Media Law and Ethics (M. Neelamalar)

M.
Neelamalar
Media Law and
Ethics
M. NEELAMALAR
Assistant Professor
Department of Media Sciences
Anna University
Chennai
PHI Learning > rive Vintec

Delhi-110092
2015
= 250.00
MEDIA LAW AND ETHICS

M. Neelamalar
© 2010 by PHI Learning Private Limited, Delhi. All rights reserved. No part of this book may
be reproduced: in any form, by mimeograph or any other means, without permission in writing
from the publisher.
ISBN-978-81-203-3974-3
The export rights of this book are vested solely with the publisher.
Fourth Printing August, 2015
Published by Asoke K. Ghosh, PHI Learning Private Limited, Rimjhim House, 111, Patparganj
Industrial Estate, Delhi-110092 and Printed by Glorious Printer, Delhi-110092.
Contents
Preface
Table of Cases
CHAPTER 1 HISTORY OF MEDIA LAW IN INDIA

el Introduction
1.1.1 Other Major Acts
Exercises
Further Reading
CHAPTER 2 INDIAN CONSTITUTION

eal Introduction
2.2 Fundamental Rights
2.3. Directive Principles of State Policy
2.4 Centre—State Relations
2.4.1 Legislative Relations
2.5. Emergency Provisions
2.6 Amendment of the Constitution
2.7.‘ Parliamentary Privileges
Exercises
Further Reading
CHAPTER 3 FREEDOM OF MEDIA

Bl Introduction
Sy Cases Related to Freedom of Media
Exercises
Further Reading
CHAPTER 4 DEFAMATION
4.1 Introduction
4.1.1. Libel and Slander
4.2 Case Related to Defamation
Exercises
Further Reading
iv * Contents
CHAPTER 5 PROVISIONS OF THE INDIAN PENAL

CODE AND CRIMINAL CODE
nll Introduction
De The Indian Penal Code
5:3 The Criminal Procedure Code, 1973
Exercises
Further Reading
CHAPTER 6 OFFICIAL SECRETS ACT 1923
6.1 Introduction
6.1.1 Salient Features of the Act
Exercises
Further Reading
CHAPTER 7 THE CONTEMPT OF COURTS ACT, 1971 55-63

del Introduction 55
7.1.1 Salient Features of the Act a
7.2 Cases Related to Contempt of Court 58
Exercises 63
Further Reading 63
CHAPTER 8 PRINT MEDIA: ACTS 64-75

8.1 Introduction
8.2 The Press and Registration of Books Act, 1867
8.3. Registration of Newspapers
8.4 Press Council Act, 1978
8.5 Working Journalists and Other Newspaper
Employees (Condition of Service) and
Miscellaneous Provisions Act, 1955
8.5.1. Salient Features of the Act
Exercises
Further Reading
CHAPTER 9 INTELLECTUAL PROPERTY RIGHTS

9.1 Introduction
9.2 World Trade Organization
9.3. Enactments
9.3.1 The Designs Act, 1911
9.3.2 Trade and Merchandise Marks Act, 1958
Contents *® V
a
9.3.3 The Patents Act, 1970 94

9.3.4 The Copyright Act, 1957 95
9.4 Cases Related to Copyright and IPR 106
Exercises 117
Further Reading 117
CHAPTER 10 ADVERTISING 118-125

10.1 Introduction 118
10.2. The Monopolies and Restrictive Trade
Practices Act, 1969 118
10.2.1 Salient Features of the Act 118
10.3. Drugs and Magic Remedies (Objectionable
Advertisements) Act, 1954 122
Exercises 124
Further Reading 125
CHAPTER |] CYBER CRIMES 126-138

11.2 Types of Cyber Crimes 126
11.2.1 Cyber Crimes against Women 128
11.3. Information Technology Act, 2000 129
11.4 Penalties and Adjudication 131
11.4.1 Offences 133
Exercises 138
Further Reading 138
CHAPTER 12 MEDIA LAW AND WOMEN 139-143

12.2 Indecent Representation of Women (Prohibition)
Act, 1986 139
12.2.2. Indecent Representation of Women
(Prohibition) Rules, 1987 141
12.2.3 Other Regulations to Safeguard Women 142
Exercises 143
Further Reading 143
CHAPTER 13 MEDIA LAW AND CHILDREN 144-149

13.2. The Children Aci, 1960 144
vi * Contents een at ese ae re es a
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13.3. The Young Persons (Harmful Publications)

Act, 1956 145
13.4 Other Regulations 146
13.5 Guidelines (ASCI) 148
Exercises 149
Further Reading 149
CHAPTER 14 BROADCASTING 150-162

14.2 The Prasar Bharati (Broadcasting Corporation of
India) Act, 1990 150
14.3. The Cable Television Networks (Regulation)
Act, 1995 155
14.4 The Cable Television Networks Rules, 1994 159
14.5 Broadcasting Services Regulation Bill, 2006 162
Exercises 162
CHAPTER 15 FILM MEDIA 163-176

15.2 Cinematograph Act, 1952 163
15.3 Cases Related to Cinematograph Act 168
Exercises 176
Further Reading 176
CHAPTER 16 MEDIA ETHICS 177-210

16.2 Ethics vs. Law il a
16.3. Ethics vs. Principles of Journalism 178
16.3.1 Code of Ethics 178
16.3.2 Print Media 179
16.4 Advertising 191
16.4.1 Code for Commercial Advertising Over
All India Radio 191
16.4.2 The Code 192
16.5 Procedure for the Enforcement of the Code 195.
16.6 Code for Commercial Advertsing on Doordarshan 196
16.7 Procedure for the Enforcement of the Code 197
16.8 Excerpts of Advertisement Standard Council of
India’s Code of Ethics 197
16.8.1 Purpose 197
16.8.2 Declaration of Fundamental Principles 197,
Contents * Vii
16.8.3 Responsibility for the Observance of this

Code 198
16.8.4 The Code and the Law 198
16.8.5 Broadcasting Ethics 203
16.9 Section 1: Fundamental Principles 205
16.10 Section 2: Principles of Self Regulation 206
16.10.1 Impartiality and Objectivity in Reporting 207
16.10.2 Ensuring Neutrality 207
16.10.3 Reporting on Crime and Safeguards to
Ensure Crime and Violence Not
Glorified 207
16.10.4 Depiction of Violence or Intimidation
against Women and Children 208
16.10.5 Sex and Nudity 208
16.10.6 Privacy 208
16.10.7 Endangering National Security 209
16.10.8 Refraining from Advocating or
Encouraging Superstition and Occultism 209
16.10.9 Sting Operations 209
16.10.10 Corrigendum 210
16.10.11 Viewer Feedback 210
Exercises 210
Further Reading 210
APPENDIX I Excerpts from the Code of Ethics for Advertising in

India Issued by the Advertising Council of India 211
APPENDIX II Code of Standards in Relation to the Advertising
of Medicines and Treatments 212-215
APPENDIX III Standards of Practice for Advertising Agencies
(As approved by the Advertising Agencies .,
Association of India, Bombay) 216-218
References 219
Index 221-224
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Preface
In the current scenario, students of media come across a variety of options to

choose from, as far as their career choice is concerned. Print, electronic, the
Internet and also the film media provide them with a plethora of
opportunities. Whichever media and whichever type of job they choose, all of
them need to possess some basic knowledge of media law. Failing to do so
will not only cost them dear but also their employers and the media
organizations to which they belong—the ‘defamation’ and ‘contempt of court’
cases pending against media organizations in various courts of India being
Just a small example.
This is an era in which the importance of professional ethics, and also
the lack of it, is being increasingly felt in all the professions. Comparatively
speaking, media professionals have all the more responsibility to adhere to
ethics in their profession as the unethical content in media has the capacity
to affect the psyche and norms of the entire nation.
This book has been authored for the purpose of providing a complete
account of law and ethics relevant to media and media professionals. The
book has been designed in such a way that it caters well to the needs of
media students and comprehensively covers the syllabus of the course on
Media Law and Ethics.
The first chapter gives a brief history of media law in India. The second
chapter provides those parts of the Indian Constitution which are essential for
a journalist to know. The third chapter discusses freedom of media guaranteed
by the Indian Constitution with a digest of a few cases. The fourth chapter
deals with defamation with a few cases on the subject. The fifth chapter
provides provisions of the Indian Penal Code and Criminal Procedure Code
which are relevant to media. The sixth chapter gives the salient features of the
Official Secrets Act, 1923. The seventh chapter gives the salient features of
The Contempt of Courts Act, 1971 with a digest of a few cases.
The print media has always occupied a place of pride in the country’s
history and it is the well-regulated medium in India. The eighth chapter gives
an account of the Acts related to print media in India. The ninth chapter gives
a description of Intellectual Property Rights (IPR) and the Acts dealing with
IPR in India.
Advertisements are well known for their ability to persuade people and
ix
X # Preface
hence it becomes the duty of the government to protect the people from
deceptive advertisements. The tenth chapter provides an account of the Acts
dealing with advertisements in India. Cyber crime is where a computer is the
target of a crime or is the means adopted to commit a crime. The eleventh
chapter explains the cyber crimes and also the Information Technology Act
2000.
The media, more often than not, exploits women for commercial
purposes. The twelfth chapter deals with the Act related to representation of
women in media in India, which is Indecent Representation of Women
(Prohibition) Act, 1986. Children lack the power to discriminate between real
and reel and hence they need to be protected from the appealing images of
media. The thirteenth chapter gives an account of the legal provisions in India
to safeguard children in their media portrayal.
The fourteenth chapter gives an account of the regulations dealing with
broadcasting in India and the fifteenth chapter deals with regulations for film
media in India.
Ethics need to be part and parcel of all the professions and it is even
more needed to be followed by media professionals. The sixteenth and final
chapter of the book gives an account of ethics needed for media professionals.
This book is designed as the textbook for the undergraduate and post-
graduate students of Mass Communication, Visual Communication, Electronic
Media, Journalism and other such media courses. Further, it could be used as
a reference book by media professionals.
I hope that the book will help media students understand the concepts
of ‘media law and ethics’ and it will also enable them to face the legal
problems encountered by them in their career confidently. I welcome
the comments and suggestions to further improvise the book.
M. Neelamalar
Table of Cases
Chapter no. Details of cases
3 Ajay Goswami vs. Union of India (UOI) and Ors., 2005, SC.
Sakal Papers (P) Ltd. and Ors. vs. The Union of India (UOLD),
1961, SC.
R. Rajagopal @ R.R. Gopal @ Nakkheeran Gopal and A. Kamaraj

vs. J. Jayalalitha and Mrs. N. Sassikala, 2006, High Court of
Madras.
Court of its own Motion vs. A.J. Philip (Printer, Publisher and
Officiating Editor the Tribune Press), 2003, High Court of Punjab
and Haryana.
Advocate General of Tamil Nadu vs. Shri M. Karunanidhi

(Founder and Editor, Murasoli), 2002, High Court of Madras.
Time Warner Entertainment Company I.P. and Ors. vs. RPG

Netcom Ltd., 2008, High Court of Delhi.
ESPN Stars Sports vs. Global Broadcast News Ltd. and Ors.,
2008, High Court of Delhi.
Asian Paints Limited vs. Home Solutions Retail (India) Limited,

2007, High Court of Bombay.
15 Tamil Nadu Medical Council rep by its President, Dr. K.R.

Balasubramaniam vs. The Chairman, Central Board of Film
Certification, The Central Board of Film Certification rep. by its
Regional Officer and The Gemini Film Circuit (The Producer
“Vasool Raja, M.B.B.S.”), 2004, High Court of Madras.
Ms. A. Arulmozhi vs. The Govt. of India and Ors., 2005, High
Court of Madras.
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Chapter 1
History of
Media Law in India
1.1 INTRODUCTION
The history of media law could be traced to the British rule in India. Most of
the law framed during that time was obviously to control the press as press
was used as a powerful medium by the freedom fighters and also the print
media of those days voluntarily took part in the freedom struggle. One of
the earliest regulations was Press Regulations (1799) introduced by Lord
Wellesley which imposed pre-censorship. In 1823, an ordinance introducing
licensing of the press was issued. This required a previous license from the
Governor-General for all matters being printed, other than those commercial
in nature. The Press Act of 1835 neutralized the regulations passed in 1799
and 1823.
In 1857, the government passed the Gagging Act, which among various
other things, introduced compulsory licensing for the owning or running of
printing presses; empowered the government to prohibit the publication or
circulation of any newspaper, book or other printed material and banned the
publication or dissemination of statements or news stories which had a
tendency to cause a furore against the government, thereby weakening its
authority.
In 1860, the Indian Penal Code (IPC) was passed. Even though it was
for all sorts of offences, the offences specific to press like defamation and
obscenity were also included in the IPC.
Governor General Lord Lytton promulgated the Vernacular Press Act
of 1878. This Act was specifically directed against the newspapers in Indian
languages. The Act allowed the government to clamp down on the publication
of writings, deemed seditious and to impose punitive sanctions on printers and
publishers who failed to fall in line.
The Criminal Procedure Code, enacted in 1898—a code for the
procedure in criminal matters—included certain procedures related to press,
I
2 * Media Law and Ethics
too. Its provisions authorized the government to search and forfeit

publications considered to be offensive in nature.
In 1908, Lord Minto promulgated the Newspapers (Incitement to
Offences) Act, 1908 which authorized local authorities to take action against
the editor of any newspaper that published matter deemed to constitute an
incitement to murder or any other act of violence or an offence under the
Explosive Substances Act.
While most of the media law enacted by the British is not being
practised today, a few Acts like Press and Registration of Books Act, 1867
(a law to regulate printing presses and newspapers through registration) and
Official Secrets Act, 1923 are still in force.
After independence, when the Constitution of India came to force on
26th January 1950, constitutionally ‘freedom of press’ was granted under the
broad spectrum of ‘freedom of expression’ in Article 19 1(a). Since then
media law in India is mostly regulatory in nature rather than draconian,
though there were attempts being made to curb or restrict the freedom from
time to time.
In 1951, the Press (Objectionable Matter) Act, 1951 was passed. A
temporary Act whose objective was to ‘provide against the printing and
publication of incitement to crime and other objectionable matter’. It was
repealed in 1957.
The Newspaper (Price and Page) Act, 1956 was meant to regulate the
price of newspapers in relation to the number of pages and size and also to
regulate the allocation of space to be allowed for advertising matter. It was
struck down by the Supreme Court in the case of Sakal Papers vs. Union of
India in 1962 as unconstitutional.
1.1.1 Other Major Acts

Copyright Act, 1957: This is an Act to amend and consolidate the
law relating to copyright.
Defence of India Act, 1962: This Act came into effect during the
proclamation of emergency in 1962. The Act empowered the Ceniral
Government to make rules with regard to prohibition of publications or
communications prejudicial to the civil defence or military operations, the
prevention of prejudicial reports and the prohibition of printing or publishing
any prejudicial matter in any newspaper.
Civil Defence Act, 1968: This Act empowered the central government
to make rules similar to those mentioned in Defence of India Act, 1962. It
authorized the Government to make rules for the prohibition of printing and
publication of any book, newspaper or other document containing matters
prejudicial to the civil defence.
Contempt of Courts Act, 1971: This is an Act to define and limit the
Chapter 1 : History of Media Law in India * 3
powers of certain courts in passing the orders related to the contempt of

courts and to regulate such procedure.
Press Council Act 1978: This is an Act to establish a Press Council

for the purpose of preserving the freedom of the press and of maintaining and
improving the standards of newspapers and news agencies in India.
Films
As far as film media is concerned, the Cinematograph Act, 1952 was the
major Act which was passed to make provision for the certification
of films before its exhibition and for regulating exhibitions by means of
cinematographs.
Advertising
Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954:
This Act was passed to control the advertisement of drugs in certain cases, to
prohibit the advertisement for certain purposes of remedies alleged to possess
magic qualities and to provide for matters connected therewith.
Monopolies and Restrictive Trade Practices Act, 1969: An Act which
was passed to ensure that the operation of the economic system does not
result in the concentration of economic power to the common detriment. It is
responsible for the control of monopolies, for the prohibition of monopolistic
and restrictive trade practices and for matters connected therewith or
incidental thereto.
This Act lists the unfair trade practices which also include advertise-
ments.
Broadcasting
In the beginning, the regulation of broadcasting in India was based on the
Indian Telegraph Act 1885. The Indian Telegraphic Act, 1885 was an Act to
amend the law relating to Telegraphs in India. “Telegraph” meant any
appliance, instrument, material or apparatus used or capable of use for
transmission or reception of signs, signals, writing, images, and sounds or
intelligence of any nature by wire, visual or other electro-magnetic emissions,
radio waves or Hertzian waves, galvanic, electric or magnetic means.
The Prasar Bharati (Broadcasting Corporation of India) Act, 1990 was
passed to provide for the establishment of a Broadcasting Corporation for
India, to be known as Prasar Bharati.
The Cable Television Networks (Regulation) Act, 1995 was passed to
regulate the operation of cable television networks in the country.
The draft of the Broadcasting Services Regulation Bill was brought
out in 2006. It had been formuiated to regulate the broadcast services in India
and needs to get the approval of the Parliament.
4 % Media Law and Ethics
EXERCISES
Short Questions
1. What is the major regulation for film media in India?
Briefly explain the laws responsible to regulate advertising in India.
Explain the Newspaper Price and Page Act, 1956.
What is Prasar Bharati Act?
ea
Expalin the Gagging Act.
Long Question
1. Explain in detail the history of media law in India.
FURTHER READING
Durga Das Basu, Law of the Press, Prentice-Hall of India, New Delhi, 1994.
Vidisha Barua, Press and Media Law Manual, Universal Law Publishing Co.,
Delhi, 2002.
Chapter 2
Indian Constitution”
2.1 INTRODUCTION
The Indian Republic is governed in terms of the Constitution of India which
was adopted by the Constituent Assembly on 26th November 1949 and came
into force on 26th January 1950. The Indian Constitution provides for a
Parliamentary form of government which is federal in structure with certain
unitary features. The constitutional head of the Executive of the Union is the
President.
It is not enough for an aspiring journalist to learn the media law
alone. They should also be knowledgeable in certain features of the Indian
Constitution. For this purpose, this chapter provides a brief account of the
following parts of the Indian Constitution: Fundamental rights, directive
principles of state policy, centre-state relations, emergency provisions, amend-
ment of the constitution and parliamentary privileges.
2.2; FUNDAMENTAL RIGHTS

The fundamental rights are the natural rights that cannot be taken away by the
State. The fundamental rights can be altered only by making an amendment
in the Indian Constitution. All the citizens of the country possess the right to
directly move the Supreme Court, if their fundamental rights are violated,
which is by itself a fundamental right.
Part III of the Indian Constitution deals with the fundamental rights
(Article 12-35). The following rights are provided under the fundamental
rights: Right to equality, Right to freedom, Right against exploitation,
Right to freedom of religion, Cultural and educational rights and right to
constitutional remedies.
Right to equality
Articles 14-18 deal with right to equality. These Articles provide equality
* Specific Provisions Related to Media.

wn
6 %* Media Law and Ethics
before law, prohibition of discrimination on grounds of religion, race, caste,

sex or place of birth (with exceptions being women and children for whom
the State is permitted to make special provision), equality of opportunity in
matters of public employment (the exceptions are: the Parliament can
make residence within the State or Union territory as a requirement for any
government employment in that State or Union territory; the State can make
any provision for backward class of citizens who, according to the State are
not adequately represented in the State in the appointments or posts; and any
law in operation which provides that the incumbent of an office or any
member of the governing body connected with the affairs of any religious or
denominated institution should be a person professing a particular religion
or denomination), abolition of untouchability and abolition of titles other than
a military or an academic distinction.
Right to freedom
Articles 19-22 deal with the right to freedom.
The freedoms guaranteed under right to freedom in Article 19
(protection of rights regarding freedom of speech, etc.) are:
Freedom of speech and expression
Freedom of assembly
Freedom of association
Freedom of movement
Freedom of residence and settlement
Freedom of profession, occupation, trade or business.
But these rights are not absolute, the exceptions to the above rights are:
the sovereignty and integrity of India, the security of the State, friendly
relations with foreign states, public order, decency or morality, contempt
of court, defamation and incitement to an offence or any other reasonable
restrictions.
The other rights under right to freedom are protection in respect of
conviction for offences (i.e. the rights guaranteed to those who are convicted
for offences) (Article 20), Protection of life and personal liberty (Article 21)
which states that no person shall be deprived of his life or personal liberty
except according to procedure established by law, Article 22 provides
protection against arrest and detention in certain cases. It deals with the rights
of the people who are arrested such as that the arrested people should be
detained in custody only after being informed of the reason of arrest, should
not be denied the right to consult a legal practitioner and every person who is
arrested and detained in custody shall be produced before the nearest
magistrate within 24 hours, excluding the time necessary for the journey. But
at the same time, the people who are exceptions to this Article are: (1) enemy
alien; (2) any person who is detained under any law providing for preventive
Chapter 2 : Indian Constitution * 7
detention. (Preventive detention is detaining somebody in custody even before

they have committed the crime, preventing them from committing the crime).
Right against exploitation

Articles 23-24 speak about right against exploitation. Article 23 prohibits
traffic in human beings and forced labour and any contravention of this is
considered an offence. Article 24 prohibits employment of children below 14
years in factory, mine or in any other hazardous employment.
Right to freedom of religion

Articles 25-28 deal with right to freedom of religion. Freedom of conscience
and free profession, practice and propagation of religion (Article 25),
Freedom to manage religious affairs, (Article 26), freedom for not to be
compelled for payment of taxes for promotion of any particular religion
(Article 27), freedom for not being compelled to attend any religious
instruction or religious worship in educational institutions if that institution is
maintained wholly or partly under State funds, the only exception for this
right being institutions established under any endowment or trust which
requires that religious instruction shall be imparted in such institution even if
it is administered by the State (Article 28).
Cultural and educational rights

Articles 29 and 30 deal with educational and cultural rights. Minorities living
in the territory of India having a distinct language, script or culture should be
protected to conserve the same and no citizen shall be denied admission into
any educational institution maintained wholly or partly out of State funds on
grounds only of religion, race, caste, language or any of them (Article 29).
Article 30 provides the minorities the right to establish and administer
educational institutions of their choice.
Saving of certain laws

Articles 31A—31D deal with saving of some laws. Article 31A provides that a
law providing for the acquisition by the State of any estate or of any rights
therein or the extinguishment or modification of any such rights and laws
providing for the taking over of the management of any property by the State
for a limited period either in the public interest or in order to secure the
proper management of the property, shall not be deemed to be void on the
ground that it is inconsistent with, or takes away or abridges any of the rights
conferred by Article 14 or Article 19. Article 31B validates certain Acts and
regulations specified in the Ninth Schedule and states that none of these
provisions shall be deemed to be void on the ground that they are inconsistent
with, or takes away or abridges any of the fundamental rights. Article 31C
provides that a law giving effect to the directive principles, stated in Part IV
of the constitution shall not be on the ground that it is inconsistent with, or
takes away or abridges any of the rights conferred by Article 14 or Article Ww:
Right to constitutional remedies

Article 32 provides the remedies for enforcement of fundamental rights when
those rights are denied. Article 32 guarantees the right to move the Supreme
Court by appropriate proceedings for the enforcement of the rights and gives
the Supreme Court the power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of
the fundamental rights. Article 33-34 deal with the limitations on the
enforcement of fundamental rights. Article 33 provides that the Parliament
can restrict or abrogate the fundamental rights of the (a) members of the
armed forces; or (b) the members of the forces charged with the maintenance
of public order; or (c) persons employed in any bureau or other organization
established by the State for purposes of intelligence or counter intelligence; or
(d) persons employed in, or in connection with, the telecommunication
systems set up for the purposes of any force, bureau or organization referred
to in clauses (a) to (c), to ensure the proper discharge of their duties and the
maintenance of discipline among them. Article 34 states that fundamental
rights are restricted while martial law is in force in any area.
Article 35 states that the Parliament shall have and the Legislature of
a State shall not have the rights for giving effect to the provisions of this
part and for prescribing punishment for those acts which are declared to be
offences under Part III.
2.3 DIRECTIVE PRINCIPLES OF STATE POLICY

Directive priciples are the directions of the Constitution to the State. While
fundamental rights are enforceable by court, directive principles are not
enforceable. Whenever there is a clash between fundamental rights and
directive principles, it is the former that reign supreme over the latter.
Directive principles are given in the Articles 36 to 51. The directive
principles state that the state should strive for the following:
1. To secure a social order for the promotion of welfare of the people

(Article 38).
2. To direct its policy towards securing that the citizens have the right
to an adequate means of livelihood, the ownership and control of
the material resources of the community are so distributed as to
subserve the common good, operation of the economic system does
not result in the concentration of wealth and means of production to
the common detriment, there is equal pay for equal work for both
men and women, the health and strength of workers, men and the
women and tender age of the children are not abused and children
are given opportunities and facilities to develop in a healthy manner
and in conditions of freedom and dignity and that childhood
and youth are protected against exploitation and against moral and
material abandonment (Article 39).
To provide equal justice and free legal aid (Article 39A).
a
= To organize village panchayats (Article 40).
To make effective provision for securing the right to work, to
education and to public assistance in cases of unemployment, old
age, sickness and disablement and in other cases of undeserved
want (Article 41).
To make provision for securing just and humane conditions of work
and for maternity relief (Article 42).
To secure, by suitable legislation or economic organization or in
any other way, to all workers, agricultural, industrial or otherwise,
work, a living wage, conditions of work ensuring a decent standard
of life and full enjoyment of leisure and social and cultural
opportunities and to promote cottage industries on an individual or
co-operative basis in rural areas (Article 43).
By suitable legislation or in any other way, to secure the participa-
tion of workers in the management of undertakings, establishments
or other organizations engaged in any industry (Article 43A).
To secure for the citizens a uniform civil code throughout the
territory of India (Article 44).
10. To provide, within a period of ten years from the commencement of
the Constitution, for free and compulsory education for all children
until they complete the age of fourteen years (Article 45).
1h To promote with special care the educational and economic interests
of the weaker sections of the people, and, in particular of the
Scheduled Castes and the Scheduled Tribes, and shall protect them
from social injustice and all forms of exploitation (Article 46).
12, To raise the level of nutrition and the standard of living of its
people and the improvement of public health as among its primary
duties and, in particular, the State shall endeavour to bring about
prohibition of the consumption, except for medicinal purposes of
intoxicating drinks and, of drugs which are injurious to health.
(Article 47).
13; To organize agriculture and animal husbandry on modern and
scientific lines and shall, in particular, take steps for preserving
and improving the breeds, and prohibiting the slaughter, of cows
and calves and other milch and draught cattle (Article 48).
14. To protect and improve the environment and to safeguard the
forests and wildlife of the country (Article 48A).
15. To protect every monument or place or object of artistic or historic

interest, declared by or under law made by Parliament to be of
national importance, from spoilation, disfigurement, destruction,
removal, disposal or export, as the case may be (Article 49).
16. To separate the judiciary from the executive in the public services
of the State (Article 50).
17. To promote international peace and security; maintain just and
honorable relations between nations; foster respect for international
law and treaty obligations in the dealings of organized peoples with
one another; and encourage settlement of international disputes by
arbitration (Article 51).
2.4 CENTRE-STATE RELATIONS

In the Indian Constitution, the Centre-State relations are mentioned under the
following category:
(i) Legislative relations
(ii) Administrative relations
2.4.1 Legislative Relations

Parliament may make laws for the whole or any part of the territory of India,
and the Legislature of a State may make laws for the whole or any part of the
State (Article 245).
Parliament has exclusive power to make laws with respect to any of the
matters enumerated in List I in the Seventh Schedule (in the Constitution
referred to as the “Union List”). The Legislature of any State, have power to
make laws with respect to any of the matters enumerated in List III in the
Seventh Schedule (in the Constitution referred to as the “Concurrent List”)
(Article 246).
Parliament may by law provide for the establishment of any additional
courts for the better administration of laws made by Parliament or of
any existing laws with respect to a matter enumerated in the Union List
(Article 247).
Parliament has exclusive power to make any law with respect to any
matter not enumerated in the Concurrent List or State List (Article 248).
Parliament has the power to legislate with respect to a matter in the
State List in the national interest (Article 249).
Parliament has been provided the power to legislate with respect to any
matter in the State List if a Proclamation of Emergency is in operation
(Article 250).
Whenever there is an inconsistency between laws made by Parliament
under articles 249 and 250 and laws made by the Legislatures of States, a law
made by the Parliament shall prevail over the law made by the Legislatures
(Article 251).
Parliament has the power to legislate for two or more States by consent
and such legislation shall apply to any other State, if it is adopted after a
resolution (Article 252).
Parliament has the power to make any law for the whole or any part of
the territory of India for implementing any treaty, agreement or convention
with any other country or countries or any decision made at any international
conference, association or other body (Article 253).
Whenever there is inconsistency between laws made by Parliament and
laws made by the Legislatures of States, the law made by the Parliament shall
prevail and law made by the Legislature of the State shall, to the extent of the
repugnancy, be void (Article 254).
Requirements as to recommendations and previous sanctions shall be
regarded as matters of procedure only by Parliament as well as Legislatures
(Article 255).
The executive power of every State shall be so exercised as to ensure
compliance with the laws made by Parliament and any existing laws which
apply in that State, and the executive power of the Union shall extend to the
giving of such directions necessary for that purpose (Article 256).
The executive power of every State shall be so exercised as not to
impede or prejudice the exercise of the executive power of the Union, and the
executive power of the Union shall extend to the giving of such directions to
a State as may appear to the Government of India to be necessary for that
purpose. The executive power of the Union shall also extend to the giving of
directions to a State as to the construction and maintenance of means of
communication declared in the direction to be of national or military
importance (Article 257).
The Union has the power to confer powers and entrust functions to
States in certain cases and a law made by Parliament which applies in any
State may, confer powers and impose duties, or authorize the conferring of
powers and the imposition of duties, upon the State (Article 258). And
similarly, the States have been provided the power to entrust functions to the
Union, with the consent of the Union Government (Article 258A).
The Government of India may by agreement with the government of
any territory not being part of the territory of India undertake any executive,
legislative or judicial functions vested in the government of such territory,
but every such agreement shall be subject to, and governed by, any law
relating to the exercise of foreign jurisdiction for the time being in force
(Article 260).
Full faith and credit shall be given throughout the territory of India to
public acts, records and judicial proceedings of the Union and of every State
(Article 261).
Disputes relating to water

Parliament may by law provide for the adjudication of any dispute or
complaint with respect to the use, distribution or control of the waters of,
or in, any inter-State river or river valley and may also by law provide that
neither the Supreme Court nor any other court shall exercise jurisdiction in
any such dispute or complaint (Article 262).
Co-ordination between States
It shall be lawful for the President by order to establish an inter-State council

and to define the nature of the duties to be performed by it and its
organization and procedure (Article 263).
2.5 EMERGENCY PROVISIONS

Articles 352-360 deal with emergency provisions.
If the President is satisfied that the security of the whole of India or a
specific territory of the country is threatened by war or external aggression or
armed rebellion and a grave emergency situation exists, he may, by
proclamation, declare Emergency for the whole of India or for that part of the
country which is threatened. Such a proclamation may be varied or revoked
by a subsequent proclamation. The Proclamation or a proclamation varying
it shall be issued by the President only after the Union Cabinet makes a
decision to that effect and communicate the decision to the President in
writing (Article 352).
When a Proclamation of Emergency is in operation, the executive power
of the Union extends to giving directions to any State and the power of
Parliament includes power to make laws conferring powers and imposing
duties, or authorizing the conferring of powers and the imposition of duties,
upon the Union or officers and authorities of the Union even on matters not
listed in the Union List (Article 353).
If the President, on receipt of a report from the Governor of a State or
otherwise is satisfied that a situation has arisen in which the government of
the State cannot be carried on in accordance with the provision of the
Constitution, the President may by proclamation assume to himself all or
any of the functions of the Government of the State and the powers of the
Governor or any other authority in the State other than the Legislature;
declare that the powers of the Legislature of the State shall be exercisable by
or under the authority of Parliament; make provisions including suspending in
whole or in part the operation of any provisions of the Constitution relating to
any body or authority in the State.
Further, during emergencies the provisions of the Article 19 get
suspended (Article 358) and the enforcement of the rights conferred by
4
Part II of the Constitution (fundamaental rights) gets suspended during

emergencies (Article 359).
Article 360 states that if the President is satisfied that a situation has
arisen whereby the financial stability or credibility of the whole of India
or any part of the country is threatened, he may by Proclamation, declare
financial emergency. Such a Proclamation may be revoked or varied by a
subsequent Proclamation.
2.6 AMENDMENT OF THE CONSTITUTION

Article 368 gives the Parliament, the power to amend-addition, variation or
repealing of any provision of—the Constitution and also lays down the
procedure for amendment.
An amendment of the Constitution shall be initiated by the introduction
of a Bill for the purpose in each House of Parliament .When the Bill is passed
in each House by a majority of the total membership of that House and by a
majority of not less than two-thirds of the members of that House present and
voting it, it shall be presented to the President. Once the President gives his
assent to the Bill, the Constitution shall stand amended in accordance with
the terms of the Bill.
2.7 PARLIAMENTARY PRIVILEGES

Protection of publication of proceedings of Parliament and State Legislatures:
Article 361A gives protection to publication of proceedings of Parlia-
ment and State Legislatures. It states that as long as the proceedings of the
Parliament or Legislative Assemby of a state are reported substantially true in
a newspaper, the newspaper shall not be liable to any proceedings, civil or
criminal. But if the publication is proved to have been made with malice, then
this protection will not exist for the newspaper. Similarly, this protection does
not extend to the publication of any report of the proceedings of a secret
sitting of any House of Parliament or a Legislative Assembly. This Article is
applicable to reports of newspaper, newspaper agency as well as to the
matters broadcast by means of wireless telegraphy.
EXERCISES
Short Questions
1. What is freedom of expression?
What is preventive detention?
Explain the right against exploitation.
ig
co Explain ‘Right to Equality’ guaranteed in the Indian Constitution.
What are the educational and cultural rights?

