A-19(1)(a) Flashcards
Original A19(2)
Defamation-libel, Slander ; Contempt of court, Decency & Morality, Undermining the security of the state, Anything that tends to overthrow the state.
Added after the 1st CAA:
- Public Order
- Friendly relations with other countries
- Incitement of an offense
Defamation
Written (Libel), Spoken (Slander)
It’s both a civil and criminal offence in India. SECTION-356 of the BNS
Issues with Criminal Defamation?
1. Provides a public remedy for a private wrong.
2. It has an adverse effect on a democratic society as it leads to adoption of unnecessary self restraint and self-censorship by the people, especially political opponents & Media.
3. Generally cases are filed at multiple places which leads to harassment of the defendant.
4. Defamation as an offence is generally the exclusive preserve of the privileged.
5. Magistrates mechanically summon the defendants without even looking at the exceptions mentioned in Section-356 of the BNS:
Ex. Imputations/Assertions of truth that serve public good, Merits of a case decided by the court of law, statement made in good faith, statement on public conduct of a public servant.
-> Defamation can also be of a dead person if it has adverse effects on the next of kins.
-> Subramanyam Swami Judgement (2016):
The apex court upheld criminal defamation citing:
1. Right to reputation is part of right to life.
2. Lack of criminality may affect the dignity and fraternity of the individual/country.
Subramanyan Swami Judgement
In 2016, the SC upheld criminal defamation citing:
1. Right to reputation is part of right to life
2. May affect dignity and fraternity.
Contempt Of Court
Court of record: A court whose proceedings are committed to permanent memory and have evidentiary value. These courts only have the power to issue contempt.
Parliament may by law confer contempt powers on tribunals as well.
Entry no. 77 Union list(SC) and Entry no. 14 Concurrent list (Other Courts)
Contempt of Court Act (1971): Enacted on the recommendation of the Sanyal Committee.
Civil Contempt: Will full disobedience of a lawful order of the court or breach of an undertaking given to the court
Criminal Contempt:
1. Anything which scandalises or tends to lower the authority of the court.
2. Anything which interferes with the due course of legal proceedings.
3. Anything which obstructs the administration of justice.
Need for contempt powers?
1. To protect judicial independence
2. To protect the courts from motivated attacks or unwanted criticisms.
Issues with contempt powers?
1. Violates the principles of Natural Justice (Nemo Judex N coucasua)
2. Criminal contempt is very vaguely defined and much depends on the attitude and subjectivity of the judge (Seems like an absolute power)
3. Criminal contempt can be misused to suppress fair criticisms of the judiciary.
4. Often the mensrea is not taken into account.
5. The offence of scandalising the court has been abolished in UK and a highly watered down version exists in the US which affirms that dignity of the courts cannot be established by silencing public opinion or by restricting free discussions about the courts.
6. Ideally the only test of criminal contempt should be if the actions restrict/affect the functioning of the courts/judge or makes the functioning impossible.
Mulgaonkar Case (1978): The apex court provided the following guidelines wrt the use of contempt powers
1. Economic use of contempt powers is desirable.
2. There should be harmonisation between free criticism and the need to protect judicial independence
3. The media should be given as much free play as possible even when the focus of their critical attention are the courts
4. Judges shouldn’t be hypersensitive
5. The path of justice isn’t littered with roses and justice should be allowed to suffer the scrutiny and the respectful though outspoken comments of the common man.
2006 Amendment to the Contempt of Court Act provided for justification by truth as a valid defence in contempt cases.
Mulgaonkar Case
1978, The SC laid guidelines for use of contempt powers:
- Economic use of contempt powers is desirable.
- There should be harmonisation between free criticism and the need to protect judicial independence
- The media should be given as much free play as possible even when the focus of their critical attention are the courts
- Judges shouldn’t be hypersensitive
- The path of justice isn’t littered with roses and justice should be allowed to suffer the scrutiny and the respectful though outspoken comments of the common man.
Banning of Books
Section 98 of the BNSS: State can declare certain publications to be forfeited if they involve offences under the following sections of the BNS:
- Sec-196 of the BNS: Promoting enmity between groups on grounds of religion, race, caste etc. or doing acts prejudicial of harmony
- Sec- 197 of the BNS: Statements which are prejudicial to National Integration.
- Sec- 294 of the BNS: Prohibition on the sale of obscene books
- Sec- 299 of the BNS: Deliberate and malicious acts intended to outrage religious feelings of any class.
