is a matter for
its own subjective satisfaction.
101. id at p. 983
102. ibid
103. Id at p. 984
 132

Contempt of Court

press plays a vital role in the administration of justice. It is the

watchdog to see that every trial is conducted fairly, openly and abov board.
Any misconduct in a trial is sure to receive notice in the press and subse-
quent condemnation by public opinion. The press itself is liable to make mis-
takes. The watchdog may sometimes break loose and have to be punished
for misbehaviour.""** The contempt of court, therefore, is an area where a
journalist has to tread warily. Oswald, an authority on the subject defines it in
the following terms.
"To speak generally, contempt of court may be said to be constituted
by any conduct that tends to bring any authority and the administration of the
law into disrespect or disregard or to interfere with or prejudice parties liti-
gant or their witnesses during the litigation."^•'^

The Indian Constitution empowers the Supreme Court under Article

129 and the High Court udner Article 215 to punish a person for their con-
tempt.'"* Article 19(2), also permits the imposition of restrictions on the free-
dom of speech and expression in relation to contempt of court.
104. Quoted in freedom of press in India by J. MInattur at p. 78
105. Quoted in Press Law by Mudhalkar, J.R. at p. 49
106. Article 129 :- The Supreme Court shall be a court of record and shall have all the
powers of such a court including the power to punish, for contempt of itself.
Article 215:- Every High Court shall be a court of record and shall have all the
powers of such a court including the power to punish for contempt of itself.
 133

After the Constitution came into force Contempt of Courts Act, 1952
was enacted. The aforesaid Act, however, did not define the word contempt,
and, therefore, the courts in India had to import the English concept of the
contempt.

The Supreme Court in 1952 for the first time held the Editor, Printer
and publisher of the newspaper Times of India' guilty of contempt for pub-
lishing an article, criticising its judgement in an objectionable manner. Beside
other things, it was stated in the article that, "Politics and parties have no
place in the pure region of law; and the courts of law would serve the country
and the constitution better by discarding all exrtraneous considerations and
uncompromisingly observing divine detachment which is the glory of law and
guarantee of justice." The Court while dropping the proceeding on account of
an unconditional apology tendered by the respondants, observed: No objec-
tion could have been taken to the article had it merely preached to the courts
of law the sermon of divine detachment. But when it proceeded to attribute
improper motives to the judges, it not only transgressed the limits of fair and
bonafide criticism, but had a clear tendency to affect the dignity and prestige
of this Court."

In Hira Lai Dixit V. State of U.P.''°^ the party to pending appeal in the
Supreme Court to which the state of U.P was the respondent, distributed in
the court premises a printed leaflet which had the follwoing paragraph:

"The public has full and firm faith in the Supreme Court but the sources
that are in the know say that the government acts with partiality in the matter
107. AIR. 1954 SO. 743
 134

of appointment of Hon'ble judges as Ambassdors, Governors, High Commis-

sioner etc. who give judgement against government but this has so for not
made any difference in the firmness and justice of Hon'ble judges."

The apex court made it clear that the object of writing the above para-
graph and publishing it particularly at that time was obviously to affect the
minds of the judges and to deflect them from the strict performance of their
duties, thus tending to hinder or obstruct the due administration of justice. It
was not a fair comment on proceedings but an attempt to prejudice the Court
against the state and to star up public feeling on the very question pending
for the decision. The Supreme Court, therefore, expressed the view that it
were not only those activities which actually interfere in the administration of
justice that constitute the contempt but even those activities which have a
tendency of interfering with the administration of justice.

in E.M.S. Namboodaripad V.T.N. Nambiar,'''** the appeallant was the

Chief Minister of Kerala. He, in a press conference made certain critical re-
marks about the judiciary and described it as an "instrument of oppression"
and judges as "guides and dominated by class hatred" instinctively favouring
the rich against the poor. The remarks were reported in newspaper. The
appeallant was convicted on a charge for contempt and sentenced to a fine of
Rs 1000/- and in default to undergo imprisonment for one month. On appeal
the Supreme Court held that the words constituted the contempt of court and
were intended to weaken the authority of law and the law courts by having
the effect of lowering the prestige of judges and the courts alike. Accordingly
the Court dismissed the appeal but reduced the penalty up to Rs 50/.

108. AIR 1970 SO. 2015

 135

It was o b s e r v e d that "The courts in India are not sui generis. They
owe their existence, form, powers and jurisdiction to the Constitution and the
laws. The Constitution is the Supreme law and other laws are made by parlia-
ment. It is they that give the courts their obligatory duties, one such being the
settlement of disputes in which the state (by which we mean those in author-
ity) are ranged against citizens. Again they decide disputes in which class
interests are apparent. Explaining further its role the Court said. The Court as
well as all the other organs and institutions are equally bound by the Constitu-
tion and the laws. Although the courts in such cases imply the widest powers
in the other jurisdictions and also give credit where it belongs they can not
always decide either in favour of the state or any particular class. There are
inumerable cases in which the decisions have gone against what may be de-
scribed in the language of communism as the exploiting classes.'*^

Later on it was felt that the law on the subject was uncertain, undefined
and unsatisfactory, a Committee was constituted under the chairmanship of
Mr. H.N. Sanyal, the then Additional Solicitor General to scrutinise the exist-
ing law and make recommendations relting to the revision of contempt law
v ^ i c h affected two important fundamental right namely freedom of speech
and expression and personal liberty. On the recommendations of the Com-
mittee the Contempt of Courts Act, 1971 was enacted and section 24 of this
Act repealed the contempt of Courts Act, 1952. However in the year 1976 an
amendment was made in the Contempt of Courts Act, 1971.