How could the Constitution of India be amended?
What are the emergency situations mentioned in the Indian Constitution?
SID
What are the parliamentary privileges?
Long Questions
1. Describe in detail the fundamental rights guaranteed by the Indian
Constitution.
2. Describe in detail the Directive Principles of State policy.
How are Central-State relations depicted in the Indian Constitution?
FURTHER READING
Brij Kishore Sharma, Introduction to the Constitution of India, PHI Learning,
New Delhi, 2009.
Durga Das Basu, Introduction to the Constitution of India, Prentice-Hall of India,
New Delhi, 1993.
Chapter 3
Freedom of Media
3.1 INTRODUCTION
In India, ‘freedom of media’ has been an issue of great debate, right from the
British rule. During the British rule, the press was the medium through which
the nationalistic fervour was spread to the Indians. Most of the leaders of the
freedom struggle, including Mahatma Gandhi either edited a newspaper or
wrote in the newspapers against the tyranny of the British rule and its
policies. In short, the press was used as a tool by the freedom fighters to
reach the Indians and to unite them against the British. In fact, freedom of the
press was one of the constitutional guarantees persistently demanded by
India’s freedom fighters during the British colonial rule.
Hence, after India attained independence, during the framing of India’s
Constitution in the Constituent Assembly, the founding fathers attached great
importance to freedom of the press. Still, surprisingly freedom of the press
is not specifically mentioned in the Chapter on Fundamental Rights in
the Indian Constitution. The omission was noticed and criticized in the
Constituent Assembly. Dr. B.R. Ambedkar, the principal architect of
the Constitution, assured the members that freedom of the press was included
in the guarantee of freedom of speech and expression [Article 19(1)(a)] and it
was hardly necessary to provide for it specifically.
Article 19(1)(a) states that ‘all citizens shall have the right to freedom of
speech and expression’. This is not an absolute freedom, the limitations to this
freedom are stated in the Article 19(2). Aricle 19(2) states that even though
freedom of speech and expression is guaranteed in 19(1)(a) it shall not affect
the operation of any law or prevent the State from making any law, insofar as
such law imposes reasonable restrictions on the freedom of expression in the
interests of the sovereignty and integrity of India, 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.
In 1950 Undian Express vs. Union of India), the Supreme Court has
ruled that Freedom of the Press is implicit in the guarantee of freedom of
speech and expression in Article 19(1)(a) of the Constitution. Also, the
15
Supreme Court of India has laid emphasis in several cases on the importance
of maintaining freedom of press in a democratic society.
Censorship of the press, again, is not specially prohibited by any
provision of the Constitution. If censorship is imposed, its constitutionality
has to be judged by the test of reasonableness, as given in 19(2). Likewise,
the Supreme Court has upheld the validity of a law sanctioning pre-censorship
of motion pictures to protect the interests safeguarded by Article 19(2), e.g.,
public order and morality.
When a Proclamation of Emergency is made under Article 352,
Article 19 immediately gets suspended, so that pre-censorship may be
imposed, as happened in June 1975, when Internal Emergency was declared.
Also, Article 19 would also be inapplicable, where Articles 31A—31C are
attracted (these Articles state that for acquisition of estates etc. by the State,
for validating Acts and Regulations specified in the Ninth Schedule and for
protecting laws giving effect to certain directive principles, certain funda-
mental rights including Article 19 would be inapplicable).
3.2 CASES RELATED TO FREEDOM OF MEDIA

Case 1: (Digest)
Ajay Goswami vs. Union of India (UOI) and Ors., 2005,. SC.
The Petitioner is a lawyer by profession. Respondent No. 1 is Union
of India, respondent No. 2 is a statutory body, respondent Nos. 3 and 4 are
the leading national daily newspapers and respondent No. 5 and 6 are news
agencies.
The petition involves a substantial question of law and _ public
importance on the fundamental right of the citizens, regarding the freedom of
speech and expression as enshrined under Article 19(1)(a) of the Constitution
of India. The petitioner’s grievance was that the freedom of speech and
expression enjoyed by the newspaper industry was not keeping balance
with the protection of children from harmful and disturbing materials.
Article 19(1)(a) guarantees freedom of speech and expression of individual as
well as press. It acknowledges that the press is free to express its ideas but on
the same hand, individuals also has right to their own space and right not to
be exposed against their will to others’ expressions of ideas and actions.
The petitioner requested the Court to direct the authorities to strike a
reasonable balance between the fundamental right of freedom of speech and
expression enjoyed by the press and the duty of the Government, being
signatory of United Nations Convention on the Rights of the Child, 1989 and
Universal Declaration of Human Rights, to protect the vulnerable minors from
abuse, exploitation and harmful effects of such expression. The petitioner
requested the Court to direct the concerned authorities to provide for
Chapter 3 ; Freedom of Media * 17
classification or introduction of a regulatory system for facilitating climate of

reciprocal tolerance which may include:
(a) an acceptance of other people’s rights to express and receive certain
ideas and actions; and
(b) accepting that other people have the right not to be exposed against
their will to one’s expression of ideas and actions.
The petition was filed to seek protection from the Court to ensure that
minors are not exposed to sexually exploitative materials, whether or not the
same is obscene or is within the law. The real objective was that the nature
and extent of the material having sexual contents should not be exposed to
the minors indiscriminately and without regard to the age of minor.
The petitioner claimed that he was not in any way seeking restrain on
the freedom of press or any censorship prior to the publication of article or
other material. His argument was that these articles etc. may not be obscene
within the four corners of law but certainly have tendencies to deprave and
corrupt the minds of young and adolescents who by reasons of their physical
and mental immaturity need special safeguards and care.
For example, in The Times of India dated 1-8-2005, an article titled
“Porn in Potter VI” was published, copy of which was annexed with the peti-
tion. The author has tried to read and suggest sexual messages in these lines.
Children who were reading the book might not have any such inclination.
However, after reading newspaper, claimed the petition, their mind would
certainly wander to an area which the author might not have even conceived.
In view of the above facts and circumstances and legal proposition,
Mr. Ajay Goswami, the petitioner-in-person submitted that:
(i) Newspapers are publishing sex-oriented material which may not be
obscene otherwise but still caters to prurient interest of the minor.
(ii) Minors have also got their fundamental right under Article 19(1)(a),
Article 21 read with Article 39(f) of the Constitution and United
Nation Convention on the Rights of the Child. The freedom of
speech and expression also includes the expressions of the minors
which need care as the minors due to their tender age and mental
immaturity, are not capable of deciding themselves as to what is in
the interest of their growth morally and culturally.
(iii) The right also flows from Article 21 as the right to live also
includes right to education as pronounced in the judgments of this
Court. By necessary corollary, it shall also mean right to proper
education. Newspapers cannot be allowed to disturb that right by
their indeterminately access of the offending article to the minors
regardless of their age.
(iv) The State which has the duty to protect the minors by appropriate
legislation or executive orders has failed in its duty. The Press
Council of India which was constituted for preserving the freedom

of press and maintaining and improving the standards of newspapers
and news agency is a powerless body. No guidelines have been
framed for the minors and adolescents in particular, which can be
enforced in Court of law. The Council itself feels the necessity of
some strong and effective measure to correct it.
(v) The citizens of this country can only pray to this Court to prevent
injustice being done to them. This Court under Article 32 read with
Article 142 can issue guidelines to ensure the growth of the children
in a healthy and moral atmosphere which is exploited by the
newspapers.
Concluding his arguments, Mr. Ajay Goswamy, petitioner-in-person
made the following proposals:
(i) Guidelines in detail may be issued to all the newspapers regarding
the matter which may not be suitable for the reading of minors or
which may require parents’ or teachers’. discretion.
(ii) Newspapers should have self-regulatory system to access the publi-
cation in view of those guidelines.
(iii) In case the newspapers publish any material which is categorized in
the guidelines, the newspaper be packed in some different form and
should convey in bold in front of newspapers of the existence of
such material.
(iv) This would give discretion to the parents to instruct the news
vendor whether to deliver such newspaper or not.
In the alternative, he suggested a Committee be appointed to suggest
ways and means for regulating the access of minors to adult oriented sexual,
titillating or prurient material.
The counsel appearing for Union of India—respondent M9. 1 in reply to
the arguments of the petitioner submitted that publishing as well as circulating
of obscene and nude/semi-nude photographs of women already constitutes a
penal offence under the provisions of the Indecent Representation of Women
(Prohibition) Act, 1986.
Concluding his submissions, he submitted that there are laws in
existence which prohibit publishing, circulating and selling obscene books and
objects to young persons and it is the responsibility of the “Press” to adhere
to and comply with these laws and not to abuse the freedom of speech and
expression (freedom of press) guaranteed under Article 19(1)(a) of the
Constitution of India.
The Counsel appearing for respondent No. 2—Press Council of India,
submitted that the Press Council enjoys only limited authority, with its power
limited to giving directions, censure etc. to the parties arraigned before it, to
publish particulars relating to its enquiry and adjudication etc. The powers of
Chapter 3 : Freedom of Media * 19
the Council insofar its authority over the press is concerned are enumerated
under Section 14 of the Press Council Act, 1978. However, it has no further
authority to ensure that its directions are complied with, and its observations
implemented by the erring parties. Lack of punitive powers with Press
Council has tied its hands in exercising control over the erring publications.
The Counsel further submitted that despite various requests to the
Central Government from the year 1999 to amend the Press Council Act,
1978, the same has not been amended. Recently, on 1-6-2006, under
Clause 18(d), an advertisement policy was issued by the Directorate of Audio
Visual Publicity under the Central Government Advertisement Policy stating
that the newspapers will be suspended from empanelment by DG, DAVP with
immediate effect if it indulged in unethical practices or anti-national activities
as found by the Press Council of India. The Counsel submitted that this Court
may consider to issue appropriate guidelines.
The Counsel appearing for respondent No. 3 (The Times of India)
contended that legislations, rules and regulations already exists within the
Indian legal framework to check publication of obscene materials and articles.
Section 292 of the Indian Penal Code prohibits and punishes selling, hiring,
exhibition, circulation, possession, importation, exportation of obscene
material. Sections 3 and 4 of the Indecent Representation of Women Act also
imposes a prohibition on the publication or sending by post of books,
pamphlets etc, selling, hiring, distributing and circulating any material that
contains indecent representation of women in any form. Section 6 of the said
Act, also provides for punishment in the case of non-compliance to Sections 3
and 4 of the Act. Further he submitted that the Press Council of India is
constituted duly under the Constitution of India for regulating the functions
_ and activities of the Press. Sections 13(2)(c), 14(1) and 14(2) of the Press
Council of India Act empowers the Press Council to impose serious checks
on the newspaper, news agency, an editor or a journalist who flouts the norms
as formulated by the Press Council and is against societal norms of decency.
The Counsel also submitted that the Indian Constitution under
Article 19(1)(a) guarantees every citizen the right to freedom of speech and
expression and respondent being a leading newspaper has the right to express
its views and various news of national and international relevance in its
edition and any kind of unreasonable restriction on this right will amount to
the violation of the right guaranteed by the Indian Constitution.
He further argued that the concept of obscenity would differ from
country to country depending on the standards of morals of contemporary
society. What is considered as a piece of literature in France may be obscene
in England and what is considered in both countries as not harmful to public
order and morals may be obscene in our country. But to insist that the
standard should always be for the writer to see that the adolescents ought not
to be brought into contact with sex or that if they read any references to sex
in what is written, whether that is the dominant theme or not they would be
affected, would be to require authors to write books only for the adolescent
and not for the adults.
Further the Counsel submitted that, the Times of India, respondent
No. 3, is one of the leading newspapers and its popularity only stands to
show that the pictures published in it are not objectionable and also that
respondent while publishing any news article has any intention to cater to the
prurient interest of anybody. Also the respondent No. 3 has an internal
regulatory system to ensure that no objectionable photograph or matter gets
published.
The Counsel appearing for Hindustan Times, respondent No. 4,
practically adopted the arguments put forth by respondent No. 3. In addition,
respondent No. 4 drew the attention of the court to the guidelines under the
“Norms of Journalistic Conduct” which has laid down guidelines for
newspapers/journalists to maintain standards with regard to obscenity and
vulgarity.
Norm 17 read as follows:
Obscenity and vulgarity to be eschewed

(i) Newspapers/journalists shall not publish anything which is obscene,
vulgar or offensive to public good taste.
(ii) Newspapers shall not display advertisements which are vulgar or
which, through depiction of a woman in nude or lewd posture,
provoke lecherous attention of males as if she herself was a
commercial commodity for sale.
(iii) Whether a picture is obscene or not, is to be judged in relation to
three tests: namely
(a) Is it vulgar and indecent?
(b) Is it a piece of mere pornography?
(c) Is its publication meant merely to make money by titillating the
sex feelings of adolescents and among whom it is intended to
circulate? In other words, does it constitute an unwholesome
exploitation for commercial gain.
Other relevant considerations are whether the picture is relevant to the
subject matter of the magazine. That is to say, whether its publication serves
any preponderating social or public purpose, in relation to art, painting,
medicine, research or reform of sex.
The Counsel contended that, the test of judging should be that of an
ordinary man of common sense and prudence and not an “out of the ordinary
hypersensitive man”.
The Court, in the judgement, observed that definition of obscenity
differed from culture to culture, between communities within a single culture,
and also between individuals within those communities. Many cultures have
produced laws to define what is considered to be obscene, and censorship is
often used to try to suppress or control materials that are obscene under
these definitions. The term obscenity is most often used in a legal context to
describe expressions (words, images, actions) that offend the prevalent sexual
morality. On the other hand, the Constitution of India guarantees the right of
freedom to speech and expression to every citizen. This right will encompass
an individual’s take on any issue. However, this right is not absolute, if such
speech and expression is immensely gross and badly violate the standards of
morality of a society. Therefore, any expression is subject to reasonable
restriction. Freedom of expression has contributed much to the development
and well-being of our free society. This right conferred by the Constitution
has triggered various issues. One of the most controversial issues is balancing
the need to protect society against the potential harm that may flow from
obscene material, and the need to ensure respect for freedom of expression
and to preserve a free flow of information and idea.
The Court observed that the respondents are leading newspapers in India
and they have to respect the freedom of speech and expression as is
guaranteed by our constitution. The Court opined that any steps to ban
publishing of certain news pieces or pictures would fetter the independence of
free press which is one of the hallmarks of our democratic setup. It was
further stated that the submissions and the propositions of law made by the
respective counsels for the respondents clearly established that the present
petition is liable to be dismissed as the petitioner has failed to establish
the need and requirement to curtail the freedom of speech and expression.
The Times of India and Hindustan Times are leading newspapers in Delhi
having substantial subscribers from all sections. It has been made clear that it
is not their intention to publish photographs which cater to the prurient
interest. They have an internal regulatory system to ensure that objectionable
photographs or matters do not get published. The Court felt that respondent
Nos. 3 and 4 are conscious of their responsibility towards children but at the
same time it would be inappropriate to deprive the adult population of the
entertainment which is well within the acceptable levels of decency on the
ground that it may not be appropriate for the children. An imposition of a
blanket ban on the publication of certain photographs and news items etc. will
lead to a situation where the newspaper will be publishing material which
caters only to children and adolescents and the adults will be deprived of
reading their share of the entertainment which can be permissible under the
normal norms of decency in any society.
In the end the court stated: In the present matter, the petitioner has
failed to establish his case clearly. The petitioner only states that the pictures
and the news items that are published by the respondents 3 and 4 ‘leave much
for the thoughts of minors’.
Therefore, we believe that fertile imagination of anybody especially
of minors should not be a matter that should be agitated in the court of law.
In addition we also hold that news is not limited to The Times of India and
Hindustan Times. Any hypersensitive person can subscribe to any other

newspaper of their choice, which might not be against the standards of
morality of the concerned person.
Case 2: (Digest)
Sakal Papers (P) Ltd. and Ors. vs. The Union of India (UOI), L9G LSC,
A matter of far-reaching importance affecting the freedom of the press

was raised in these three petitions wherein the constitutionality of the
Newspaper (Price and Page) Act, 1956, and the Daily Newspaper (Price and
Page) order, 1960, was questioned.
The first petition was by a private limited company carrying on business
inter alia of publishing daily and weekly newspapers in Marathi named
“Sakal” from Poona and by two persons who were the only shareholders in
that company. The second and third petitions were by two readers of “Sakal”
who also challenged the constitutionality of the Act.
The newspaper “Sakal” was started in the year 1932 and it claimed that
at that time it possessed a net circulation of 52,000 copies on weekdays and
56,000 copies on Sundays in Maharashtra and Karnataka and the newspaper
claimed that it played a leading part in the dissemination of news and views
and in moulding public opinion in matters of public interest.
The daily edition of the newspaper contained six pages a day for five
days in a week and four pages on one day. This edition was priced at 7 nP.
The Sunday edition consisted of ten pages and was priced at 12 nP. About
40% of the space in the newspaper was taken up by advertisement matter and
the rest was devoted to news, articles, features, views etc. It was claimed on
behalf of the petitioners that one of the special features of the newspaper was
coverage of foreign news and dispatches on foreign affairs. It was further
claimed that their paper had not aligned with any political party and hence
upon controversial questions the public looked up to it for impartial
appraisement of the issues involved and for guidance.
Briefly stated, the effect of the Act and of the impugned Order was to
regulate the number of pages according to the price charged, prescribe the
number of supplements to be published and prohibit the publication and sale
of newspapers in contravention of any Order made under Section 3 of the
Act. The Act also provided for regulating by an Order under Section 3, the
sizes and area of advertising matter in relation to the other matters contained
in a newspaper. Penalties were also prescribed for contravention of the
provision of the Act or Order.
The petitioners pointed out that since the total number of pages which
“Sakal” gave to its reading public on six days in a week was 34, as a result of
the impugned Order they would either have to raise its price from 7 nP to
8 nP per day or to reduce the total number of pages to 24. They further
pointed out that while at present all newspapers can issue any number of
supplements as and when they choose, under the Order they would be
prevented from doing so except with the permission of the Government.

According to them, the Order would have the effect of either compelling them
to increase the price or to reduce the number of pages of practically every
newspaper in the country as also of preventing them from publishing
supplements without extraneous restrictions.
The petitioners argued that the impugned enactment directly impinged
on the guarantee of freedom of speech and expression by placing restraint
upon it or by placing restraint upon something which is an essential part of
that freedom. The freedom of a newspaper to publish any number of pages or
to circulate it to any number of persons is each an integral part of the
freedom of speech and expression. A restraint placed upon either of them
would be a direct infringement of the right of freedom of speech and
expression.
The Act by enacting Sections 4 and 5 directly prohibited a newspaper
from exercising that right, should the newspaper fail to comply with the
requirement of an order made under Section 3. This, they pointed out, was a
direct invasion of the right under Article 19(1)(a) and not an incidental or
problematic effect. They argued that if they continued to give in their
newspaper the same number of pages as at present, they would have to
increase its selling price and that this would adversely affect the circulation.
If, on the other hand, they reduced the number of pages in order to conform
to the impugned Order, their right to disseminate news and views would be
directly interfered with. Thus in either event there would be an interference
with their right under Article 19(1)(a) of the Constitution.
They further pointed out that the Act and the Order were violative of
the provisions of Article 14 of the Constitution inasmuch as their avowed
object was to promote arbitrarily the interests of some newspaper at the
expense of others. They contended that inequality was writ large in the
provisions of the Act and of the Order and that there was no reasonable
classification or basis or any rational relationship between the restrictions
imposed and the objects sought to be achieved. According to them, while the
established newspapers would be hardly affected by these provisions, those
that were endeavouring to come up will be hampered in their progress.
The impugned law, it was argued, seeks to achieve its object of enabling
what are termed the smaller newspapers to secure larger circulation by
provisions which without disguise are aimed at restricting the circulation of
what are termed the larger papers with better financial strength. Such a course
was not permissible and the courts must be ever vigilant in guarding perhaps
the most precious of monopolies, are always against public interest and
deserve to be suppressed.
The Court observed that the legitimacy of the result intended to be
achieved did not necessarily imply that every means to achieve it was
permissible; for even if the end was desirable and permissible, the means
employed must not transgress the limits laid down by the Constitution. It was
said that one of its objects was to give some kind of protection to small or
newly started newspapers and, therefore, the Act was good. Even though the
Court found such an object to be desirable, at the same time made it clear that
for attaining such objective the State could not make in roads on the right of
other newspapers which Article 19(1)(a) guarantees to them. There might be
other ways of helping them and it was for the State to search for them but the
one they had chosen fell foul of the Constitution.
The only restrictions which might be imposed on the rights of
an individual under Article 19(1)(a) were those permitted by Clause (2)
of Article 19 and no other. The Court took the view that Section 3(1) of the
Act, which was its pivotal provision, was unconstitutional and, therefore,
the Daily newspaper (Price and Page) Order, 1960 was also unconstitutional.
EXERCISES
Short Questions
1. What do you mean by freedom of media?
2. What are the exceptions for freedom of media in India?
Long Question
1. Explain freedom of media in India with appropriate cases.
FURTHER READING
Brij Kishore Sharma, Introduction to the Constitution of India, PHI Learning,
New Delhi, 2009.
Durga Das Basu, Introduction to the Constitution of India, Prentice-Hall of India,
New Delhi, 1993.
Chapter 4
Defamation
4.1 INTRODUCTION
Defamation is a serious problem which journalists belonging to all the mass
media have to deal with in their career. Journalists tend to defame the
political leaders, film stars, sports people and other famous people either due
to carelessness or because of lack of sufficient knowledge about defamation.
Hence this chapter provides a brief account of defamation by stating the
difference between Libel and Slander, how is defamation codified in criminal
law and the punishment for defamation, how is defamation dealt with by civil
law and what are the defences available for safeguarding oneself, when faced
with the charge of defamation.
Simply stated, defamation is injuring the reputation of a person in front
of a third party. It can be of the following types.
4.1.1 Libel and Slander
If defamation happens through spoken words or gestures, it is termed slander

and if it takes place in a written format it is called libel.
In India, defamation is covered by both the criminal law and the civil
law. While the criminal law is well-codified in the Indian Penal Code (IPC),
the civil law of defamation is not so well-codified and is derived from the
English common law.
Criminal Law
According to Section 499 of the Indian Penal Code, defamation may be by
words, either spoken or intended to be read, or by signs or visible represen-
tation. Any person who makes or publishes any imputation concerning any
person, knowing or having reason to believe that such imputation will harm
the reputation of such person, is said to defame that person.
There are 10 exceptions and four explanations for this.
25
Exceptions
sk It is not defamation to impute anything which is true concerning
any person, if it is for public good that the imputation should be
made or published.
It is not defamation to express in good faith any opinion whatever
regarding the conduct or character of a public servant in discharge
of his public function.
It is not defamation to express in good faith any opinion regarding
the conduct or character of any person touching any public question.
It is not defamation to publish a substantially true report or result of
a Court of Justice or any such proceedings.
the merits of any case, civil or criminal, which has been decided by
a Court of Justice, or the conduct of any person as a party, the
witness or the agent in any such case, or regarding the character of
such person as far as his character appears in that conduct, and no
further.
the merits of any performance which an author has submitted to the
judgement of the public, or respecting the character of the author so
far as his character appears in such performance, and no further.
It is not defamation if a person having any authority over another
person, either conferred by law or arising out of a lawful contract
made with that other, to pass in good faith any censure on the
conduct of that other in matters to which such lawful authority
relates.
It is not defamation to prefer in good faith an accusation against any
person to any of those who have lawful authority over that person
with respect to the subject-matter of accusation.
It is not defamation to make an imputation on the character of
another person, provided that it is made in good faith by the person
for his protection, or of any other person, or for the public good.
10. It is not defamation to convey a caution to one person against the
other, intended for the good of a person to whom it is conveyed or
for public good.
Explanations
I: It may amount to defamation to impute anything to a deceased person,
if that imputation would harm the reputation of a person, if living, and
is intended to be hurtful to the feelings of his family or other near
relatives.
It may amount to defamation to make an imputation concerning a
company or an association or collection of persons as such.
—+
Chapter 4 : Defamation * 27
3. An imputation in the form of an alternative or expressed ironically,

may amount to defamation.
4. No imputation is said to harm a person’s reputation, unless that
imputation directly or indirectly, in the estimation of others, lowers
the moral or intellectual character of that person in respect of his caste
or of his calling, or lowers the credit of that person, or causes it to
be believed that the body of that person is in a loathsome state or in
a state generally considered as disgraceful.
Punishment: The punishment for the criminal offence of defamation,

as prescribed by the IPC are:
Section 500. Punishment for defamation reads:
Whoever defames another shall be punished with simple imprisonment

for a term which may extend to two years, or with fine, or with both.
Section 501. Printing or engraving matter known to be defamatory
e@ Whoever prints or engraves any matter, knowing or having good
reason to believe that such matter is defamatory of any person, shall
be punished
— with simple imprisonment for a term which may extend to two
years, or with fine, or with both.
502. Sale of printed or engraved substance containing defamatory matter
e@ Whoever sells or offers for sale any printed or engraved substance
containing defamatory matter, knowing that it contains such matter,
shall be punished
— with simple imprisonment for a term which may extend to two
Civil law
In civil law, an action for defamation is claimed in the form of damages for
causing injury to the reputation of the plaintiff. The amount of damages
differs from case to case and is to be determined by the Judge.
Defences: Defences available for an act of defamation (civil) are:
Justification: The defendant can justify his statement by proving that

his statement is substantially true.
Fair comment: The defendant can defend himself by showing that the
statement is a comment and not a fact, the comment is on a matter of public
interest and the comment is fair in nature.
Privilege: On certain occasions, defamatory statements are permitted
by law itself even when the statement is false. Those occasions are called
privileged occasions.
Privilege could be absolute or qualified in nature. Absolute privilege is

provided on the grounds of public policy and without any condition attached
to it. Qualified privilege is provided conditionally and in the absence of
malice (the intent to harm). The instances of absolute privilege are Parlia-
mentary proceedings and judicial proceedings while reports of Parliamentary
and judicial proceedings come under qualified privilege.
4.2 CASE RELATED TO DEFAMATION

(Digest)
R. Rajagopal @ R.R. Gopal @ Nakkheeran Gopal and A. Kamaraj vs.
J. Jayalalitha and Mrs. N. Sassikala, 2006, High Court of Madras.
The first appellant, R. Rajagopal @ R.R. Gopal, is the Editor, Printer
and Publisher of “Nakkheeran”, a bi-weekly magazine published from
Chennai. The second appellant, A. Kamaraj is the Associate Editor of
“Nakkheeran”. During the period from 01-04-2003 to 20-06-2003, the
appellants had published certain articles in their magazine in relation to the
first and the second respondents. The first respondent Selvi. J. Jayalalitha was
the then Chief Minister of the State of Tamil Nadu. She is also the General
Secretary of the political party, All India Anna Dravida Munnetra Kazhagam
(A.I.A.D.M.K.). The second respondent Mrs. N. Sasikala is a close friend of
the first respondent.
The respondents had filed a suit for injunction and damages against the
appellants in their capacity as Editor, Printer and Publisher and Associate
Editor of “Nakkheeran” respectively. In the plaint, it had been stated that the
first appellant was arrested by the police under Prevention of Terrorism Act,
2002 on 12.04.2003 and had been detained in prison ever since. From the
said date, the respondents contended that the magazine “Nakkheeran”, which
is being published as a bi-weekly on Tuesdays and Fridays of the week (now
Thursdays and Sundays), had been carrying a vilification campaign against
the respondents in their magazine by printing false and defamatory articles on
the title page with banner headlines as well as on the cover page, apart from
featuring the photographs of either the first or the second respondent or both.
They stated that none of the articles published against the respondents had
been found to be true or published in good faith after prior verification. They
complained that the first appellant has always been indulging in character
assassination of the respondents, and hence, a suit for damages was already
filed by the respondents against the first appellant (which was still pending in
this Court).
It was claimed by the respondents that they were protected by Article 21
of the Constitution of India to live peacefully without being defamed with
false and vituperative articles without any proof. There were enough legal
Ad
precedents available to prevent the appellants from printing and publishing

such defamatory articles and if at all there was something relating to the
respondents which required to be published, the appellants may be directed to
verify with the respondents the veracity of the material received by them
apropos of the activities of the respondents. It was stated by the respondents
that freedom of press does not mean that the appellants can pick and choose
persons out of personal or political animosity, or monetary inducements with
the sole idea of defaming them. They further stated that the balance of
convenience was in favour of them and it was also absolutely necessary to
prevent such false publications which tend to bring disrepute to the
respondents. It was stated that the loss of reputation of the respondents and
the mental agony caused to them could not be compensated by payment of
damages alone. The respondents prayed in the suit for a restraint order against
the appellants from publishing in future publications, articles, caricatures,
news items, cartoons, etc., defamatory or derogatory in nature, in the Tamil
bi-weekly “Nakkheeran” or in any special editions thereof or any publications
of the appellants without prior verification with the respondents. The claim
for damages has been quantified at Rs. 2 crores and one thousand. Along with
the plaint an application (O.A. No. 599 of 2003) for interim relief was also
filed praying for issuance of an order of temporary injunction in the same
terms. The respondents were granted a limited ad interim order restraining the
appellants from publishing about private life of respondent No. | without
prior verification.
The appellants, aggrieved by the aforesaid order of the single Judge,
had preferred the present appeal. The appellants filed a counter affidavit to
the O.A. and also prayed for vacation of the ad interim order. In the counter
affidavit, it was stated that in a libel action it was obligatory on the plaintiff
to state in the plaint the actual defamatory words (together with innuendo or
defamatory meaning thereof where necessary) in specific terms. The
respondents, however, have not set out in the body of the plaint the alleged
defamatory remarks contained in the impugned publications and thereby, the
appellants have been denied the opportunity of knowing what was the nature
of the imputations which were objected to and what was the meaning
understood by the respondents of such imputations. It was averred by the
appellants that in the discharge of their journalistic duties, sometimes, some of
the fair and accurate news item published in their magazine happen to be
unpalatable to persons in public positions and such public persons react in
anger and disappointment and the present suit is an outcome of such
intolerance. It was stated that there was nothing defamatory in those articles
and the same were published in good faith and for public good. It was also
averred that the claim of the respondents was not supported by any material
to prove any of the publications in “Nakkheeran” as false or defamatory. Both
the respondents were public persons and all their activities were matters of
public interest, because the first respondent was the Chief Minister of Tamil
Nadu and leader of one of the largest political parties in the State. She had
subjected herself to many public controversies and had been always in the
media highlight. So, all her words and movements were matters of public
interest, as the people of Tamil Nadu have a right to know about her
activities. It was further stated that during the period 1991 to 1996, the
appellants exposed many of the misdeeds of ‘the respondents, A.ILA.D.M.K.
ministers and several officials and as a consequence, many criminal
proceedings were initiated, which also ended in conviction. It was stated that
verification of facts with the person concerned could not be the criteria in
deciding a matter as libel or defamatory. They argued that it was customary
among journalists to verify the facts with the person concerned and publish
the matter along with that person’s version, but however, failure to do so is
not unlawful. The appellants argued that the plea of the respondents that the
appellants publish articles against them without verification and, therefore,
they must be prevented from publishing anything against the respondents is
unsustainable in law. It was further stated that the appellants had always tried
to verify the facts with respondents, but the respondents were beyond the
reach of the reporters of the appellants. In any event, it was submitted that
there was no provision in law to compel the appellants to verify the matter
with any one as long as the matter was based on truth, touching upon public
interest and was honestly believed to be true by the appellants. In any event,
according to their counsel, the Court can at best direct the publishers not to
repeat publishing the particular article, but a blanket injunction restraining
the publishers from publishing any article in future runs counter to the
fundamental right to freedom of speech and expression enshrined in
Article 19(1)(a) of the Constitution of India. The counsel relied upon a
number of decisions of the Supreme Court as well as High Courts and also
decisions by American and English Courts to which we shall shortly refer to.
The Counsel for the respondents, on the other hand, made submissions
for sustaining the impugned interim order of the learned single Judge and
contended that the reputation of an individual and his/her right to privacy are
both protected and it is apparent from the impugned articles that such rights
of the respondents were sought to be violated by the appellants with impunity.
In such a situation, he contended that the remedy was available both by way
of damages and by way of injunction. He contended that what is implicit in
the article dated 20-05-2003 was that the second respondent was giving liquor
to first respondent although she had been forbidden by the doctors from
taking any such thing. According to the Counsel, the article was malicious
and beyond all limits of decency and consequently, no fault can be found
with the order of injunction. He submitted that there were two competing
interests which had to be balanced, i.e., right of the press to write and
publish, and right of an individual against invasion of his/her privacy and
threat of defamation. Even though the appellants were standing by what they
had written, the truth and veracity of the same was yet to be established. He
further contended that no one has a right to publish anything concerning