Earlier Section 124A of the IPC which stands repealed now: The Sedition Law.
Now replaced with Section 152 of the BNS.
** Section 98 of the BNSS may be termed unconstitutional as the executive is awarding punishment by banning it first. It should rather first file an FIR and if the courts feel so them ban should be imposed but here the burden is on the defendant ie. the publisher/author to prove that their literature shouldn’t be banned which violates the principles of natural justice (Innocent until proven guilty).
Sec-124A
Of the IPC now a similar yet different law exists as Section 152 of the BNS
124A -> Who ever by words either spoken or written or by signs or visible representation brings or attempts to bring into hatred or contempt or excites disaffection towards the GOVERNMENT ( NOT THE STATE ) .
124A was not part of the original IPC and was added later in 1870.
“Prince among the sections of the IPC used to suppress the voice of Indians” - MK Gandhi.
Issues:
1. Vaguely worded and it’s use is almost politically motivated.
2. Sedition laws are relics of Monarchies aimed at suppressing dissent.
3. It’s also racist as it’s based on the British notion of INFANTILE NATIVITY.
4. It’s based on the obsolete/Archaic ideal that one must love his/her KING.
Kedarnath Case (1962): The court upheld the validity of Sec-124A but read it down to apply only to cases where there is direct incitement to violence. Advocacy or discussion of a point of view is not an offence.
Balwant Singh Case (1995): The court acquitted a group of people chanting KHALISTAN ZINDABAD slogans after the assassination of PM IG.
Law Commission in it’s 279th report recommended the retention of 124A but with adequate safeguards.
SGS Vombatkare case (2022): The apex court suspended the operation of Sec-124A.
Section 152 of the BNS: Electronic communication, financial means or otherwise excites or attempts to excite secession or armed rebellion or subversive activities or encourages feelings of separatist activities or endangers sovereignty and integrity of India.
Criticism of the government would not amount to an offence now.
Kedarnath Case (1962)
SC upheld Section 124A of the IPC but read it down to apply only to cases where there is direct incitement to violence.
SGS Vombatkare Case (2022)
The SC suspended the operation of Section - 124A of the IPC which dealt with the offence of SEDITION.
Obscenity & Pornography
Sec - 294 of the BNS: Sale and distribution of Obscene books, paintings and drawings.
Sec - 295 of the BNS: Sale of Obscene materials to a child (Below 18)
Sec - 296 of the BNS: Obscene acts or singing of obscene songs in public or a public place.
1. Indecent representation of women prohibition Act (1986)
2. Sec-67 of the IT Act 2000 -> Prohibits publication or transmission of obscene material in electronic form.
Child pornography in all it’s aspects is banned under the POSCO Act 2012.
Production and distribution of Pornography is banned though viewing it is not illegal.
Art & Vulgarity
One man’s are is another’s vulgarity
- Hicklin’s test: All material tending to corrupt whose minds are open to such immoral influences is obscene regardless of it’s artistic merit.
- Miller Test:
-> Whether an avg person applying contemporary community standards finds it obscene.
-> It depicts sexual material in a patently offensive way.
-> Whether it lacks any serious literary, artistic, political or scientific value.
** But both these tests don’t make much sense. The 1st one is stupid and the 2nd one is very vague.
Films
Cinematograph Act (1952):
1. CBFC a statutory body under the Act.
2. Can recommend cuts and modifications.
3. Guiding principles for the body are contained in Sec-5B of the act which state that the board will not certify any film which goes against the interests mentioned in A-19(2).
-> The act earlier provided for a tribunal to address any disputes the FCAT which has been abolished in 2021. Now the filmmakers will have to approach the HC which is more expensive, the judges lack expertise and also may not have the time to attend to such pressing issues.
Issues with the working of CBFC:
1. Poor finances.
2. Corruption.
3. Political Interference -> Even though the SC in the Shakrapa judgement (2000) struck down Sec-6 of the Act which gave the GOI Veto power over the decisions of the CBFC.
