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.
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.
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.