personal or private matters without consent—whether truthful or otherwise,
whether laudatory or critical. He argued that since admittedly no consent of
the respondents had been taken by the appellants to write about their private
life, this was a clear case of invasion of privacy of the respondents, and in
such a situation, it was not necessary that one must wait for the publication
and then claim damages, but a preventive action can be taken so that the
respondents’ right to privacy is not violated. The right to freedom of speech
and expression, he contended, cannot be taken to mean absolute freedom
to say or write whatever a person chooses recklessly and without regard to
the other person’s honour or reputation. He contended that the plea of
justification would be available where truth was pleaded and it was in public
interest. In case of a public figure, he contended, that it may apply to
performance of public duties by the public figures and it did not give license
to go into the private life of such public figures.
_ After hearing the elaborate submissions by both the parties, the court
observed that decision in the case would have direct bearing on the claims of
right of privacy by public figures as against the right of the press to publish
and write about such public figures.
The Court, after going through all 24 impugned articles published in the
appellants’ magazine Nakkheeran, felt that none of the articles other than the
article dated 20-05-2003, referred to in the order of the learned single Judge,
and the article published on 06-06-2003 could be said to be relating to the
personal life of the first respondent. The article dated 06-06-2003 was about
the first respondent taking advice from an astrologer in respect of certain
criminal case pending against her. The rest of the articles were about her
actions pertaining to official and public function. In some of the articles it
was alleged that the first respondent was behaving in a dictatorial manner and
using police to suppress dissent and had been likened with Hitler. In some
there were allegations of misdeeds and misdemeanour in official duties. Out
of 24 articles, the name of the second respondent appeared only in 5 articles.
It was nowhere stated in the plaint that in what way the articles and
the materials in the articles were defamatory and if they were not per se
defamatory the innuendo implied in the articles was also not set out.
The Court observed that it was well settled that in a libel action
defamatory words must be set out in the plaint where the words were per se
or prima facie defamatory, and where the defamatory sense was not apparent
on the face of the words, the defamatory meaning as it was technically known
in law, the innuendo must also to be set out in clear and specific terms. In the
absence of these necessary averments the plaint would be liable to be rejected
on the ground that it does not disclose any cause of action.
The Court observed that the right to publish and the freedom of press
as enshrined in Article 19(1)(a) of the Constitution of India are sacrosanct.
The only parameters of restriction were provided in Article 19(2) of the
Constitution. The freedom of speech and expression of opinion is of

paramount importance under a democratic constitution which envisages
changes in the composition of legislatures and governments and must be
preserved. The interim order granted by the learned single Judge was a
blanket injunction. The order virtually amounted to a gag order or censorship
of press and the Court felt that such censorship cannot be countenanced in the
scheme of our constitutional framework. Even assuming that the articles
published by the appellants amount to character assassination of the
respondents, there was no justification for granting a blanket injunction
restraining the appellants from publishing any articles, in future.
The fundamental right of freedom of speech was involved in these
proceedings and not merely the right of liberty of the press. The Court felt
that if this action can be maintained against a newspaper, it can be maintained
against every private citizen who ventures to criticize the ministers who are
temporarily conducting the affairs of the government. In a free democratic
society those who hold office in government and who are responsible for
public administration must always be open to criticism. Any attempt to fetter
such criticism amounts to political censorship of the most insidious and
objectionable kind. At times public figures have to ignore vulgar criticisms
and abuses hurled against them and they must restrain themselves from giving
importance to the same by prosecuting the person responsible for the same. In
the instant case, the respondents have already chosen to claim damages and
their claim was yet to be adjudicated upon. They will have remedy if the
statements were held to be defamatory or false and actuated by malice or
personal animosity.
The Court was unable to accept the submission that the appellants
should be asked to seek prior verification from the respondents before
publishing any articles and publish the denial, if any, of the respondents. The
Court felt that the submission of the Counsel of the respondents was based
on total misinterpretation of the observations of the Supreme Court. The
Supreme Court has not laid down that the prior verification of the facts is
must in all such cases. All that the Supreme Court indicated was that the
proof that the member of the press or media acted after a reasonable
verification of the facts would be sufficient. However, at the same time, it
must be noted that the Supreme Court in R. Rajagopal’s Case has clearly held
that a citizen has a right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, child bearing and education, among other
matters, and none can publish anything in reference to the above matters
without his/her consent—whether laudatory or critical. Therefore, if an article
is purely relating to the personal life of a public official, it would be
necessary for the member of the press or media to publish such article only
after a reasonable verification of the facts. The position may, however, be
different if a person voluntarily thrust himself or herself into a controversy or
voluntarily invites or raises a controversy.
itn
In the circumstances, the Court directed the appellants that whenever

they propose to publish any article purely concerning personal life of the first
respondent or the second respondent or both, the appellants shall forward their
queries and/or the gist of the proposed article, as the case may be, to the fax
number furnished by the Counsel appearing for the respondents. The first
respondent or the second respondent or both, as the case may be, shall
respond to the queries of the appellants in relation to their proposed article
to the fax number of the appellants. However, if there is no response to the
queries either from the first respondent or the second respondent within
36 hours from receiving such queries, the appellants will be entitled to
proceed to publish the proposed article in their bi-weekly. It is true that the
press cannot be compelled to also publish the version of the official, about
whom the article is written, with reference to the article published against
him/her. The Court, however, felt that it was expected of any responsible
member of the press to also indicate the version of the official concerned in
their proposed article.
With the above observations, the Court vacated the order of injunction
passed by the single Judge.
EXERCISES
Short Questions
1. Differentiate libel and slander.
2. What is the punishment for defamation in the IPC?
3. What do you mean by ‘fair comment’? Explain.
4. What is privilege?
Long Question
1. How is defamation defined in the criminal law in India. Give its
explanations and exceptions.
FURTHER READING
Chapter 5
Provisions of the
Indian Penal Code and
Criminal Code*
5.1 INTRODUCTION
Indian Penal Code covers almost all the crime happening in the society. It is a
piece of British colonial legislation dating from 1860. Now it provides
a penal code for the entire country including Jammu and Kashmir, where it
was renamed the Ranbir Penal Code (RPC). The code could be applied to
any offence committed by an Indian citizen anywhere and on any Indian
registered ship or aircraft (This law does not however apply to the armed
forces or supersede any other acts). The draft of the Indian Penal Code was
prepared by the First Law Commission, chaired by Lord Macaulay. The draft,
after it underwent a very careful revision, was passed into law in 1860. Indian
Penal Code came into force and is regularly amended. The code _ has a total
of 511 Sections covering various aspects of the criminal law. The Code of
Criminal Procedure, 1973 deals with many offences. Bailable (the accused has
the right to get bail) and non-bailable offences (the decision to grant bail or
not is the decision of the court), cognizable (the police officer can arrest an
offender without a warrant) and non-cognizable (the police officer cannot
arrest without a warrant) offences, compoundable (can be compromised by
the parties to the dispute) and non-compoundable (those which cannot be
compromised by any means) offences. In both Indian Penal Code and
Criminal Procedure Code, certain provisions specifically deal with media.
This chapter provides an account of those portions which are relevant to
media.
* Specific Provisions Related to Media.
34
Chapter 5 : Provisions of the IPC and Criminal Code * 35
5.2 THE INDIAN PENAL CODE

Section 124A. Sedition
Whoever, by words, either spoken or written, or by signs, or by visible

representation, or otherwise, brings or attempts to bring into hatred or
contempt, or excites or attempts to excite disaffection towards the
Government established by law in India, shall be punished with imprisonment
for life, to which fine may be added, or with imprisonment which may extend
to three years, to which fine may be added, or with fine.
Explanation 1 The expression “disaffection” includes disloyalty and all
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 disapprobation of the adminis-
trative or other action of the Government without exciting or attempting
to excite hatred, contempt or disaffection, do not constitute an offence under
this section.
Section 153A. Promoting enmity between different groups on grounds
of religion, race, place of birth, residence, language, etc., and doing acts pre-
judicial to maintenance of harmony
(1) Whoever,
(a) by words, either spoken or written, or by signs or by visible
representations or otherwise, promotes or attempts to promote, on
grounds of religion, race, place of birth, residence, language, caste
or community or any other ground whatsoever, disharmony or
feelings of enmity, hatred or ill-will between different religious,
racial, language or regional groups or castes or communities, [or]
(b) commits any act which is prejudicial to the maintenance of
harmony between different religious, racial, language or regional
groups or castes or communities, and which disturbs or is likely
to disturb the public tranquillity, [or]
(c) organizes any exercise, movement, drill or other similar activity
intending that the participants in such activity shall use or be
trained to use criminal force or violence or knowing it to be likely
that the participants in such activity will use or be trained to use
criminal force or violence, or participates in such activity intending
to use or be trained to use criminal force or violence or knowing
it to be likely that the participants in such activity will use or be
trained to use criminal force or violence, against any religious,
racial, language or regional group or caste or community and

such activity for any reason whatsoever causes or is likely to
cause fear or alarm or a feeling of insecurity amongst members
of such religious, racial, language or regional group or caste or
community, shall be punished with imprisonment which may
extend to three years, or with fine, or with both.
Offence committed in place of worship, etc. (2) Whoever commits an

offence specified in sub-section (1) in any place of worship or in any
assembly engaged in the performance of religious worship or religious
ceremonies, shall be punished with imprisonment which may extend to five
years and shall also be liable to fine.
153B. Imputations, assertions prejudicial to national-integration
(1) Whoever, by words either spoken or written or by signs or by visible
representations or otherwise,
(a) makes or publishes any imputation that any class of persons cannot,
by reason of their being members of any religious, racial, language
or regional group or caste or community, bear true faith and
allegiance to the Constitution of India as by law established or
uphold the sovereignty and integrity of India, or
(b) asserts, counsels, advises, propagates or publishes that any class
of persons shall, by reason of their being members of any religious,
racial, language or regional group or caste or community, be
denied or deprived of their rights as citizens of India, or
(c) makes or publishes any assertion, counsel, plea or appeal
concerning the obligation of any class of persons, by reason of
their being members of any religious, racial, language or regional
group or caste or community, and such assertion, counsel, plea or
appeal causes or is likely to cause disharmony or feelings of
enmity or hatred or ill-will between such members and other
persons, shall be punished with imprisonment which may extend
to three years, or with fine, or with both.
(2) Whoever commits an offence specified in sub-section (1), in any
place of worship or in any assembly engaged in the performance
of religious worship or religious ceremonies, shall be punished
with imprisonment which may extend to five years and shall be liable
to fine.
Section 171G. False statement in connection with an election
Whoever with intent to affect the result of an election makes or

publishes any statement purporting to be a statement of fact which is false
and which he either knows or believes to be false or does not believe to be
true, in relation to the personal character or conduct of any candidate shall be
punished with fine.
Section 292. Sale, etc., of obscene books, etc.

(1) For the purposes of subsection (2), a book, pamphlet, paper, writing,
drawing, painting, representation, figure or any other object, shall be deemed
to be obscene if it is lascivious or appeals to the prurient interest or if its
effect, or (where it comprises two or more distinct items) the effect of any
one of its items, is, if taken as a whole, such as to tend to deprave and
corrupt person, who are likely, having regard to all relevant circumstances, to
read, see or hear the matter contained or embodied in it.
(2) Whoever
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts
into circulation, or for purposes of sale, hire, distribution, public
exhibition or circulation, makes, produces or has in his possession
any obscene book, pamphlet, paper, drawing, painting, representation
or figure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the purposes
aforesaid, or knowing or having reason to believe that such object
will be sold, let to hire, distributed or publicly exhibited or in any
manner put into circulation, or
(c) takes part in or receives profits from any business in the course of
which he knows or has reason to believe that any such obscene objects
are for any of the purposes aforesaid, made, produced, purchased,
kept, imported, exported, conveyed, publicly exhibited or in any manner
put into circulation, or
(d) advertises or makes known by any means whatsoever that any person
is engaged or is ready to engage in any act which is an offence under
this section, or that any such obscene object can be procured from or
through any person, or .
(e) offers or attempts to do any act which is an offence under this section,
shall be punished on first conviction with imprisonment of either
description for a term which may extend to two years, and with fine
which may extend to two thousand rupees, and, in the event of a
second or subsequent conviction, with imprisonment of either
description for a term which may extend to five years, and also with
fine which may extend to five thousand rupees.
Exception. This section does not extend to—
(a) any book, pamphlet, paper, writing, drawing, painting, representation

or figure—
(i) the publication of which is proved to be justified as being for the
public good on the ground that such book, pamphlet, paper,
writing, drawing, painting, representation or figure is in the interest
of science, literature, art of learning or other objects of general
concern, or
(ii) which is kept or used bona fide for religious purposes;

(b) any representation sculptured, engraved, painted or otherwise
represented on or in—
(i) any ancient monument within the meaning of the Ancient
Monuments and Archaeological Sites and Remains Act, 1958
(24 of 1958), or
(ii) any temple, or on any car used for the conveyance of idols, or
kept or used for any religious purpose.
Section 293. Sale, etc., of obscene objects to young person
Whoever sells, lets to hire, distributes, exhibits or circulates to any
person under the age of twenty years any such obscene object as is referred to
in the last preceding section, or offers or attempts so to do, shall be punished,
on first conviction with imprisonment of either description for a term which
may extend to three years, and with fine which may extend to two thousand
rupees, and, in the event of a second or subsequent conviction, with
imprisonment of either description for a term which may extend to seven
years, and also with fine which may extend to five thousand rupees.
Section 294A. Keeping lottery office
Whoever keeps any office or place for the purpose of drawing any
lottery, not being a State lottery or a lottery authorized by the State
Government, shall be punished with imprisonment of either description for a
term which may extend to six months, or with fine, or with both.
And whoever publishes any proposal to pay any sum, or to deliver any
goods, or to do or forbear doing anything for the benefit of any person, on
any event or contingency relative or applicable to the drawing of any ticket,
lot, number or figure in any such lottery, shall be punished with fine which
may extend to one thousand rupees.
Section 295A. Deliberate and malicious acts, intended to outrage

religious feelings of any class by insulting its religion or religious beliefs
Whoever, with deliberate and malicious intention of outraging the
religious feelings of any class of citizens of India, by words, either spoken or
written, or by signs or by visible representations or otherwise, insults or
attempts to insult the religion or the religious beliefs of that class, shall be
punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.
Section 499. Defamation

Whoever, by words either spoken or intended to be read, or by signs or
by visible representations, makes or publishes any imputation concerning any
person intending to harm, or knowing or having reason to believe that such
» Chapter 5 : Provisions of the IPC and Criminal Code * 39
imputation will harm, the reputation of such person, is said, except in the
cases hereinafter expected, to defame that person.
Section 500. Punishment for defamation
Whoever defames another shall be punished with simple imprisonment

for a term which may extend to two years, or with fine, or with both.
Section 501. Printing or engraving matter known to be defamatory
Whoever prints or engraves any matter, knowing or having good reason
to believe that such matter is defamatory of any person, shall be punished
with simple imprisonment for a term which may extend to two years, or with
fine, or with both.
Section 502. Sale of printed or engraved substance containing

defamatory matter
Whoever sells or offers for sale any printed or engraved substance

containing defamatory matter, knowing that it contains such matter, shall be
punished with simple imprisonment for a term which may extend to two
Section 505. Statements conducting to public mischief
(1) Whoever makes, publishes or circulates any statement, rumour or

report,—
(a) with intent to cause, or which is likely to cause, any officer,
soldier, sailor or airman in the Army, Navy or Air Force of India
to mutiny or otherwise disregard or fail in his duty as such; or
(b) with intent to cause, or which is likely to cause, fear or alarm to
the public, or to any section of the public whereby any person
may be induced to commit an offence against the State or against
the public tranquility; or
(c) with intent to incite, or which is likely to incite, any class or
community of persons to commit any offence against any other
class or community; shall be punished with imprisonment which
may extend to three years, or with fine, or with both.
(2) Statements creating or promoting enmity, hatred or ill-will between
classes
Whoever makes, publishes or circulates any statement or report
containing rumour or alarming news with intent to create or promote, or
which is likely to create or promote, on grounds of religion, race, place of
birth, residence, language, caste or community or any other ground whatso-
ever, feelings of enmity, hatred or ill-will between different religious, racial,
language or regional groups or castes or communities, shall be punished with
imprisonment which may extend to three years, or with fine, or with both.
40 *X Media Law and Ethics
(1) Offence under sub-section (2) committed in place of worship, etc.—

Whoever commits an offence specified in sub-section (2) in any place of
worship or in an assembly engaged in the performance of religious worship or
religious ceremonies, shall be punished with imprisonment which may extend
to five years and shall also be liable to fine.
Exception It does not amount to an offence, within the meaning of this
section when the person making, publishing or circulating any such statement,
rumour or report, has reasonable grounds for believing that such statement,
rumour or report is true and makes, publishes or circulates it in good faith
and] without any such intent as aforesaid.
5.8 THE CRIMINAL PROCEDURE CODE, 1973

The following provisions of the Criminal Procedure Codes, 1973 are relevant
to media.
Section 91. Summons to produce document or other thing
(1) Whenever any Court or any officer in charge of a police station
considers that the production of any document or other thing is
necessary or desirable for the purposes of any investigation, inquiry,
trial or other proceeding under this Code by or before such Court or
officer, such Court may issue a summons, or such officer a written
order, to the person in whose possession or power such document or
thing is believed to be, requiring him to attend and produce it, or to
produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document
or other thing shall be deemed to have complied with the requisition
if he causes such document or thing to be produced instead of attending
personally to produce the same.
(3) Nothing in this section shall be deemed—
(a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872,
(1 of 1872) or the Bankers’ Books Evidence Act, 1891, (13 of
1891), or
(b) to apply to a letter, postcard, telegram, or other document or any
parcel or thing in the custody of the postal or telegraph authority.
Section 93. When search warrant may be issued
(1) (a) Where any Court has reason to believe that a person to whom a
summons or order under Section 91 or a requisition under sub-
section (1) of Section 92 has been, or might be, addressed, will
not or would not produce the document or thing as required by
such summons or requisition, or
(b) where such document or thing is not known to the Court to be in
the possession of any person, or
(c) where the Court considers that the purposes of any inquiry, trial
or other proceeding under this Code will be served by a general
search or inspection, it may issue a search-warrant; and the person
to whom such warrant is directed, may search or inspect in
accordance therewith and the provisions hereinafter contained.
(2) The Court may, if it thinks fit, specify in the warrant the particular
place or part thereof to which only the search or inspection shall
extend; and the person charged with the execution of such warrant
shall, then search or inspect only the place or part so specified.
(3) Nothing contained in this section shall authorize any Magistrate other
than a District Magistrate or Chief Judicial Magistrate to grant a
warrant to search for a document, parcel or other thing in the custody
of the postal or telegraph authority.
Section 95. Power to declare certain publications forfeited and to
issue search-warrants for the same
(1) Where—
(a) any newspaper, or book, or
(b) any document, wherever printed, appears to the State Government
to contain any matter the publication of which is punishable under
Section 124A or Section 153A or Section 153B or Section 292
or Section 293 or Section 295A of the Indian Penal Code, the
State Government may, by notification, stating the grounds of its
opinion, declare every copy of the issue of the newspaper
containing such matter, and every copy of such book or other
document to be forfeited to Government, and thereupon any police
officer may seize the same wherever found in India and any
Magistrate may by warrant authorize any police officer not below
the rank of sub-inspector to enter upon and search for the same
in any premises where any copy of such issue or any such book
or other document may be or may be reasonably suspected to be.
(2) In this section and in Section 96,—
(a) “newspaper” and “book” have the same meaning as in the Press
and Registration of Books Act, 1867(25 of 1867);
(b) “document” includes any painting, drawing or photograph, or
other visible representation.
(3) No order passed or action taken under this section shall be called in
question in any Court otherwise than in accordance with the provisions
of Section 96.
Section 96. Application to High Court to set aside declaration of
forfeiture
(1) Any person having any interest in any newspaper, book or other
document, in respect of which a declaration of forfeiture has been

made under Section 95, may, within two months from the date of
publication in the Official Gazette of such declaration, apply to the
High Court to set aside such declaration on the ground that the issue
of the newspaper, or the book or other document, in respect of which
the declaration was made, did not contain any such matter as is referred
to in sub-section (1) of Section 95.
(2) Every such application shall, where the High Court consists of three
or more Judges, be heard and determined by a Special Bench of the
High Court composed of three Judges and where the High Court
consists of less than three Judges, such Special Bench shall be
composed of all the Judges of that High Court.
(3) On the hearing of any such application with reference to any
newspaper, any copy of such newspaper may be given in evidence in
aid of the proof of the nature or tendency of the words, signs or
visible representations contained in such newspaper, in respect of
which the declaration of forfeiture was made.
(4 — The High Court shall, if it is not satisfied that the issue of the
newspaper, or the book or other document, in respect of which the
application has been made, contained any such matter as is referred
to in sub-section (1) of Section 95, set aside the declaration of forfeiture.
(5) Where there is a difference of opinion among the Judges forming the
Special Bench, the decision shall be in accordance with the opinion
of the majority of those Judges.
Section 108. Security for good behaviour from persons disseminating
seditious matters
(1) When a Judicial Magistrate of the first class receives information that
there is within his local jurisdiction any person who, within or without
such jurisdiction,—
(i) either orally or in writing or in any other manner, intentionally
disseminates or attempts to disseminate or abets the dissemination
of,—
(a) any matter the publication of which is punishable under
Section 124A or Section 153A or Section 153B or Section
295A of the Indian Penal Code, (45 of 1860) or
(b) any matter concerning a Judge acting or purporting to act in
the discharge of his official duties which amounts to criminal
intimidation or defamation under the Indian Penal Code,
(45 of 1860).
(ii) makes, produces, publishes or keeps for sale, imports, exports,
conveys, sells, lets to hire, distributes, publicly exhibits or in any
other manner puts into circulation any obscene matter such as is
referred to in Section 292 of the Indian Penal Code, (45 of 1860).
Chapter 5 ; Provisions of the IPC and Criminal Code * 43
(ili) and the Magistrate is of opinion that there is sufficient ground

for proceeding, the Magistrate may, in the manner hereinafter
provided, require such person to show cause why he should
not be ordered to execute a bond, with or without sureties, for his
good behaviour for such period, not exceeding one year, as the
Magistrate thinks fit.
(2) No proceedings shall be taken under this section against the editor,
proprietor, printer or publisher of any publication registered under,
and edited, printed and published in conformity with, the rules laid
down in the Press and Registration of Books Act, 1867, (25 of 1867)
with reference to any matter contained in such publication except by
the order or under the authority of the State Government or some
officer empowered by the State Government in this behalf.
Section 144. Power to issue order in urgent cases of nuisance or
apprehended danger
(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional

Magistrate or any other Executive Magistrate specially empowered by
the State Government in this behalf, there is sufficient ground for
proceeding under this section and immediate prevention or speedy
remedy is desirable, such Magistrate may, by a written order stating
the material facts of the case and served in the manner provided by
Section 134, direct any person to abstain from a certain act or to take
certain order with respect to certain property in his possession or
under his management, if such Magistrate considers that such direction
is likely to prevent, or tends to prevent, obstruction, annoyance or
injury to any person lawfully employed, or danger to human life,
health or safety, or a disturbance of the public tranquillity, or a riot,
or an affray.
(2) An order under this section may, in cases of emergency or in cases
where the circumstances do not admit of the serving in due time of
a notice upon the person against whom the order is directed, be
passed ex parte. ;
(3) An order under this section may be directed to a particular individual,
or to persons residing in a particular place or area, or to the public
generally when frequenting or visiting a particular place or area.
(4) No order under this section shall remain in force for more than two
months from the making thereof:
Provided that, if the State Government considers it necessary to do so
for preventing danger to human life, health or safety or for preventing a
riot or any affray, it may, by notification, direct that an order made by a
Magistrate under this section shall remain in force for such further period
not exceeding six months from the date on which the order made by the
Magistrate would have, but for such order, expired, as it may specify in the
said notification.
(5) Any Magistrate may, either on his own motion or on the application
of any person aggrieved, rescind or alter any order made under this
section, by himself or any Magistrate subordinate to him or by his
predecessor-in-office.
(6) The State Government may, either on its own motion or on the
application of any person aggrieved, rescind or alter any order made
by it under the proviso to sub-section (4).
(7) Where an application under sub-section (5) or sub-section (6) is
received, the Magistrate, or the State Government, as the case may
be, shall afford to the applicant an early opportunity of appearing
before him or it, either in person or by pleader and showing cause
against the order; and if the Magistrate or the State Government, as
the case may be, rejects the application wholly or in part, he or it shall
record in writing the reasons for so doing.
Section 196. Prosecution for offences against the State and for
criminal conspiracy to commit such offence
(1) No Court shall take cognizance of—

(a) any offence punishable under Chapter VI or under Section 153A,
Section 153B, Section 295A or Section 505 of the Indian Penal
Code, (45 of 1860) or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in Section 108A of the Indian
Penal Code, (45 of 1860) except with the previous sanction of the
Central Government or of the State Government.
(2) No Court shall take cognizance of the offence of any criminal
conspiracy punishable under Section 120B of the Indian Penal Code,
(45 of 1860) other than a criminal conspiracy to commit a cognizable
offence punishable with death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards, unless the State
Government or the District Magistrate has consented in writing to the
initiation of the proceedings:
Provided that where the criminal conspiracy is one to which the
provisions of Section 195 apply, no such consent shall be necessary.
(3) The Central Government or the State Government may, before

according sanction under sub-section (1) and the State Government or
the District Magistrate may, before giving consent under sub-section
(2), order a preliminary investigation by a police officer not being
below the rank of Inspector, in which case such police officer shall
have the powers referred to in sub-section (3) of Section 155.
Section 199. Prosecution for defamation
(1) No Court shall take cognizance of an offence punishable under

Chapter XXI of the Indian Penal Code (45 of 1860) except upon a
complaint made by some person aggrieved by the offence:
Provided that where such person is under the age of eighteen years, or
is an idiot or a lunatic, or is from sickness or infirmity unable to make a
complaint, or is a woman who, according to the local customs and manners,
ought not to be compelled to appear in public, some other person may, with
the leave of the Court, make a complaint on his or her behalf.
(2) Notwithstanding anything contained in this Code, when any offence

falling under Chapter XXI of the Indian Penal Code (45 of 1860) is
alleged to have been committed against a person who, at the time of
such commission, is the President of India, the Vice-President of
India, the Governor of a State, the Administrator of a Union territory
or a Minister of the Union or of a State or of a Union territory, or any
other public servant employed in connection with the affairs of the
Union or of a State in respect of his conduct in the discharge of his
public functions a Court of Session may take cognizance of such
offence, without the case being committed to it, upon a complaint in
writing made by the Public Prosecutor.
(3) Every complaint referred to in sub-section (2) shall set forth the facts
which constitute the offence alleged, the nature of such offence and
such other particulars as are reasonably sufficient to give notice to the
accused of the offence alleged to have been committed by him.
(4) No complaint under sub-section (2) shall be made by the Public
Prosecutor except with the previous sanction—
(a) of the State Government, in the case of a person who is or has
been the Governor of that State or a Minister of that Government;
(b) of the State Government, in the case of any other public servant
employed in connection with the affairs of the State;
(c) of the Central Government, in any other case.
(5) No Court of Session shall take cognizance of an offence under sub-
section (2) unless the complaint is made within six months from the
date on which the offence is alleged to have been committed.
(6) Nothing in this section shall affect the right of the person against
whom the offence is alleged to have been committed, to make a
complaint in respect of that offence before a Magistrate having
jurisdiction or the power of such Magistrate to take cognizance of the
offence upon such complaint
Section 327. Court to be open
(1) The place in which any Criminal Court is held for the purpose of
inquiring into, or trying any offence shall be deemed to be an open

Court, to which the public generally may have access, so far as the
same can conveniently contain them;
Provided that the presiding Judge or Magistrate may, if he thinks fit,

order at any stage of any inquiry into, or trial of, any particular case, that the
public generally, or any particular person, shall not have access to, or be or
remain in, the room or building used by the Court.
(2) Notwithstanding anything contained in sub-section (1), the inquiry
into and trial of rape or an offence under Section 376, Section 376A,
Section 376B, Section 376C or Section 376D of the Indian Penal
Code (45 of 1860) shall be conducted in camera:
Provided that the presiding Judge may, if he thinks fit, or on an

application made by either of the parties, allow any particular person to have
access to, or be or remain in the room or building used by Court.
(3) Where any proceedings are held under sub-section (2), it shall not be
lawful for any person to print or publish any matter in relation to any
such proceedings except with the previous permission of the Court.
Section 345. Procedure in certain cases of contempt
(1) When any such offence as is described in Section 175, Section 178,
Section 179, Section 180, or Section 228 of the Indian Penal Code
(45 of 1860), is committed in the view or presence of any Civil,
Criminal, or Revenue Court, the Court may cause the offender to be
detained in custody, and may, at any time before the rising of the
Court or the same day, take cognizance of the offence and, after
giving the offender a reasonable opportunity of showing cause why
he should not be punished under this section, sentence offender to
fine not exceeding two hundred rupees, and, in default of payment of
fine, to simple imprisonment for a term which may extend to one
month, unless such fine be sooner paid.
(2) In every such case, the Court shall record the fact constituting the
offence, with the statement (if any) made by the offender, as well as
the finding and sentence.
(3) If the offence is under Section 228 of the Indian Penal Code (45 of
1860), the record shall show the nature and stage of the judicial
proceeding in which the Court interrupted or insulted was sitting, and
the nature of the interruption or insult.
Section 349, Imprisonment or committal of person refusing to answer
or produce document
If any witness or person called to produce a document or thing before a
Criminal Court refuses to answer such questions as are put to him or to
produce any document or thing in his possession or power which the Court
requires him to produce, and does not, after a reasonable opportunity has been
given to him so to do, offer any reasonable excuse for such refusal, such
Court may, for reasons to be recorded in writing, sentence him to simple
imprisonment, or by warrant under the hand of the Presiding Magistrate or
Judge commit him to the custody of an officer of the Court for any term not
exceeding seven days, unless in the meantime, such person consents to be
examined and to answer, or to produce the document or thing and in the
event of his persisting in his refusal, he may be dealt with according to
the provisions of Section 345 or Section 346.
Section 350. Summary procedure for punishment for non-attendance
by a witness in obedience to summons
(1) If any witness being summoned to appear before a Criminal Court is
legally bound to appear at a certain place and time in obedience to the
summons and without just excuse neglects or refuses to attend at that
place or time or departs from the place where he has to attend before
the time at which it is lawful for him to depart, and the Court before
which the witness is to appear is satisfied that it is expedient in the
interest of Justice that such a witness should be tried summarily, the
Court may take cognizance of the offence and after giving the offender
an opportunity of showing cause why he should not be punished
under this section, sentence him to fine not exceeding one hundred
rupees.
(2) In every such case the Court shall follow, as nearly as may be
practicable, the procedure prescribed for summary trials.
EXERCISES
Short Questions
1. What is sedition?
2. Explain ‘obscenity’.
3. What is the punishment mentioned in the Criminal Procedure Code for
witnesses who do not obey the summons issued?
4. What is the punishment given in the IPC for false statement in connection
with an election?
Long Questions
1. Explain the provisions of the Indian Penal Code which are relevant to
the media.
2. Explain the provisions of the Criminal Procedure Code which are relevant
to the media.
FURTHER READING |
Vidisha Barua, Press and Media Law Manual, Universal Law Publishing Co.,
Delhi, 2002.
Chapter 6
Official Secrets Act 1923
6.1 INTRODUCTION
To combat the nefarious act of spying, the Government had been adopting
various measures by making various provisions in different laws. The first
step in this direction was the enactment of the Indian Official Secrets Act,
1889 which was amended by the Indian Official Secrets (Amendment) Act,
1904. Later, the Official Secrets Act, 1911, a British Act was brought into
force in India. But it has been recognized that it is unsatisfactory to have two
separate laws in force simultaneously in India. Further, although the British
Act of 1911 was in force in India, difficulties arose in applying it because of
the use in it of English common law terms and so on. For these reasons it
was felt desirable that these should be a single consolidated Act applicable to
Indian conditions. To consolidate and amend the law relating to official
secrets, the Official Secrets Bill was put before the Legislature. It was passed
in the year 1923. This Act is of importance to journalists also, as it deals with
‘wrongful communication’. This chapter deals with the salient features of this
Act.
The objective of the Official Secrets Act is to consolidate and amend
the law related to official secrets.
Section 3. Penalties for spying