The aforesaid Act classified contempt of court into two categories. A)

Civil contempt which means and includes wilful disobedience to any
109. Id at p. 2023
 136

judgement, decree, direction or order, and (B) Criminal contempt which means
and includes publication whether by words spoken or written, signs, visible
representation or otherwise and scandlising, lowering the authority of law
and administration of justice.

The question before the Supreme Court in A.K.Gopalan V. Noordeen

was whether any publication regarding a case pending before it amounts to
contempt.'''"'

In this case a statement was made by the first appeallant charging one
group of persons being guilty of conspiracy to commit murder. Some persons
were subsequently arrested in connection with abov referred case. The said
statement of first appeallant was also published in a newspaper edited by the
second appeallant. They were convicted by the Kerala High Court for Com-
mitting contempt by making and publishing the said statement. They made an
appeal to Supreme Court. The first appeallant was acquitted on the ground
that it would be an undue restriction on the liberty of speech to lay down that
even before any arrest had been made there should be no comments on the
facts of any particular case. The Court however, confirmed the conviction of
second appeallant who despite having knowledge of the fact that arrests have
been made, published the statement. The Court took the statement published
by the second appeallant regarding the case when it was pending before the
Court as to prejudicing the case and consequently amounted interference in
the administration of justice.

In C. K. Daphtary V. O. P. Gupta^^^ where the first respondent had

m AIR 1970 SO. 1694

111. AIR 1971 SO. 1132

 137

got printed published and circulated a pamphlet containing scurrilous criti-

cism of a senior judge of Supreme Court who sat alongwith another judge for
deciding an appeal, using the words "dishonest judgement" "open dishon-
esty", "deliberately and dishonestly", and "utter dishonesty" etc. He also stated
in the pamphlet that the senior judge cleverly asked the junior judge to de-
liver the judgement who toed to his line by writing v ^ a t the senior told him to
write. Proceedings for committing contempt were initiated against him but the
respondent avoided the service till the senior judge retired. Thereafter he
filed a counter affidavit containing an unconditional apology but also hurling
fresh abuses against the senior judge. It was brought on record that proceed-
ing had been initiated against the respondent when the Senior judge was still
on bench. The Supreme Court held that by avoiding the execution of warrant
the he had tried to take advantge of his own wrong. And consequently con-
victed him on finding that the remarks in the pamphlet made against a judge
were wholly unjustified. The Court based its judgement on the fact that con-
tempt proceedings had already been initiated before the senior judge retired
but failed to take into notice the fact that since he had already retired the
administration of justice could not have suffered.

In Barad Kanta V. Registrar Orissa High Court^" the Supreme Court

considered the scope of Article 235"^ in context with a criminal contempt of

112. Barda Kanta V. Registrar Orissa High Court AIR 1974 B.C. 710
113. Language of Article 235.provides "The control over dis-
trict courts and courts subordinate there to including posting and promotion,
of and the grant of leave to , perosns belonging to the judicial service of
state and holding any post inferior to the post of district judge shall be vested
in the High Court, but nothing in this articles shall be construed as taking
away from any such person any right of appeal wich may have under the law
regulating the conditions of his service or as authorising the High Court to
deal with him otherwise than in accordance with the conditions of his service
prescribed under such law."
 138

court under section 2(c) of Contempt of Courts Act, 1971.''^^ Barad Kanta
was a subordinate judicial officer who refused to follow the decisions of
the High Court. His conduct was considered by the Supreme Court as
falling within the preview of law of contempt. He also complained against
the Chief Justice and other judges of Orissa High Court.

The Supreme Court observed that no comprehensive definition of "ad-

ministration of justice" had been brought to the attention of the Court. It pointed
out that the administration of justice did not consist merely in the adjudication
of disputes between parties.Article 235 entrusts the High Court of disiplinary
control over the subordinate judiciary and exercise of this jurisdiction was
essential for the administration of justice. Consequently vilificatory criticism
of a judge functioning even in an administrative or non-adjudicating matter
amounted to criminal contempt. However if the alleged vilification of a judge
takes the form of a complaint which is absolutely made in good faith to per-
sons in authority to prevent abuse in the administration of justice, would this
amount the contempt? Seervai gives the answer correctly an obvious 'No'
otherwise the disiplinary jurisdiction of the High Court can never be invoked
without risking committal for contempt.
Though the fair comment does not amount the contempt but on the
other hand if the criticism exceeds the limit and tends to scandlise the admin-

114. Sec 2 provides : In this Act, unless the context otherwise requires.
C) "Criminal contempt" means the publication (whether by words, spoken or
written or by sings, or by visible representations, or otherwise) of any matter
or the doing of any other act whatsoever which -
i) Scandlises or tends to scandlise, or lowers or tends to lower the authority of,
any court, or
ii) Prejudices, or interferes or tends to interfere with, the due course of any jucidical
proceeding, or
iii) Interferes , tends to interfere with, or obstmcts or tends to obstnjct, adminis-tration
of justice in any other manner
 139

istration of justice or undermines the confidence which the public rightly re-
pose in the courts of justice or is likely to interfere with the administration of
justice, the press becomes liable to contempt as its criticism no more, is based
on public good. In Habeas Corpus Case""" during the Emergency the Su-
preme Court made a radical interpretation of the effect of a presidential order
under Article 359 of the Constitution which took away the locus standai of the
detenu to move the Supreme Court or the High Court to complain against the
deprivation of his liberty. The denial of judicial review evoked a protest from
the lovers of liberty prominently the lawyers from Bombay subscribed a docu-
ment of protest criticising the judgement in strong words and alleging that the
judges who had decided the case had behaved in a cowardly manner. Chief
Justice Beg explained and defended the judgement in that case and took the
view that to say that it was a misdeed on the part of the judges in the case
and that they should be 'ostracised' for such a perverse veiw, was 'irrational
and abusive'and amounted contempt.''''*

