MEDIA LAW

ntroduction
India, in the Constitution, has been described as a federation of States. Indian Constitution provides for three lists
for distribution of legislative and executive power between the Center and the States; i.e.

1. the Union (Central) List,

2. the State List, and
3. the Concurrent List (subjects within the ambit of the Union Government & the State Governments).
According to Dicey, power distribution is an essential feature of a federation. The object behind the formation of a
federal State involves an authoritative division between the National Government and the Government of the
separate States. The federal tendency is restricting every side of the Governmental action, and separation of the
strength of the State among parallel and independent authorities is particularly noticeable as it forms a significant
distinction between a federal system and unitary system of Government.

The legislative powers are subject to the scheme of the distribution of legislative power existing between the Union
and State legislatures (as provided in the 3 lists under the constitution), fundamental rights, and other
Constitutional provisions.
Distribution of Legislative Powers between the Union and the States
Let us now go through the three lists enshrined under the 7th Schedule of the Constitution.

Union List
The Union list contains 97 items which comprise of the subjects having national significance. This list admits
uniform laws that are applicable over the entire Indian territory, and only the Indian Parliament is capable of
legislating upon them.

Some of the items in this List-I are as follows:

 Defence;
 Central Bureau of investigation;
 Foreign Affairs;
 Banking;
 Intellectual Properties;
 Census;
 Corporation Tax;
 Atomic energy and necessary mineral resources;
 Preventive Detention;
 Diplomatic, consular, and trade relations;
 War & peace;
 Citizenship;
 Highways and Railways, etc.

State List
The State list contains 66 items that comprise subjects relating to local interest or the interest of the State. The
State legislature is thus competent in legislating over these subjects. Some of the subjects in this List-II are as
follows:

 Public Order;
 Local Government;
 Public health & Sanitation;
 Agriculture;
 Fisheries;
 Libraries, museums, and other resembling institutions;
 Markets & fairs;
 Gas & allied works.
Concurrent List
This list enshrines 47 items, with respect to which; both the Union Parliament and the State legislature hold a
concurrent legislative power. This list was meant to serve as a device for avoiding excessive rigidity in a two-fold
distribution. Besides, the states can additionally legislate purporting to amplify the Parliamentary legislation.
However, in case a dispute arises in relation to any subject contained in this list, the Union legislation shall prevail
over that of the State.

Some of the subjects contained in this List-III are as follows:

 Criminal law & procedure;

 Archaeological sites;
 Marriage & divorce;
 Transfer of property, excepting agricultural land;
 Contempt of Court, excluding that of the Supreme Court;
 Civil law & procedure;
 Prevention of animal cruelty;
  Electricity;
 Economic & social planning;
 Legal, medical, and other professions.

Click Above

The extent of the Parliamentary laws and the laws by the State
Legislatures
According to Article 245; subject to the constitutional provisions, Parliament may legislate for the whole or any part
of the Indian territory, a State legislature for the State territory, and no parliamentary legislation shall be invalid
because of having extra-territorial operability, i.e. takes effect outside the Indian territory.

In A.H Wadia vs. Income Tax Commissioner; the Supreme Court held that in case of a sovereign legislature, the
question on the extraterritoriality of any enactment cannot be raised before a Municipal Court for the purpose of
challenging its validity. The legislation may be contrary to the rules of the International Law, may be
unrecognizable in the foreign Courts, or may have practical difficulties in relation to their enforceability, but the
domestic tribunals are concerned solely with the questions of policy.

Subject-matter of the Parliamentary laws and laws made by the State

Legislature
According to Article 246;

1. The Union Parliament, notwithstanding anything under clause 2 and clause 3, is exclusively empowered
to legislate in respect of any matters enshrined in the Union List (List-I).
2. The Union Parliament and the State Legislature, notwithstanding anything under clause 3 and also
clause 1, is empowered to legislate on any matters contained in the Concurrent List (List-III).
3. The State Legislature, excluding anything under clause 1 and clause 2, is exclusively empowered to
legislate for such state and its any part with respect to any of the matter contained in the State List
(List-II).
 4. The Union Parliament is empowered to legislate with respect to any matter for any part of the Indian
territory not included (in a State) notwithstanding such matter is enumerated in the State List.

Parliamentary power to provide for the establishment of certain

additional courts
According to Section 247; notwithstanding anything under this chapter, the Parliament may legally provide for the
establishment of any number of additional courts for improving the administration of Parliamentary laws or of any
existing laws with respect to any matter in the State List (List-II).