(1) If any person for any purpose prejudicial to the safety or interests of
the State,—
(a) approaches, inspects, passes over or is in the vicinity of, or enters,
any prohibited place; or
(b) makes any sketch, plan, model, or note which is calculated to be
or might be or is intended to be, directly or indirectly, useful to
an enemy; or
(c) obtains, collects, records or publishes or communicates to any
49
other person any secret official code or password, or any sketch,

plan, model, article or note or other document or information
which is calculated to be or might be or is intended to be, directly
or indirectly, useful to an enemy or which relates to a matter the
disclosure of which is likely to affect the sovereignty and integrity
of India, the security of the State or friendly relations with foreign
States;
he shall be punishable with imprisonment for a term which may extend,
where the offence is committed in relation to any work of defence, arsenal,
naval, military or air force establishment or station, mine, minefield, factory,
dockyard, camp, ship or aircraft or otherwise in relation to the naval, military
or air force affairs of Government or in relation to any secret official code, to
fourteen years and in other cases to three years.
Section 4. Communications with foreign agents to be evidence of
commission of certain offences
(1) In any proceedings against a person for an offence under Section 3,
the fact that he has been in communication with, or attempted to
communicate with a foreign agent, whether within or without India
shall be relevant for the purpose of proving that he has, for a purpose
prejudicial to the safety or interests of the State, obtained or attempted
to obtain information which is calculated to be or might be, or is
intended to be, directly, useful to any enemy.
(2) For the purpose of this section, but without prejudice to the generality
of the foregoing provision,—
(a) a person may be presumed to have been in communication with
a foreign agent if—
(i) he has, either within or without India visited the address of
a foreign agent or consorted or associated with a foreign
agent, or
(ii) either within or without India the name or address of, or
any other information regarding, a foreign agent has been
found in his possession, or has been obtained by him from
any other person;
(b) the expression “foreign agent” includes any person who is or has
been or in respect of whom it appears that there are reasonable
grounds for suspecting him of being or having been employed by
a foreign power, either directly or indirectly, for the purpose of
committing an act, either within or without India prejudicial to
the safety or interests of the State, or who has or is reasonably
suspected or having, either within or without India committed, or
attempted to commit, such an act in the interests of a foreign
power;
Chapter 6 : Official Secrets Act 1923 * 51
(c) any address, whether within or without India in respect of which

it appears that there are reasonable grounds for suspecting it of
being an address used for the receipt of communications intended
for a foreign agent, or any address at which a foreign agent
resides, or to which he resorts for the purposes of giving or
receiving communications, or at which he carries on any business,
may be presumed to be the address of a foreign agent, and com-
munications addressed to such an address to be communications
with a foreign agent.
Section 5. Wrongful communication, etc., of information
(1) If any person having in his possession or control any secret official
code or password or any sketch, plan, model, article, note, document
or information which relates to or is used in a prohibited place or
relates to anything in such a place, or which is likely to assist, directly
or indirectly, an enemy or which relates to a matter the disclosure of
which is likely to affect the sovereignty and integrity of India, the
security of the State or friendly relations with foreign States or which
has been made or obtained in contravention of this Act, or which has
been entrusted in confidence to him by any person holding office
under Government, or which he has obtained or to which he has had
access Owing to his position as a person who holds or has held office
under Government, or as a person who holds or has held a contract
made on behalf of the Government, or as a person who is or has been
employed under a person who holds or has held such an office or
contract—
(a) wilfully communicates the code or password, sketch, plan, model,
article, note, document or information to any person other than a
person to whom he is authorized to communicate it or a Court of
Justice or a person to whom it is, in the interests of the State, his
duty to communicate it; or
(b) uses the information in his possession for the benefit of any
foreign power or in any other manner prejudicial to the safety of
the State; or
(c) retains the sketch, plan, model, article, note or document in his
possession or control when he has no right to retain it, or when
it is contrary to his duty to retain it, or wilfully fails to comply
with all directions issued by lawful authority with regard to the
return or disposal thereof; or
(d) fails to take reasonable care of, or so conducts himself as to
endanger the safety of, the sketch, plan, model, article, note,
document, secret official code or password or information;
he shall be guilty of an offence under this section.
(2) If any person voluntarily receives any secret official code or password
or any sketch, plan, model, article, note document or information
knowing or having reasonable ground to believe, at the time when he
receives it, that the code, password, sketch, plan, model, article, note,
document or information is communicated in contravention of this
Act, he shall be guilty of an offence under this section.
(3) If any person having in his possession or control any sketch, plan,
model, article, note, document or information, which relates to
munitions of war, communicates it, directly or indirectly, to any foreign
power or in any other manner prejudicial to the safety or interests of
the State, he shall be guilty of an offence under this section.
(4) A person guilty of an offence under this section shall be punishable
with imprisonment for a term which may extend to three years, or
with fine, or with both.
Section 8. Duty of giving information as to commission of offences
(1) It shall be the duty of every person to give on demand to a

Superintendent of Police, or other police officer not below the rank
of Inspector, empowered by an Inspector-General or Commissioner
of Police in this behalf, or to any member of the Armed Forces of the
Union engaged on guard, sentry, patrol or other similar duty, any
information in his power relating to an offence or suspected offence
under Section 3 or under Section 3 read with Section 9 and if so
required, and upon tender of his reasonable expenses, to attend at
such reasonable time and place as may be specified for the purpose
of furnishing such information.
(2) If any person fails to give any such information or to attend as
aforesaid, he shall be punishable with imprisonment which may extend
to three years or with fine, or with both.
Section 9. Attempts, incitements, etc.
Any person who attempts to commit or abets the commission of any

offence under this Act shall be punishable with the same punishment, and be
liable to be proceeded against in the same manner as if he had committed
such offence.
Section 10. Penalty for harbouring spies
(1) If any person knowingly harbours any person whom he knows or has
reasonable grounds for supposing to be a person who is about to
commit or who has committed an offence under Section 3 or under
Section 3 read with Section 9 or knowingly permits to meet or assemble
in any premises in his occupation or under his control any such person,
he shall be guilty of an offence under this section.
- Chapter 6 : Official Secrets Act 1923 * 53
(2) It shall be the duty of every person having harboured any such person
as aforesaid, or permitted to meet or assemble in any permises in his
occupation or under his control any such persons as aforesaid, to give
on demand to Superintendent of Police or other police officer not
below the rank of Inspector empowered by an Inspector-General or
Commissioner of Police in this behalf, any information in his power
relating to any such person or persons, and if any person fails to give
any such information, he shall be guilty of an offence under this
section.
(3) A person guilty of an offence under this section shall be punishable
with imprisonment for a term which may extend to three years, or
with fine, or with both.
Section 11. Search-warrants
(1) If a Presidency Magistrate, Magistrate of the first class or Sub-Divisonal

Magistrate is satisfied by information on oath that there is reasonable
ground for suspecting that an offence under this Act has been or is
about to be committed, he may grant a search-warrant authorizing any
police officer named therein, not being below the rank of an officer
in charge of a police station, to enter at any time any premises or
place named in the warrant, if necessary, by force, and to search the
premises or place and every person found therein, and to seize any
sketch, plan, model, article, note or document, or anything of a like
nature, or anything which is evidence of an offence under this Act
having been or being about to be committed which he may find on
the premises or place or any such person, and with regard to or in
connection with which he has reasonable ground for suspecting that
an offence under this Act has been or is about to be committed.
Section 13. Restriction on trial of offences
(1) No Court (other than that of a Magistrate of the first class specially
empowered in this behalf by the appropriate Government which is
inferior to that of a District or Presidency Magistrate) shall try any
offence under this Act.
(2) If any person under trial before a Magistrate for an offence under this
Act at any time before a charge is framed claims to be tried by the
Court of Session, the Magistrate shall, if he does not discharge the
accused, commit the case for trial by that Court, notwithstanding that
it is not a case exclusively triable by that Court.
(3) No Court shall take cognizance of any offence under this Act unless
upon complaint made by order of, or under authority from, the
appropriate Government or some officer empowered by the appropriate
Government in this behalf.
(4) For the purposes of the trial of a person for an offence under this Act,
the officer may be deemed to have been committed either at the place
in which the same actually was committed or at any place in India in
which the offender may be found.
EXERCISES
Short Questions
1. What is spying?
2. Explain ‘wrongful communication of information’.
3. What is the penalty for harbouring spies in the Indian Penal Code?
4. What are the restrictions for trial of offences of the Official Secrets Act?
Long Question
1. Explain the salient features of the Official Secrets Act.
FURTHER READING
For full version of the Act refer to
http://www.mha.nic.in/pdfs/official_secret_Act1923.pdf
Chapter 7
The Contempt of
Courts Act, 1971
7.1 INTRODUCTION
The jurisdiction to punish for contempt of courts touches upon two important
fundamental rights of the citizens, namely, the right to personal liberty and
the right to freedom of expression. It was, therefore, considered advisable to
have the entire law on the subject scrutinized by a special committee. In
pursuance of this, a committee was set up in 1961 under the chairmanship
of the late Shri H.N. Sanyal, the then Additional Solicitor General. The
committee made a comprehensive examination of the law and problems
relating to contempt of court in the light of the position obtaining in our own
country and various foreign countries. The recommendations which the
committee made took note of the importance given to freedom of speech in
the Constitution and of the need for safeguarding the status and dignity of
courts and interests of administration of justice. The recommendations of the
committee have been generally accepted by Government after considering
the view expressed on those recommendations by the State Governments,
Union Territory Administrations, the Supreme Court, the High Courts and
the Judicial Commissioners. After it was enacted, the Contempt of Courts Act
gave effect to the accepted recommendations of the Sanyal Committee.
According to this Act, contempt could be civil or criminal.

Section 2(a) “contempt of court” means civil contempt or criminal
contempt;
Section 2(b) “civil contempt” means willful disobedience to any
judgment, decree, direction, order, writ or other process of a court or willful
breach of an undertaking given to a court;
Section 2(c) “criminal contempt” means the publication (whether by
Oh
words, spoken or written, or by signs, or by visible representation, or

otherwise) of any matter or the doing of any other act whatsoever which—
(i) scandalizes, or tends to scandalize, 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 judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct,
the administration of justice in any other manner;
Section 2(d) “High Court” means the High Court for a State or a Union
territory, and includes the court of the Judicial Commissioner in any Union
territory.
Section 3. Innocent publication and distribution of matter not contempt
(1) A person shall not be guilty of contempt of court on the ground that
he has published (whether by words, spoken or written, or by signs,
or by visible representations, or otherwise) any matter which interferes
or tends to interfere with, or obstructs, or tends to obstruct, the course
of justice in connection with any civil or criminal proceeding pending
at that time of publication, if at that time he had no reasonable grounds
for believing that the proceeding was pending.
(2) Notwithstanding anything to the contrary contained in this Act or any
other law for the time being in force, the publication of any such
matter as is mentioned in sub-section (1) in connection with any civil
or criminal proceeding which is not pending at the time of publication
shall not be deemed to constitute contempt of court.
(3) A person shall not be guilty of contempt of court on the ground that
he has distributed a publication containing any such matter as is
mentioned in sub-section (1), if at the time of distribution he had no
reasonable grounds for believing that it contained or was likely to
contain any such matter as aforesaid:
Provided that this sub-section shall not apply in respect of the

distribution of—
(i) any publication which is a book or paper printed or published

otherwise than in conformity with the rules contained in Section 3
of the Press and Registration of Books Act, 1867, (25 of 1867);
(ii) any publication which is a newspaper published otherwise than in
conformity with the rules contained in Section 5 of the said Act.
Section 4. Fair and accurate report of Judicial proceeding not contempt
Subject to the provisions contained in Section 7 of this Act, a person
shall not be guilty of contempt of court for publishing a fair and accurate
report of a judicial proceeding or any stage thereof.
Chapter 7 : The Contempt of Courts Act, 1971 * 57
&
Section 5. Fair criticism of judicial act not contempt

A person shall not be guilty of contempt of court for publishing any fair
comment on the merits of any case which has been heard and finally decided.
Section 7. Publication of information relating to proceeding in
chambers or in camera not contempt except in certain cases
(1) Notwithstanding anything contained in this Act, a person shall not be
guilty of contempt of court for publishing a fair and accurate report
of a judicial proceeding before any court sitting in chambers or in
camera except in the following cases, that is to say,—
(a) where the publication is contrary to the provisions of any enactment
for the time being in force;
(b) where the court, on ground of public policy or in exercise of any
power vested in it, expressly prohibits the publication of all
information relating to the proceeding or of information of the
description which is published;
(c) where the court sits in chambers or in camera for reason connected
with public order or the security of the State, the publication of
information relating to those proceedings;
(d) where the information relates to a secret process, discovery or
invention which is an issue in proceedings.
(2) Without prejudice to the provisions contained in sub-section (1), a
person shall not be guilty of contempt of court for publishing the
text or a fair and accurate summary of the whole or any part, of an
order made by a court sitting in chambers or in camera, unless the
court has expressly prohibited the publication thereof on grounds of
public policy, or for reasons connected with public order or the security
of the State, or on the ground that it contains information relating to
a secret process, discovery or invention, or in exercise of any power
vested in it.
Section 10. Power of High Court to punish contempts of subordinate
courts
Every High Court shall have, and exercise, the same jurisdiction, powers
and authority, in accordance with the same procedure and practice, in respect
of contempts of courts subordinate to it as it has and exercises in respect of
contempts of itself:
Provided that no High Court shall take cognizance of a contempt alleged
to have been committed in respect of a court subordinate to it where such
contempt is an offence punishable under the Indian Penal Code (45 of 1860).
Section 12. Punishment for contempt of court
(1) Save as otherwise expressly provided in this Act or in any other law,
a contempt of court may be punished with simple imprisonment
for a term which may extend to six months, or with fine which may
extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded
may be remitted on apology being made to the satisfaction of the court. (An
apology shall not be rejected merely on the ground that it is qualified or
conditional if the accused makes it bona fide).
(2) Notwithstanding anything contained in any law for the time being in
force, no court shall impose a sentence in excess of that specified
in sub-section (1) for any contempt either in respect of itself or of a
court subordinate to it.
(3 Notwithstanding anything contained in this section, where a person is
—
found guilty of a civil contempt, the court, if it considers that a fine

will not meet the ends of justice and that a sentence of imprisonment
is necessary shall, instead of sentencing him to simple imprisonment,
direct that he be detained in a civil prison for such period not exceeding
six months as it may think fit.
(4 Where the person found guilty of contempt of court in respect of any
—
undertaking given to a court is a company, every person who, at the

time the contempt was committed, was in charge of, and was
responsible to the company for the conduct of business of the company,
as well as the company, shall be deemed to be guilty of the contempt
and the punishment may be enforced, with the leave of the court, by
the detention in civil prison of each such person:
Provided that nothing contained in this sub-section shall render any
such person liable to such punishment if he proves that the contempt was
committed without his knowledge or that he exercised all due diligence to
prevent its commission.
7.2 CASES RELATED TO CONTEMPT OF COURT

Case 1: (Digest)
Court of its own Motion vs. A.J. Philip (Printer, Publisher and
Officiating Editor the Tribune Press), 2003, High Court of Punjab and
Haryana.
IN THE HIGH COURT OF PUNJAB AND HARYANA FULL BENCH
The court noted that in the present case, the conduct of the respondent-
News Paper is an exception to the basic principle enunciated by the Courts
consistently that “a free Press is the sine qua non of any free country where
dictatorship is absent, where there is no throttling of any dissemination of
news and views.” The Court opined that this case can fairly be classified as a
case of admitted contempt. In the Tribune, dated May 24, 2003 a news item
appeared with the caption. “HC Judge’s name included in FIR.” The obvious
attempt was to cast aspersions on the institution of a High Court to bring it
disrepute and lower its prestige in the mind of the public.
According to the affidavit filed by R.S. Bhatti, Superintendent, Central
Bureau of Investigation, Chandigarh the news item was completely baseless
and malicious and no officer of the CBI had spoken to the Tribune regarding
the case under investigation. A.J. Phillip, Editor of the Tribune Press in his
affidavit stated that the news item was hastily done and was not correct.
According to him, in house corrective measures were being taken and such
lapses would not be repeated.
Notice to suo moto contempt action was initiated by the Court. Full
Bench of this Court vide its order dated May 24, 2003 was of the opinion that
the news item is intended to scandalize the entire judiciary and issued notice
to Shri A.J. Philip Printer, Publisher and officiating Editor of The Tribune as
well as to the Central Bureau of Investigation, through the Superintendent of
Police, Chandigarh.
Notices were served upon the respondents. In reply to the notices issued,
the respondent-contemners filed their replies by way of affidavits and the
matter was heard at length. Vide a detailed judgment dated 19-9-2003, the
Court found A.J. Phillip Editor and Shri Rajmeet Singh, Correspondent guilty
of committing contempt of Court and directed issuance of notice as to why
they may not be punished for having committed contempt of Court. The then
Judge of this Court besides concurring with the view of the majority further
directed that the CBI itself had also committed contempt of the Court by
harassing the family of the Judge, without there being any basis. However,
before recording any finding in that behalf against the CBI the Judge directed
that it would be necessary to afford reasonable opportunity to the CBI.
The CBI as well as A.J. Philip filed further affidavits, A.J. Philip
reiterated the stand taken in his initial affidavit and also further stated that
they tender unqualified apology. Rajmeet Singh, the correspondent also filed
an affidavit stating that the report was incorrect. Moreover, he realized this
fact after it was published and admitted that it was a serious lapse on his part
and he was very sorry.
Finding of guilt was recorded by the Bench holding the contemners,
except the Central Bureau of Investigation, as guilty of offence of criminal
contempt and issued them notices accordingly. Again, there was hardly
any contest on behalf of the respondents. The counsels, appearing for the
contemners expressed regrets and repentance and prayed for pardon. This
consistent behaviour attitude of the respondent, thus, compelled the Court to
cogitate on the matter in regard to grant of pardon in place of punishment. In
the above circumstances, and the law afore-referred, the Court was of the
considered view that instead of punishing the contemner for committing
criminal contempt of this grave nature they can be conditionally pardoned.
It had been stated on affidavit that the reporter was a young upcoming
journalist and in this extra zeal published the news without verifying the facts
and assuring its authenticity. His career was stated to be at stake. He was
already been reprimanded by his employer.
The Court did not express much doubt as to the genuineness of the
unconditional apology tendered and repentance on the part of the concerned
respondents for the blunder committed by them. The Court noted that, in
matters of contempt, the Court would extend its power to forgive rather than
actually punish the contemner, provided such unconditional apology tendered
is bona fide, heart-felt and intended to rectify its error with utmost sincerity
and also with an assurance of not repeating the same in future. The news item
in question was baseless, incorrect and in fact according to C.B.I. was even
malicious. Rajmeet Singh, a young reporter, has owned his mistake and
prayed for pardon while A.J. Philip, right from the very initiation of the
proceedings, has owned the responsibility and submitted unconditional
apology. The Court observed that even though it was a blunder which has
adversely affected the dignity of the High Court and created apparent dent in
administration of justice by the Court, there were cases, where the Courts
have exercised their jurisdiction to accept apology, rather than punish the
contemners despite the matters of grave nature, often correction can be a
better mean than punishment, to achieve the goal of respect for judicial
administration and dispensation of justice by the concerned Court.
The apology was published in the next day’s late City Edition of the
Tribune with prominence on front page and in bold letters. It was submitted
that the story had been published only in late City Edition because by the
time the story was given it could not be published in the earlier editions.
In the affidavit in response to the notice issued for punishing the said
respondents, A.J. Philip reiterated his earlier stand and again tendered apology
in the affidavit dated 18-10-2003.
Philip also relied upon the letter written by, the President of the Tribune
Trust (former Chief Justice of India Mr. R.S. Pathak), who, while taking a
serious view of the matter, wrote to the Editor-in-Chief emphasizing his
respect for the institution of judiciary, and requiring the concerned quarters
“to take appropriate measures.” Mr. H.K. Dua, Editor-in-Chief called a
meeting of the staff and made it mandatory that all news reports and
comments concerning the judiciary must be vetted and cleared by a person of
not less than the rank of Chief News Editor. The Editor-in-Chief has already
warned the staff that strict action will be taken against them if they are found
wanting in measuring up to high standards of journalism.
In view of the above affidavits and the facts narrated therein, the Court
was of the considered view that the apology tendered on behalf of the two
*
contemners was bona fide, definite in terms, sufficiently exhibited sense of

remorse and repentance, and also refered to the corrective measures sought to
be taken by the newspaper.
One factor which tilted the balance in favour of the condemner to some
extent was that a clarification was issued by the paper in the very next issue.
According to them, the news was also not published in the later editions of
the paper. The contemners tendered unqualified apology before the Court at
the very first available opportunity and at no point of time even attempted to
support or justify the erroneous and irresponsible act. Hence the Court was
willing to accept the unqualified and unconditional apology tendered on
behalf of A.J. Philip and Rajmeet Singh, but subject to their filing a specific
affidavit that in addition to the decisions taken by their management, they
shall strictly adhere to the prescribed standards of journalism and ensure
without fail assurance to the Court of not repeating such a conduct in future
under any circumstances.
As far as the Central Bureau of Investigation was concerned, the Court
noted, they had taken a stand at the very outset that the news item was false
and malicious. In the affidavit it was specifically pleaded that no reporter had
spoken to the investigating officer or any other officer of the department. And
the Court found no contradiction in the letter written by the concerned Judge
and the stand taken by the Central Bureau of Investigation before the Court. It
is concerted case of the parties that the news item was incorrect and in fact
according to the Central Bureau of Investigation it was false. In these
circumstances the Court was not inclined to hold that the Central Bureau of
Investigation or any of its officers were guilty of contempt of Court or that
their action had interfered with the administration of justice. Hence the Court
discharged the notice of contempt issued to the Central Bureau of
Investigation, with the word of caution and accepted the unconditional and
unqualified apology tendered by A.J. Philip, Editor, and Rajmeet Singh,
Reporter but subject to the condition that affidavits as directed shall be filed
by them.
Case 2: (Digest)
Advocate General of Tamil Nadu vs. Shri M. Karunanidhi (Founder and

Editor, Murasoli), 2002, High Court of Madras.
The Advocate General of Tamil Nadu had initiated this case against
Mr. M. Karunanidhi, the then former Chief Minister of Tamil Nadu. The
reason behind was the publication of some articles in a daily titled “Murasolt’
on 5-12-2001, 6-12-2001, 7-12-2001, 13-12-2001 and 16-12-2001.
The Chief Minister of that time Ms. J. Jayalalithaa wa. .ue Chief
Minister between the years 1991 to 1996. For the period 1996 to 2001,
Mr. M. Karunanidhi was the Chief Minister. Prosecution was launched
against Ms. J. Jayalalithaa that some criminal acts punishable under the
Prevention of Corruption Act were committed by her during her tenure as

Chief Minister. They were popularly called as TANSI Land Purchase case
and Pleasant Stay Hotel case. The said cases were tried by the Special Court
presided over by a Sessions Judge and they ended in conviction. She had
appealed to the Madras High Court against the said judgements of the Special
Court and the judgement dated 4-12-2001, reversed the judgement of the
Special Court resulting in acquittal of Ms. Jayalalithaa in the above two cases.
The contentious pleadings were related to the acquitial of Ms.
Jayalalithaa from the two cases and could be divided into three parts as
follows:
(i) interview of the press person with Mr. M. Karunanidhi;
(ii) cartoons containing the comments; and
(iii) imaginary conversation between two individuals
As far as the cartoons and the comments were concerned, Mr. M.
Karunanidhi had denied authorship. He also denied that he was the Editor
while admitting that he was the Founder of Murasoli. As such, the Editor and
Publisher were not parties to this case. Hence, the judge abstained from
taking the said cartoon and the comments from consideration, as there was no
material by which they could be attributed to Mr. M. Karunanidhi.
The interview in question had immense significance, as the same was
made on the date of the judgement in the above cases, i.e. 4-12-2001 and
published next day i.e. 5-12-2001. Substance of the interview related to the
judgement rendered on 4-12-2001 acquitting Ms. Jayalalithaa and the Judge
who rendered the judgement, even though the name of the Judge was not
mentioned. The judge concluded that he was unable to deduce any meaning
out of the above interview so as to determine that any derogatory remarks
have been made against the Judge or his Judgements.
Then the final pleading i.e. verse dated 16-12-2001 in the shape of
imaginary conversation between two friends—one being a guileless person
and another, worldly-wise was looked into by the Court. The Advocate
General had submitted that there was enough suggestion and implication,
under the guise of the said imaginary conversation, referring to the Judge that
he acquitted Ms. Jayalalithaa for extraneous considerations. The Counsel
appearing for Mr. M. Karunanidhi, countered this argument and submitted
that the conversation was imaginary and was a part of literary activity and
nothing could be read into it so as to make out an act of contempt.
The Court agreed with the submissions made by the senior counsel
appearing for Mr. M. Karunanidhi. From a reading of what was stated in the
articles written by Mr. Karunanidhi in ‘Murasoli’, a Tamil daily newspaper,
the Court was unable to reach any conclusion that Mr. M. Karunanidhi had
made any insinuations or derogatory remarks either against a Judge or
Judiciary. There was no material before the Court from which it could be
definitely held that there was an act of contempt. The Court opined that the
*
contempt case could never be decided on probabilities. Even when two views
were possible, because the contempt was quasi-criminal, benefit of doubt
should be given to the contemner. Merely because the articles were published
close to the date of judgement of acquittal, no presumption could be drawn
that they were so published so as to malign the Judge or his judgement.
Hence the contempt proceedings were dropped and the contemner was
discharged.
EXERCISES
Short Questions
1. What is civil contempt of court?
2. What do you mean by criminal contempt of court?
3. Explain the punishment for contempt of court.
Long Questions
1. Explain the salient features of the Contempt of Courts Act, 1971.
2. Explain any two cases that were conducted in relation with the contempt
of court.
FURTHER READING
http://www.commonlii.org/in/legis/num_act/cocal971228
Chapter 8
Print Media: Acts
8.1 INTRODUCTION
Print media in India has always played a crucial role in the country’s
development and well-being. Unlike many other countries, the print media has
very well withstood the stiff competition from the electronic media, if the
growing number of newspapers and magazines in India is a yardstick to
adhere by. The print media is also the well-regulated media in India. There
exist a number of Acts which deal with the functioning of print media. This
chapter deals with the Acts which regulated the print media in India. This
chapter provides the salient features of The Press and Registration of Books
Act, 1867, Press Council Act 1978 and Working Journalists and Other
Newspaper Employees (Condition of Service) and Miscellaneous Provisions
Act, 1955.
8.2 THE PRESS AND REGISTRATION OF BOOKS

ACT, 1867
This is an Act for the regulation of printing-presses and newspapers, for the
preservation of copies of books and newspapers printed in India and for
the registration of such books and newspapers. The following are the main
features of this Act.
Section 3. Every book or paper printed within India shall have printed
legibly on it the name of the printer and the place of printing, and (if the
book or paper be published [the name] of the publisher and the place o
publication.
Section 4. [(1)] No person shall, within [India], keep in his posses-
sion any press for the printing of books or paper, who shall not have made
and subscribed the following declaration before [the District, Presidency or
Sub-Divisional Magistrate] within whose local jurisdiction such press may be:
64
Chapter 8 : Print Media: Acts * 65
“I, A.B., declare that I have a press for printing at__, 9
And this last blank shall be filled up with a true and precise description
of the place where such press may be situated.
Section 5. No newspaper shall be published in India, except in
conformity with the rules hereinafter laid down:
(1) [Without prejudice to the provisions of Section 3], every copy of

every such newspaper shall contain the name of the person who is the
editor thereof printed clearly on such copy as the name of the editor
of that newspaper;
(2) The printer and the publisher of every such newspaper shall appear
in person or by agent authorized in this behalf in accordance with
rules made under Section 20, before a District, Presidency or Sub-
divisional Magistrate within whose local jurisdiction such newspaper
shall be printed or published ..., and shall make and subscribe, in
duplicate, the following declaration; “I, A.B., declare that I am the
printer (or publisher, or printer and publisher) of the newspaper
entitiled__and to be printed or published, or to be printed and published,
as the case may be) at... .”
And the last blank in this form of declaration shall be filled up with a
true and precise account of the premises where the printing or publication is
conducted.
Section 11A. The printer of every newspaper in India shall deliver at
such place and to such officer as the State Government may, by notification
in the Official Gazette, direct, and free of expense to the Government as soon
as it is published.
Section 12. Whoever shall print or publish any book or paper
otherwise than in conformity with the rule contained in Section 3 of this Act
shall, on conviction before a Magistrate, be punished by fine or imprisonment
for a term not exceeding [six month] or by both.
Section 13. Whoever shall keep in his possession any such press as
aforesaid, [in contravention of any of the provision contained in Section 4 of
this Act] shall on conviction before a Magistrate, be punished by fine not
exceeding [two thousand] rupees, or by simple imprisonment for a term not
exceeding [six months], or by both.
Section 14. Any person who shall, in making [any declaration or other
statement] under the authority of this Act, make a statement which is false,
and which he either knows or believes to be false or does not believe to be
true, shall on conviction before a Magistrate, be punished by fine not
exceeding two thousand rupees, and imprisonment for a term not exceeding
six months.
Section 15. [(1)] Whoever shall [edit], print or publish may

[newspaper] without conforming to the rules hereinbefore laid down, or
whoever shall [edit], print or publish, or shall cause to be [edited], printed or
published, any [newspaper] knowing that the said rules have not been
observed with respect to [that newspaper], shall, on conviction before a
Magistrate, be punished with fine out exceeding [two thousand] rupees, or
imprisonment for a term not exceeding [six months], or both.
[(2)] Where an offence is committed in relation to a newspaper under
sub-section (1), the Magistrate, also cancel the declaration in respect of the
newspaper.
8.3 REGISTRATION OF NEWSPAPERS

Section 19A. The Central Government may appoint a Registrar of news-
papers for India and such other officers under the general superintendence and
control of the Press Registrar as may be necessary for the purpose of
performing the function assigned to them by or under this Act and may, by
general or special order; provide for the distribution or allocation of function
to be performed by them under this Act.
Section 19B. (1) The Press Registrar shall maintain in the prescribed
manner a Register of newspapers.
(2) The Register shall, as far as may be practicable, contain the following
particulars about every newspaper published in India, namely;
(a) the title of the newspaper;
(b) the language in which the newspaper is published;
(c) periodicity of the publication of the newspaper;
(d) the name of the editor, printer and publisher of the newspaper;
(e) the place of printing and publication;
(f) the average number of pages per week;
(g) the number of days of publication in the year;
(h) the average number of copies printed, the average number of
copies sold to the public and the average number of copies
distributed free to the public, the average being calculated with
reference to such period as may be prescribed;
(i) retail selling price per copy;
Qj) the names and addresses of the owners of the newspaper and
such other particulars relating to ownership as may be prescribed;
(k) any other particulars, which may be prescribed.
(3) On receiving information from time to time about the aforesaid
particulars, the Press Registrar shall cause relevant entries to be made
in the Register and may make such necessary alterations or corrections
therein as may be required for keeping the Register up-to-date.
a
Section 19C. On receiving from the Magistrate under Section 6 a

copy of the declaration in respect of a newspaper, [and on the publication of
such newspaper, the Press Registrar shall] as soon as practicable thereafter,
issue a certificate of registration in respect of that newspaper to the publisher
thereof.
Section 19D. It shall be the duty of the publisher of every news-

paper—(a) to furnish to the Press Registrar an annual statement in respect of
the newspaper at such time and containing such of the particulars referred to
in sub-section (2) of Section 19B as may be prescribed; (b) to publish in the
newspaper at such times and such of the particulars relating to the newspaper
referred to in sub-section (2) of Section 19B as may be specified in this
behalf by the Press Registrar.
Section 19E. The publisher of every newspaper shall furnish to the
Press Registrar such returns, statistics and other information with respect to
any of the particulars referred to in sub-section (2) of Section 19B as the
Press Registrar may from time to time require.
Section 19F. The Press Registrar or any gazetted officer authorized
by him in writing in this behalf shall, for the purpose of the collection of
any information relating to a newspaper under this Act, have access to any
relevant record or document relating to the newspaper in the possession of the
publisher thereof, and may enter at any reasonable time any premises where
he believes such record or document to be, and may inspect or take copies of
the relevant records or documents or ask any question necessary for obtaining
any information required to be furnished under this Act.
Section 19G. The Press Registrar shall prepare, in such form and at
such time each year as may be prescribed, an annual report containing a
summary of the information obtained by him during the previous year in
respect of the newspapers in India and giving an account of the working of
such newspaper, and copies thereof shall be forwarded to the Central
Government.
Section 19H. On the application of any person for the supply of the
copy of any extract from the Register and on payment of such fee as may be
prescribed, the Press Registrar shall furnish such copy to the applicant in such
form and manner as may be prescribed.
Section 19-I. Subject to the provisions of this Act and regulation made
thereunder, the Press Registrar may delegate all or any of his powers under
this Act to any officer subordinate to him.
Section 19J. The Press Registrar and all officers appointed under this
Act shall be deemed to be public servants within the meaning of section 21 of
the Indian Penal Code (45 of 1860).
Section 19K. If the publisher of any newspaper__(a) refuses or

neglects to comply with the provision of Section 19D, or Section 19E; or
publishes in the newspaper in pursuance of Clause (b) of Section 19D any
particulars relating to the newspaper which he has reason to believe to be
false; he shall be punishable with fine, which may extend to five hundred
rupees.
Section 19L. If any person engaged in connection with the collection
of information under this Act willfully discloses any information or the
contents of any return given or furnished under this Act otherwise than in
execution of his duties under this Act or for the purposes of the prosecution
of an offence under this Act or under the Indian Penal Code, he shall be
punishable with imprisonment for a term which may extend to six months, or
with fine which may extend to one thousand rupees, or with both.
Miscellaneous
Section 21. The State Government may, by notification in the Official
Gazette, exclude any class of books or papers from the operation of the whole
or any part or parts of this Act.
Provided that no such notification in respect of any class of newspapers
shall be issued without consulting.
8.4 PRESS COUNCIL ACT, 1978

The purpose of the Act was to establish a Press Council for preserving the
freedom of the Press and of maintaining and improving the standards of
newspapers and news agencies in India.