But the majority (consisting of Justice Untwalia and Kailasam), did not
deal with the case and simply disposed of the matter on the basis that it is
not a fit case where a formal proceeding should be drawn up^''^ they pro-
posed to drop the proceedings. Beg, C.J. also joined in the common order.
Since it was a proceeding under Article 129 of the Constitution and the ma-
jority gave no reasons for their order, it is difficult to say on what ground they
ignored what Beg, C.J. called 'irrational and abusive' contempt. Unless the
majority differed from the finding of the fact of Chief Justice, it must be said

115. AIR 1976 S.C.1207

116. In Re Sham Lai AIR 1978 S.C. 489
117. Id at p. 493
 140

that 'irrational and abusive' contempt is not a fair comment, an exception to

contempt of court. However, whatever may be the reason for dropping the
case, it clearly demonstrates the risk which a journalist faces by merely re-
producing the signed document on a judgement, made by eminent persons.
On the other hand in Indian Express Case known as in re Mulgaonkar'''" case,
Chief Justice Beg was willing to drop proceedings even though the judges
had been criticised and in which he was also attacked for framing a code of
ethics for judges. He talked of the responsibilities of judges and lawyers and
hoped that "the seperate statement of reasons for dropping the proceedings
(would) succeed in at least emphasising that they would not have been in
vain^^®. The Supreme Court laid down certain norms regarding publication in
newspapers which may be summarised as under.

"National interest requires that all criticism of judiciary must be strictly

rational and sober and proceed from the highest motives without being coloured
by partisan spirit or tactics. The judiciary can not be immune from criticism.
But when that criticism is based on obvious distortions or gross misstatement
and made in a manner which seems designed to lower the respect for the
judiciary and destroy public confidence in it, it can not be ingnored. The court
must harmonise constitutional values of fair criticism and need for fearless
curial process and its presiding functionary - the jugde. To criticise a Judge
fairly, albeit fiercely, is no crime but a necessary right. Where freedom of
expression subserves public interest in reasonable measure, public justice
can not gag it or manacle it. But if the Court considers the attack on the judge
or judges scurrilous, offensive, intimidatory or malicious beyond condonable
limits the strong arm of law must strike a blow on him who challenges the

118. AIR 1978 SO. 727

119. Id at p. 735
 141

supremacy of the rule of law by fauling its source and stream.

The Supreme Court once again examined the scandlising jurisdiction

in Umaria Pamphlet Case^^^where pamphlet accused the magistrate of being
'wayword' and having a predisposition to convict. He was alleged to have
misinterpreted the evidence and the case v^as reversed on appeal. The au-
thor of the pamphlet took the plea of fair comment and non-interference with
the due course of justice. Under the Act of 1971, the plea of fair comment is
available only when case is not pending, since an appeal was possible in the
case, justice Desai was of the view that it can not be raised, but even then
Supreme Court allowed it to take the plea as the High Court had allowed the
same. Justice Desai relying upon pre -1971 Supreme Court and English cases
observed that contempt jurisdiction was not obsolete.

Whether a statement in a press affecting trade when the case is pend-

ing would amount to contempt was before the court in Naraindas V, State of
M. P. Bhagvati J,•'^''took the view that the effect of press release at the most
night have affected the business interest of the appeallant but it was quite
different as the said press release could not have prejudiced the writ petition
pending before a Court which is essential in contempt jurisdiction.
It seems that Bhagvati J, gave a restrictive interpretation of contempt
jurisdiction because in this case the reason for getting the injunction was to
protect the business interest of the complainant. Therefore, if the Press Note
adversely affected very business which the interim injunction was designed
to protect it was an interference with the due administration of justice hence
amounted the contempt of the Court.
120. RamDayal V. State of U. P. AIR 1978 SO. 921
121 (1974) L.J. 924
 142

In National Textile Worker's Union's Case"^, Supreme Court explained

the extent of fair comment. According to the facts of the case, contemner had
made serious allegations which were published in the press against a judge
of Madras High Court. The allegations could not be proved. The Supreme
Court while holding him guilty observed that, while commenting on matters
pending in courts, the press should bear in mind that the parties to case have
as much right to get redress and the hands of Court uninfluenced by external
pressure as the press has its right to publish news and comments. Funda-
mental rights are guaranteed to all citizens and their enjoyement is possible
only when every citizen respects the rights of others.

The Supreme Court vA^We admitting that courts may not be always cor-
rect and that fair criticism though strong is not contempt added one more
observation that allegation of improper motive without any justification can
not be ignored. Though the court did not explain as to what constitute the
improper motive but the language if taken in the light of aforesaid observa-
tion makes it clear that only those allegations which could not be justified
were allegations with improper motive, and therefore, any allegation which is
proved in a court of law would be treated as fair criticism.
The same interpretation was adopted in M.R. Parashar V. Farooq
Abdulla where it was alleged that the Chief Minister had made certain state-
ments which amount the contempt of court. Chief Minister in an affiavit de-
nied the allegations. It was not clear under the circumstances to hold as
to who (Editor or Chief Minister) has committed the contempt of court.
Under such situation chandrachud, J. choose the general principle of
criminal law and held that in the cases of criminal contempt the charge
122. National Textile Worker's Union V.P.R. Ramakrishinan AIR 1983 SO.
759
 143

of contempt must be proved beyond reasonable doubt. He, in the course of

his judgement rightly observed that if a high dignitory wish to avoid the risk of
being charged with contempt of court, it was pre-eminently desirable that the
speech should be reduced to writing or a script prepared soon after, or what
is now customary, that a tape recording should be made.''"