4. Poor quality of members and chairpersons.
Mudgal Committee (2013):
1. Proper norms for selecting the right people for CBFC
2. CBFC should move from censoring to purely certifying films.
3. The committee also prepared a model CINEMATOGRAPH BILL to replace the earlier Act.
Sham Benegal Committee (2016):
1. Purely certifying body.
2. Recommended the following categories -> U, UA(12+), UA(15+), A, A/C
Cinematograph Amended Act(2023):
1. UA(7+), UA(13+), UA(16+)
2. Certifying films in perpetuity as opposed to 10 years earlier
3. More stringent provisions for addressing Piracy.
Oreoru Gramathile case (1989):
The court held once the film has been certified by the CBFC, the fig leaf of public order can’t be used to justify bans. It’s the duty of the state to protect law and order and the rights of people.
The States can’t allow Heckler’s veto.
Oreoru Gramathile Case (1989)
The state can’t use the fig leaf of public order to justify bans on certified films. It’s the duty of the state to enforce law and order and protect the rights of people. States can’t allow Heckler’s veto.
Issues with pornography and it’s legalisation
- Legalisation might inadvertantly promote objectification of women.
- Studies have shown links between consumption of pornography and attitutes which trivialise violence against women
- Without proper regulation, legalisation might lead to increased exploitation of women, especially the marginalised sections.
- Though the industry could create jobs, the participants might face social stigma and social isolation.
- Might lead to desensitisation and psychological dependency among viewers.
- Greater accessibility might expose children and adolescents to inappropriate content, adversly affecting their development and understanding of relationships.
-> Legalisation provides opportunities for regulation, but implementing and enforcing safeguards effectively would require robust infrastructure and political will.
-> Comprehensive sexual education and public awareness campaigns could mitigate some of the negatives relating to addiction and objectification.
Section 66A
Contained offenses which were extremely vague.
The SC struck it down citing the following:
1. 66A is unconstitutionally vague and has a chilling effect on the freedom of speech
2. It doesn’t contain offenses mentioned in A-19(2).
3. It fails to make a distinction between ADVOCACY,DISCUSSION and INCITEMENT to an OFFENSE
Significance of Free Speech and expression
- It must be protected firstly for it’s intrinsic value.
-> It’s a unique endowment for human civilisation. No other animal species has such capability. - Freedom of expression should be guaranteed even to those who support ideas which may appear false or misleading today. JS Mill
-> There is no idea whihc is completely false. There is an element of truth in every idea.
-> Truth emerges through a conflict of opposing views.
-> Truth needs to be exposed to poosing views for it to become trustworthy.
-> Often ideas considered false in the past and thus suppressed turned out to be true later. - Free speech is the cornerstone of a democracy. This right is not absolute but society must learn to accept unpopular views.
- Free flow of opinions is essential to sustain collective life.
-> Promotes equal treatment of minorities. ( Minorities being defined collectively, not only religious) - Creativity ( The Ultimate goal ) is the product of free trade of ideas. It pushes innovation, human progress.
- No change is possible without free speech and expression. ( Judicial, Religious, Governance related etc.)
- It enables the common man to speak truth to power.
-> No accountability is possible, no improvement in governance is possible without free speech.
-> When it comes to freedom of speech and expression, it’s better to err on the side of freedom as opposed to caution.
Threats to Free Speech in India
- Antiquated laws. ( British era laws, too vague a language, lot of discretion to the executive, regressive colonial laws )
- Weakness of the political class. ( Has become hypersensitive, touchy )
- Complicity of meadia and publication houses. ( They should promote free speech and expression )
- Corrupt enforcement machinery. (want to get into good books for career progression )
- Weakness of judiciary. ( Lack boldness. Ex. 124A was abolished in UK but was allowed to continue in India. Also execessive delays in the judgement)
- Online trolling.
Role of Media
- Media is a civic form and a parliament of citizens.
- It plays a watchdog role.
- High levels of media freedoms are critical to enhanced democratic outcomes. A slightly adversarial relationship between the state and teh media is not only inevitable but also desirable.
- Plays a protective role. ( It highlights the problems of people in remotest corners, depreived sections and casts pressure on the government to act )
- Information role. ( Not only for the citizens but even for the government. Ex. 1958-61 China famine incident )
- New value formation.
Issues/Problems with Media
- Low Rank in Press Freedom index.
-> WE have one of the largest news paper circulation in the world. It’s released by RSF headquartered in Paris.
Reasons:
1. Motivated attacks on journalists.
2. Political violence.
3. Flase cases
4. INdia is one of the most dangerous places for journalists. - Concentration of Media ownership. ( Murdochisation )
-> Only 4 media houses dominating english ( Times group, HT Media, Network 18, Hindu Group ), Hindi ( Amar ujala, Dainik Bhaskar, Dainik Jagran, Hindustan )
-> In Radio sector news broadcasts are monopolised by All India Radio.