The Act made way for the establishment of the press council.
Section 5. It states that the Council shall consist of a Chairman and
twenty-eight other members.
Section 6. It states that in general circumstances, the Chairman and
other members shall hold office for a period of three years.
Section 7. Conditions of service of members—The Chairman shall be a
whole-time officer and shall be paid such salary as the Central Government
may think fit; and the other members shall receive such allowances or fees for
attending the meeting of the Council, as may be prescribed.
Section 8. Committees of the Council—For the purpose of performing
its functions under this Act, the Council may constitute committees from
among its members for general or special purposes and every Committee so
constituted shall perform such functions as are assigned to it by the Council.
Section 9. Meetings of the Council and Committees—The Council or

any Committee formed by the Council shall meet at such times and places
and shall observe such rules of procedure in regard to the transaction
of business at its meetings as may be provided by regulations made under
this Act.
Section 11. Staff of the Council—Subject to the rules made by the

Central Government in this behalf, the Council may appoint a Secretary and
such other employees as it may think necessary for the efficient performance
of its functions under this Act.
Powers and functions of the council

Section 13. Objects and functions of the Council
(1) The objects of the Council shall be to preserve the freedom of the
press and to maintain and improve the standards of newspapers and
news agencies in India.
(2) The Council may, in furtherance of its objects, perform the following
functions, namely;
(a) to help newspapers and news agencies to maintain their

independence;
(b) to build up a code of conduct for newspapers, news agencies and
journalists in accordance with high professional standards;
(c) to ensure on the part of newspapers, news agencies and journalists,
the maintenance of high standards of public taste and promote a
due sense of both the rights and responsibilities of citizenship;
(d) to encourage the growth of a sense of responsibility and public
service among all those engaged in the profession of journalism;
(e) to keep under review any development likely to restrict the supply
and dissemination of news of public interest and importance;
(f) to keep under review cases of assistance received by any
newspaper or news agency in India from any foreign source
including such cases as are referred to it by the Central Government
or are brought to its notice by an individual, association of persons
or any other organization.
(g) to undertake studies of foreign newspapers, including those brought
out by any embassy or other representative in India of a foreign
State, their circulation and impact.
(h) To promote a proper functional relationship among all classes of
persons engaged in the production or publication of newspapers
or in news agencies.
to concern itself with developments such as concentration of or
other aspects of ownership of newspapers and news agencies
which may affect the independence of the Press;
(j) to undertake such studies as may be entrusted to the Council and

to express its opinion in regard to any matter referred to it by the
Central Government;
(k) to do such other acts as may be incidental or conducive to the
discharge of the above functions.
Section 14. Power to Censure
The Council may conduct an inquiry with the newspaper, or news

agency, the editor or journalist—on the receipt of a complaint or otherwise—
if the Council has reason to believe that they have offended against the
standards of journalistic ethics or public taste or that an editor or working
journalist has committed any professional misconduct. If the Council is
satisfied that it is necessary to do so, it may, for reasons to be recorded in
writing, warn, admonish or censure the newspaper, the news agency,
the editor or the journalist or disapprove the conduct of the editor or the
journalist.
At the same time, the Council may not take cognizance of a complaint
if in the opinion of the Chairman, there is no sufficient ground for holding an
inquiry.
If the Council is of the opinion that it is needed in public interest to do
so, it may require any newspaper to publish any particulars relating to any
inquiry under this section against a newspaper or news agency, an editor or a
journalist working therein, including the name of such newspaper, news
agency, editor or journalist.
In the above two instances, the decision of the Council shall be final
and shall not be questioned in a court of law.
At the same time, the Council is not empowered to hold an inquiry into
any matter the proceeding of which is pending in a court of law.
Section 15. General powers of the Council
(1) For the purpose of performing its functions or holding any inquiry
under this Act, the Council shall have the same powers throughout
India as are vested in a civil court while trying a suit under the Code
of Civil Procedure, 1908, in respect of the followings matters, namely:
(a) summoning and enforcing the attendance of persons and examining
them on oath;
(b) requiring the discovery and inspection of documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copies thereof from any court
or office;
(e) issuing commissions for the examination of witnesses or
documents; and
(f) any other matter, which may be prescribed
(2) Nothing in sub-section (1) shall be deemed to compel any newspaper,

news agency, editor or journalist to disclose the source of any news
or information.
(3) Every inquiry held by the Council shall be deemed to be a judicial
proceeding within the meaning of Sections 193 and 228 of the Indian
Penal Code.
(4) The Council may, if it considers it necessary for the purpose of carrying
out its objects or for the performance of any of its functions under this
Act, make observations in any of its decisions or reports, regarding
the conduct of any authority, including Government.
Section 16. Levy of fees
The Council may, for the purpose of performing its functions under this
Act, levy such fees, at such rates and in such manner, as may be prescribed,
from registered newspapers and news agencies and different rates may be
prescribed for different newspapers having regard to their circulation and
other matters.
Sections 20 and 21. Annual report and interim reports
The Council shall prepare annual report giving a summary of its
activities during the previous year and an account of the standards of
newspapers and news agencies and factors affecting them. It, along with the
statement of accounts, shall be forwarded to the Central Government and the
Government shall cause the same to be laid before both the Houses of
Parliament. It can prepare interim reports too, regarding its activities which
the Council considers to be of public importance.
Section 23. Protection of action taken in good faith
(1) No suit or other legal proceeding shall lie against the Council or any
member or any person acting under the direction of the Council in
respect of anything which is done in good faith under this Act.
(2) No suit or other legal proceeding shall lie against any newspaper in
respect of the publication of any matter therein under the authority of
the Council.
Section 25. Power of the Central Government to make rules
The Central Government may, by notification in the Official Gazette,
make rules to carry out the purposes of this Act and no such rules shall be
made without consulting the Council. Every rule made under this section shall
be laid, as soon as may be after it is made, before each House of Parliament.
Section 26. Power of the Council to make regulations
The Council may, by notification in the Official Gazette, make
regulations not inconsistent with this Act.
8.5 WORKING JOURNALISTS AND OTHER

NEWSPAPER EMPLOYEES (CONDITION OF
SERVICE) AND MISCELLANEOUS
PROVISIONS ACT, 1955
- The objective of this Act is to regulate certain conditions of service of
working journalists and other persons employed in newspaper establishments.
This Act specifies the compensation needed to be paid to the journalists in

the time of retrenchment (when the journalists are sent off due to economic
reasons), Section 5 states that gratuity should be paid to the journalists when
they are continuously in service for 3 years in a newspaper establishment and
are terminated other than as a measure of punishment, when a journalist
retires from the service on the age of reaching superannuation, or when any
working journalist has been in continuous service for ten years in any news-
paper establishment and voluntarily retires from service in that newspaper
establishment either on the ground of conscience or on any other ground or if
the journalist dies while in service.
Section 8. Fixation or revision of rates of wages
(1) The Central Government may, in the manner hereinafter provided—
(a) fix rates of wages in respect of working journalist;
(b) revise, from time to time, at such intervals as it may think fit, the
rates of wages fixed under this section or specified in the order
made under Section 6 of the Working Journalists (Fixation of
Rates of Wages) Act, 1958 (29 of 1958).
(2) The rates of wages may be fixed or revised by the Central Government
in respect of working journalist’s time work and for piece work.
Section 9. Procedure for fixing and revising rates of wages
For the purpose of fixing or revising rates of wages in respect of
working journalists under this Act, the Central Government shall, as and
when necessary, constitute a Wage Board which shall consist of—
(a) two persons representing employers in relation to newspaper establish-
ments;
(b) two persons representing working journalists;
(c) three independent persons, one of whom shall be a person who is or
has been a Judge of High Court or the Supreme Court and who shall
be appointed by that Government as the Chairman thereof.
Section 10. Recommendation by Board
(1) The Board shall, by notice published in such manner as it thinks fit,
call upon newspaper establishments and working journalists and other
persons interested in the fixation or revision of rates of wages of
working journalists to make such representations as they may think fit
as respects the rates of wages which may be fixed or revised under
this Act in respect of working journalists.
(2) Every such representation shall be in writing and shall be made within
such period as the Board may specify in the notice and shall state
the rates wages which, in the opinion of the person making the repre-
sentation, would be reasonable, having regard to the capacity of the
employer to pay the same or to any other circumstance, whichever
may seem relevant to the person making the representation in relation
to his representation.
(3) The Board shall take into account the representation aforesaid, if any,
and after examining the materials placed before it make such recom-
mendations as it thinks fit to the Central Government for the fixation
or revision of rates of wages in respect of working journalists; and
any such recommendation may specify, whether prospectively or
retrospectively, the date from which the rates of wages should take
effect.
(4) In making any recommendations to the Central Government the Board
shall have regard to the cost of living, the prevalent rates of wages for
comparable employment, the circumstances relating to the newspaper
industry in different regions of the country and to any other
circumstances which to the Board may seem relevant.
Section 11. Powers and procedure of the Board
(1) Subject to the provisions contained in sub-section (2), the Board may
exercise all or any of the powers which an Industrial Tribunal
constituted under the Industrial Disputes Act, 1947 (14 of 1947),
exercises for the adjudication of an industrial dispute referred to it and
shall, subject to the provisions contained in this Act, and the rules, if
any, made thereunder have power to regulate its own procedure.
(2) Any representation made to the Board and any document furnished to
it by way of evidence shall be open to inspection on payment of such
fee as may be prescribed, by any person interested in the matter.
(3) If, for any reason, a vacancy occurs in the office of Chairman or any
other member of the Board, the Central Government shall fill the
vacancy by appointing another person thereto in accordance with the
provisions of Section 9 and any proceeding may be continued before
the Board as reconstituted from the stage at which the vacancy
occurred.
74 Media Law and Ethics
Section 12 mentions the Powers of Central Government to modify as

well as to enforce the recommendations of the Wage Board and Section 13A
empowers the Central Government to fix interim rates of wages which will be
binding on all employers in relation to newspaper establishment.
Section 13AA. Constitution of Tribunal for fixing or revising rates of
wages in respect of working journalists. It states that if the Central
Government is of opinion that the Board constituted under Section 9 for the
purpose of fixing or revising rates of wages in respect of working journalists
had not been able to function (for any reason whatsoever) effectively, and in
the circumstances, it is necessary so to do, it may, by notification in the
official gazette, constitute a Tribunal, which shall consist of a person who is
or has been, a Judge of a High Court or the Supreme Court for the purpose of
fixing or revising rates of wages in respect of working journalists under this
Act. It also states that the Tribunal, in discharging its functions under this
Act, may act on the evidence recorded by the Wage Board or partly recorded
by the Wage Board and partly recorded by itself and on the constitution of a
Tribunal under sub-section (1) the Board constituted under Section 9 and
functioning immediately before such constitution shall cease to exist and the
members constituting that Board shall be deemed to have vacated their
offices.
Non-journalist newspaper employees

Section 13B. Fixation or revision of rates of wages of non-journalist
newspaper employees
(1) The Central Government may, in the manner hereinafter provided,—
(a) fix rates of wages in respect of non-journalist newspaper
employees; and
(b) revise, from time to time, at such intervals as it may think fit, the
rates of wages fixed under this section.
(2) The rates of wages may be fixed or revised by the Central Government
in respect of non-journalist newspaper employees for time work and
for piece work.
Section 13C. Wage Board for revising rates of wages in respect of
non-journalist newspaper employees—For the purpose of fixing or revising
rates of wages in respect of non-journalist newspaper employees under this
Act, the Central Government shall, as and when necessary, constitute a Wage
Board which shall consist of—
(a) two persons representing employers in relation to newspaper
establishment;
(b) two persons representing non-journalist newspaper employees; and
(c) three independent persons, one of whom shall be a person who is or

has been, a Judge of a High Court or the Supreme Court and who
shall be appointed by that Government as the Chairman thereof.
EXERCISES
Short Questions
1. What should be the contents of the register of newspapers?
What are the functions of the Press Council?
Explain the powers of the Press Council.
Set
eS Explain the procedure for fixing and revising rates of wages of working
journalists.
Long Questions
1. Explain the salient features of Press Council Act 1978.
2. Explain the salient features of the Press and Registration of Books Act
1876.
3. Explain the salient features of the Working Journalists and Other
Newspaper Employees (Condition of Service) and Miscellaneous
Provisions Act, 1955.
FURTHER READING
For full version of the Press and Registration of Books Act refer to
https://rni.nic.in/prbact.html
For full version of the Press Council Act refer to
http://presscouncil.nic.in/act.htm
For full version of the Working Journalists Act, refer to
http:/abour.nic.in/act/acts/wjr.doc
Chapter 9
~ Intellectual Property
Rights
9.1 INTRODUCTION
The property born out of a person’s intellect is termed intellectual property.
Like how a person’s physical property should be safeguarded, the intellectual
byproducts too need protection from infringement. The legal rights thrust on a
person to safeguard his/her intellectual property are termed Intellectual
Property Rights (IPR). By those legal rights, you prevent others from making
use of your knowledge so that you can cash in on it.
9.2 WORLD TRADE ORGANIZATION

The World Trade Organization (WTO) substantiated the rules of intellectual
property law and brought them within the scope of Trade Related Intellectual
Property Rights (TRIPs). The intellectual property rights are enforceable
within the country which has granted those rights. IPR are not of the same
nature throughout the world.
Intellectual property right

There are various forms of intellectual property right. They are as follows:
1. Patents: New inventions employing scientific and technical
knowledge, Value addition to existing technology. It is a contract
between inventor and government, e.g., a new drug.
2. Trade mark and service mark: Visual symbol in the form of a
word, service or label applied to an article of a manufacturer, e.g.,
Yahoo, Zee telefilms.
3. Industrial designs: Idea or a conception as to the features of the
shape, configuration pattern, ornament of composition of lines or
76
Chapter 9 : Intellectual Property Rights * 77
colours applied to any article. Design is for beautifying an industrial

product to attract consumer public. Any new or original design adopted
for ornamentation, shaping and configuration of an industrial pdt is
eligible for design registration.
4. Copyright: Right to copy and making use of literary, dramatic,
musical, artistic works, cinematographic films, records and broadcasts.
5. Geographical indications: Geographical indications identify goods
as Originating in the territory of a country, an origin or a locality in
that territory, where a specific quality, reputations or other
characteristics of the goods is essentially attributed to their geographical
origin, e.g., Darjeeling tea, Kanchipuram saree etc.
6. Protection for new plant varieties: TRIPS (trade-related aspects
of intellectual property rights) provisions of the World Trade
Organization Agreement make it mandatory for member countries to
provide protection for new plant varieties, e.g., new variety of rice,
wheat etc. As per the provisions, the member countries can give
protection to new plant varieties in two ways—
(1) under the patent law
(ii) by a separate system (called Suigeneris system)
9.3 ENACTMENTS
The four enactments in India related to IPR are as follows:
The Designs Act 1911

Trade and Merchandise Marks Act 1958
The Patents Act 1970
ee The Copyright Act 1957
sacl
mage
9.3.1 The Designs Act, 1911
The following are some of the features of the Designs Act 1911.
“Design” means only the features of shape, configuration pattern or
ornament applied to any article by any industrial process or means, whether
manual, mechanical or chemical, separate or combined, which in the finished
article appeal to and are judged solely by the eye; but does not include any
mode or principle of construction or anything which is in substance a mere
mechanical device, and does not include any trade mark as defined in Clause
(v) of sub-section (1) of Section 2 of the Trade and Merchandise Marks Act,
1958 (43 of 1958) or property mark as defined in Section 479 of the Indian
Penal Code.
Registration of designs: Below mentioned are the procedures of
registration of designs.
Section 43. Application for registration of designs

(1) The Controller may, on the application of any person claiming to be
proprietor of any new or original design not previously published in
India, register the design under the Act.
(2) The application must be made in the prescribed forms and must
be ieft at the Patent Office in the prescribed manner and must be
accompanied by the prescribed fee.
(3) The same design may be registered in more than one class, and, in
case of doubt as to the class in which a design ought to be registered,
the Controller may decide the question.
(4) The Controller may, if he thinks fit, refuse register any design presented
to him for registration; but any person aggrieved by any such refusal
may appeal to the Central Government.
(5) An application which, owing to any default or neglect on the part of
the applicant, has not been completed so as to enable registration to
be effected within the prescribed time shall be deemed to be abandoned.
(6) A design when registered, shall be registered as of the date of the
application for registration.
Section 44. Registration of designs in new classes
Where a design has been registered in one or more classes of goods,
the application of the proprietor of the design to register it in some one or
more other classes shall not be refused, nor shall the registration thereof
invalidated—
(a) on the ground of the design not being a new or original design, by
reason only that it was so previously registered; or
(b) on the ground of the design having been previously published in
India, by reason only that it has been applied to goods of any class
in which it was so previously registered:
Provided that such subsequent registration shall not extend the period
of copyright in the design beyond that arising from previous registration.
Section 45. Certificate of registration
(1) The Controller shall grant a certificate of registration to the proprietor

of the design when registered.
(2) The Controller may, in case of loss of the original certificate, or in
any other case in which he deems it expedient, furnish one or more
copies of the certificate.
Section 46. Register of designs
(1) There shall be kept at the Patent Office a book called the Register of
Design, wherein shall be entered the names and addresses of proprietors
Chapter 9 : Intellectual Property Rightt * 79
.
of registered designs, notifications of assignments and of transmissions
of registered designs, and such other matter as may be prescribed.
* (2) The register of designs existing at the commencement of this Act
shall be incorporated with and form part of the register of designs
under this Act.
(3) The register of designs shall be prima facie the evidence of any
matter by this Act directed or authorized to be entered therein.
Copyright in registered designs

Section 47. Copyright on registration
(1) When a design is registered, the registered proprietor of the design

shall, subject to the provisions of this Act, have copyright in the
design during five years from the date of registration.
(2) If before the expiration of the said five years, application for the
extension of the period of copyright is made to the Controller in the
prescribed manner, the Controller shall on payment of the prescribed
fee, extend the period of copyright for a second period of five years
from the expiration of the original period of five years.
(3) If before the expiration of such second period of five years application
for the extension of the period of copyright is made to the Controller
in the prescribed manner, the Controller may, subject to any rules
under this Act, on payment of the prescribed fee, extend the period
of copyright, for a third period of five years from the expiration of the
second period of five years.
Section 48. Requirements before delivery on sale
(1) Before delivery on sale of any articles to which a registered design

has been applied, the proprietor shall—
(a) (if exact representations or specimens were not furnished on the
application for registration) furnish to the Controller the prescribed
number of exact representations of specimens of the design; and
if he fails to do so, the Controller may erase his name from the
register, and thereupon the copyright in the design shall cease;
and
(b) cause each such article to be marked with the prescribed mark, or
with the prescribed words or figures, denoting that the design is
registered; and, if he fails to do so, the proprietor shall not be
entitled to recover any penalty or damage in respect of any
infringement of his copyright in the design unless he shows that
he took all proper steps to ensure the marking of the article, or
unless he shows that the infringement took place after the person
guilty thereof knew or had received notice of the existence of the
copyright in the design.
(2) Where a representation is made to the Central Government by or on

behalf of any trade or industry that in the interests of the trade or
industry it is expedient to dispense with or modify as regards any
class or description of articles any of the requirements of this section
as to marking, the Central Government may, if it thinks fit, by rule
under this Act dispense with or modify such requirements as regards
any such class or description of articles to such extent and subject
to such conditions as it thinks fit.
Section 49. Effect of disclosure on copyright
The disclosure of a design by the proprietor to any other person in such
circumstances as would make it contrary to good faith for that other person
to use or publish the design and the disclosure of a design in breach of
good faith by any person, other than the proprietor of the design, and the
acceptance of a first and confidential order for goods bearing a new or
original textile design intended for registration, shall not be deemed to be a
publication of the design sufficient to invalidate the copyright thereof if
registration thereof is obtained subsequently to the disclosure or acceptance.
Section 50. Inspection of registered designs
(1) During the existence of copyright in a design, or such shorter period
not being less than two years from the registration of the design as
may be prescribed the design shall not be open to inspection except
by the proprietor or a person authorized by the Controller or by the
Court and furnishing such information as may enable the controller to
identify the design, and shall not be open to the inspection of any
person except in the presence of the Controller, or of an officer acting
under him and on payment of the prescribed fee; and the person
making the inspection shall not be entitled to take any copy of the
design, or of any part thereof;
Provided that, where registration of a design is refused on the ground of

identity with a design already registered, the applicant for registration shall
be entitled to inspect the design so registered.
(2) After the expiration of the copyright in a design, or such shorter

period as aforesaid, the design shall be open to inspection, and copies
thereof may be taken by any person on payment of the prescribed fee.
(3) Different periods may be prescribed under this section for different
classes of goods.
Section 51. Information as to existence of copyright
On the request to any person furnishing such information as may enable
the Controller to identify the design, and on payment of the prescribed fee the
Controller shall inform such person whether the registration still exists in
*
respect of the design, and, if so, in respect of what classes of goods, and shall
state the date of registration and the name and address of the registered
proprietor.
Section 51A. Cancellation of registration

(1) Any person interested may present a petition for the cancellation of
the registration of a design—
(a) at any time after the registration of the design, to the High Court
on any of the following grounds, namely—
(i) that the design has been previously registered in India; or
(ii) that it has been published in India prior to the date of
registration; or
(iii) that the design is not a new or original design; or
(b) within one year from the date of the registration to the Controller
on either of the grounds specified in sub-clause (i) and (ii) of
Clause (a).
(2) An appeal shall lie from any order of the Controller under this section
to the High Court, and the Controller may at any time refer any such
petition to the High Court, and the High Court shall decide any petition
so referred.
Section 51B. Designs to bind Government
A registered design shall have to all intents the like effect as against
Government as it has against any person and the provisions of Chapter XVII
of the Patents Act, 1970, shall apply to registered designs as they apply to
patents.
Legal proceedings
Section 53. Piracy of registered design
(1) During the existence of copyright in any design it shall not be lawful
for any person—
(a) For the purpose of sale to apply or cause to be applied to any
article in any class of goods in which the design is registered, the
design or any fraudulent or obvious imitation thereof, except with
the license or written consent of the registered proprietor, or to do
anything with a view to enable the design to be so applied; or
(aa) To import for the purposes of sale, without the consent of the
registered proprietor, any article belonging to the class in which
the design has been registered, and having applied to it the design
or any fraudulent or obvious imitation thereof; or
(b) Knowing that the design or any fraudulent or obvious imitation
thereof has been applied to any article in any class of goods in
which the design is registered without the consent of the registered

proprietor, to publish or expose or cause to be published or exposed
for sale of that article.
(2) If any person acts in contravention of this section, he shall be liable
for every contravention—
(a) To pay to the registered proprietor of the design a sum not
exceeding five hundred rupees recoverable as a contract debt,
or
(b) If the proprietor elects to bring a suit for the recovery of damages
for any such contravention, and for an injunction against the
repetition thereof, to pay such damages as may be awarded and
to be restrained by injunction accordingly:
Provided that the total sum recoverable in respect of any one design
under clause (a) shall not exceed one thousand rupees.
(3) When the Court makes a decree in a suit under sub-section (2), it
shall send a copy of the decree to the Controller, who shall cause an
entry thereof to be made in the register of designs.
Section 54. Application of certain provisions of the Act as to patents
to designs
The provisions of the Patents Act, 1970 with regard to certificates of the
validity of a patent, and to the remedy in case of groundless threats of legal
proceedings by a patentee shall apply in the case of registered designs in like
manner as they apply in the case of patent, and of references to the proprietor
of a design for references to the patentee, and of references to the design for
references to the invention
Fees
Section 57. Fees
(1) There shall be paid in respect of the registration of designs,

and applications therefore, and in respect of other matters relating to
designs under this Act, such fees as may be prescribed by the Central
Government.
(2) A proceeding in respect of which a fee is payable under this Act
or the rules made thereunder shall be of no effect unless the fee has
been paid.
9.3.2 Trade and Merchandise Marks Act, 1958

The following are some of the salient features of the Act.
*
Registrar of trade marks

Section 4. (1) The Central Governent may, by notification in the
Official Gazette, appoint a person to be known as the Controller-General of
Patents, Designs and Trade Marks, who shall be the Registrar of Trade Marks
for the purposes of this Act.
The Register of trade marks

Section 6. (1) For the purposes of this Act, a record called the
Register of Trade Marks shall be kept at the head office of the Trade Marks
Registry, wherein shall be entered all registered trade marks with the names,
addresses and descriptions of the proprietors, notifications of assignments and
transmis-sions, the names, addresses and descriptions of registered users,
disclaimers, conditions, limitations and such other matters relating to
registered trade marks as may be prescribed.
Part A and Part B of the register

Section 7. (1) The register referred to in Section 6 shall be divided
into two parts called respectively Part A and Part B.
(2) The Register of trade marks existing at the commencement of this Act
shall be incorporated with and form part of Part A of the register, and
this part shall comprise all trade marks entered in the register of trade
marks existing at the commencement of this Act and all trade marks
which after such commencement may be entered in Part A of the
register.
(3) Part B of the register shall comprise all trade marks which after the
commencement of this Act may be entered in Part B of the register.
Requisites for registration in Parts A and B of the register

Section 9. (1) A trade mark shall not be registered in Part A of the
register unless it contains or consists of at least one of the following essential
particulars, namely—
(a) the name of a company, individual or firm represented in a special
or particular manner;
(b) the signature of the applicant for registration or some predecessor
in his business;
(c) one or more invented words;
(d) one or more words having no direct reference to the character or
quality of the goods and not being according to its ordinary
signification, a geographical name or a surname or a personal
name or any common abbreviation thereof or the name of a sect,
caste or tribe in India;
(e) any other distinctive mark.
2) A name, signature or word, other than such as fall within the

descriptions in clauses (a), (b), (c) and (d) of sub-section (1) shall not
be registrable in Part A of the register except upon evidence of its
distinctiveness.
(3) For the purposes of this Act, the expression “distinctive” in relation
to the goods in respect of which a trade mark is proposed to be
registered, means adapted to distinguish goods with which the
proprietor of the trade mark is or may be connected in the course of
trade from goods in the case of which no such connection subsists
either gradually or, where the trade mark is proposed to be registered
subject to limitations, in relation to use within the extent of the
registration.
(4) A trade mark shall not be registered in Part B of the register unless
the trade mark in relation to the goods in respect of which it is
proposed to be registered is distinctive, or is not distinctive but is
capable of distinguishing goods with which the proprietor of a trade
mark is or may be connected in the course of trade from goods in
the case of which no such connection subsists, either generally or,
where the trade mark is proposed to be registered subject to limitations,
in relation to use within the extent of the registration.
(5) In determining whether a trade mark is distinctive or is capable of
distinguishing as aforesaid, the tribunal may have regard to the extent
to which—
(a) a trade mark is inherently distinctive or is inherently capable of
distinguishing as aforesaid; and
(b) by reason of the use of the trade mark or of any other circum-
stances, the trade mark is in fact so adapted to distinguish or is
in fact capable of distinguishing as aforesaid.
(6) Subject to the other provisions of this section, a trade mark in
respect of any goods—
(a) registered in Part A of the register may be registered in Part B
of the register; and
(b) registered in Part B of the register may be registered in Part A
of the register;
in the name of the same proprietor of the same trade mark or any
part or parts thereof.
Limitation as to colour
Section 10. (1) A trade may be limited wholly or in part to one or
more specified colours, and any such limitation shall be taken into
consideration by the tribunal having to decide on the distinctive character of
the trade mark.
(2) So far as a trade mark is registered without limitation of colour, it
shall be deemed to be registered for all colours.
*
Prohibition of registration of certain marks

Section 11. A mark—
(a) the use of which would be likely to deceive or cause confusion: or

(b) the use of which would be contrary to any law for the time being in
force; or os .
(c) which comprises or contains scandalous or obscene matter; or
(d) which comprises or contains any matter likely to hurt the religious
susceptibilities of any class or section of the citizens of India; or
(e) which would otherwise be disentitled to protection in a court,
shall not be registered as a trade mark.
Prohibition of registration of identical or deceptively

similar trade marks
Section 12. (1) Save as provided in sub-section (3), no trade mark
shall be registered in respect of any goods or description of goods which is
identical with or deceptively similar to a trade mark which is already
registered in the name of different proprietor in respect of the same goods or
description of goods.
(2) Where separate applications are made by different persons to be
registered as proprietors respectively of trade marks which are identical
or nearly resemble each other in respect of the same goods or
description of goods, the Registrar may defer the acceptance of the
application or applications bearing a later date until after the
determination of the proceedings in respect of the earlier application,
and may dispose of such application or applications in the light of the
evidence tendered in relation to earlier application and the oppositions
thereto, if any.
(3) In case of honest concurrent use or of other special circumstances
which, in the opinion of the Registrar, make it proper to do so, he
may permit the registration by more than one proprietor of trade
marks which are identical or nearly resemble each other (whether any
such trade mark is already registered or not) in respect of the same
goods or description of goods, subject to such conditions and
limitations, if any, as the Registrar may think fit to impose.
Prohibition of registration of names of chemical elements

Section 13. (1) No word which is the commonly used and accepted
name of any single chemical element or single chemical compound (as
distinguished from a mixture) shall be registered as a trade mark in respect of
a chemical substance or preparation, and any such registration shall, notwith-
standing anything in Section 32, be deemed for the purposes of section 56 to
be an entry made in the register without sufficient cause or an entry wrongly

remaining on the register, as the circumstances may require.
(2) This section shall not apply to a word which is used to denote only
a brand or make of the element or compound as made by the proprietor
or a registered user of the trade mark, as distinguished from the
element or compound as made by others, and in association with a
suitable name or description open to the public use.
Use of names and representations of living persons or

persons recently dead
Section 14. Where an application is made for the registration of a
trademark which falsely suggests a connection with any living person, or
a person whose death took place within twenty years prior to the date of
application for registration of the trade mark, the Registrar may, before he
proceeds with the application, require the applicant to furnish him with the
consent in writing of such living person or, as the case may be, of the legal
representative of the deceased person to the connection appearing on the trade
mark, and may refuse to proceed with the application unless the applicant
furnishes the Registrar with such consent.
Registration of parts of trade marks and of trade marks

as a series .
Section 15. (1) Where the proprietor of a trade mark claims to be
entitled to the exclusive use of any part thereof separately, he may apply to
registrar the whole and the part as separate trade marks.
(2) Each such separate trade mark shall satisfy all the conditions applying
to, and have all the incidents of, an independent trade mark.
(3) Where a person claiming to be the proprietor of several trade marks
in respect of the same goods or description of goods which, while
resembling each other in the material particulars thereof, yet differ in
respect of—
(a) statement of the goods in relation to which they are respectively
used or proposed to be used; or
(b) statements of number, price, quality or names of places; or
(c) other matter of a non-distinctive character which does not
substantially affect the identity of the trade mark; or
(d) colour,
seeks to register those trade marks, they may be registered as a
series in one registration.
Registration of trade marks as associated trade marks

Section 16. (1) Where a trade mark which is registered, or is the
subject of an application for registration, in respect of any goods is identical

with another trade mark which is registered, or is the subject of an application
for registration, in the name of the same proprietor in respect of the same
goods or description of goods or so nearly resembles it as. to be likely to
deceive or cause confusion if used by a person other than the proprietor, the
Registrar may, at any time, require that the trade marks shall be entered on
the register as associated trade marks.
(2) Where a trade mark and any part thereof are, in accordance with the
provisions of sub-section (1) of Section 15, registered as separate
trade marks in the name of the same proprietor, they shall be deemed
to be, and shall be registered as, associated trade marks.
(3) All trade marks registered in accordance with the provisions of sub-
section (3) of Section 15 as a series in one registration shall be deemed
to be, and shall be registered as, associated trade marks.
(4) On application made in the prescribed manner by the registered
proprietor of two or more trade marks registered as associated trade
marks, the Registrar may dissolve the association as respects any of
them if he is satisfied that there would be no likelihood of deception
or confusion being caused if that trade mark were used by any other
person in relation to any of the goods in respect of which it is registered,
and may amend the register accordingly.
Registration of trade marks subject to disclaimer

Section 17. If a trade mark:
(a) contains any part—

(i) which is not the subject of a separate application by the proprietor
for registration as a trade mark; or
(ii) which is not separately registered by the proprietor as a trade
mark; or
(b) contains any matter which is common to the trade or is otherwise of
a non-distinctive character;
the tribunal, in deciding whether the trade mark shall be entered or shall
remain on the register, may require as a condition of its being on
the register, that the proprietor shall either disclaim any right to the
exclusive use of such part or of all or any portion of such matter, as the
case may be, to the exclusive use of which the tribunal holds him not to
be entitled, or make such other disclaimer as the tribunal may consider
necessary for the purpose of defining the rights of the proprietor under
the registration:
Provided that no disclaimer shall affect any rights of the proprietor of a
trade mark except such as arise out of the registration of the trade mark in
respect of which the disclaimer is made.
Procedure for and Duration of Registration