Thus, the Parliament is empowered by the provision of this Article to establish Courts or judicial bodies for better
administering the laws passed by the Parliament or relating to any laws under the State List.

Residuary legislative powers

According to Article 248; Parliament is exclusively empowered to legislate with respect to any matter absent in the
Concurrent List or State List. Also, such power shall include the legislative power for imposing a tax not mentioned
in either of those Lists.

Therefore, the Parliament has the power to make laws in relation to any matter which is not present in either the
concurrent list or the State List, including the power to make laws on tax imposition.

Parliamentary legislative power with respect to a matter in the State

List

In the national interest

According to Article 249; if the Rajya Sabha passes a resolution relating to a matter of national interest with a
two-third majority. Such resolution empowers the Parliament to legislate with respect to any matter in the State
List, then it shall be lawful for the Parliament to legislate. Such legislation can extend to the whole or any part of
the Indian territory until the legislation operates.

Such a resolution normally lasts for a year and maybe renewed upon the necessity but such extension cannot
exceed a year.

These Parliamentary laws, however, shall cease to operate after the expiration of 6 months, following the cessation
of the resolution.

Thus, the Parliament is competent to legislate on any law which is based on a resolution passed by a majority in
the Upper House of the Parliament, if such resolution contains any matter of national importance. However, such a
resolution can last for a year and can be extended for a period at a maximum of one year.

If a Proclamation of Emergency is in operation

According to Article 250; during the operation of the Proclamation of Emergency, the Parliament shall be
empowered to legislate for the entire Indian territory or any of its parts with respect to all the matters enumerated
in the State List.

However, such law shall come to cessation on the expiration of 6 months following the cessation of the
Proclamation of Emergency.

During Emergency, the Parliament has the power to make any law which shall be applicable over the entire or any
part of India, and such law shall be applicable for only a year after the emergency is withdrawn.
Inconsistency between Parliamentary legislation under articles 249
and 250 and laws made by the Legislatures of States
According to Article 251; nothing under the Articles 249 & 250, shall restrict the State Legislature from legislating
on any matter for which it has been empowered under the Constitution. However, if any legal provision legislated
by the State Legislature is repugnant to any legal provision so legislated by the Parliament, whether legislated prior
to or following the State law, then the law made by the Parliament shall prevail over the one passed by the State
and the State legislation shall be inoperative until the operation of the Parliamentary law.

Parliamentary legislative power for two or more States by consent and

adoption of such legislation by any other State
According to Article 252; If it appears to the two or more State Legislatures that it is desirable that any of the
matters with respect to which Parliament lacks any legislative power for the States except as provided under the
Articles 249 and 250 should be regulated so that the States by Parliamentary law, and if resolutions are passed to
that effect by all the House of those State Legislatures, it shall be lawful for Parliament to pass an Act in order to
regulate that matter accordingly, and any Act so passed shall be applicable to such States and to any other State
by which it is adopted later through a resolution passed in that behalf by the House or Houses of the State
Legislature, as the case may be.

Any Parliamentary Act can be amended or repealed solely by a Parliamentary Act passed or adopted in resembling
manner but not by an act of the State Legislatures.

Legislation for effecting international agreements

According to Article 253; notwithstanding anything in the foregoing provisions of this chapter, the Parliament has
legislative power for the whole or any part of the Indian territory for-

 Implementation of any treaty, agreement, or other convention with another country;

 Implementing any decision made at any international conference, or international association, or
international body.
The Parliament is hereby empowered to pass any law relating to implementing any international treaty, or
agreement or convention, as the case may be; and related to any law for any decision taken at any international
conference or association, and shall be applicable over the whole or any part of the nation.

Inconsistency between Parliamentary laws and the laws by the State

Legislature
According to Article 254; if any legal provision made by the State Legislature is repugnant to any legal provision
made by the Parliament over which it has the competency, or to any existing legal provision with respect to any of
the matters contained in the Concurrent List, then, subject to the provisions of clause (2), the Parliamentary laws,
whether passed prior or following the enactment by the State Legislature, or, as the case may be, the existing law,
shall prevail over the law passed by the State Legislature.

Where an enactment by the State Legislature with respect to any matter enumerated in the concurrent List is
repugnant with the provisions of the prior Parliamentary law or existing law in respect to that matter, then, the
State law, if it has been reserved for the Presidential consideration and has received his assent, prevail in that
State.