Thus the fact that the decisions of the courts are reversed by higher
courts and the highest court reviews its own judgement itself shows that they
may not be always correct. But while fair criticism, even if strong, may not be
actionable, attributing improper motives to judges without justification tend-
ing to bring them to ridicule, hatred and contempt can not be ingnored. This
is not so because individual judges should be protected but because courts
as institutions of national importance should be protected so that they may
be able to discharge their duties prescribed by the Constitution and the laws.

123. A.I.R. 1984 S.C. 615 at p. 617

 144

D efamation

^ e f a m a t i o n is an injury to a man's reputation which is regarded

^
as his property while insult is an injury to one's self respect. In other
words a person is defamed when his reputation is lowered in the esti-
mation of others.•'^^

In India, the liability for defamation is two fold: (a) Civil, and, (b)
Criminal. Defamation, when viewed as a civil wrong may be defined as
the publication by a defendant to a third party of a false statement which
tends to lower the plantiff in the estimation of right thinking members of
the society or which causes him to be shunned or avoided by such mem-
bers. On the subject of civil liability for defamation there is no codified
law in India and the rules that are applied by our courts are mostly
hose borrowed from the common law. Under common law there is com-
plete immunity from liability not only in respect of defamatory state-
ments of fact if those statements are true, but also in respect of
defamatory statements of opinions which are fair comment on matter of
public interest. A number of occassions are privileged, some absolutely
priviledged ie. speech of a member in the parliament etc. so that no
action can lie under any circumstances and some of qualified privi-
leges so that no action can be without proof of malice that is ill-will.

Til Op Git note (93) at p. 112

 145

However, the law of criminal liability is codified and contained under

Sections 499-502 of Indian Penal Code. The offence requires the mensrea
and the section 499 of the Penal Code provides defences which exhaust al-
most all the traditional defences.

It has been established by the decisions of the apex court that the free-
dom of journalist is an ordinary part of the freedom of a citizen and the press
does not enjoy any special privilege. The press, therefore, is bound by Ar-
ticle 19(2) which places reasonable restrictions on the ground of defamation
upon the freedom of press.""^"^
Since the word 'defamation' has not been defined under the Constitu-
tion and the civil law is not codified there remains the section 499 of In-
dian Penal Code which expressly defines the word 'defamation'. The section
says that a person commits defamation when by words either spoken or in-
tended to be read, or by signs or visible representation, he makes or pub-
lishes any imputation concerning any person, intending to harm or knowing
or having reason to believe that such imputation will harm, the reputation of
such person unless the case falls under any of the exceptions attached to the
section . Moreover the press possess all the rights enjoyed by a citizen the
editorial good faith becomes a crucial factor in the determination of a crimi-
nal liability of a newspaper for defamation. In Sahib Singh's case ^ " a news-
paper kaliyug, published from Aligarh, contained defamatory statements
against public prosecutors and assistant public prosecutors. From the tenor

124-A. Article 361-A [forms an exception to Article 19(2)] exempts any person from any
liability civil or criminal before any court of law in respect of any publication in a
newspaper of substantiallly true report to the proceedings of either House of Parlia-
ment or State Legislataure provided it is not made with malice even if such publica-
tion is defamatory to others. The above provision therefore, also provides the consti-
tutional protection to the Parliamentary Proceeding (Protection of Publication) Act,
1977 which also contains a similar provision.
125. Sahib Singh V. State of U P AIR 1965 S.C. 1451 at p. 1454
 146

of the article no evidence of an object of advancing the public good was es-
tablished and there was also no evidence to show the defamatory remarks
have been made with due care and attention. The Supreme Court while stress-
ing the great power of the press in impressing the public mind held the press
guilty of causing defamation.

The issue of 'good faith' was one of the major factor in determining the
freedom of press in relation to defamation in Sewak Ram Sobhani V. R.K.
Karanjea."*^® During Emergency Sobhani, a top R.S.S. leader was lodged in
Bhopal Central Jail. Another young lady Mrs. Uma Shukia was also lodged in
the same jail. The jail rules do not allow free mixing among male and female
inmates but the rules were not strictly followed. Mrs. Uma Shukia was found
pregnant and underwent an abortion. An enquiry was conducted by a high
rank official who in his report indicated that Mr.Sobhani was responsible for
empregnating the young lady. The summary of the report appeared in 'Blitz',
edited and printed by Mr. R.K. karanjia. When emergency was revoked, the
appeallant filed a suit for defamation against the editor. The editor claimed
exeption of Sub. Sec.(9) of Sec 499 iPC^^and insisted to produce the en-
quiry report to the magistrate before his statement is recorded. The Govern-
ment claimed the privilege and the prayer of the editor was rejected. He filed
an appeal before the High Court and a copy of the report was supplied. The
High Court on the basis of that report quashed the prosecution of the editor.

126. Sewak Ram Sobhani V. R.K. Karanjia AIR 1981 S O . 1514

127. Exception iX to Sec. 499 IPC provides that it is not defamation to make an impu-
tation on the character of another provided that the imputation be made in
good faith for the protection of the interest of the person making it, or of any
other person or for the public good.
 147

Finally the matter came before the Supreme Court.