Application for Registration
Section 18. (1) Any person claiming to be the proprietor of a trade

mark used or proposed to be used by him, who is desirous of registering it,
shall apply in writing to the Registrar in the prescribed manner for the
registration of his trade mark either in Part A or in Part B of the register.
(2) An application shall not be made in respect of goods comprised of
more than one prescribed class of goods.
(3) Every application under sub-section (1) shall be filed in the office of
the Trade Marks Registry within whose territorial limits the principal
place of business in India of the applicant or in the case of joint
applicants the principal place of business in India or the applicant
whose name is first mentioned in the application as having a place of
business in India, is situate:
Provided that where the applicant of any or the joint applicants does not
carry on business in India, the application shall be filed in the office of the
Trade Marks Registry within whose territorial limits the place mentioned in
the address for service in India as disclosed in the application, is situated.
(4) Subject to the provisions of this Act, the Registrar may refuse the
application or may accept it absolutely or subject to such amendments,
modifications, conditions or limitations, if any, as he may think fit.
(5) In the case of an application for registration of a trade mark (other
than a certification trade mark) in Part A of the register, the Registrar
may, if the applicant so desires, instead of refusing the application,
treat it as an application for registration in Part B of the register and
deal with the application accordingly.
(6) In the case of a refusal or conditional acceptance of an application,
the Registrar shall record in writing the grounds for such refusal or
conditional acceptance and the materials used by him arriving at his
decision.
Withdrawal of acceptance
Section 19. Where, after the acceptance of an application for

registration of a trade mark but before its registration, the Registrar is
satisfied—
(a) that the application has been accepted in error; or

(b) that in the circumstances of the case the trade mark should not be
registered or should be registered subject to conditions or limitations
or to conditions additional to or different from the conditions or
limitations subject to which the application has been accepted;
the Registrar may, after hearing the applicant if he so desires, withdraw
the acceptance and proceed as if the application had not been accepted.
Advertisement of application
Section 20. (1) When an application for registration of a trade mark

has been accepted, whether absolutely or subject to conditions or limitations,
the Registrar shall, as soon as may be after acceptance, cause the application
as accepted together with the conditions or limitations, if any, subject to
which it has been accepted, to be advertised in the prescribed manner:
Provided that the Registrar may cause the application to be advertised
before acceptance if it relates to a trade mark to which sub-section (2) of
Section 9 applies or in any other case where it appears to him that it is
expedient by reason of any exceptional circumstances to do so.
(2) Where—
(a) an application has been advertised before acceptance under sub-
section (1); or
(b) after advertisement of an application—
(i) an error in the application has been corrected; or
(ii) the application has been permitted to be amended under
Section 22;
the Registrar may in his discretion cause the application to be advertised
again or in any case falling under clause (b) may, instead of causing the
application to be advertised again, notify in the prescribed manner the
correction or amendment made in the application.
Opposition to registration
Section 21. (1) Any person may, within three months from the date
of the advertisement or re-advertisement of an application for registration or
within such further period, not exceeding one month in the aggregate, as the
Registrar, on application made to him in the prescribed manner and on
payment of the prescribed fee, allows, give notice in writing in the prescribed
manner to the Registrar, of opposition to the registration.
(2) The Registrar shall serve a copy of the notice on the applicant for
registration and, within two months from the receipt by the applicant
of such copy of the notice of opposition, the applicant shall send to
the Registrar in the prescribed manner a counter-statement of the
grounds on which he relies for his application, and if he does not do
so he shall be deemed to have abandoned his application.
(3) If the applicant sends such counter-statement the Registrar shall serve
a copy thereof on the person giving notice of opposition.
(4) Any evidence upon which the opponent and the applicant may rely
shall be submitted in the prescribed manner and within the prescribed
time to the Registrar, and the Registrar shall give an opportunity to
them to be heard if they so desire.
(5) The Registrar shall, after hearing the parties, if so required, and
considering the cvidence, decide whether and subject to what conditions
or limitations, if any, the registration is so permitted, and may take

into account a ground of objection whether relied upon by the opponent
or not.
(6) Where a person giving notice of opposition or an application sending
a counter-statement after receipt of a copy such notice neither resides
nor carries on business in India, the Registrar may require him to give
security for the costs of proceedings before him, and in default of
such security being duly given, may treat the opposition or application,
as the case may be, as abandoned.
Registration
Section 23. (1) Subject to the provisions of Section 19, when an
application for registration of a trade mark in Part A or Part B of the register
has been accepted and either—
(a) the application has not been opposed and the time for notice of
opposition has expired; or
(b) the application has not been opposed and the opposition has been
decided in favour of the applicant,
the Registrar shall, unless the Central Government otherwise directs, register
the said trade mark in Part A or Part B of the register, as the case may
be, and the trade mark when registered shall be registered as of the date
of the making of the said application and that date shall, subject to the
provisions of Section 131, be deemed to be the date of registration.
(2) On the registration of a trade mark, the Registrar shall issue to the
applicant a certificate in the prescribed form of the registration thereof,
sealed with the seal of the Trade Marks Registry.
(3) Where registration of a trade mark is not completed within twelve
months from the date of the application by reason of default on
the part of the applicant, the Registrar may, after giving notice to the
applicant in the prescribed manner, treat the application as abandoned
unless it is completed within the time specified in that behalf in the
notice.
(4) The Registrar may amend the register or a certificate of registration
for the purpose of correcting a clerical error or an obvious mistake.
Jointly owned trade marks
Section 24. (1) Save as provided in sub-section (2), nothing in this

Act shall authorize the registration of two or more persons who use a trade
mark independent!v. or propose so to use it, as joint proprietors thereof.
(2) Where the relations between two or more persons interested in a trade
mark are such that no one of them is entitled as between himself and
the other or others of them to use it except—
(a) on behalf of both or all of them; or
=:
(b) in relation to an article with which both or all of them are connected
in the course of trade;
those persons may be registered as joint proprietors of the trade mark,
and this Act shall have effect in relation to any rights to the use of
the trade mark vested in those persons as if those rights had been
vested in a single person.
Duration, renewal and restoration of registration
Section 25. (1) The registration of a trade mark shall be for a period
of seven years, but may be renewed from time to time in accordance with the
provisions of this section.
(2) The Registrar shall, on application made by the registered proprietor
of a trade mark in the prescribed manner and within the prescribed
period and subject to payment of the prescribed fee, renew the
registration of the trade mark for a period of seven years from the
date of expiration of the original registration or of the last renewal of
registration, as the case may be (which date is in this section referred
to as the expiration of the last registration).
(3) At the prescribed time before the expiration of the last registration of
a trade mark the Registrar shall send notice in the prescribed manner
to the registered proprietor of the date of expiration and the conditions
as to payment of fees and otherwise upon which a renewal of
registration may be obtained, and, if at the expiration of the time
prescribed in that behalf those conditions have not been duly complied
with, the Registrar may remove the trade mark from the register.
(4) Where a trade mark has been removed from the register for non-
payment of the prescribed fee, the Registrar may, within one year
from the expiration of the last registration of trade mark, on receipt
of an application in the prescribed form, if satisfied that it is just so
to do, restore the trade mark to the register and renew the registration
of the trade mark either generally or subject to such conditions or
limitations as he thinks fit to impose, for a period of seven years from
the expiration of the last registration.
Effect of removal from register for failure to pay fee for renewal
Section 26. Where a trade mark has been removed from the register
for failure to pay the fee for renewal, it shall nevertheless, for the purpose of
any application for the registration of another trade mark during one year,
next after the date of the removal, be deemed to be a trade mark already on
the register, unless the tribunal is satisfied either.
(a) that there has been no bona fide trade use of the trade mark which
has been removed during the two years immediately preceding its
removal; or
(b) that no deception or confusion would be likely to arise from the use
of the trade mark which is the subject of the application for registration
by reason of any previous use of the trade mark which has been
removed.
Effect of registration
No action for infringement of unregistered trade mark
Section 27. (1) No person shall be entitled to institute any proceed-
ing to prevent, or to recover damages for, the infringement of an unregistered
trade mark.
(2) Nothing in this Act shall be deemed to affect rights of action against
any person for passing off goods as the goods of another person or
the remedies in respect thereof.
Rights conferred by registration
Section 28. (1) Subject to the other provisions of this Act, the
registration of a trade mark in Part A or Part B of the register shall, if valid,
give to the registered proprietor of the trade mark the exclusive right to the
use of the trade mark in relation to the goods in respect of which the trade
mark is registered and to obtain relief in respect of infringement of the
trade mark in the manner provided by this Act.
(2) The exclusive right to the use of a trade mark given under sub-section
(1) shall be subject to any conditions and limitations to which the
registration is subject.
(3) Where two or more persons are registered proprietors of trade marks,
which are identical with or nearly resemble each other, the exclusive
right to the use of any of those trade marks shall not (except so far
as their respective rights are subject to any conditions or limitations
entered on the register) be deemed to have been acquired by any one
of those persons as against any other of those persons merely by
registration of the trade marks but each of these persons has otherwise
the same rights as against other persons (not being registered users
using by way of permitted use) as he would have if he were the sole
registered proprietor.
Infringement of trade marks
Section 29. (1) A registered trade mark is infringed by a person

who, not being the registered proprietor of the/trade mark or a registered user
thereof using by way of permitted use, uses in the course of a trade mark
which is identical with, or deceptively similar to, the trade mark, in relation to
any goods in respect of which the trade mark is registered and in such manner
as to render the use of the mark likely to be taken as being used as a trade
mark.
(2) In an action for infringement of a trade mark registered in Part B of
Chapter 9 : Intellectual Property Rights ™* 93
*
the register an injunction on other relief shall not be granted to the

plaintiff if the defendant establishes to the satisfaction of the court
that the use of the mark of which the plaintiff complaints is not likely
to deceive or cause confusion or to be taken as indicating a connection
in the course of trade between the goods in respect of which the trade
mark is registered and some person having the right, either as registered
proprietor or as registered user, to use the trade mark.
Acts not constituting infringement
Section 30. (1) Notwithstanding anything contained in this Act, the
following acts do not constitute an infringement of the right to the use of a
registered trade mark:
(a) where a trade mark is registered subject to any conditions or
limitations, the use of the trade mark in any manner in relation
to goods to be sold or otherwise traded in, in any place, or in
relation to goods to be exported to any market, or in any other
circumstances, to which, having regard to those conditions or
limitations, the registration does not extend;
(b) the use by a person of a trade mark in relation to goods connected
in the course of trade with the proprietor or a registered user of
the trade mark if, as to those goods or a bulk of which they form
part, the registered proprietor or the registered user conforming
to the permitted use has applied the trade mark and has not
subsequently removed or obliterated it, or has at any time expressly
or impliedly consented to the use of the trade mark;
(c) the use of a trade mark by a person in relation to goods adapted
to form part of, or to be accessory to, other goods in relation to
which the trade mark has been used without infringement of the
right given by registration under this Act or might for the time
being be so used, if the use of the trade mark is reasonably
necessary in order to indicate that the goods are so adapted, and
neither the purpose nor the effect of the use of the trade mark is
to indicate, otherwise than in accordance with the fact, a connection
in the course of trade between any person and the goods;
(d) the use of a registered trade mark, being one of two or more
trade marks registered under this Act which are identical or
nearly resemble each other, in exercise of the right to the use of
that trade mark given by registration under this Act.
(2) Where the goods bearing a registered trade mark are lawfully acquired
by a person, the sale of or other dealings in those goods by that
person or by a person claiming under or through him is not an
infringement of the trade mark by reason only of the trade mark
having been assigned by the registered proprietor to some other person
after the acquisition of those goods.
9.3.3 The Patents Act, 1970
The following are some of the salient features of the Patents Act 1970.
Section 3. What are not inventions
The following are not inventions within the’ meaning of this Act,—
(a) an invention which is frivolous or which claims anything obviously

contrary to well established natural laws;
(b) an invention, the primary or intended, use of which would be contrary
to law or morality or injurious to public health;
(c) the mere discovery of a scientific principle or the formulation of an
abstract theory;
(d) the mere discovery of any new property or new use for a known
substance or of the mere use of a known process, machine or apparatus
unless such known process results in a new product or employs at
least one new reactant;
(e) a substance obtained by a mere admixture resulting only in the
aggregation of the properties of the components thereof or a process
for producing such substance;
(f) the mere arrangement or re-arrangement or duplication of known
devices each functioning independently of one another in a known
way;
(g) a method or process of testing applicable during the process of
manufacture for rendering the machine apparatus or other equipment
more efficient or for the improvement or restoration of the existing
machine, apparatus or other equipment or for the improvement or
control of manufacture;
(h) a method of agriculture or horticulture;
(i) any process for the medicinal, surgical, curative, prophylactic or other
treatment of human beings or any process for a similar treatment of
animals or plants to render them free of disease or to increase their
economic value or that of their products.
Section 4. Inventions relating to atomic energy not patentable
No patent shall be granted in respect of an invention relating to atomic
energy falling within sub-section (1) of Section 20 of the Atomic Energy Act,
1962 (33 of 1962).
Section 5. Inventions where only methods or processes of manufacture
patentable
In the case of inventions: (a) claiming substances intended for use, or

capable of being used as food or as medicine or drug, or (b) relating to
substances prepared or produced by chemical processes (including alloys,
optical glass, semi-conductors and inter-metallic compounds), no patent shall
be granted in respect of claims for the substances themselves, but claims for
the methods or processes of manufacture shall be patentable.
Applications for patents: The following persons are entitled to apply for
patents.
Section 6. Persons entitled to apply for Patents
(1) Subject to the provisions contained in Section 134, an application for
a patent for an invention may be made by any of the following
persons, that is to say,—(a) by any person claiming to be the true and
first inventor of the invention; (b) by any person being the assignee
of the person claiming to be the true and first inventor in respect of
the right to make such an application; (c) by the legal representative
of any deceased person who immediately before his death was entitled
to make such an application.
(2) An application under sub-section (1) may be made by any of the
persons referred to therein either alone or jointly with any other person.
9.3.4 The Copyright Act, 1957

It is an Act to amend and consolidate the law relating to copyright.
The salient features of the Act are as follows:
Sections 9 and 10
Copyright office should be established for the purpose of this Act under
the immediate control of the Registrar of Copyrights who shall act under
the superintendence and direction of the Central Government. The Central
Government shall appoint a Registrar of copyrights and may appoint one or
more deputy registrars.
Section 11. Copyright board
There shall be a Copyright Board with a Chairman and members from
2 to 4 in number. The Chairman of the Copyright Board shall be a person
who is or has been a Judge of the Supreme Court or High Court or qualified
to be so.
The Registrar of copyrights shall be the Secretary of the Copyright
Board.
Section 12. Powers and procedures of the copyright board
The Copyright Board shall have the power to regulate its own
procedure, including the fixing of places and time of its sittings.
The copyright board shall be deemed to be a civil court for the purposes
of Sections 345 and 346 of the code of criminal procedure, 1973 and all
proceedings before the board shall be deemed to judicial proceedings within
the meaning of Sections 193 and 228 of the Indian Penal Code, 1860.
Copyright
Section 13. (1) Specifies the works in which copyright subsists
It states that copyright throughout India subsists in following cases:
(a) Original, literary, dramatic, musical and artistic works
‘(b) Cinematograph films and
(c) Sound recording
Article 13(3) specifies that copyright shall not subsist in

(a) Any cinematograph film if a substantial part of the film is an
infringement of copyright in any other work
(b) In any record made in respect of a literary, dramatic or musical work,
if in making the record, copyright in such work has been infringed.
Section 13(5). In the case of an architectural act, copyright shall
subsist only in the artistic character and design and shall not extend to
processes or methods of construction.
Section 14. Meaning of copyright
For the purposes of this Act, “copyright” means the exclusive right
subject to the provisions of this Act, to do or authorize the doing of any of
the following acts in respect of a work or any substantial part thereof, namely:
(a) in the case of a literary, dramatic or musical work, not being a computer
programme,—
(i) to reproduce the work in any material form including the
storing of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies
already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect
of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work,
any of the acts specified in relation to the work in sub-clauses
(i) to (vi);
(b) in the case of a computer programme,—
(i) to do any of the acts specified in clause (a);
(ii) to sell or give on commercial rental or offer for sale or for
commercial rental any copy of the computer programme:
Provided that such commercial rental does not apply in respect of
computer programmes where the programme itself is not the essential object
of the rental.
° Chapter 9 : Intellectual Property Rights * 97
(c) in the case of an artistic work,—

(i) to reproduce the work in any material form including depiction
in three dimensions of a two-dimensional work or in two
dimensions of a three dimensional work;
(ii) to communicate the work to the public;
(ili) to issue copies of the work to the public not being the copies
already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts
specified in relation to the work in sub-clauses (i) to (iv);
(d) In the case of cinematograph film,—
(i) to make a copy of the film, including a photograph of any
image forming part thereof;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the
film, regardless of whether such copy has been sold or given on
hire on earlier occasions;
(iii) to communicate the film to the public;
(e) In the case of sound recording,—
(i) to make any other sound recording embodying it;
(11) to sell or give on hire, or offer for sale or hire, any copy of the
sound recording regardless of whether such copy has been sold
or given on hire on earlier occasions;
(iii) to communicate the sound recording to the public.
Section 15. Special provision regarding copyright in designs

registered or capable of being registered under the Designs Act, 1911
(1) Copyright shall not subsist under this Act in any design which is
registered under the Designs Act, 1911 (5 of 1911).
(2) Copyright in any design, which is capable of being registered under
the Designs Act, 1911 (2 of 1911), but which has not been so registered,
shall cease as soon as any article to which the design has been applied
has been produced more than fifty times by an industrial process by
the owner of the copyright or, with his license, by any other person.
Section 16. No copyright except as provided in this Act
No person shall be entitled to copyright or any similar right in any

work, whether published or unpublished, otherwise than under and in
accordance with the provisions of this Act or of any other law for the time
being in force, but nothing in this section shall be construed as abrogating any
right or jurisdiction to restrain a breach of trust or confidence.
Ownership of copyright and the rights of the owner

Section 17. First owner of copyright
Subject to the provisions of this Act, the author of a work shall be the
first owner of the copyright therein.
Provided that—
(a) in the case of a literary, dramatic or artistic work made by the author
in the course of his employment by the proprietor of a newspaper,
magazine or similar periodical under a contract of service or apprentice-
ship, for the purpose of publication in a newspaper, magazine or
similar periodical, the said proprietor shall, in the absence of any
agreement to the contrary, be the first owner of the copyright in the
work in so far as the copyright relates to the publication of the work
in any newspaper, magazine or similar periodical, or to the reproduction
of the work for the purpose of its being so published, but in all other
respects the author shall be the first owner of the copyright in the
work;
(b) subject to the provisions of clause (a), in the case of a photograph
taken, or a painting or portrait drawn, or an engraving or a cinemato-
graph film made, for valuable consideration at the instance of any
person, such person shall, in the absence of any agreement to the
contrary, be the first owner of the copyright therein; =
(c) in the case of a work made in the course of the author’ s employment
under a contract of service or apprenticeship, to which clause (a)
or clause (b) does not apply, the employer shall, in the absence of
any agreement to the contrary, be the first owner of the copyright
therein;
[(cc) in the case of any address or speech delivered in public, the person
who has delivered such address or speech or if such person has
delivered such address or speech on behalf of any other person, such
other person shall be the first owner of the copyright therein
notwithstanding that the person who delivers such address or speech,
or, as the case may be, the person on whose behalf such address or
speech is delivered, is employed by any other person who arranges
such address or speech or on whose behalf or premises such address
or speech is delivered;]
(d) in the case of a Government work, Government shall, in the absence
of any agreement to the contrary, be the first owner of the copyright
therein;
[(dd) in the case of a work made or first published by or under the direction
or control of any public undertaking, such public undertaking shall,
in the absence of any agreement to the contrary, be the first owner of
the copyright therein.
Section 18. Assignment of copyright

(1) The owner of the copyright in an existing work or the prospective
owner of the copyright in a future work may assign to any person the
copyright either wholly or partially and either generally or subject to
limitations and either for the whole term of the copyright or any part
thereof:
In the case of the assignment of copyright in any future work, the
assignment shall take effect only when the work comes into existence.
Section 19. Mode of assignment
No assignment of the copyright in any work shall be valid unless it is in
writing signed by the assignor or by his duly authorized agent.
Section 21. Right of author to relinquish copyright
The author of a work may relinquish al] or any of the rights comprised
of in the copyright in the work by giving notice in the prescribed form to
the Registrar of copyrights and thereupon such rights shall, subject to the
provisions of sub-section (3), cease to exist from the date of the notice.
Term of copyright
Section 22. Term of copyright in published literary, dramatic, musical
and artistic works
Copyright shall subsist in any literary, dramatic, musical or artistic work
(other than a photograph) published within the lifetime of the author until
sixty years from the beginning of the calendar year next following the year
in which the author dies.
Explanation. In this section the reference to the author shall, in the
case of a work of joint authorship, be construed as a reference to the author
who dies last.
Section 23. Term of copyright in anonymous and pseudonymous works
(1) In the case of a literary, dramatic, musical or artistic work (other than
a photograph), which is published anonymously or pseudonymously,
copyright shall subsist until sixty years from the beginning of
the calendar year next following the year in which the work is first
published:
Provided that where the identity of the author is disclosed before
the expiry of the said period, copyright shall subsist until 60 years from
the beginning of the calendar year next following the year in which the
author dies.
Section 24. Term of copyright in posthumous work

(1) In the case of any such work of joint authorship, at or immediately
before the date of the death of the author who dies last, but which,
or any adaptation of which, has not been published before that date,
copyright shall subsist until sixty years. from the beginning of the
calendar year next following the year in which the work is first
published or, where an adaptation of the work is published in any
earlier year, from the beginning of the calendar year next following
that year.
(2) For the purposes of this section a literary, dramatic or musical work
or an adaptation of any such work shall be deemed to have been
published, if it has been performed in public or if any records made
in respect of the work have been sold to the public or have been
offered for sale to the public.
Section 25. Term of copyright in photographs
In the case of a photograph, copyright shall subsist until sixty years
from the beginning of the calendar year next following the year in which the
photograph is published.
Section 26. Term of copyright in cinematograph films
In the case of a cinematograph film, copyright shall subsist until sixty
years from the beginning of the calendar year next following the year in
which the film is published.
Section 27. Term of copyright in records
In the case of a record, copyright shall subsist until sixty years from
the beginning of the calendar year next following the year in which the
record is published.
Section 28. Term of copyright in Government works
In the case of Government work, where Government is the first owner
of the copyright therein, copyright shall subsist until sixty years from the
beginning of the calendar year next following the year in which the work is
first published.
Section 29. Term of copyright in works of international organization
In the case of a work of an international organization, copyright shall
subsist until sixty years from the beginning of the calendar year next
following the year in which the work is first published.
Section 32. License to produce and publish translations
(1) Any person may apply to the Copyright Board for a license to produce
and publish a translation of a literary or dramatic work in any language,
after a period of 7 years from the first publication of the work.
(4) When an application is made to the Copyright Board, it may, after

holding such inquiry as may be prescribed, grant to the applicant a
license, to produce and publish a translation of the work in the language
mentioned in the application, on condition that the applicant shall pay
to the owner of the copyright in the work royalties in respect of
copies of the translation of the work sold to the public.
Section 44. Registration of copyright
Register of copyrights: There shall be kept at the copyright office, a
register in the prescribed form to be called the Register of Copyrights in
which may be entered the names or title of works and the names and
addresses of authors, publishers and owners of copyright and such other
particulars as may be prescribed.
Section 51. Infringement of copyright
When copyright is infringed: Copyright in a work shall be deemed
to be infringed—
(a) when any person, without a license granted by the owner of the
copyright or the Registrar of copyrights under this Act or in
contravention of the conditions of a license so granted or of any
condition imposed by a competent authority under this Act—
(i) does anything, the exclusive right to do which is by this Act
conferred upon the owner of the copyright, or
(ii) permits for profit any place to be used for the performance of the
work in public where such performance constitutes an infringement
of the copyright in the work unless he was not aware and had no
reasonable ground for believing that such performance would be
an infringement of copyright, or
(b) when any person—
(i) makes for sale or hire, or sells or lets for hire, or by way of trade
displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as
to affect prejudicially the owner of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports (except for the private and domestic use of the
importer) into India, any infringing copies of the work.
Section 52. Certain acts not to be infringement of copyright
(1) The following acts shall not constitute an infringement of copyright,
namely—
(a) a fair dealing with a literary, dramatic, musical or artistic work
for the purposes of:
(i) research or private study;

(ii) criticism or review, whether of that work or of any other work;
(b) a fair dealing with a literary, dramatic, musical or artistic work for the
purpose of reporting current events in a newspaper, magazine or similar
periodical, or by radio-diffusion or in a cinematograph film or by
means of photographs;
(c) the reproduction of a literary, dramatic, musical or artistic work for
the purpose of a judicial proceeding or for the purpose of a report of
a judicial proceeding;
(d) the reproduction or publication of a literary, dramatic, musical or
artistic work in any work prepared by the Secretariat of a Legislature
or, where the Legislature consists of two Houses, by the Secretariat
of either House of the Legislature, exclusively for the use of the
members of that Legislature;
(e) the reproduction of any literary, dramatic or musical work in a certified
copy made or supplied in accordance with any law for the time being
in force;
(f) the reading or recitation in public of any reasonable extract from a
published literary or dramatic work;
(g) the publication in a collection, mainly composed of non-copyright
matter, intended for the use of educational institutions, of short passages
from published literary or dramatic works, not themselves published
for the use of educational institutions, in which copyright subsists:
Provided that not more than two such passages from works by the same
author are published by the same publisher during any period of five years.
Explanation. In the case of a work of joint authorship, references in
this clause to passages from works shall include references to passages from
works by any one or more of the authors of those passages or by any one or
more of those authors in collaboration with any other person;
(h) the reproduction of a literary, dramatic, musical or artistic work—

(i) by a teacher or a pupil in the course of instruction; or
(ii) as part of the questions to be answered in an examination; or
(iii) in answers to such questions;
(i) the performance in the course of the activities of an educational
institution, of a literary, dramatic or musical work by the staff and
students of the institution, or of a cinematograph film or a record,
if the audience is limited to such staff and students, the parents and
guardians of the students and persons directly connected with the
activities of the institution;
(j) the making of records in respect of any literary dramatic or musical
work, if—
° Chapter 9 : Intellectual Property Rights * 103
(i) records recording that work have previously been made by, or
with the license or consent of, the owner of the copyright in the
work; and
(ii) the person making the records has given the prescribed notice of
his intention to make the records, and has paid in the prescribed
manner to the owner of the copyright in the work royalties in
respect of all such records to be made by him, at the rate fixed
by the Copyright Board in this behalf:
Provided that in making the records such person shall not make any
alternations in, or omission from, the work, unless records recording the work
subject to similar alterations and omissions have been previously made by, or
with the license or consent of, the owner of the copyright or unless such
alterations and omissions are reasonably necessary for the adaptation of the
work to the records in question;
(k) the causing of a recording embodied in a record to be heard in public
by utilising the record,—
(i) at any premises where persons reside, as part of the amenities
provided exclusively or mainly for residents therein, or
(ii) as part of the activities of a club, society or other organization
which is not established or conducted for profit;
(1) the performance of a literary, dramatic or musical work by an amateur
club or society, if the performance is given to a non-paying audience,
or for the benefit of a religious institution;
(m) the reproduction in a newspaper, magazine or other periodical of an
article on current economic, political, social or religious topics, unless
the author of such article has expressly reserved to himself the right
of such reproduction;
(n) the publication in a newspaper, magazine or other periodical of
a report of a lecture delivered in public;
(o) the making of not more than three copies of a book (including a
pamphlet, sheet of music, map, chart or plan) by or under the direction
of the person in charge of a public library for the use of the library
if such books is not available for sale in India;
(p) the reproduction, for the purpose of research or private study or with
a view to publication, of an unpublished literary, dramatic or musical
work kept in a library, museum or other institution to which the
public has access:
Provided that where the identity of the author of any such work or, in
the case of a work of joint authorship, of any of the authors is known to the
library, museum or other institution, as the case may be, the provisions of this
clause shall apply only if such reproduction is made at a time more than fifty
years from the date of the death of the author or, in the case of a work of
joint authorship, from the death of the author whose identity is known or, if
the identity of more authors than one is known from the death of such of
those authors who dies last;
(q) the reproduction or publication of—

(i) any matter which has been published in any official gazette except
an Act of a Legislature;
(ii) any Act of a Legislature subject to the condition that such Act is
reproduced or published together with any commentary thereon
or any other original matter;
(iii) the report of any committee, commission, council, board or other
like body appointed by the Government if such report has been
laid on the Table of the Legislature, unless the reproduction or
publication of such report is prohibited by the Government;
(iv) any judgement or order of a court, tribunal or other judicial
authority, unless the reproduction or publication of such judgement
or order is prohibited by the court, the tribunal or other judicial
authority, as the case may be;
(r) the production or publication of a translation in any Indian language
of an Act of a Legislature and of any rules or orders made thereunder—
(i) if no translation of such Act or rules or orders in that language
has previously been produced or published by the Government;
or
(ii) where a translation of such Act or rules or orders in that language
has been produced or published by the Government, if the
translation is not available for sale to the public:
Provided that such translation contains a statement at a prominent place
to the effect that the translation has not been authorized or accepted as
authentic by the Government;
(s) the making or publishing of a painting, drawing, engraving or

photograph of an architectural work of art;
(t) the making or publishing of a painting, drawing, engraving or
photograph of a sculpture, or other artistic work falling under sub-
clause (ili) of Clause (c) of Section 2, if such work is permanently
situated in a public place or any premuses to which the public has
access;
(u) the inclusion in a cinematograph film of—
(i) any artistic work permanently situated in a public place or any
premises to which the public has access; or
(ii) any other artistic work, if such inclusion is only by way of
background or is otherwise incidental to the principal matters
presented in the film.
(v) the use by the author of an artistic work, where the author of such
work is not the owner of the copyright therein, of any mould, cast,
sketch, plan, model or study made by him for the purpose of the
work:
Provided that he does not thereby repeat or imitate the main design of
the work;
(w) the making of an object of any description in three dimensions of an

artistic work in two dimensions, if the object would not appear, to
persons who are not experts in relation to objects of that description,
to be a reproduction of the artistic work;
(x) the reconstruction of a building or structure in accordance with the
architectural drawings or plans by reference to which the building or
structure was originally constructed:
Provided that the original construction was made with the consent or
license of the owner of the copyright in such drawings and plans;
(y) in relation to literary, dramatic, or musical work recorded or reproduced
in any cinematograph film, the exhibition of such film after the
expiration of the term of copyright therein:
Provided that the provisions of sub-clause (ii) of Clause (a), sub-clause
(i) of clause (b) and clauses (d), (f), (g), (m) and (p) shall not apply in respect
of any Act unless that Act is accompanied by an acknowledgement—
(i) identifying the work by its title or other description; and
(ii) unless the work is anonymous or the author of the work has
previously agreed or required that no acknowledgement of his
name should be made, also identifying the author.
(2) The provisions of sub-section (1) shall apply to the doing of any act
in relation to the translation of a literary, dramatic or musical work or
the adaptation of a literary, dramatic, musical or artistic work as they
apply in relation to the work itself.
Civil remedies
Section 55. Civil remedies for infringement of copyright
(1) Where copyright in any work has been infringed, the owner of the
copyright shall, except as otherwise provided by this Act, be entitled
to all such remedies by way of injunction, damages, accounts and ~
otherwise as are or may be conferred by law for the infringement of
a right if the defendant proves that at the date of the infringement, he
was not aware of and had no reasonable ground for believing that
copyright subsisted in the work, the plaintiff shall not be entitled to
any remedy other than an injunction in respect of the infringement
and a decree for the whole or part of the profits made by the defendant
by the sale of the infringing copies as the court may in circumstances
deem responsible.
@ Where, in the case of a literary, dramatic, musical or artistic work, a
—
name purporting to be that of the author or the publisher, as the case

may be, appears on copies of the work as published or in the case of
an artistic work, appeared on the work when it was made, the person
whose name so appears or appeared shall, in any proceeding in respect
of infringement of copyright in such work, be presumed, unless the
_ contrary is proved, to be the author or the publisher of the work, as
the case may be.
(3 NS, The costs of all parties in any proceedings in respect of the infringement
of copyright shall be in the direction of the court.
Offences
Section 63. Offence of infringement of copyright or other rights
conferred by this Act
Any person who knowingly infringes or abets the infringement of the
copyright in a work, or any other right conferred by this Act, shall be
punishable with imprisonment which may extend to one year, or with fine, or
with both.
9.4 CASES RELATED TO COPYRIGHT AND IPR