Provided that nothing in this clause shall prevent the Parliament from legislating any law any time with respect to
the same matter including the addition of law, amendment, variation, or repealing of the law enacted by the
Legislature of the State.
Requirements as to recommendations and previous sanctions to be
regarded solely as procedural matters
According to Article 255; no Parliamentary Act or an act of a State legislature and no provision in any such Act shall
be invalid solely for the reason that some recommendation or previous sanction required by this Constitution was
not given in case the assent to that Act was given:

1. In case the required recommendation was of the Governor’s and had to be given by the Governor or
the President;
2. In case the recommendation required was that of the Rajpramukh, either by the Rajpramukh or by the
President;
3. In case the recommendation or previous sanction required was that of the President, by the President.

Conclusion
From the above comprehension, we can thus see Central domination over the States of the Indian Union. India,
although regarded as a federation of States, cannot be regarded as truly federal. In times of emergency as well as
during normal situations, the Union Parliament is always competent to supersede any State Law and prevail its
own. Therefore, India can be regarded as a quasi-federal State, having a higher resemblance with Canada than the
truly federal United States of America.

land or real estate, intellectual property, or

until the 19thcentury, human beings.
Ownership refers to the legal right of an
individual, group, corporation or
government to the possession of a thing.
Material ownership is that which is
tangible like property, land, car, book etc.
Immaterial ownership is that which is
intangible like patent, copyright,
trademark etc. Elements of Ownership:
•The power of possessing things •The
power of using a thing •The power of
disposing of a thing Types of Media
Ownership There are two types of
ownership of media: 1.Public Ownership :
Public ownership, refers to providing
communication as a public service and
addressing audiences as citizens rather
than consumers. Public organizations are
government undertakings. Public
ownership is also known as state
ownership. 2.Private Ownership: Private
ownership, which provides
communication for the purpose of
generating profit. Private
ownershiprequires individual
entrepreneurs to start a media outlet and
to finance it without reliance on any
government resources.
Types of private ownerships 1.Sole
Proprietorship Also known as individual
entrepreneurship, owned and controlled
by single person. Responsible for its
debts. Simplest and most common
structure chosen to start a business.
Advantages Complete independence for
the owner. Quick decision. Manage
routine work without interference. Easy to
maintain secrecy of information.
Disadvantages There might be lack of
resources for further growth of business.
An unlimited personal liability and
greater economic risks. 2.Partnership
Managed by two or sometimes more than
two persons. An arrangement between
two or more people to oversee business
operations and share its profits and
liabilities. In general, all members share
both profits and liabilities. (The Indian
Partnership Act 1932) Features of a
Partnership Agreement between Partners
Two or more persons Sharing of profit
Business motive Mutual Business
Unlimited Liability
Advantages Two heads (or more) are
better than one. More capital available for
business. Sharing risk Combination of
different skills Flexibility Disadvantages
Lack of Harmony Unlimited liabilities put
partner under pressure. Instability Types
of partners 1. Active partner Arrange for
capital Share profit Participate in business
2. Sleeping partner/ Dormant partner
Arrange capital Share profit Do not
participate in business 3. Nominal Partner
Lend their name and credit to the
organization but neither arrange capital
nor actively Participate in business. 3.
Joint Stock Company The largest
companies in the world are Joint stock
companies. A joint stock company is a
business organization owned jointly by all
its shareholders, which is represented by
their shares. When a group of persons
divide the capital of a company into
transferable shares, a joint stock company
is formed.
The only way to join this ownership
matrix is by purchasing shares. The
ultimate aim of all shareholders, large or
small, is profit. Lord Justice Lindleyof
England has defined itas, "anassociation
of many persons who contribute money or
moneys' worthto a common stock and
employ it for a common purpose."
Features •Separate legal Entity
•Incorporated •Perpetual succession
•Number of members •Transferable
Shares Types of Joint Stock Company
•Registered Company - Under the
Companies Act of India •Statutory
Company-Formed under the specific Act
of Parliament or any other empowered
executive authority •Chartered Company-
Incorporated with the powers vested in
Head of the State. Advantages •Financial
Strength •Limited Liability •Scope for
expansion •Stability •Transferability of
Shares •Higher Profit •Diffused Risk
Disadvantages •Formation is difficult
•Fraudulent Management •Concentration
of control in few Hands •Conflict of
Interest
•Excessive Government Control •Lack of
Secrecy 4. Trust A trust is a fiduciary
relationship in which a trustor gives
another party, known as the trustee, the
right to hold title to property or assets for
the benefit of a third party Trusts are
created by settlors, an individual along