The issue before the apex court was that whether or not the report was
published in 'good faith' and 'public interest'. All the three judges (A.P. Sen,
J., O.Chinnoppa Reddy J., majority and Bahrul Islam, J. minority) delivered
the seperate judgements.
A. P. Sen, J., answered in affirmative when he observed, "It was a pub-
lication of report for welfare of the society The balance of public
benefit lay in its publicity rather than in hushing up the whole episode. The
report further shows that the publication has been honestly made in belief of
its truth and also upon reasonable ground for such a belief, after the exercise
of such means to verify its truth as would be taken by a man of ordinary
prudence under like circumstances."'*^^ But even then he opined that unless
an enquiry report has been duly proved, it has no evidentiary value. More-
over, when there was nothing to show that accused has taken due care and
caution and had acted in good faith. The High Court should not have used it
for basing its conclusion.
Chinnappa Reddy, J., however, was of the view that, "questions of ^good
faith' and ^public good' are questions of fact and could be decided only after a
regular trial is held and should not have been answered at the stage when
even the accused was not examined. "^^
Bahrul (slam, J., however in his dissenting opinion observed that, In-
quiry was made by a highly responsible officer and submitted to Govern-
ment If the complaint and consequent inquiry report be for public good,
and the respondents had reasons to believe its content to be true, they will be
protected under exception 9 of Sec. 499 IPC. Even if the burden of proof of
'good faith' be on the accused; good faith need not be proved beyond rea-
sonable doubt. Once this is done whether publication was for public good
128. Id at p. 1517

129. Id at p. 1520
 148

would be a matter of inference."^^^

Though Sen J. admitted that report was made in good faith and for
'public good' and that publication was honestly made in belief of being true
but he made a self contradictory observation that there was nothing to show
that accused has taken due care and caution and had acted in good faith.
The stand point of majority view seems to be that question of 'good faith' and
public good can be decided only after examining the accused and the gist of
exception clearly lays down 'any defamatory statement if made in good faith
and for public good would not amount defamation". Therefore, if once the
Court concludes that a statement is based on an enquiry report which the
accused reasonably believes to be true and for public good, benefit of ex-
emption is available to him and there is no need to prove the report before
basing the conclusion upon it. It may, therefore, be submitted that the minor-
ity judgement of Bahrul Islam presents a correct view.

The landmark judgement in Auto-Shankar Case,''^'' narrowed the sweep

of the ground of defamation as a reasonable restriction on the freedom of
press. In this case Auto-Shankar who was sentenced to death for committing
six murders wrote autobiography in the jail. He gave it with the knowledge
and approval of jail authorities to his wife to hand over the same to his advo-
cate with a request to publish it into the petitioners magazine 'Nakheeran'.
The autobiography depicted a close nexus between the prisoner and some
I.A.S. and I.P.S. officials. Some of whom were his partners in various crimes.
When the magazine announced its publication in serial, the news sent shock
waves among the officials as they feared that they would be exposed. Thereafter
130. id at p. 1523
131. Rajgopal V. State of T N . AIR 1995 S.C. 264
 149

Inspector General (Prison) wrote a letter to the editor that Auto-Shankar has
denied of writing any autobiography and, therefore, the publication should be
stopped. The editor moved to the Supreme Court. The question before the
Supreme Court was whether public officials who apprehend that they or their
colleagues may be defamed can impose a prior restraint upon the press to
prevent such publications?

Referring the New York Times V. U.S. popularly known as Pentagan

Paper's Case that 'any system of prior restraint of (freedom of) expression
comes to this court bearing a heavy presumption against its constitutional
validity and in such cases the Government 'carries a heavy burden of show-
ing justification for the imposition of such a restraint' held that, "neither the
Government nor the officials who apprehend that they may be defamed,
have the right to impose prior restraint upon the publication of alleged
autobiography of Auto-Shankar. The remedy to public official, public
figures, if any, will arise only after the publication and will be governed
by principle indicated herein" or in other words such official could take
action for damages after publication, if they prove that the publication was
based on false and published without any reasonable verification of facts.^^^
The Court however, made it clear that as a general rule no remedy is
availabe to public officials if they are defamed due to any act done by
them in discharge of their official duty but if they are defamed in their
individual capacity they are free to seek remedy under the civil law or
the criminal law like any other individual.

132. Id at p. 277
 150

The Court in the same case further extended the scope of freedom of
press by holding that even the person whose own biography is to be pub-
lished or being published can not restrain the press if it is based on public
record including the court record. Nevertheless, it also warned at the same
time that if published beyond that ie. life story then unless it is published with
the consent of the person concerned it would be an invasion on his privacy
and the press in that case would be liable to the consequences.^"

133. Supra note 131 (at p. 276)

 151

Incitement to an offence

j i a i l o s t countries consider incitement to an offence to be an offence

irrespective of the results of such incitement. For exmaple, in England a per-
son who solicits or incites another to commit a felony or misdemeanour is
liable to indictment at common law, even though the solicitation or incite-
ment produces no effect. Thus where the addressee does not read the letter
containing incitement, the writer is guilty of the offence of incitement. In United
States incitement to commit a crime is punishable and it has been held by
the court that if the act, tendency of the act and the intent with which it is
done, are the same, there is no ground for the saying that success alone
warrants making the act a crime.'''*

in India, amendment to Article 19(2) of the Constitution permits re-

strictive legislation on the right of freedom of speech and expression in rela-
tion to incitement to an offence. Under Article 367 the word "offence" has
been assigned the same meaning as is given to it under Section 3(38) of
General Clause Act, 1 8 9 7 . " '

Thus the term is of very wide connotation and only redeeming feature
is the judicial review of the fact that as to under what particular circumstances
an act constitutes the incitement to an offence? so that a reasonable restric-
tion may be placed upon the right.
n*. Schenck V. U.S. 249 U.S. 47 (1919)
135. Under Sec 3(38) of General Clause Act the "offence" has been defined as
an omission made punishable by law.
 152

In State of Bombay V. Balsara"*. The Supreme Court upheld the con-

stitutional validity of section 24(1) (b) of the Bombay Prohibition Act, 1949''".
But simultaneously struck down the validity of Sec. 23(b) holding it so wide
and vague that it would be difficult to define or limit the scope. Therefore, in
order to be saved by the clause (2) to Article 19, the legislation must be
levelled against a "definite" offence and a vague restriction is not a valid
restriction.