IPR Case 1: (Digest)
Copyright
Time Warner Entertainment Company I.P. and Ors. vs. RPG Netcom
Ltd., 2008, High Court of Delhi.
The plaintiffs in this civil suit sought a decree of permanent injunction
restraining the defendant from telecasting or broadcasting on their cable
network any cinematograph film, the copyright of which vests in them. They
also sought a decree directing the defendant to handover possession of
infringing copies and a decree in their favour for the profits made by the
defendant.
The plaintiffs, US based corporations, along with their affiliated
companies and concerns were carrying on business of film production. They
own various interests in and to the copyright in the films produced by
them. It is averred that investigations conducted at the behest of the plaintiffs
revealed that defendants were exhibiting films on its network. The copyrights
in those works belong to the plaintiffs and the defendants were exhibiting
them without licenses. The plaintiffs also alleged that most of the times the
films so shown were pirated copies of their works. In relation to these causes,
the plaintiffs have approached the Court, claiming perpetual injunction to
restrain the defendant from committing the acts of infringement. Their claims
were related to their future works, too.
The plaintiffs claimed that they have exclusive claims to the rights
mentioned in Section 14 of the Copyright Act. The plaintiffs averred that as
to the complex nature of the film production process, the various stages of
release of the films, the distribution networks and the impact of new media on
the film industry, such unauthorized telecasting of their works caused
irreparable harm and injury to them. The plaintiffs submitted that this trend
not merely affected their rights in the existing titles but also affected their
future releases. They insisted that even one unauthorized telecast was capable
of reaching several thousand homes and to that extent they suffer huge losses
in relation to release and sale rights.
Relying on the website of the defendant, the plaintiff submitted that the
defendant had 75% cable market share in Calcutta (now Kolkata) and was
providing cable signals to 216 franchisees covering more than 2200 cable
operators. The plaintiffs also alleged that the Defendant intended to launch a
joint venture company with M/s Satyam Infoway Ltd. to provide value added
services, including video on demand. Emphasizing the need for a regulator to
monitor the content of the cable network providers, the plaintiffs averred that
the cable operators thrive in a culture of impunity as it was very difficult for
plaintiffs to collect the evidence of such unauthorized licensing and police the
network.
The defendant averred that the suit was liable to be dismissed for non-
joinder of necessary parties to the present action. It alleges that the suit
disclosed no cause of action against it and that all allegations made in the
plaint pertained to a cable operator in New Alipore, Kolkata. The Defendant
submitted that they were registered as a Cable TV operator under the Cable
TV Networks (Regulations) Act, 1995 (hereafter referred to as the Cable TV
Act). So they only received satellite/terrestrial transmission of various
channels and carried television software produced by independent production
houses and delivered the same at the Signal Injection Point of various other
cable operators. Thereafter, these signals are relayed to individual subscribers.
Hence they claimed that they had no control over these cable operators, as far
as the programmes aired by them were concerned.
The defendants further submitted that Ms. Dalia Sen Oberoi cannot act
as the constituted attorney of the plaintiffs as she had been a lawyer with the
law firm engaged by the plaintiffs to file the present case. It was also
submitted that the Power of Attorney filed by the plaintiff was neither
stamped nor proper and was not admissible as evidence. After filing their
written statement, the defendants stopped appearing in the proceedings. They
were, consequently, set down ex parte. The plaintiffs were permitted to lead
affidavit evidence.
The plaintiffs have filed evidence by way of affidavit (Exhibit PW1/X)

and the same was recorded in Court on 18th September 2007. They had also
filed copies of Power of Attorney in favour of Mr. Kapil Saha (Exhibit PW
1/2), a list of titles in which they owned copyright (Exhibit PW 1/3), a com-
pact disc containing the list of films (Exhibit PW 1/4) and also photocopies of
certificates of the Censor Board in relation to ‘some of the films.
Section 13(1)(b) of the Copyright Act, 1957 provides that copyright
subsists in cinematograph films. According to Section 14, “copyright” means
the exclusive right subject to the provisions of the Act, to do or authorize the
doing of anything (in the case of cinematograph films) to make a copy of the
film, including a photograph of any image forming part thereof; to sell or
give on hire, or offer for sale or hire, any copy of the film, regardless of
whether such copy has been sold or given on hire on earlier occasions and to
communicate the film to the public.
The plaintiffs have averred that they own copyright in relation to the
cinematograph works mentioned in the annexure to the suit. It was also
averred, and the plaintiffs’ witness had deposed in that regard, that the
defendant indulged in acts of infringement on the various dates specified,
by exhibiting the cinematograph works in its system, without license. The
defence of the defendant was that it only provided content to the other cable
operators, but had no control over their activities.
[The Cable Television Networks (Regulation) Act, 1995, provides, by
Section 2(c) that “cable television network” means any system consisting of a
set of closed transmission paths and associated signal generation, control and
distribution equipment, designed to provide cable service for reception by
multiple subscribers. Section 21 of the Cable Act provides that the application
of other laws, including the Copyright Act is not barred. Rule 6(3) of the
Cable Television Network Rules, 1994 states that:
No cable operator shall carry or include on his cable service any
programme in respect of which copyright subsists under the Copyright Act,
1957 unless he has been granted a license by owners of copyright under that
Act in respect of such programme. ]
The Court observed that there can be no denial of the fact that the
defendant was a cable television network owner, in terms of Section 2(c) of
the Cable Act; the defendant was therefore in control of closed transmission
paths and associated signal generation, and owned control and distribution
equipment, designed to provide cable service for reception by multiple
subscribers. That some of these subscribers happened to be cable operators,
who were able to manipulate the system, or indulge in the acts of piracy, was
no excuse for the defendant, in law. Its primary obligation was to ensure that
the closed transmission paths and associated signal generation were carried
out in such manner as to not result in violation of others’ rights, in existing
laws, such as the Copyright Act.
During the submissions, the Counsel for plaintiffs had restricted the
Sd
claim to the decree for injunction, in respect of the plaintiffs’ specified and
future works. The Court was of the opinion that the plaintiffs had established
a case for grant of injunction regarding the existing and specified titles.
However, as far as future works were concerned, the Court stated, the relief
would be based on assumption of future violation by the defendants. No
evidence was forthcoming that the defendant’s business, or process of
carrying on business was such that there is imminent threat of infringement.
In any case, the plaintiff had not established how injunctions for anticipated
threats to future properties can be granted. Accordingly, the court issued a
permanent injunction against the defendant, its servants, agents, distributors,
etc., restraining them from doing any act, or transmitting signals or
broadcasting, or carrying in its network, any cinematograph film or work
mentioned in the Annexure to the suit, without prior license of the plaintiff.
Copyright
ESPN Stars Sports vs. Global Broadcast News Ltd. and Ors., 2008,
High Court of Delhi.
The plaintiff sought permanent injunction against the defendants to
restrain them from utilizing the footage of plaintiff, in the matches played,
and to be played during the India-Australia Test matches, 20 x 20 series and
the tri-series (One day internationals involving Sri Lanka, India and Australia)
without obtaining its prior permission and in violation of the plaintiff's terms
and conditions. They also sought injunction from utilizing the footage from
the television for any television programme, except for regularly scheduled
news bulletin, in excess of 30 seconds per bulletin and a total of two minutes
per day and from carrying any advertise-ments before, during and after such
footage. An ad interim injunction to the same effect was also sought.
The defendant claimed to have utilized the services of 35 dedicated,
fulltime, award winning professionals. It had retained three dedicated leased
satellite lines from London. The plaintiff had engaged the services of world
class cricket commentators and created live feed by deploying the range
of 18-26 cameras on the ground apart from software such as Hawk eye,
Snickometer, virtual spectator and super slow motion etc. The plaintiff
asserted that it had obtained the sole and exclusive rights/license from various
sports bodies, including but not limited to Cricket Australia, to televise
sporting events including the India versus Australia cricket test matches, One
Day International (ODI) matches and the solitary T20 cricket match to be
played in Australia from December 26, 2007 onwards till March 8, 2008.
Therefore, no other person or entity can broadcast/telecast those cricket
matches in India without license from the plaintiff or its sole and exclusive
distributor ESPN Software India Private Limited. The defendants allegedly
used, without authority, substantial portions of the plaintiff's footage of its
Star Cricket channel, which had telecast the test matches exclusively, from
December 26, 2007 to January 28, 2008. It was alleged that the defendants
used the footage for creating programmes which they commercially exploited.
This, it was claimed by the plaintiff, was impermissible in law and
inconsistent with the concept of fair dealing and was violative of the
plaintiff’s broadcast reproduction rights. It was claimed by the plaintiff that
the defendants utilized and continued to utilize the plaintiff's footage of the
four test matches, apart from the utilization of the plaintiff's footage,of live
and exclusive programming of Australia Open Television which was
broadcast on Star Sports. ‘
It was submitted on behalf of the plaintiff-applicant that the court should
on an overall conspectus of the materials on record placed before it and the
contentions made, grant an ad interim injunction restraining the respondents
from telecasting unauthorized footage of the plaintiff... . It was contended that
if the injunction sought for is not granted, the plaintiff would be gravely
prejudiced and the defendants would merrily keep infringing its broadcast
rights as well as copyright in terms of exclusive license rights. In order to
ensure that the plaintiff's rights are secured and that its exclusivity is
adequately protected, the defendants should be suitably restrained through an
ad interim order and that in the event of failure to do so, plaintiffs losses
cannot be compensated in material terms or sufficiently, through damages on
a later date. .
On behalf of the defendants, it was submitted that the suit itself was
defective and had to be rejected. They relied upon Section 61(1) of the
Copyright Act to say that in every action, claiming infringement, the owner of
copyright should necessarily be made a party to the proceedings. The plaintiff
deliberately chose to exclude the owner of the copyright i.e. ACB from the
proceedings. In the circumstances, the suit was not maintainable and had to
be rejected at the threshold. It was further urged that the nature of the
plaintiff's license had not been disclosed to the Court, raising questions about
the credibility of its claim to being an exclusive licensee of the ACB. It was
submitted that the copy of the license dated 26th July, 2002 produced in
Court in support of the plea of exclusive license conferred upon the plaintiff,
raised grave questions about the plaintiff’s rights. It was alleged that crucial
sections of the agreement, particularly, those dealing with the content of the
license, and exceptions of the exclusive rights, had been withheld from the
Court. And hence it was claimed that the suit did not disclose the plaintiff’s
cause of action to maintain a claim for infringement.
Ms. Pratibha Singh, the Counsel for one of the defendants adopted the
submissions advanced on behalf of the first defendant and additionally urged
that the nature of the rights claimed by the plaintiff were what were popularly
known as ‘neighbouring rights’, i.e. adjunct to those of the primary copyright
holder. It was submitted that the claim of exclusive operation of the
provisions of Chapter VIII of the Act cannot be sustained because broadcast
rights, which were sought to be protected are only a species of copyright and
do not stand apart from other provisions such as Section 30 (which deals with
the rights of licensee) and the provisions in Sections 18 and 19 (which
mandate the procedure for assignment of copyright). It was submitted that
even Section 39A(c) recognizes this reality as is evident by the express
reference to Section 52 which contains the whole bundle of details as to what
constitute fair dealing. In fact the concept of fair dealing is borrowed from
Section 52.
And Section 39A cannot be read as limiting those rights. If these
provisions were read harmoniously the question of excluding applicability of
Section 61(1) can never arise. Counsel submitted that in the circumstances,
the deliberate omission to implead the primary owner of the Copyright, the
ACB, i.e. the alleged licensor was fatal to the suit and hence it had to be
dismissed.
Mr. Manmohan, the Counsel for the other defendants submitted that
the Court should not maintain the suit also for the reason that M/s. ESPN
Software Private Ltd. had approached this Court by another suit, claiming
the same rights and also the same relief; yet that suit was withdrawn on
29-1-2008 upon the present defendants objecting to its maintainability due to
non-compliance with Section 61(1) and not impleading the licensor/ACB.
Leave to file the suit in accordance with law was sought, the same was
granted upon those objections and the suit was permitted to be withdrawn on
29-1-2008. Nevertheless, the plaintiff filed the suit without complying with
the terms of Section 61.
The Court took note of the following sections related to Copyright Act.
[Section 16 provides that there is no copyright except in terms of provisions
of the Act. Assignment of copyright is dealt with under Section 18; an
assignee of copyright becomes owner entitled to copyright to the extent of
assignment. Section 19 deals with the mode of assignment; Section 30
empowers grant of license to licensees; this has to be in terms of Section 19,
by virtue of Section 30A. Chapter VIII deals with broadcasting rights. These
are, by Section 37 defined as ‘special rights’. Section 37(3) prescribes that if
during the continuance of a broadcast reproduction right in relation to any
broadcast, any person without the license of the owner of the right does any
acts of broadcast or any substantial part thereof, i.e. re-broadcasts the
broadcast; makes any reproduction of such sound recording or visual
recording where such initial recording was done without license or, where it
was licensed, for any purpose not envisaged by such license; sells or hires to
the public, or offers for such sale or hire, any such sound recording or visual
recording is deemed, subject to the provisions of Section 39, to have infringed
the broadcast reproduction right. Section 39(b) provides that excerpts of a
performance or of a broadcast in the reporting of current events or for
bonafide review or for research, is not deemed to be an infringement.]
The Court observed that the entire case averred and pleaded that the
defendants’ conduct was not consistent with fair dealing; it was not bona fide.
The defendants, on the other hand, urged that there was no universal standard
in this regard; each case has to be judged on its merits. It was additionally
urged for them that the plaintiff's claim for relief amounts to seeking an
injunction incapable of supervision, which the: court should desist from
granting. What the plaintiffs suggested was that any clipping of the sport
event exceeding 30 seconds per news bulletin and exceeding seven minutes in
any twenty four hours, amounted to unfair dealing. The Court observed that
whenever a court has to see whether a particular conduct is ‘fair dealing’ or
not, the context, the length of the original work borrowed, and the purpose,
can never be ignored. No universal rule or standard exists; cases have to be
decided on the peculiar facts. What may be unfair in one context may
be perfectly fair in another and vice versa. There is a certain amount of
elusiveness in evolving a thumb rule. Judged from this standpoint, the Court
found it difficult to accept that a 30 second limit or 7 minute cap can apply
‘across the board’ in all contingencies. Similarly, the court cannot universalize
that recourse to advertisements before or after broadcast of such clippings
would be unfair. In the circumstances of this case, the plaintiffs have not
shown sufficient materials, barring the aggregate length of the clippings used
by the defendants in their news programmes and sports reviews, to say that it
amounted to unfair dealing. In any case, there is no imminent threat or danger
of legal injury of such kind that damages or a claim for money cannot
compensate. Even if the defendants’ use of the clippings were, or partly were
to be found as unfair use, the plaintiff can be adequately compensated in
damages. On the other hand, the nature of injunction sought is of such a
broad nature that the court would well be drawn into details.
For the above reasons, the plaintiff cannot be granted the ad interim
injunction sought for.
The Court further observed that: it has to be held that the mandate of
Section 61(1) is applicable in case of claims for infringement of broadcast
reproduction rights; i.e. the non-impleadment of the owner of copyright is
fatal to the maintainability of the suit. Similarly, the non-joinder of owner of
the copyright renders the suit liable to be rejected. The failure to implead the
owner of copyright in the present case has resulted in keeping out a party
whose presence is necessary for a final and complete decision on the question
involved in the proceeding. Thus, apart from the suit being not maintainable
due to Section 61(1) of the Act, it is also bad for mis-joinder of a necessary
party. In view of the findings on Section 61, this suit is not maintainable. It
is, therefore, dismissed.

Trade mark
Asian Paints Limited vs. Home Solutions Retail Meloy Limited, 2007,
High Court of Bombay.
It is the case of the plaintiff that with a view to provide quality services
to its customers under one roof, in the year 2000 commenced offering
services in the field of painting through its service providers which included
providing consultancy in the field of painting of the house. Such services
were introduced since September 2000. It was alleged that the defendant
company was infringing the plaintiff's mark and passing off its goods and/or
business as that of the plaintiff and/or was in some way connected with the
plaintiff by using the mark “Home Solutions” and the corporate name
containing the words “Home Solutions”. Principally, on this allegation the
plaintiff had approached the Court seeking to restrain the defendants from
infringing the plaintiff's trademark and for action of passing off its goods and
services as that of the plaintiff.
It is the case of the plaintiff that it created a novel and unique mark
namely “Home Solutions” which was launched in September 2000. The motto
of the plaintiff was “it is not just about painting the walls; it is about styling
them’. According to the plaintiff, “Home Solutions” holds the promise of
redefining the painting industry by offering the customers quality goods and
services. The plaintiff was relying on the sales turnover in respect of its said
services offered under the trademark “Home Solutions” or “Asian Paints
Home Solutions” for the last financial year which aggregates to more than
Rs. 40.00 crores. The plaintiff was also relying on the expenses incurred by
the plaintiff for promoting the said business of services “Home Solutions”,
which was in excess of Rs. 1.8 crores on advertisement, publicity and
promotions undertaken to popularize its trademarks “Home Solutions” and/or
“Asian Paints Home Solutions” during the last financial year. The plaintiff's
case was that the plaintiff has acquired a unique enviable reputation and
exclusive goodwill in respect of said product and its services. It was alleged
that the defendants knowingly and deliberately adopted the corporate name
“Home Solutions” so as to create confusion and deception amongst the
purchasing public and trade. According to the plaintiff, the sole purpose of
doing so was to co-relate with the goods and/or services rendered by the
plaintiff.
According to the plaintiff, in the third week of January 2006, the
plaintiff was informed about a news article published in DNA (Mumbai
Edition) dated 26th January 2006 stating that the defendant had got
incorporated a company under the name and style as “Home Solutions Retail
(India) Limited” which in future would set up a chain of Home Town retail
stores offering services in paints and other like services/goods under the name
and/or mark “Home Solutions”. Thereafter the plaintiff immediately gave
legal notice to the defendant. It was the case of the plaintiff that thereafter the
plaintiff kept constant vigil and an eye on the defendants’ activities and no
suit was filed then for defendant offering its services under the impugned
mark as complained of. According to the plaintiff, in the first week of June
2007, the plaintiff had come to learn that the defendant had commenced its
activities of providing painting services and/or of selling paints, amongst other

things, from its “Home Town” retail stores in Noida, Uttar Pradesh. The
plaintiff, on discreet enquiry, has come to know that besides the defendant
having deceptively adopted the corporate name resembling the trademark of
the plaintiff, were also engaged in offering services which were akin to that of
the plaintiff's in every respect. In short, the grievance of the plaintiff was that
the defendant has adopted the trademark and corporate name which was
identical to and/or deceptively similar to the plaintiff's registered trademark
“Home Solutions”. The defendant has infringed and was continuing to
infringe the plaintiff's registered trademark “Home Solutions”. Besides, the
acts of commission and omission of the defendant were done with the mala-
fide motive of encashing and making illegal gains on the enviable reputation
of the plaintiff in spite of the fact that it has registered its trademark “Asian
Paints Home Solutions” and/or “Home Solutions” long back; and by such
misrepresentations the defendant was passing off and/or attempting to pass off
the services and the goods as those of the plaintiff.
The defendant denied the case made out by the plaintiff and urged that
the plaintiff was not entitled for any relief whatsoever having failed to make
out any cause of action against the defendant. It was stated on affidavit that
the defendant was the part of Pantaloon Group, whose main business was
organized retail. It was asserted that the group had presence in the segments
such as Logistics (Supply Chain Management), Brands, Home Solutions,
Foods, Finance, Knowledge Services. It was stated that the main motto was to
“deliver everything, everywhere, everytime to every Indian consumer in the
most convenient manner”. The defendant asserted that the defendant was a
subsidiary of Pantaloon Retail (India) Limited. The defendant asserted that the
defendant was incorporated on 4th October 2004 primarily for setting up a
national chain of retail stores catering to the complete gamut of home
products and home improvement segment and to provide a complete Home
Care Answers and solutions either with respect to the products or with respect
to any service/activities pertaining or relating to home and/or home utilities
segment. The services offered by the defendant were claimed to be either in
respect of any product or goods or with respect to any services such as
plumbing, design-vastu, installations and maintenance such as pest control,
carpet cleaning, plumbing, air conditioning, lighting, electronic products,
home furnishing etc. The defendant asserted that its activities were honest and
it has adopted the corporate name “Home Solutions Retail (India) Limited”
bona fide. It was stated that the defendant was selling the products and
services relating to home care and utility under the name and style “Home
Town”. It was categorically stated that the defendant was not using the words
“Home Solutions” as a trademark.
It was then stated that the term and expression “Home Solutions” was
descriptive in many connotations and nature and as such inherently incapable
of becoming distinctive with any person. For the nature of the products or the
we
services the defendants cater to their customers, the name “Home Solutions
Retail (India) Limited” was coined. It was description of the nature of the
services offered by the defendant. According to the defendant, nobody can
claim any exclusive right over the term and expression “Home Solutions”
which was descriptive in nature. The defendant had also relied on numerous
websites on internet which use the said term and expression “Home
Solutions” as a category or classification to classify and offer the products
and/or services relating to “Home” and/or “Household” nature. The defendant
also relied on numerous publications and magazines which bear the term
and expression “Home Solutions” as part of their name. According to the
defendant, even prior to the plaintiff applying for registration of their alleged
mark “Asian Paints Home Solutions” before May 2001, there were several
companies/entities under the name and style “Home Solutions” in various
countries including India.
The defendant asserted that the term and expression “Home Solutions”
cannot become a subject matter of proprietary right of any person much less
the plaintiff. It was then stated that the defendant’s corporate name as “Home
Solutions Retail (India) Limited” was neither identical nor deceptively similar
to the plaintiff's alleged trademark “Asian Paints Home Solutions’. Moreover,
the defendant argued that they do not sell any products or services under the
trademark “Home Solutions”. The defendant then asserted that they have
already commenced their business and any ad interim order at this stage
would result in stoppage of defendant’s business, which would cause
irreparable loss, harm and damage to the defendant. Besides, the defendant
being an established company, would be in a position to make good the loss,
if any, suffered by the plaintiff by denial of any ad interim relief in the event
of plaintiff ultimately succeeding in the suit. Lastly, it was asserted that the
plaintiff was not entitled for any relief on account of delay in filing the
present suit. For, the plaintiff was aware of the defendant’s act of incorpo-
ration in or about January 2006 but has filed the suit in July 2007 and moved
the application for interim relief on 30th August 2007.
After considering the rival pleadings and the documents on record with
the assistance of the counsel appearing for the parties, the first question posed
by the Court was: Whether it was a case of infringement of registered
trademark or not? From the certificate of registration of trademark issued by
the competent authority it was evident that the registration was in respect of
device/label “Asian Paints Home Solutions” for its goods covered by Class-2.
The registration was not in respect of services in relation to the said goods as
such. The defendants on the other hand were engaged in providing services to
its customers in respect of Home Care Conveniences and Utility stores
offering home products of various other manufacturers under their brands
under one roof. Thus understood, stated the Court, it will not be a case of
infringement of registered trademark as such.
The next question was whether the marks used by the plaintiff and the
defendants can be said to be identical or similar. The allegations in the plaint

proceeded on the basis that the defendant was offering services by using mark
“Home Solutions” which was identical or similar to that of the plaintiff's
mark. The Court felt that there was no merit in this submission. For, the
plaintiff was engaged in the similar business but was using the mark “Asian
Paints Home Solutions”; whereas, the defendant was using the mark “Home
Town”. The Court said that there was marked difference between the two
marks and by no standards it could be said that the two marks were identical
or similar. Thus the Court found substance in the argument of the defendants
that the plaintiff cannot claim to have exclusivity in respect of the mark
“Home Solutions”.
The defendants had pressed into service the provisions of Section 35 of
the Act which provided that the proprietor or a registered user of a registered
trade mark to interfere with any bona fide use by a person of “his own name”
or that of his place of business, or “of the name”, or of the name of the place
of business, of any of his predecessors in business, or the use by any person
of any “bona fide description of the character of quality of his goods or
services”. The Court opined that the fact that the plaintiff commenced the
business of providing similar services to its customers in earlier point of time,
did not militate against the defendant who was using the mark “Home Town”
for similar services offered or has adopted the pelts name “Home
Solutions Retail (India) Limited”.
The defendant has also rightly invoked provisions of Section 30(2) to
contend that it will not be a case of infringement of registered mark where the
use in relation to the goods or services indicates the kind, quality, quantity,
intended purpose, value, geographical origin, the time of production of goods
or of rendering of services or other characteristics of goods or services. The
defendant has made out a formidable defence as was available under the
provisions of the Act. Thus understood, it is not a case of dishonest adoption
of corporate name “Home Solutions” or of mark “Home Town”. As was
observed earlier, noted the Court, there was no similarity in the mark used by
the defendant with the mark of the plaintiff.
From the pleadings on record, the Court observed, it does appear that
the defendant has already commenced its business in relation to home care
services. In such a case the consideration for grant of ad interim relief would
be different than the purpose of granting interlocutory relief to preserve
the status quo. In the first place, prima facie, the Court found no merit in the’
argument of infringement of the registered trademark of the plaintiff or for
that matter indirect infringement of the mark of the plaintiff “Asian Paints
Home Solutions”. On this finding itself the plaintiff will not be entitled for
any ad interim relief.
Finally, the Court came to the conclusion that it was neither a case of
infringement of registered trademark or a case of indirect infringement
of the mark of the plaintiff. The mark “Home Solutions” cannot be said to be
exclusive to the plaintiff. The question of granting any ad interim relief do

not arise.
The Court further opined that it was not possible to accept at this stage
the case of the plaintiff that the mark used by the defendant was identical or
similar to the mark of the plaintiff; nor it was possible to hold that any
confusion is being caused by the defendant by offering similar services or
representing to the public that it was doing such business for and on behalf of
the plaintiff.
Taking over all view of the matter, the Court was not inclined to grant
any ad interim relief.
EXERCISES
Short Questions
Explain the Intellectual Property Right (IPR).
What are the different forms of IPR?
Explain the enactments related to the IPR in India.
What are not patentable as per the Patents Act, 1970?
Explain the powers of the Copyright Board.
Explain infringement of copyright?
What acts do not constitute the infringement of copyright?
ee
SS
2 What are the civil remedies available for the infringement of copyright?
See
Long Questions
1. Explain the salient features of the Designs Act, 1911.
2. Explain the salient features of the Trade and Merchandise Marks Act,
1969.
3. Explain the meaning of copyright and the rights of the first owner of
the copyright.
4. Briefly explain any case dealing with copyright in India.
FURTHER READING
For full version of the Acts refer to
The Designs Act
http://www.taxmann.net/SM2006/content_Designs_Act(14).htm
Trade Marks and Merchandise Act
http://www. indiaip.com/india/trademarks/acts/tmact 1958/tmacte.htm
Patents Act
http://www. patentoffice.nic.in/ipr/patent/patents.htm
Chapter 10
Advertising
10.1 INTRODUCTION
Advertisements possess the capacity to attract the people and influence them
in their buying behaviour. Advertisers face the necessity to reach the people
effectively in a few minutes and sometimes in seconds. More often than not
in their bid to creatively communicate the message, the advertisers forget the
basic ethical norms and forget to think the effect such advertisements will
produce on the viewing public especially the children. Hence it becomes the
duty of the government to protect people from deceptive advertisements and
that is the purpose behind the regulations enforced on advertising industry.
10.2 THE MONOPOLIES AND RESTRICTIVE

TRADE PRACTICES ACT, 1969
An Act to provide that the operation of the economic system does not result
in the concentration of economic power to the common detriment, for the
control of monopolies, for the prohibition of monopolistic and restrictive trade
practices and for matters connected therewith or incidental thereto.
This Act lists the unfair trade practices which include advertisements.
“Monopolistic trade practice” means a trade practice which has, or is likely to

have, effect of,—
(i) maintaining the prices of goods or charges for the services at an

unreasonable level by limiting, reducing or otherwise controlling the
production, supply or distribution of goods or the supply of any
services or in any other manner.
(ii) unreasonably preventing or lessening competition in the production,
supply or distribution of any goods or in the supply of any services,
(iii) limiting technical development or capital investment to the common
118
Chapter 10 : Advertising * 119
detriment or allowing the quality of any goods produced, supplied

or distributed, or any services rendered, in India to deteriorate;
(iv) increasing unreasonably,—
(a) the cost of production of any goods; or
(b) charges for the provision, or maintenance, of any services;
(v) increasing unreasonably,—
(a) the prices at which goods are, or may be, sold or re-sold, or the
charges at which the services are, or may be, provided; or
(b) the profits which are, or may be, derived by the production,
supply or distribution (including the sale or purchase) of any
goods or by the provision of any services;
(vi) preventing or lessening competition in the production, supply or
distribution of any goods or in the provision or maintenance of any
services by the adoption of unfair methods or unfair or deceptive
practices;
“restrictive trade practice” means a trade practice which has, or may have, the
effect of preventing, distorting or restricting competition in any manner and
in particular,—
(1) which tends to obstruct the flow of capital or resources into the
stream of production, or
(ii) which tends to bring about manipulation of prices, or conditions of
delivery or to affect the flow of supplies in the market relating to
goods or services in such manner as to impose on the consumers
unjustified costs or restrictions;
Section 36A. Definition of unfair trade practice
In this Part, unless the context otherwise requires, “unfair trade practice”
means a trade practice which, for the purpose of promoting the sale, use or
supply of any goods or for the provisions of any services, adopts any unfair
method or unfair or deceptive practice including any of the following
practices, namely:
(1) the practice of making any statement, whether orally or in writing or

by visible representation which,—
(i) falsely represents that the goods are of a particular standard,
quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard,
quality or grade;
(iii) falsely represents any re-built, second-hand, renovated,
reconditioned or old goods as new goods;
(iv) represents that the goods or services have sponsorships,
approval, performance, characteristics, accessories, uses or
benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or

approval or affiliation which such seller or supplier does not
have;
(v1) makes a false or misleading representation concerning the need
for, or the usefulness of, any goods or services;
(vil) gives to the public any warranty or guarantee of the perform-
ance, efficacy or length of life of a product or of any goods that
is not based on an adequate or proper test thereof:
Provided that where a defence is raised to the effect that such warranty
or guarantee is based on adequate or proper test, the burden of proof of such
defence shall lie on the person raising such defence;
(viii) makes to the public a representation in a form that purports to
be,—
(a) a warranty or guarantee of a product or of any goods or
services; or
(b) a promise to replace, maintain or repair an article or any
part thereof or to repeat or continue a service until it has
achieved a specified result, if such purported warranty or
guarantee or promise is materially misleading or if there is
no reasonable prospect that such warranty, guarantee or
promise will be carried out;
(ix) materially misleading the public concerning the price at which a

product or like products or goods or services, have been, or are,
ordinarily sold or provided, and, for this purpose, a
representation as to price shall be deemed to refer to the price
at which the product or goods or services has or have been sold
by sellers or provided by suppliers generally in the relevant
market unless it is clearly specified to be the price at which the
product has been sold or services have been provided by the
person by whom or on whose behalf the representation is made;
(x) gives false or misleading facts disparaging the goods, services
or trade of another person.
Explanation. For the purposes of Clause (1), a statement that is,—
(a) expressed on an article offered or displayed for sale, or on

its wrapper or container; or
(b) expressed on anything attached to, inserted in, or accomp-
anying, an article offered or displayed for sale, or on
anything on which the article is mounted for display or
sale; or
(c) contained in or on anything that is sold, sent, delivered,
transmitted or in any other manner whatsoever made
available to a member of the public, shall be deemed to be
]H
a statement made to the public by, and only by, the person
who had caused the statement to be so expressed, made or
contained;
(2) permits the publication of any advertisement whether in any newspaper
or otherwise, for the sale or supply at a bargain price, of goods or
services that are not intended to be offered for sale or supply at the
bargain price, or for a period that is, and in quantities that are,
reasonable, having regard to the nature of the market in which the
business is carried on, the nature and size of business, and the nature
of the advertisement.
Explanation. For the purpose of Clause (2), “bargain price” means,—
(a) a price that is stated in any advertisement to be a bargain price,
by reference to an ordinary price or otherwise, or
(b) a price that a person who reads, hears, or sees the advertisement,
would reasonably understand to be a bargain price having regard
to the prices at which the product advertised or like products are
ordinarily sold;
(3) permits,—
(a) the offering of gifts, prizes or other items with the intention of not
providing them as offered or creating the impression that something
is being given or offered free of charge when it is fully or partly
covered by the amount charged in the transaction as a whole.
(b) the conduct of any contest, lottery, game of chance or skill, for
the purpose of promoting, directly or indirectly, the sale, use or
supply of any product or any business interest;
(4) permits the sale or supply of goods intended to be used, or are of a
kind likely to be used by consumers, knowing or having reason to
believe that the goods do not comply with the standards prescribed by
competent authority relating to performance, composition, contents,
design, constructions, finishing or packaging as are necessary to prevent
or reduce the risk of injury to the person using the goods;
(5) permits the hoarding or destruction of goods, or refuses to sell the
goods or to make them available for sale, or to provide any service,
if such hoarding or destruction or refusal raises or tends to raise or is
intended to raise, the cost of those or other similar goods or services.
Section 36B. Inquiry into unfair trade practices by commission

The Commission may inquire into any unfair trade practice,—
(a) upon receiving a complaint of facts which constitutes such practice

from any trade association or from any consumer or a registered
consumers’ association, whether such consumer is a member of that
consumers’ association or not; or
(b) upon a reference made to it by the Central Government or a State

Government; or
(c) upon an application made to it by the Director General; or
(d) upon its own knowledge or information.
Section 36D. Powers which may be exercised by the commission

inquiring into an unfair trade practice
(1) The Commission may inquire into any unfair trade practice which
may come before it for inquiry and, if after such inquiry, it is of
opinion that the practice is prejudicial to the public interest, or to the
interest of any consumer or consumers generally, it may, by order
direct that,—
(a) the practice shall be discontinued or shall not be repeated;
(b) any agreement relating to such unfair trade practice shall be void
or shall stand modified in respect thereof in such manner as may
be specified in the order;
(c) any information, statement or advertisement relating to such unfair
trade practice shall be disclosed, issued or published, as the case
may be, in such manner as may be specified in the order.
(2) The Commission may, instead of making any order under this section,
permit any party to carry on any trade practice, if it so applies and
takes such steps within the time specified by the Commission as may
be necessary to ensure that the trade practice is no longer prejudicial
to the public interest or to the interest of any consumer or consumers
generally, and, in any such case, if the Commission is satisfied that
necessary steps have been taken within the time so specified, it may
decide not to make any order under this section in respect of that
trade practice.
10.3 DRUGS AND MAGIC REMEDIES