with his or her lawyer, who decide how to
transfer parts or all of their assets to
trustees The rules of a trust depend on the
terms on which it is build. A trust can be
used to determine how a person's money
should be managed and distributed while
that person is alive or after the death.
Categories of Trust Living Trust: A
written document in which an individual's
assets are provided as a trust for the
individual's use and benefit during
hislifetime. These assets are transferred to
his beneficiaries at the time of the
individual's death. Testamentary Trust
Also called a will trust. Specifies how the
assets of an individual are designated after
the individual's death. Revocable Trust
Can be changed or terminated by the
trustor during his life time Irrevocable
trust The trustor can't change once it is
established, or one that becomes
irrevocable upon his Death. Living trust
can be revocable or irrevocable.
Testamentary trusts can only be
irrevocable. An irrevocable trust is
usually more desirable because it is
unalterable.
Advantages Limited liability is possible if
a corporate trustee is appointed The
structure provides more privacy than a
company There can be flexibility in
distributions among beneficiaries Trust
income is generally taxed as income of an
individual Disadvantages Complex
structure Trust can be expensive to
establish and maintain Powers of trustees
are restricted by trust deeds. Problems can
be encountered when borrowing due to
additional complexities of loan structures.
5. Societies It is the organization which is
formed by the people for social purpose.
The 'society' is evolved to fulfill the need
of an institution of non-commercial nature
for the promotion of numerous charitable
activities like education, art, religion,
culture, music, sports etc. A company or
association of persons united together by
mutual consent to deliberate, Determine
and act jointly common purpose.
Minimum seven people is required to
form a society. Registered under the
Societies Registration Act 1860. The rules
and regulations for these may slightly
differ from State to State. 6. Corporative
A cooperative is an autonomous
association of persons united voluntarily
to meet their common economic, social
and cultural needs and aspirations through
jointly-owned enterprise. The purpose of
a cooperative is to realize the economic,
cultural and social needs of the
organization's members andits
surrounding community.
Cooperatives often have a strong
commitment to their community and a
focus on strengthening the community
they exist in or serve. Cooperatives divide
the profits equally among their members.
It can be set up for serving any particular
interest of society. All the members share
the work and share the profit and extra
funds are used for the expansions. Due to
their democratic organization and their
economic orientation, cooperatives
contribute significantly to social
integration, job creation and the reduction
of poverty. Merits Ease of formation
Limited Liability Stable existence
Economy in operations Government
Support Social utility Limitations
Shortage of Capital Inefficient
management Lack of motivation Lack of
secrecy Excessive government control
Conflict among members A registered
society is a legal entity with certain
limitations. However, members of a
cooperative society get together to
promote the economic interest of their
members. They have to submit viable
business plan of the cooperative before
registration. These two prerequisites are
not present in a society.
7. Chain Ownership Same media
company owns numerous outlets in a
single medium. A chain of newspaper, a
series of Radio stations, a string of a
television stations etc. Chain ownership in
India applies mostly to newspapers.
Times of India, Indian Express, Hindustan
Times, Hindu, Telegraph, Ananda Bazaar
Patrika etc. 8. Cross Media Ownership
Single corporate entity owns multiple
types of media companies. May include
print, radio, television, film and internet
media sites. The major advantage of cross
media ownership is Synergy. Synergy
means self- advertisement. Another
advantage is wider reach. Disadvantage of
Cross media ownership is Monopoly.
When a company has so much
subsidiaries, they dominate all media. 9.
Conglomerate Ownership The ownership
of several business one of which is a
media business. Interlocking of a
directorships. The main business will be
high profit industry but they run a media
company for prestige or to exercise social
and political influence on decision
makers. The major advantage of
Conglomerate is diversification and
through this the risk of loss lessens. The
disadvantage of Conglomerate are that
synergies may notbe readily recognizable.
Need for management at the top
conglomerate level as well as for each
company. Cultural clash among
companies, as what works for one
company and industry may not be so far
for another.
10. Vertical Integration Vertical
integration is a strategy whereby a
company owns or controls its suppliers,
distributers or retail locations to control
its value or supply chain. It indicates that
a media company monopolizes the
production of the ingredients that go into
the making of media products.
Media Ethics
Introduction

The same First Amendment freedoms that allow U.S. media outlets to publish without fear of
government interference also make it nearly impossible to impose a standard of ethics or
professional protocol for journalists. No organization exists to certify journalists, and likewise,
no uniform system exists for penalizing unethical behavior.