-> Media houses having presence on all 3 platforms. ( Ex. Times group on Radio, TV, Print ) - Media Corruption
-> Paid news, Rise of lap dog media and the changing paradigm of state-media relationship. ( Media should be the watchdog for the people and not the defender for the state )
Noam Chomsky:
-> 5 filters of mass media:- Ownership. ( There are two cases here, one solely focused on media ( His motive will be for profit not necessarily on ethical journalism) , the other that their business interests lie elsewhere and profit in news business is not the goal. They focus on cultivating relationship with the government. )
- Advertising Money. ( No one pays for news so the media houses depend on advertising money and the governemnt is the largest adversiser )
- Media Elite. ( Media’s survival, profitability depend on the government of the day )
- Flak Machine.
- Inventing a common enemy.
-> The ones who hold power and the ones who are supposed to question those holding power share the same bed.
- Trial by Media. ( Media acting as the judge, jury and the executioner. Act like Kangaroo courts )
Constitutional implications:- Right to privacy
- Right to reputation
- Contempt of court
- In the media guidlines case (2012), the SC conceived the doctrine of postponement. The trial judge can prohibit the reporting of court proceedings if such reporting is likely to create a toxic atmosphere and create distroted public perceptions.
1. May compromise the right to be informed.
2. May be abused by the powerful. - Good news is no news ( Ex. Neeraj chopra winning will last for 2 days but SRK’s son accused of drugs will run for 3 months as there is juice in this ). Excessive focus on sensationalism. Commodification of news ( Overdramitization of news ). ( Breaking news )
Yellow Journalism:
-> Applies to media houses that present little or no well researched news and instead focus on eye-catching headlines, scandals for increased sales.Gonzo Journalism:
-> Style of reporting where journalist makes himself centrepiece of the story.Journalism of post truth:
-> Debate is framed around the emotional aspects of the issue as opposed to objective facts/reality.
The chinese wall between the marketing and the editorial departments has collapsed completely. - Poor quality of journalists.
-> Need to setup a communication university on lines of the AICTE to standardise the way journalism is taught in India. ( Every field has some standardization. Ex. Bar council of India, AICTE for Engineering, Medical Body for Medicine ) - Very poor regulation.
-> Media is not comfortable iwth external regulation but self regulation is no regulation as well.
-> Justice Leveson committee was set up in 2012 in the UK. It advocated the need for a strong independent ( Not government ) regulator.
Ex. We have PCI under the PCI Act (1978), a statutory body for press regulation. ( It’s only for print media )
-> Chairperson nomiated by a committee of speaker LS, VP, one member for the PCI and usually is a retired SC judge.
-> It has 28 other members. 20 represent the press, 5 from MPs ( 3 LS, 2 RS both nominated by respective presiding officers), UGC, Sahitya Academy, Bar council of India.
Objectives of PCI: -> To protect press freedoms. -> To address complaints with respect to violation of journalistic ethics. It has proved to be a toothless body with no powers. It's not tryly independent. It's budget is from the government. Has not lived up to it's phylosophy.
- Lack of competition. Low FDI in Media. 26% in print news media, 49% in electronic news media. ( 100% in entertainment media both print and electronic )-> This is a legacy of the police framed in 1955 on the recommendation of the 1st press commission which invoked the logic of national interest. But today FDI is allowed in the most critical sectors so there is no reason to justify it’s continuation.
-> Print media has had enduring monopolies which compromises competition and breeds monopoly and reduced choice.
-> Newspaper prices in India are some of the lowest in the world and thus small newspapers find it difficult to survive. This sector requires massive cash infusion.
-> Expertise of foreign brans would help improve content. Though Editorial control may be required to be in Indian hands. - Government supression of Media.
-> Under the cable TV networks Act (1995) there is a program code ( What can be broadcast ) which has the following provisions:
1. Program that offends good taste and decency.
2. Program containing critcisms of friendly countires.
3. Anything obscene, defamatory or consisting of half truths.
4. ANything amounting to contempt of court.
5. Anything casting aspersions on the integrity of the president or the judiciary.-> It’s language is too vague and gives lot of discretionary powers to the executive for censoring the press/media.