It is also essential that incitement must relate to a pre-existing of-

fence meaning thereby the incitement in order to be punishable, must be an
act already an offence under any law for the time being in force. Consequently
a person is not liable for any act of instigating or advocating for any activity
which is not an offence or where a law is declared ultra vires to Article 19 no
person may be punished under such law.^^ Again where an act is not an
offence to ask the people to bring a change in the existing system by valid
means (ie, In a democracy to change the Government through election), an
appeal in newspaper to the aforesaid effect could not be said to have consti-
tuted the incitement to an offence. No restrictiion, therefore, could be placed
upon the press to desist from publishing such appeals.

136. 1951 S.C.J. 478

137. Sec. 24 (1) - "No person shall print in any newspaper, newsheet, book, leaf-
let, booklet, or any other single or periodical publication or otherwise display or
distribute any advertisement or other matter

(b) which is calculated to encourage or incite any individual or class of individu-

als or the public generally to commit an offence under the Act, or to commit a
breach or to evade the provisions of any rule, regulation or order made there-
under or the conditions of any licence permit, pass or authorisation granted
thereunder.

138. A. I. R 1960 S.C. 633

 153

D urinq Emergency

^ h o n Milton's Aeropagatica (1644) was primarily directed against the

power of the licensor, when he said,

"Give me liberty to know, to utter and argue freely according to

conscience, abov all liberties ; whoever knew truth put to the
worse, in a free and open encouter." " ^

This freedom of speech and expression has always held pride of place
in civilised socities and has been humanity's ideal in times, ancient and mod-
ern. Its importance is reflected in 'The Universal Declaration of Human
Rights'"**" which lays down certain essential freedoms that mankind should
have, of which freedom of speech and expression is one of the most impor-
tant. The right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and re-
gardless of frontiers.

The founding fathers of our Constitution attached great importance to

freedom of speech and expression and freedom of press, and therefore, they
provided for ample freedom of speech and expression, yet as men of wis-
dom and vision they knew that nothing is more certain than the prin-
ciple that there are no absolute. Whilst recognising that w i t h o u t a free
press there can be no free society, they also r e a l i s e that freedom of
139. Quoted in Law of Press Censorship in India By Sorabjee, S.J. at p. o3
140. Article 19 of the Declaration provides that, "Every one has the right to free-
dom of opinion and expression, this hght includes freedom to hold opinions
without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers"
 154

press was not an end in itself but a means to the end of a free
society. This freedom of press did not imply the freedom from re-
sponsibilities for its exercise and without a disciplined sense of
responsibility, a free press which is an inestimable privilege may
well become the 'scourage of the Republic'.

The founding fathers were also aware of the fact that there
may arise some extreme situations which may throw the entire na-
tion out of gear and such situations may only be tackled through
certain drastic steps. They have anticipated such situations as a
force of tradition and experience with the working of colonial stat-
utes. To deal with such situations, therefore, the Constitution en-
visages the emergency provisions under Article 352 to Article 360.
Here it would not be out of context to mention that Democracy and
the rule of law are the concepts alien to the Indian history and
society. Indians became familiar of these concepts after the Brit-
ish rule was f i r m l y e s t a b l i s h e d and w e s t e r n - s t y l e education
changed the mind of the people though it seems that the British
policies themselves preferred a strong rule rather than rule of law.
The British rulers enforced and perpetuated this double standard
and exploited the people behind the facade of constitutionalism
and r u l e of law, as they were w e l l a w a r e of the fact t h a t
authoritarianism was embeded in Indian history, society and cul-
ture.

The emergency provisions under the Constitution of India are the

result of a compromise between the principles of Constitutinal Govern
 155

merit and strong and effective government. When one attempts to re-
construct the intentions of the founding fathers, the other becomes en-
tangled in all sorts of ambiguties The Granville Austin rightly observes
that, "It is clear that even in the minds of individual members of
Constituent Assembly there existed considerable tension between
three competing concerns: (1) The desire for personal freedom nur-
tured by the experience with oppressive despotic colonial rule; (2)
The drive for social reform and building up a welfare society; and
(3) The fear of disruption and instability arising from the divisive
forces or region, provinces, language, community, ethnicity and
extremist political ideologies.^*^

Thus the framers of the Constitution of independent India though com-

mitted to the liberal democratic ideals were nevertheless prisoners of tradi-
tion. They built the structure of emergency powers, even enlarged and
rationalised it, to serve a regime which was no longer colonial in character or
merely regulatory in function.

An emergency under Article 352 can be proclaimed by the President of

India, if he is satisfied that a grave emergency exist whereby the security of
India or any part thereof is threatened due to war, external aggression, or
armed rebellion The Article also makes it clear that emergency can be de-
clared before the actual occurance of aforesaid grounds^*^ So for as the satis-
faction of the President is concerned, it IS now well established that it means

141 Granville Austin. The Indian Constitution. Cornerstone of a Nation at

p p 105-6
142 Article 352 [Explanation-A Proclamation of Emergency declaring
that the secunty of India or any part of the Contd
 156

satisfaction of the cabinet. A Proclaimation of Emergency may be issued un-

der Article 352 (on the ground of war, external aggression and armed rebel-
lion), 356 (failure of constitutional machinery in a state), and 360 (Financial
Emergency). But it is only the emergency declared under Article 352 which
affects the freedom of press.

The Proclaimation of Emergency under Article 352, as a consequence

affects the freedom of press to a great extent. Under Article 358 while a
Proclaimation of Emergency is in operation the state may make any law or
take any executive action infringing the rights guaranteed under Article 19 of
the Constitution. But any law so made shall cease to have effect as soon as
the Proclaimation of Emergency ceases to operate except as respects things
done or omitted to be done before the law ceases to have effect.''*^

Conted territory thereof is threatened by war or by external ag-

gression or by armed rebellion may be made before the actual
occurence of war or any such aggression or rebellion, if the Presi-
dent is satisfied that there is imminent danger thereof].