Nonetheless, professionals in the field generally take great pride and responsibility in their roles,
and organizations such as the Associated Press and the Society of Professional Journalists offer
thorough and useful guidelines for ethical conduct.

Generally, ethical concerns in the media can be grouped into a few broad categories. The
following points synthesize and summarize some important ethical concerns proposed by the
Associated Press and the Society of Professional Journalists.

ACCURACY
 Check the accuracy of information from all sources to avoid error.
 Subjects of news stories should always have the opportunity to respond to any allegations of
wrongdoing.
 When mistakes are made, they must be corrected – fully and quickly.
 Headlines, news teases and promotional material, including photos, video, audio, graphics,
sound bites and quotations, should never misrepresent, oversimplify, or highlight incidents out
of context.

TREATMENT OF SOURCES
 Identify sources whenever possible so that the public has as much information possible to
determine the sources’ reliability.
 Always keep any promises made in return for the source’s cooperation.
 Only guarantee a source’s anonymity when the source insists upon it, when he or she provides
vital information, when there is no other way to obtain that information, and when the source is
knowledgeable and reliable.
 Strive to quote sources accurately and in the proper context.

AVOIDING BIAS
 Distinguish between advocacy and news reporting. Analysis and commentary should be labeled,
and not misrepresent fact or context.
 Distinguish news from advertising and avoid hybrids that blur the two.
 Examine your own cultural values and avoid imposing those values on others.
 Avoid stereotyping by race, gender, age, religion, ethnicity, geography, sexual orientation,
disability, physical appearance or social status.
 Support the open exchange of views, even views you might find repugnant.

AVOIDING DISTORTIONS
 Never knowingly introduce false information into material intended for publication or
broadcast.
  Never alter photo, video, or image content.

GATHERING INFORMATION
 Avoid undercover or other surreptitious methods of gathering information, except when
traditional open methods will not yield information vital to the public.
 Use of any non-traditional methods of gathering information should be explained as part of the
story.
 Rely on the most up-to-date and accurate research when gathering facts for a story.
 Never plagiarize.

MINIMIZING HARM
 Show compassion for those who may be affected adversely by news coverage, especially
children and inexperienced sources or subjects.
 Be sensitive when seeking or using interviews or photographs of those affected by tragedy or
grief.
 Understand that private people have a greater expectation of privacy than do public officials and
others who seek power, influence or attention.
 Be cautious about identifying juvenile suspects or victims of sex crimes.
 Be cautious about naming criminal suspects before the formal filing of charges.

AVOIDING CONFLICTS OF INTEREST

 Avoid conflicts of interest, real or perceived.
 Remain free of associations and activities that may compromise integrity or damage credibility.
 Always refuse gifts, favors, fees, free travel and special treatment.
 Avoid secondary employment, political involvement, public office, or service in community
organizations if they compromise journalistic integrity.
 Disclose unavoidable conflicts.
 Deny favored treatment to advertisers and special interests.
 Be wary of sources offering information for favors or money.

CONCLUSION

There is no standard for ethical journalistic practice, but two widely regarded organizations, The
Associated Press and the Society of Professional Journalists, offer useful and time-tested
guidelines. When in doubt, always confer with a trusted colleague or supervisor.

K.A. Abbas v. Union of India

Name of the case K.A. Abbas v. The Union of India & Anr

Citation 1971 AIR 481, 1971 SCR (2) 446

 Year of the case 24th September 1970

Appellant K.A. Abbas

Respondent The Union of India & Anr

Bench Chief Justice Hidayatullah, Justice Shelat, Mitter, Vidyialingam, and Ray.

Acts Involved The Constitution of India, The Cinemograph Act 1952.

Important Article 19(1) (a) of Indian Constitution, Section 5-B (2) of The Cinemograph
sections Act 1952.

Abstract-
Freedom of Speech and Expression is one of the most sacrosanct rights guaranteed by the Constitution of India. It is
also regarded as an integral concept in most of the modern democracies across the globe. Cinema is a mode of
expression of thoughts, ideas, and views, and being the part of Article 19(1)(a) of the Indian Constitution it enjoys
protection as conferred. However, the reasonable restrictions as imposed on Article 19(1)(a) can similarly be
imposed on the mode of expression – Cinema. Restrictions on Cinema are articulated under The Cinematograph Act
under which all the guidelines of certification as well as provisions to avoid arbitrariness are mentioned.

In India, Cinema is regulated by The Cinematograph Act, and a regulatory body called The Central Board of Film
Certification is set up according to the Act which primarily takes the task of certification of films for public
exhibition. Thus, it can be said a body of rules and regulations are set but to date, the arbitrariness and impartiality
prevail, and the judiciary here plays as a legal protector to uphold the rule of law and provide justice.

Introduction
Cinema is known as a creative and artistic form of expression of one’s views, ideas, opinions, and thoughts which
can be inspired by reality, fictional thoughts, musical scenarios, to entertain and enchant. It was been one of the
potent tools of expression for a long time ago. Cinema has always acted as a medium through which a larger
scenario of societal lives has been depicted on the screen. It has also acted as a source of inspiration and
introspection at the same time. Cinema as a perfect tool for the change in society has acted as a medium to promote
positive and required change in society.

However, being one of the major sources of entertainment as well as a medium of expression of thoughts and views,
Cinema like any other freedom of speech and expression is limited or kept under check through reasonable
restrictions. Cinema has undoubtedly contributed to the social and cultural development of India. Press and Cinema
as termed to be the medium of communication and both are considered at the status so far, the constitutional
freedom of speech and expression is concerned.

However, both of these mediums are not absolute and reasonable restrictions can be imposed. For this purpose, we
have the Cinematograph Act. 1952. The Act provides for the establishment of a ‘Central Board of Film
Certification’ as a regulatory body in India to issue certificates to the makers of the films.

K.A. Abbas v. Union of India is the first case where the question relating to the censorship of films arises. In this
case, the Supreme Court considered an important question relating to the pre-censorship of films concerning the
fundamental right of freedom of speech and expression conferred by Article 19(1) of the Indian Constitution.
This case analysis shall outline the background and major facts of the landmark case of K.A. Abbas v. Union of
India, proceeding with highlighting the issues involved, related provisions, cases referred and, in the end, shall
discuss the final verdict and concepts that gained importance because of this judgment.

Background of The Case

In different countries, films are censored to monitor the different social, economic as well as political issues it can
create which may promote or spread hatred to masses. In India, under the Cinematograph Act of 1952, there is very
little scope of censorship but the censorship that is permitted to safeguard interests at large is only done if they fall
under the specific conditions of reasonable restrictions.

This case involves the petition of the appellant under Article 32 of the Constitution of India for the enforcement of
Fundamental Rights. The Petitioner challenges the rules prescribed Central Government under part 11 of the
Cinematograph Act of 1952 as unconstitutional and void. Petitioner asks for a writ of mandamus or any appropriate
writ, direction, or order against the deletion of certain shots from the documentary film.

Facts
Khwaja Ahmad Abbas, a Bollywood director was also a member of the GD Khosla Committee on Film Censorship,
1969. His movie, A Tale of Four Cities, better known as Char Sheher Ek Kahaani was based on the contrasting
lifestyles in four of the most prominent cities of the country at the time, Bombay, Calcutta, Delhi, and Madras.

The movie tested the Censorship Committee’s political liberalist claims along with creating a shock wave in the
judiciary by questioning the relationship between fundamental rights and the Cinematograph Act, 1952. The film
had scenes portraying the red-light districts in Bombay which proved to be the most problematic for the Censorship
Board and the Judiciary. The director was adamant that the scenes had to be shown, at least with a ‘U’ certificate, if
not without any restrictions at all.

The Censor Board’s Examining Committee proposed that a ‘U’ certificate be granted only if the public viewing was
restricted to an audience of just adults. An appeal was filed thereafter, to which the court responded with an order
recommending a ‘U’ certificate if some scenes from the red-light area, which depicted immoral trafficking,
economic exploitation, and prostitution, were cut.

The petitioner filed the present petition contending that his freedom of speech and expression was denied, that the
provisions of the Cinematograph Act, 1952 were unconstitutional and void and that he was denied the ‘U’ certificate
that he was entitled to. Meanwhile, the Central Government agreed to grant the ‘U’ certificate without demanding
any cuts to be made in the film.

The petitioner then requested to be allowed to amend his petition in light of the altered situation, which was
accepted by the court. The petitioner then contended that the provisions of the Act and the power is given to various
authorities and bodies under the Act were vague, arbitrary, and indefinite and also questioned the purpose of pre-
censorship.

Issues
 Whether pre-censorship by itself offend the freedom of speech and expression or not?
 Even if there is a legitimate restraint on freedom, it must be exercised within the definite principles and no
scope of arbitrariness or not?