143. Article 358(1) [While a Proclaimation of Emergency declar-

ing that the security of India or any part of the territory thereof is
threatened by war or by external aggression is in operation], noth-
ing in article 19 shall restrict the power of the state as defined in
Part III to make any law or to take any executive action which the
State would but for the provisions contained in that Part be com-
petent to make or to take, but any law so made shall, to the extent
of the i n c o m p e t e n c y , cease to have e f f e c t as soon as the
Proclaimation ceases to operate except as respects things done
or omitted to be done before the law so ceases to have effect
 157
Thus the first fetter on the power of Parliament breaks down in emer-
gency and a law made under Article 358 curtailing the freedom of press or
any of the right under Articel 19 of the Constitution can not be challenged so
long as emergency is in force. Similarly under Article 359 the fundamental
rights guaranteed under part III of (except rights provided under Article 20
and 21) the Constitution can be curtailed when a Proclaimation of Emergency
under Article 352 of the Constitution is in operation/***
A Proclaimation of Emergency under Article 352 has far reaching ef-
fect under Article 250 when the parliament becomes empowered to legislate
on the subjects enumerated under list 11^** and under Article 353 where the
power of union extends to giving executive directions to the states.''** prior to
44th amendment to the Constitution upon a Proclaimation of emergency by
the President of India, Article 358 had automatic operation whereby the rights
guaranteed under Article 19 were automatically suspended. 44th Constitu-
tional Amendment Act, 1978, however. Amended Article 358 and now under
this Article as soon as the proclaimation of emergency is issued under Ar-
ticle 352 on the ground of war or external aggression only and so long it
lasts, Article 19 stands suspended in view of Article 358 and the executive
power of the state to that extent widened. But when the Proclaimation is is-
sued on the ground of armed rebellion, Article 19 will not be affected nor the
power of the state shall be enlarged in that respect. More over any law which
curtails the freedom must contain a recital to the effect that it is in relation to
the proclaimation of Emergency in operation when such law is made.
The justification of provisions is that during emergency state needs
more power than in normal times and the actions of the state taken to meet
emergency should not impeded by protacted litigation as to its reasonable-
ness.
144. Article 359 (1 A): While an order made under clause(1) mentioning any of ([the rights
conferred by part III (except articles 20 and 21)1 is in operation, nothing in that Part
conferring those rights shall restrict the power of the state as defined in the said Part
to make any law or to take any executive action which the state would but for the
provisions contained in that Part be competent to make or to rake but any law so
made shall, to the extent of the incompetency, cease to have effect as soon as the
order aforesaid ceases to operate, except as respects things done or omitted to be
done before the law so ceases to have effect].
145. Article 250....(1) Notwithstanding anything in this Chapter, Parliament shall, while a
Proclamation of Emergency is in operation, have power to make lav« for the whole or any
part of the territory of India with respect to any of the matters enumerated in the State List.
(2) A law made by Pariiament which Parliament would not but for the issue of a Procla-
mation of Emergency have been competent to make shall, to the extent of the incompe-
tency, cease to have effect on the expiration of a period of six months after the Proclamation
has ceased to operate, except as respects things done or omitted to be done before the
expiration of the said period.
146. Article 353- while a proclaimation of Emergency is in operation, then notwith standing any-
thing in this Constitution, the executive power of the Contd:
 158

Before 1978, every law enacted or the executive action taken dur-
ing emergency which infringed Article 19 was protected and immune
from challenge before any court of law. But if any law was made or ac-
tion taken before the issuence of proclaimation of emergency, such laws
or action were open to be challenged on the ground of violation of Ar-
ticle 19 even during the emergency.""^^

The same view was affirmed in B.C. & Co. V. Union of India^*'
where the Supreme Court held that the News Print Policy of 1972-73
which was a continuation of old policy made before the Proclaimation
of Emergency was not protected even during the Emergency from at-
tack under Article 19. It held that executive action which is unconstitu-
tional at the time its being taken, is not immune from being challenged
in a court of law during the emergency. Proclaimation of Emergency
w o u l d not a u t h o r i s e d the t a k i n g of d e t r i m e n t a l e x e c u t i v e action
d u r i n g that p e r i o d a f f e c t i n g Article 19 w i t h o u t any legislative

Contd: Union shall extend to the giving of directions to any State as to

the manner in which the executive power thereof is to be exercised;
Part (b) of Article 353 is similar to Article 250. However, in view of Ar-
ticle 365, if any state fails to comply with the executive directions given
by the Union as to manner in which such power is to be exercised, it
may be hold by the President that a situation has arisen when the Gov-
ernment of the State can not be carried on in accordance with the pro-
visions of Constitution and this may led to President rule in the State.

147. State of MP. V. Bharat Singh AIR 1967 S.C. 1170

148. B.C. & Co. V. Union of India AIR 1973 S.C. 106 at p. 116
 159

authority or in purported exercise of power conferred under any pre-

emergency law which was invalid when enacted.There is no reported
case by the Supreme Court on press censorship during emergency.''*'
Therefore, in the absence of such decision reference may be made of
the two unreported decisions delivered by the Bombay High Court on
the freedom of press during emergency to have an idea of ambit of cen-
sorship on the press.

The first case was of Minoo. R. Masani, a well known figure in the
field of politics and journalism. In view of the provisions of censorship
order Masani submitted for scrutiny of the censor at Bombay certain
material which were sought to be published in the issue of 'Freedom
First' for the month of August. This consisted of material the publica-
tion of which had been previously allowed as well as some fresh mate-
rial. The Censor prohibited the publication of several items.