Related provisions
Cinematograph Act, 1952
“5B. (1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the
certificate, the film or any part of it is against the interests of the sovereignty and integrity of India the security of the
State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt
of court or is likely to incite the commission of any offense.

(2) Subject to the provisions contained in sub-section (1), the Central Government may issue such directions as it
may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act
in sanctioning films for public exhibition.”

This provision gave the Central Government the power to issue any such directions as it may think fit to preserve
“… decency and morality.”. In contrast to the purpose of the provision, in the present case, the Central Government
in the exercise of its power under section 5B of the Act, issued orders on the 3rd July 1969 further restricting
granting of the ‘U’ certificate than was necessary. The general principles which are stated in the directions given
under section 5B (2) seek to do no more than restate the permissible restrictions as stated in clause 2 of Article 19 of
the Constitution.

Article 19 of Constitution of India

Article 19(1)(a) of Constitution of India, it mentions that all the citizens of India must have the freedom of speech
and expression, however, under clause 4 of Article 19 of Indian Constitution, reasonable restrictions can be imposed
in the interest of public order or morality or sovereignty and integrity of India. In the instant case, the petitioner
argues whether the restrictions can be imposed by granting of ‘A’ certificate to the film and it was held by the Apex
court that these restrictions can be imposed in the interest of public order, peace, and security.

Related case laws

In the case of Rangarajan v. P.Jagivan Ram[1], The Supreme Court of India zealously protected the freedom of
expression and overturned the decision of Madras High Court which revoked a U certificate awarded to the film Ore
Oru Gramathile on the ground that government policy reservation system as portrayed in the film may cause
widespread law and order problem in Tamil Nadu. When the matter went as an appeal to the Supreme Court, the
apex court demolished the state argument and stated that “The State must protect the freedom of expression since it
is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem”.
[2]

In another case of Bobby Art International v. Om Pal Singh Hoon[3], the petitioner filed a petition asking the
court to quash the certificate of the exhibition for the screening of the film ‘Bandit Queen’ and also to restrain its
exhibition within India and pleaded that this film depicts the life story of Phoolan Devi and the way the rape scenes
are depicted in this film it is a slur to womanhood in India and also contended that depiction of Gujjar community
promoted moral depravity to a particular community. It was held by the apex court that the decision of Tribunal in
granting of ‘A’ certificate to the film is valid and stated that “The film must be judged in its entirety from the point
of overall impact. Where the theme of the film is to condemn degradation, violence, and rape on women, scenes of
nudity and rape and use of expletives to advance the message intended by the film by arousing a sense of revulsion
against the perpetrators and pity for the victim is permissible”.[4]

In Shree Raghavendra Films v. Government of Andhra Pradesh[5], the exhibition of the film ‘Bombay’ in its
Telugu version was suspended in the exercise of powers under section 8(1) of the A.P Cinemas Regulation Act,
1955 despite being certified by the Censor Board for the unrestricted exhibition. The suspension was imposed
because the film may hurt sentiments of certain communities however, the court discovered that the authorities who
imposed those suspensions did not even watch the film and thus the court quashed this arbitrary suspension.
In a recent case of Phantom Films Pvt. Ltd and Anr v. The Central Board of Certification[6] involving the
controversy of the film ‘Udta Punjab’ where the Central Board of Film Certification refused to certify the film
because it promotes and highlights the drug menace in the state of Punjab and in addition to that suggested cut of 13
major scenes. However, the Court observed and criticized the Central Board of Film Certification for its conduct and
stated that the Board is not necessarily entitled to censor the films. The word ‘censor’ is not mentioned in The
Cinematograph Act and that the board can make changes in the film and Central Board of Film Certification but
should exercise its power in consonance with the Constitutional provisions and Courts orders.

The court stated that “The ultimate censorious power over the censors belongs to the people and by indifference,
laxity or abetment, pictures which pollute public morals are liberally certificated, the legislation, meant by
Parliament to protect people’s good morals, maybe sabotaged by statutory enemies within. Corruption at that level
must be stamped out. And the Board, alive to its public duty, shall not play to the gallery; nor shall it restrain
aesthetic expression and progressive art through obsolete norms and grandma inhibitions when the word is wheeling
forward to glimpse the beauty of creation in its myriad manifestations and liberal horizons. A happy balance is to
“…. consider, on the one hand, the number of readers they believe would tend to be depraved and corrupted by the
book, the strength of the tendency to deprave and corrupt, and the nature of the depravity on corruption; on the other
hand, they should assess the strength of the literary, sociological and ethical merit which they consider the book to
possess. They should then weigh up all these factors and decide whether on balance the publication is proved to be
justified as being for the public good.”[7] thus, the court held that the film must be given ‘A’ certificate.

Judgment –
As held in the landmark case of K. A. Abbas v. Union of India, Chief Justice Hidayatullah, Justice Shelat, Mitter,
Vidyialingam and Ray delivered their judgment and stated that court does not accept the distinction between pre-
censorship and censorship in general and observed that both are to be governed by the standard of reasonable
restrictions within the Article 19(1) of Indian Constitution.

The Constitution has recognized that freedom of speech and expression is not an absolute right and reasonable
restrictions can be imposed. Pre-Censorship was permitted under the Constitution for public order and to uphold the
rule of law. The Judiciary is regarded as a legal protector in preserving public interest and ensure justice.

Concerning the issue of insufficient guidelines in the Act, the court held that guidelines as provided within Article
19(1) of the Indian Constitution are clearly stated and sufficient. But the distinction between the artistic expression
and non-artistic expression in assessing obscenity needs better clarity. The Court observed he cannot be the whole
reason to strike down the provisions of the Act.

Thus, the Apex Court upheld the restrictions on public exhibition under the Cinematograph Act, 1952 and thereby
rejected the petition that challenged the power of censorship and stated that pre-censorship fell under the reasonable
restrictions permitted under freedom of speech and expression and that the Act provides the means and provisions to
avoid arbitrariness in the exercise of the powers conferred.

Concepts Highlighted
 Freedom of Speech and Expression– Cinema is an instrument of expression of ideas and thoughts and
this should not be restricted from any kind of censorship. Restriction of any kind must not infringe on the
basic human right of an individual to express their views.
 Reasonable Restrictions– However, at the same time one must keep in mind that with rights conferred, the
duty to practice those rights is on the same individuals. If the peace and law and order situation is disturbed
or harmed by one’s expression of thoughts, Restrictions can be imposed.
 A Balanced Approach– Henceforth, to maintain a balance between the right to freedom of speech and
expression and the duty to maintain peace and security in the nation. A balanced approach by the
authorities should be applied. In case of reviewing a film or giving a certification of approval, the
 authorities should strike a balance of harmony where the right of freedom of speech and expression, as well
as a sense of peace and security, prevails.
 The Supremacy of Constitution– It has been stated that to curb the arbitrariness and safeguards the rights,
the Constitution of India is sufficient, absolute, and supreme to ensure justice and impartiality.
 Under Indira Gandhi’s direction as Minister in 1964, the Ministry of Information and Broadcasting
established a committee led by former Auditor-General of India Ashok.Chanda to investigate Indian
broadcasting. It presented a report on radio and television in 1966 that was critical of the state’s financial
and administrative restrictions on these media. The report noted that the independence of All India Radio
(or “Ākāshvānī” since 1956) was systematically undermined by ministerial interventions in programming
and through political appointments of staff: “successive Ministers usurped the policy-making functions of
the directorate-general and started interfering even in matters of programme planning and presentation”
(Chanda 1966, 51). The Chanda committee also noted that radio and television were significantly
underfunded, as compared with comparative countries. Under the former Ministers of Information and
Broadcasting since Indian independence – Vallabhbhai Patel (1947-1950), R.R. Diwaker (1950-1952), and
B.V. Keskar (1952-1962) – the Chanda committee suggested that television was understood as “an
expensive luxury intended for the entertainment of the affluent society and . . . should be left alone until our
plans of economic development have been completed” (1966, 199). The Chanda report instead concluded
that “A psychological transformation is necessary” (1966, 231) with regard to state approaches to Indian
broadcasting, providing 219 recommendations. Unlike the majority of the film industry, the report
recommended that radio and television should remain publicly controlled, while requiring greater funding,
including through advertising revenue.
 Robin Jeffrey (2006, 216) effectively sums up the political-historical context that circumscribed the
influence of the report:
“The timing of the report – April 1966 – was inopportune. The Prime Minister, Lal Bahadur Shastri, had
died in January, Mrs Gandhi was an unsteady replacement, the country had just fought its second war in
three years and the two-year ‘Bihar famine’ was beginning.”
The recommendation that Ākāshvānī and Doordarshan be separated finally came into being a decade later,
in 1976. The debate about the political independence of the public broadcasters was resumed in 1977 with
the Verghese Committee, and the recommendation of a public broadcasting model like the British
Broadcasting Corporation. – Liam Grealy