Another veteren j o u r n a l i s t Y.D. Lokurkar also f i l e d a petition

against the Bombay censor, Mr. Binod Rao, as two articles submitted
by him for scrutiny were banned on flimsy grounds. His petition reached
at hearing stage before the M a s a n i ' s and came up b e f o r e Justice
R.P.Bhatt.

The plea of the government that petition was not maintainable

becuase of the P r o c l a i m a t i o n of Emergency and the Presidential
order dated 27th June 1975 passed under Article 359, was rejected. On

149. Though four judgements were delivered by the apex court during that period
on personal liberty but in Habeas Corpus (AIR 1976 S.C. 1207), the judge-
ment was banned by censors.
 160

the merits the Court struck down the action of the censor and held that he has
misdirected himself in law and had taken into consideration extraneous mat-
ters. This was the first judgement of its kind after the fresh Prociaimation of
Emergency and the censorship order.

Masani's petition came up for hearing in the last week of Nov. 1975
and once again the Court held that there was nothing objectionable in any of
the eleven articles which had been banned by the censor on the ground that
he had acted without the authority of law and exceeded the power vested in
him under the censorship order.

An appeal was made against this judgement which was heard by a Di-
vision Bench consisting of Mr. justice D.P.Madan and Mr. Justice H. Kania.
The appeal court rejected the preliminary contention that the writ petition
was not maintainable and held "Inspite of Prociaimation of Emergency and
the Presidential orders a citizen is free to say, write and act as he likes
so long as he does not transgress the law. What the respondent was
doing by his writ petition was not to seek to enforce any of his common
law rights or any rights under part-Ill of the Constitution but to chal-
lenge the legality of the action by the appeallant on the ground that it
was without the authority of law. "The guidelines issued under clause
(3) of censorship order do not have any: statutory authority" and that
"guidelines issued under clause (3) of censorship order must be read in
conjunction with the purpose for which the said order was made, and
any provision thereof which may at the first blush appear to be too wide
must be interpreted in the light of purpose and object of censorship or-
der. "
 161

The immense value of the judgements lie in the fine balance it has
achieved between two important social interests, liberty of thought and ex-
pression and public safety. The judgement has done a great service by
recognising that even in times of emergency the right of dissent is essential
for the welfare of the society. It has re-assured every right thinking person
that he need not to fear of speaking and writing in praise of it.

In the light of the above discussion the scope of freedom of press may
be summarised into following words.

In Constituent Assembly when the provision relating to freedom of

speech and expression was being discussed, several members raised vari-
ous apprehensions and insisted for a seperate provisions guaranteeing the
freedom of the press. But their demand was not acceeded as Dr. Ambedkar,
the Chairman of Drafting Committee declared that the freedom of press is
included within the freedom of speech and expression guaranteed under Ar-
ticle 19(1)(a) of the Constitution. The aforesaid view of Dr. Ambedkar was
affirmed by the Supreme Court in Romesh Thappar and Brij Bhushan Cases
when it held that freedom of speech and expression includes freedom of
press. It can neither be subjected to pre-censorship nor the government can
stop the circulation of any newspaper or publication of any matter.

The press though does not enjoy any immunity from the laws of gen-
eral taxation but the same can not be levied upon it in such manner v^^ich
adversely affects the freedom of press. The government can not take any
action to elimenate the unfair competition between big and small newspapers
in the guise of Press Commission recommendation by implementing news-
print policy. Similarly it can not take any punitive action to muffle the voice of
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the press.

The press on the rule of balance of convenience may be stopped from

publishing any matter if it comes in conflict with other's fundamental rights.
However, considering the importance of press, it can not last beyond the
period than actually required under the circumstances of a particular case. It
is not that only the press can claim its freedom against the state as a funda-
mental right, under exceptional circumstances even an individual may claim
the publication of his views in a magazine maintained out of public funds to
enable the readers to have a complete picture upon which his opinion is
formed.

The advertisements have always been a major souce of revenue for

the newspapers and it becomes available to public at reasonable price.
Advertisments not only bring down the price of a newspaper but also fulfill
the economic needs guided by information and disseminated through print
media. Therefore, the press can not be denied the freedom to publish adver-
tisements unless they fall within the ambit of Article 19(2) of the Constitution.

Unlike U.S. Constitution, ( where the courts have evolved noble rules
of restrictions) the Constitution of India expressly provides certain grounds
under Article 19(2) upon which reasonable restrictions may be placed on the
press. Therefore, press can not publish any matter it pleases. It has no free-
dom to publish any material which may endanger the sovereignty and intergrity
of country neither it may be allowed to carrry out any matter which is likely to
put the security of the country at risk. But it is the public disturbances of
unmanagable magnitude and not of purely local significance which may pose
any risk to the security of the state. Public peace and tranquility is essentialto
 163

the development of the country and the press, therefore, may be restrained from
acting in such a manner which may disturb the public peace. Reasonable re-
strictions may also be placed on the press to prevent it from publishing any
material which may debase and debouche the mind of young and adolescent
readers. Simlarly the freedom is not available to express one's views in such
manner that amount the contempt of courts. Nor it is at liberty to defame any
person and if any person is defamed because of any publication the press can
not escape from the liability. It is also universally recognised principle that free-
dom of press may not extend to a limit where it amounts the incitement to of-
fence; and therefore, press may be subjected to reasonable
restrictions on the aforesaid ground.

By virtue of Article 358 of the Constitution, the freedom of speech and

expression remains suspended during emergency promulgated under Article 352
on the ground of external aggression and war. The press under such circum-
stances may be subjected to pre-censorship and has no right to claim the free-
dom as a fundamental right. But it may be restrained only in respect of aims and
objects intended to be achieved under the censorship order and not beyond
that.