(Objectionable Advertisements) ACT, 1954
This is an Act to control the advertisement of drugs in certain cases, to
prohibit the advertisement for certain purposes of remedies alleged to possess
magic qualities and to provide for matters connected therewith.
“Advertisement” includes any notice, circular, label, wrapper, or other
document, and any announcement made orally or by any means of producing
or transmitting light, sound or smoke; (b) drug” includes—(i) a medicine for
the internal or external use of human beings or animals; (ii) any substance
intended to be used for or in the diagnosis, cure, mitigation, treatment or
prevention of disease in human beings or animals; (iii) any article, other than
food, intended to affect or influence in any way the structure or any organic
function of the body of human beings or animals; (iv) any article intended for
use as a component of any medicine, substance or article, referred to in

subclauses (1), (ii) and (iii).
“Magic remedy” includes a talisman, mantra, kavacha, and any other
charm of any kind which is alleged to possess miraculous powers for or in the
diagnosis, cure, mitigation, treatment or prevention of any disease in human
beings or animals or for affecting or influencing in any way the structure or
any organic function of the body of human beings or animals.
Section 3. Prohibition of advertisement of certain drugs for

treatment of certain diseases and disorders: Subject to the provisions of
this Act, no person shall take any part in the publication of any advertisement
referring to any drug in terms which suggest or are calculated to lead to the
use of that drug for—(a) the procurement of miscarriage in women or
prevention of conception in women; or (b) the maintenance or improvement
of the capacity of human beings for sexual pleasure; or (c) the correction of
menstrual disorder in women.
Section 4. Prohibition of misleading advertisements relating to
drugs: Subject to the provisions of this Act, no person shall take any part in
the publication of any advertisement relating to a drug if the advertisement
contains any matter which—(a) directly or indirectly gives a false impression
regarding the true character of the drug; or (b) makes a false claim for the
drug;or (c) is otherwise false or misleading in any material particular.
Section 5. Prohibition of advertisement of magic remedies for

treatment of certain diseases and disorders: No person carrying on or
purporting to carry on the profession of administering magic remedies shall
take any part in the publication of any advertisement referring to any magic
remedy which directly or indirectly claims to be efficacious for any of the
purposes specified in Section 3.
Section 6. Prohibition of import into, and export from India of
certain advertisements: No person shall import into, or export from, the
territories to which this Act extends any document containing an
advertisement of the nature referred to in Section 3, or Section 4, or Section
5, and any documents containing any such advertisements shall be deemed to
be goods of which the import or export has been prohibited under Section 19
of the Sea Customs Act, 1878 (8 of 1878) and all the provisions of that Act
shall have effect accordingly, except that Section 183 thereof shall have effect
as if for the word “shall” therein the word “may” were substituted.
Section 7. Penalty: Whoever contravenes any of the provisions of

this Act 1*[or the rules made there under] shall, on conviction, be punishable
(a) in the case of a first conviction, with imprisonment which may extend to
six months, or with fine, or with both; (b) in the case of a subsequent
conviction, with imprisonment which may extend to one year, or with fine, or
with both.
Section 8. (1) Powers of entry, search, etc.: Subject to the

provisions of any rules made in this behalf, any Gazetted Officer authorized
by the State Government may, within the local limits of the area for which he
is so authorized,—(a) enter and search at all reasonable times, with such
assistants, if any, as he considers necessary, any place in which he has reason
to believe that an offence under this Act has been or is being committed; (b)
seize any advertisement which he has reason to believe contravenes any of
the provisions of this Act: Provided that the power of seizure under this
clause may be exercised in respect of any document, article or thing which
contains any such advertisement, including the contents, if any, of such
document, article or thing, if the advertisement cannot be separated by reason
of its being embossed or otherwise, from such document, article or thing
without affecting the integrity, utility or saleable value thereof; (c) examine
any record, register, document or any other material object found in any place
mentioned in clause (a) and seize the same if he has reason to believe that
it may furnish evidence of the commission of an offence punishable under
this Act.
Section 9. (1) Offences by companies: If the person contravening

any of the provisions of this Act is a company, every person who at the time
the offence was committed, was in charge of, and was responsible to, the
company for the conduct of the business of the company as well as the
company shall be deemed to be guilty of the contravention and shall be liable
to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such
person liable to any punishment provided in this Act if he proves that the
offence was committed without his knowledge or that he exercised all
due diligence to prevent the commission of such offence.
EXERCISES
Short Questions
1. Explain unfair practice?
2. What is a magic remedy?
3. What are the Acts existing in India to regulate advertising?
Long Questions
1. Explain the salient features of the Monopolies and Restrictive Trade
Practices Act, 1969.
2. Explain the salient features of the Drugs and Magic Remedies
(objectionable advertisements) Act, 1954.
FURTHER READING
For the full version of the Monopolies and Restrictive Trade Practices Act 1969
refer to http://bareacts.legalcare.in/01-42.htm
For the full version of the Drugs and Magic Remedies (objectionable
advertisements) Act 1954 refer to http://www.commonlil.org/in/legis/
num_act/damraal954459
Chapter 11
Cyber Crimes
11.1 INTRODUCTION
Cyber crimes or electronic crime is linked with a computer. A computer is the
target of a crime or is the means adopted to commit a crime. Most of these
crimes are not new. Criminals simply devise different ways to undertake
standard criminal activities such as fraud, theft, blackmail, forgery, and
embezzlement using the new medium, often involving the Internet.
11.2 TYPES OF CYBER CRIMES

Some of the common cyber crimes are as follows:
Hacking
Hacker is a computer expert who uses his knowledge to gain unauthorized
access to the computer network.
Cracking
Crackers, on the other hand, use the information to cause disruption to the
network for personal and political motives.
Virus
A computer virus is a computer program that can copy itself and infect a
computer without permission or knowledge of the user. Viruses are used by
hackers to infect the user’s computer and damage data saved on the computer
by use of ‘payload’ in viruses which carries damaging code.
Data diddling
This kind of an attack involves altering raw data just before it is processed by
a computer and then changing it back after the processing is completed.
Electricity boards in India have been victims to data diddling programs °
126
Chapter 11 : Cyber Crimes *® 127
inserted when private parties were computerizing their systems, e.g., modi-
fying grades, changing credit ratings, altering security clearance information,
fixing salaries, or circumventing book-keeping and audit regulations.
Email bombing
Email bombing refers to sending a large number of emails to the victim
resulting in the victim’s email account (in case of an individual) or mail
servers (in case of a company or an email service provider) crashing.
Logic bomb
A program in which damage (the payload) is delivered when a particular
logical condition occurs; e.g., not having the author’s name in the payroll file.
Logic bombs are a kind of Trojan Horse; time bombs are a type of logic
bomb. Most viruses are logic bombs.
Phreaking
A phreak is someone who breaks into the telephone network illegally, to
make free long-distance phone calls or to tap phone lines. In cyber terms,
phreak is anyone who breaks or tries to break the security of a computer
network.
Cyber terrorism
An intentional negative and harmful use of the information technology for
producing destructive and harmful effects to the property, whether tangible or
intangible, of others. For instance, hacking of a computer system and then
deleting the useful and valuable business information of the rival competitor
is a part and parcel of cyber terrorism. Cyber terrorism is the leveraging of a
target’s computers and information, particularly via the Internet, to cause
physical, real-world harm or severe disruption of infrastructure. It could take
various forms such as hacking into computer systems, introducing viruses to
vulnerable networks, web site defacing, denial-of-service attack, terroristic
threats made via electronic communication, demolition of e-governance base
etc.
Spamming
A popular name for e-mail sent to many unwilling recipients in order to sell
products or services (or sometimes to cheat naive customers).
Spoofing
Using incorrect identification; usually applied to electronic misrepresentation
such as putting the wrong originating address on a TCP/IP packet. Much used
Ss
in denial-of-service (DoS) and distributed denial of service (DDoS) attacks. A

spoofed e-mail may be said to be one, which misrepresents its origin. It
shows its origin to be different from which actually it originates.
Phishing
Using a forged or spoofed e-mail or website that imitates or duplicates an
official communication or page to trick victims into revealing logon or other
confidential information that can be used for penetration, financial fraud or
identity theft.
Internet pharming
Redirecting the website used by the customer to another bogus website by
hijacking the victim’s DNS server (they are computers responsible for
resolving internet names into real addresses) and changing his I.P. address to
fake website by manipulating DNS server. This redirects user’s original
website to a false misleading website to gain unauthorized information.
11.2.1 Cyber Crimes against Women

There are some cyber crimes which are mostly targeted at women. They are;
Harassment through e-mails and SMS is not a new concept. It is very
similar to harassing through letters. Harassment includes blackmailing,
threatening, bullying, abusing with obscene pictures and messages and even
cheating. E-harassments are similar to the letter harassment but creates
problem quite often when posted from a fake ID.
Cyber stalking is the use of the Internet or other electronic means to
stalk someone. The use of information and communication technology,
particularly the Internet, by an individual or group of individuals, to harass
another individual, group of individuals, or organization is known as cyber
stalking. Cyber stalking involves, following a person’s movements across the
Internet by posting messages on the bulletin boards frequented by the victim,
entering the chat-rooms frequented by the victim and constantly bombarding
the victim with emails. The main targets are mostly females, children,
emotionally weak or unstable. Cyber stalkers target and harass their victims
via websites, chat rooms, discussion forums, open publishing websites (e.g.
blogs) and email.
Cyber pornography would include pornographic websites; pornographic

magazines produced using computers (to publish and print the material) and
the Internet (to download and transmit pornographic pictures, photos, writings
etc). Pornographic materials can be reproduced more quickly and cheaply on
new media like hard disks, floppy discs and CD-Roms.
Chapter 11 : Cyber Crimes * 129
Sd
Cyber defamation
Cyber torture including libel and defamation is another common crime against
women in the net. This occurs when defamation takes place with the help of
computers and/or the Internet, e.g. someone publishes defamatory matter
about an individual on a website or sends e-mails containing defamatory
information.
Morphing
Morphing is editing the original picture. It was identified that pictures of
females are downloaded by the fake users and again re-posted/uploaded on
different websites by creating fake profiles after editing it. This amounts to
violation of I.T. Act, 2000 and attracts Sections 43 and 66 of the said Act.
The violator can also be booked under IPC .
11.3 INFORMATION TECHNOLOGY ACT, 2000

This is an Act to provide legal recognition for transactions carried out by
means of electronic data interchange and other means of electronic
communication, commonly referred to as “electronic commerce”, which
involve the use of alternatives to paper-based methods of communication and
storage of information, to facilitate electronic filing of documents with the
Government agencies and further to amend the Indian Penal Code, the Indian
Evidence Act, 1872, the Bankers’ Books Evidence Act, 1891 and the Reserve
Bank of India Act, 1934 and for matters connected therewith or incidental
thereto.
Whereas the General Assembly of the United Nations by resolution
A/RES/51/162, dated the 30th January, 1997 has adopted the Model Law on
Electronic Commerce adopted by the United Nations Commission on
International Trade Law; and whereas the said resolution recommends inter
alia that all States give favourable consideration to the said Model Law when
they enact or revise their laws, in view of the need for uniformity of the law
applicable to alternatives to paper-based methods of communication and
storage of information; and whereas it is considered necessary to give effect
to the said resolution and to promote efficient delivery of Government
services by means of reliable electronic records.
Digital signature
Section 3. Authentication of electronic records
(1) Subject to the provisions of this section any subscriber may authenticate
an electronic record by affixing his digital signature (digital signature”

means authentication of any electronic record by a subscriber by
means of an electronic method or procedure in accordance with the
provisions of Section 3).
Electronic governance
Section 4. Legal recognition of electronic records
Where any law provides that information or any other matter shall be in
writing or in the typewritten or printed form, then, notwithstanding anything
contained in such law, such requirement shall be deemed to have been
satisfied if such information or matter is,—
(a) rendered or made available in an electronic form; and

(b) accessible so as to be usable for a subsequent reference.
Section 5. Legal recognition of digital signatures
Where any law provides that information or any other matter shall be
authenticated by affixing the signature or any document shall be signed or
bear the signature of any person, then, notwithstanding anything contained in
such law, such requirement shall be deemed to have been satisfied, if such
information or matter is authenticated by means of digital signature affixed in
such manner as may be prescribed by the Central Government.
Section 6. Use of electronic records and digital signatures in
Government and its agencies
(1) Where any law provides for,—

(a) the filing of any form, application or any other document with
any office, authority, body or agency owned or controlled by the
appropriate Government in a particular manner;
(b) the issue or grant of any license, permit, sanction or approval by
whatever name called in a particular manner;
(c) the receipt or payment of money in a particular manner,
then, notwithstanding anything contained in any other law for the time being
in force, such requirement shall be deemed to have been satisfied if such fil-
ing, issue, grant, receipt or payment, as the case may be, is effected by means
of such electronic form as may be prescribed by the appropriate Government.
(2) The appropriate Government may, for the purposes of sub-section (1),
by rules, prescribe,—
(a) the manner and format in which such electronic records shall be
filed, created or issued;
(b) the manner or method of payment of any fee or charges for filing,
creation or issue any electronic record under clause.
Section 7. Retention of electronic records

(1) Where any law provides that documents, records or information shall
be retained for any specific period, then, that requirement shall be
deemed to have been satisfied if such documents, records or
information are retained in the electronic form, if—
(a) the information contained therein remains accessible so as to be
usable for a subsequent reference;
(b) the electronic record is retained in the format in which it was
originally generated, sent or received or in a format which can be
demonstrated to represent accurately the information originally
generated, sent or received;
(c) the details which will facilitate the identification of the origin,
destination, date and time of dispatch or receipt of such electronic
record are available in the electronic record:
Provided that this clause does not apply to any information which is
automatically generated solely for the purpose of enabling an electronic
record to be dispatched or received.
(2) Nothing in this section shall apply to any law that expressly provides
for the retention of documents, records or information in the form of
electronic records.
Section 8. Publication of rule, regulation, etc., in electronic gazette
Where any law provides that any rule, regulation, order, bye-law,
notification or any other matter shall be published in the official gazette, then,
such requirement shall be deemed to have been satisfied if such rule,
regulation, order, bye-law, notification or any other matter is published in the
official gazette or electronic gazette:
Provided that where any rule, regulation, order, bye-law, notification or
any other matter is published in the official gazette or electronic gazette, the
date of publication shall be deemed to be the date of the Gazette which was
first published in any form.
11.4 PENALTIES AND ADJUDICATION

This Act deals with two types of wrongs, the civil wrongs and the offences.
While the civil wrongs are covered by Sections 43-45, the offences are
mentioned in Sections 65-81.
Section 43. Penalty for damage to computer, computer system, etc.
If any person without permission of the owner or any other person who
is in charge of a computer, computer system or computer network,—
(a) accesses or secures access to such computer, computer system or

computer network;
(b) downloads, copies or extracts any data, computer data base or
information from such computer, computer system or computer
network including information or data held or stored in any removable
storage medium;
(c) introduces or causes to be introduced any computer contaminant or
computer virus into any computer, computer system or computer
network;
(d) damages or causes to be damaged any computer, computer system or
computer network, data, computer data base or any other programmes
residing in such computer, computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or
computer network;
(f) denies or causes the denial of access to any person authorized to
access any computer, computer system or computer network by any
means;
(g) provides any assistance to any person to facilitate access to a computer,
computer system or computer network in contravention of the
provisions of this Act, rules or regulations made there under;
(h) charges the services availed of by a person to the account of another
person by tampering with or manipulating any computer, computer
system, or computer network;
he shall be liable to pay damages by way of compensation not exceeding one
crore rupees to the person so affected.
Section 44. Penalty for failure to furnish information return, etc.
If any person who is required under this Act or any rules or regulations
made thereunder to,—
(a) furnish any document, return or report to the Controller or the

Certifying Authority fails to furnish the same, he shall be liable to a
penalty not exceeding one lakh and fifty thousand rupees for each
such failure;
(b) file any return or furnish any information, books or other documents
within the time specified therefor in the regulations fails to file return
or furnish the same within the time specified therefor in the regulations,
he shall be liable to a penalty not exceeding five thousand rupees for
every day during which such failure continues;
(c) maintain books of account or records, fails to maintain the same, he
shall be liable to a penalty not exceeding ten thousand rupees for
every day during which the failure continues.
Section 45. Residuary penalty
Whoever contravenes any rules or regulations made under this Act, for
the contravention of which no penalty has been separately provided, shall be
liable to pay a compensation not exceeding twenty-five thousand rupees to the
person affected by such contravention or a penalty not exceeding twenty-five
thousand rupees.
Section 46 states that to adjudge the contraventions of this Act, an
adjudicating officer needs to be appointed by the Central Government who
possesses such experience in the field of Information Technology and legal or
judicial experience as may be prescribed by the Central Government and he
must be an officer not below the rank of a Director to the Government of
India or an equivalent officer of a State Government.
11.4.1 Offences
Section 65. Tampering with computer source documents
Whoever knowingly or intentionally conceals, destroys or alters or

intentionally or knowingly causes another to conceal, destroys or alters any
computer source code used for a computer, computer programme, computer
system or computer network, when the computer source code is required to
be kept or maintained by law for the time being in force, shall be punishable
with imprisonment up to three years, or with fine which may extend up to
two lakh rupees, or with both.
Explanation. For the purposes of this section, “computer source code”

means the listing of programmes, computer commands, design and layout and
programme analysis of computer resource in any form.
66. Hacking with computer system
(1) Whoever with the intent to cause or knowing that he is likely to cause
wrongful loss or damage to the public or any person destroys or
deletes or alters any information residing in a computer resource
or diminishes its value or utility or affects it injuriously by any means,
commits hack:
(2) Whoever commits hacking shall be punished with imprisonment up to
three years, or with fine which may extend upto two lakh rupees, or
with both.
Section 67. Publishing of information which is obscene in electronic
form
Whoever publishes or transmits or causes to be published in the
electronic form, any material which is lascivious or appeals to the prurient
interest or if its effect is such as to tend to deprave and corrupt persons who
are likely, having regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it, shall be punished on first conviction with
imprisonment of either description for a term which may extend to five years
and with fine which may extend to one lakh rupees and in the event of a
second or subsequent conviction with imprisonment of either description for a
term which may extend to ten years and also with fine which may extend to
two lakh rupees.
Section 68. Power of Controller to give directions
(1) The Controller may, by order, direct a certifying authority or any

employee of such Authority to take such measures or cease carrying
on such activities as specified in the order if those are necessary to
ensure compliance with the provisions of this Act, rules or any
regulations made thereunder.
(2) Any person who fails to comply with any order under sub-section (1)
shall be guilty of an offence and shall be liable on conviction to
imprisonment for a term not exceeding three years or to a fine not
exceeding two lakh rupees or to both.
Section 69. Directions of controller to a subscriber to extend facilities
to decrypt information
(1) If the controller is satisfied that it is necessary or expedient so to do

in the interest of the sovereignty or integrity of India, the security of
the State, friendly relations with foreign States or public order or for
preventing incitement to the commission of any cognizable offence,
for reasons to be recorded in writing, by order, direct any agency of
the Government to intercept any information transmitted through any
computer resource.
(2) The subscriber or any person in-charge of the computer resource
shall, when called upon by any agency which has been directed under
sub-section (1), extend all facilities and technical assistance to decrypt
the information.
(3) The subscriber or any person who fails to assist the agency referred
to in sub-section (2) shall be punished with an imprisonment for a
term which may extend to seven years.
Section 70. Protected system
(1) The appropriate Government may, by notification in the official gazette,
declare that any computer, computer system or computer network to
be a protected system.
(2) The appropriate Government may, by order in writing, authorize the
persons who are authorized to access protected systems notified under
sub-section (1).
(3) Any person who secures access or attempts to secure access to a
protected system in contravention of the provisions of this section
Chapter 11 : Cyber Crimes ¥* 135
shall be punished with imprisonment of either description for a term

which may extend to ten years and shall also be liable to fine.
Section 71. Penalty for misrepresentation
Whoever makes any misrepresentation to, or suppresses any material
fact from, the controller or the certifying authority for obtaining any license or
digital signature certificate, as the case may be, shall be punished with
imprisonment for a term which may extend to two years, or with fine which
may extend to one lakh rupees, or with both.
Section 72. Penalty for breach of confidentiality and privacy
Save as otherwise provided in this Act or any other law for the time
being in force, any person who, in pursuance of any of the powers conferred
under this Act, rules or regulations made thereunder, has secured access to
any electronic record, book, register, correspondence, information, document
or other material without the consent of the person concerned discloses such
electronic record, book, register, correspondence, information, document or
other material to any other person shall be punished with imprisonment for a
term which may extend to two years, or with fine which may extend to one
lakh rupees, or with both.
Section 73. Penalty for publishing digital signature certificate false in
certain particulars
(1) No person shall publish a digital signature certificate or otherwise
make it available to any other person with the knowledge that,—
(a) the certifying authority listed in the certificate has not issued it;
or
(b) the subscriber listed in the certificate has not accepted it; or
(c) the certificate has been revoked or suspended,
unless such publication is for the purpose of verifying a digital signature
created prior to such suspension or revocation.
(2) Any person who contravenes the provisions of sub-section (1) shall
be punished with imprisonment for a term which may extend to two
years, or with fine which may extend to one lakh rupees, or with both.
Section 74. Publication for fraudulent purpose
Whoever knowingly creates, publishes or otherwise makes available a

digital signature certificate for any fraudulent or unlawful purpose shall be
punished with imprisonment for a term which may extend to two years, or
with fine which may extend to one lakh rupees, or with both.
Section 75. Act to apply for offence or contravention commited
outside India
(1) Subject to the provisions of sub-section (2), the provisions of this Act
shall apply also to any offence or contravention committed outside

India by any person irrespective of his nationality.
(2) For the purposes of sub-section (1), this Act shall apply to an offence
or contravention committed outside India by any person if the act or
conduct constituting the offence or contravention involves a computer,
computer system or computer network located in India.
Section 76. Confiscation
Any computer, computer system, floppies, compact disks, tape drives or
any other accessories related thereto, in respect of which any provision of
this Act, rules, orders or regulations made thereunder has been or is being
contravened, shall be liable to confiscation:
Provided that where it is established to the satisfaction of the court
adjudicating the confiscation that the person in whose possession, power or
control of any such computer, computer system, floppies, compact disks, tape
drives or any other accessories relating thereto is found, is not responsible for
the contravention of the provisions of this Act, rules, orders or regulations
made thereunder, the court may, instead of making an order for confiscation
of such computer, computer system, floppies, compact disks, tape drives or
any other accessories related thereto, make such other order authorized by this
Act against the person contravening of the provisions of this Act, rules, orders
or regulations made thereunder as it may think fit.
Section 77. Penalties or confiscation not to interfere with other
punishments.
No penalty imposed or confiscation made under this Act shall prevent
the imposition of any other punishment to which the person affected thereby
is liable under any other law for the time being in force.
Section 78. Power to investigate offences.
Notwithstanding anything contained in the Code of Criminal Procedure,
1973, a police officer not below the rank of Deputy Superintendent of Police
shall investigate any offence under this Act.
Section 79. Network service providers not to be liable in certain cases
For the removal of doubts, it is hereby declared that no person
providing any service as a network service provider shall be liable under this
Act, rules or regulations made thereunder for any third party information or
data made available by him if he proves that the offence or contravention was
committed without his knowledge or that he had exercised all due diligence to
prevent the commission of such offence or contravention.
Section 80. Power of police officer and other officers to enter, search,
Cle.
(1) Notwithstanding anything contained in the Code of Criminal Procedure,
1973, any police officer, not below the rank of a Deputy Superintendent
of Police, or any other officer of the Central Government or a State
Government authorised by the Central Government in this behalf may
enter any public place and search and arrest without warrant any
person found therein who is reasonably suspected or having committed
or of committing or of being about to commit any offence under
this Act.
Explanation. For the purposes of this sub-section, the expression
“public place” includes any public conveyance, any hotel, any shop or any
other place intended for use by, or accessible to the public.
(2) Where any person is arrested under sub-section (1) by an officer other
than a police officer, such officer shall, without unnecessary delay,
take or send the person arrested before a magistrate having jurisdiction
in the case or before the officer-in-charge of a police station.
(3) The provisions of the Code of Criminal Procedure, 1973 shall, subject
to the provisions of this section, apply, so far as may be, in relation
to any entry, search or arrest, made under this section.
Section 81. Act to have overriding effect
The provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in force.
Section 82. Controller, deputy controller and assistant controllers to
be public servants
The presiding officer and other officers and employees of a Cyber
Appellate Tribunal, the controller, the deputy controller and the assistant
controllers shall be deemed to be public servants within the meaning of
Section 21 of the Indian Penal Code.
Section 83. Power to give directions
The Central Government may give directions to any State Government
as to the carrying into execution in the State of any of the provisions of this
Act or of any rule, regulation or order made thereunder.
Section 84. Protection of action taken in good faith
No suit, prosecution or other legal proceeding shall lie against the
Central Government, the State Government, the controller or any person
acting on behalf of him, the presiding officer, adjudicating officers and the
staff of the Cyber Appellate Tribunal for anything which is in good faith done
or intended to be done in pursuance of this Act or any rule, regulation or
order made thereunder.
Section 85. Offences by companies
(1) Where a person committing a contravention of any of the provisions
of this Act or of any rule, direction or order made thereunder is a

company, every person who, at the time the contravention was
committed, was in charge of, and was responsible to, the company for
the conduct of business of the company as well as the company, shall
be guilty of the contravention and shall be liable to be proceeded
against and punished accordingly:
person liable to punishment if he proves that the contravention took place
without his knowledge or that he exercised all due diligence to prevent such
contravention.
(2) Notwithstanding anything contained in sub-section (1), where a
contravention of any of the provisions of this Act or of any rule,
direction or order made thereunder has been committed by a company
and it is proved that the contravention has taken place with the consent
or connivance of, or is attributable to any neglect on the part of, any
director, manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall also be deemed to
be guilty of the contravention and shall be liable to be proceeded
against and punished accordingly.
EXERCISES
Short Questions
Explain hacking.
What is cracking?
What is data diddling?
What is spoofing?
Explain e-mail bombing.
Explain cyber terrorism.
What is morphing?
Explain phreaking.
Explain phishing.
Long Questions
L What are cyber crimes? Explain the most common cyber crimes and also
explain the cyber crimes especially targeted at women.
2. Explain the salient features of the Information Technology Act, 2000.
FURTHER READING
For full version of the Information Technology Act refer to
https://nicca.nic.in/pdf/itact2000.pdf
Chapter 12
Media Law and Women
12.1 INTRODUCTION
Actually, many laws have been passed for the development and empowerment
of women in India. Compared to them, laws related to media coverage
and media representation of women are quite less. The Act related to
representation of women in media in India is Indecent Representation of
Women (prohibition) Act, 1986.
12.2 INDECENT REPRESENTATION OF WOMEN

(Prohibition) ACT, 1986
Section 3. Prohibition of advertisements containing indecent

representation of Women
No person shall publish, or cause to be published, or arrange or take

part in the publication or exhibition of, any advertisement which contains
indecent representation of women in any form.
Section 4. Prohibition of publication or sending by post of books,
pamphlets, etc., containing indecent representation of women
No person shall produce or cause to be produced, sell, let to hire,
distribute, circulate or send by post any book, pamphlet, paper, slide, film,
writing, drawing, painting, photograph, representation or figure which
contains indecent representation of women in any form:
Provided that nothing in this section shall apply to,—
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting,
photograph, representation or figure:
(i) the publication of which is proved to be justified as being for the
public good on the ground that such book, pamphlet, paper, slide,
139
film, writing, drawing, painting, photography, representation or

figure is in the interest of science, literature, art, or learning, or
other objects of general concern; or
(ii) which is kept or used bona fide for religious purpose;
any representation sculptured, engraved, painted or otherwise
represented on or in—
(1) any ancient monument within the meaning of the Ancient
Monument and Archaeological Sites and Remains Act, 1958
(24 of 1958); or
(2) any temple, or on any car used for the conveyance of idols, or
kept or used for any religious purpose;
any film in respect of which the provisions of Part II of the
Cinematograph Act, 1952 (37 of 1952), will be applicable
Section 6. Penalty
Any person who contravenes the provisions of Section 3 or Section 4
shall be punishable on first conviction with imprisonment of either description
for a term which may extend to two years, and with fine which may extend to
two thousand rupees, and in the event of a second or subsequent conviction
with imprisonment for term of not less than six months but which may extend
to five years and also with a fine not less than ten thousand rupees but which
may extend to one lakh rupees.
(1) Where an offence under this Act has been committed by a company,
every person, who, at the time the offence was committed was in-
charge of, and was responsible to, the company for the conduct of the
business of the company, as well as the company, shall be deemed to
be guilty of the offence and shall be liable to be proceeded against
and punished accordingly:
person liable to any punishment, if he proves that the offence was committed
without his knowledge or that he had exercised all due diligence to prevent
the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where any
offence under this Act has been committed by a company and it is
proved that the offence has been committed with the consent or
connivance of, or is attributable to any neglect on the part of, any
director, manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall be proceeded against
and punished accordingly.
Chapter 12 : Media Law and Women * 141
12.2.2 Indecent Representation of Women

(Prohibition) Rules, 1987
Section 3. Manner of seizure of articles
(1) Every seizure made in pursuance of the provisions of sub-section (1)

of Section 5 shall be made in the manner hereinafter provided in these
rules. ‘
(2) The authorized officer seizing any advertisements or articles under
sub-section (1) of Section 5 shall prepare a list of such advertisements
or articles containing such details relating to the description, quality,
quantity, mark, number and other particulars thereof as he may consider
relevant to the identity of such advertisements or articles in any
proceeding under the Act, in the Form annexed to these rules.
(3) The authorized officer shall pack and seal such advertisements or
articles in the manner provided in Rule 4 and shall deliver a copy of
the list so prepared to the person from whom such advertisements or
articles are seized.
(4) The advertisements or articles so seized shall be marked with a
distinguishing number and shall also be signed by the authorized
officer, the person from whom such advertisements or articles have
been seized and two respectable inhabitants of the locality. If it is not
possible to mark any such advertisement or article, the marking may
be done on the packaging or in any other manner which the authorized
officer thinks proper.
Section 4. Manner of packing and dealing with advertisements or
articles seized
(1) The advertisements or articles seized shall be packed in adequately

strong paper, cloth or in any other packing material in such a way that
the advertisements or articles may not be tampered with and the ends
of the paper, cloth or other packing material shall be neatly folded
and affixed by means of gum or other adhesive or stitched in or tied.
(2) The package shall be further secured by means of strong twine or
thread and the twine or thread shall be fastened on the package by
means of sealing wax on which there shall be at least four distinct and
clear impressions of the seal of the authorized officer of which one
shall be on the top of the package, one at the bottom and the other
two at the body of the package and knots of the twine or thread shall
be covered by means of sealing wax bearing the impression of the
seal of the authorized officer.
(3) Where necessary, the authorized officer shall put the advertisements
or articles in a box, a container of a suitable material and size and seal
it in the manner provided in sub-rule (2).
Section 5. Manner of seizing and sealing advertisements or articles in

certain cases
Notwithstanding anything contained in Rules 3 and 4, where the

authorized officer is of the opinion that it is not possible to seize and seal any
advertisement or article in the manner prescribed in Rules 3 and 4 due to the
size or the nature of such advertisement or article, he may take such steps as
he thinks fit for the seizure and sealing of such advertisement or article
without affecting the integrity, utility or saleable value thereof.
12.2.3 Other Regulations to Safeguard Women

The programme code and the advertising code of The Cable Television
Networks (Regulation) Act, 1995 (specified under Cable Network Rules,
1994) also have a separate provision for women.
As per the Programme Code of the Cable Television Networks Rules,
1994, no programme should be carried in the.cable service which denigrates
women through the depiction in any manner of the figure of a woman, her
form or body or any part thereof in such a way as to have the effect of being
indecent, or derogatory to women, or is likely to deprave, corrupt or injure
the public morality or morals.
It also states that the cable operator should strive to carry programmes
in his cable service which project women in a positive, leadership role of
sobriety, moral and character building qualities.
As per the advertisement Code of the Cable Television Networks Rules,
1994, no advertisement should carry which in its depiction of women violates
the constitutional guarantees to all citizens. In particular, no advertisement
shall be permitted which projects a derogatory image of women. Women
must not be portrayed in a manner that emphasizes on women to be passive
and submissive in nature and encourages them to play a subordinate,
secondary role in the family and society. The cable operator shall ensure that
the portrayal of the female form, in the programmes carried in his cable
service is tasteful and aesthetic, and is within the well-established norms of
good taste and decency;
No advertisement shall be permitted which exploits social evils like
dowry or child marriage.
Code for Commercial Advertising in Doordarshan states that no
Advertisement shall be permitted which in its depiction of women violates
the constitutional guarantees to all citizens such as equality of status and
opportunity and dignity of the individual. In particular, no advertisement shall
be permitted which projects a derogatory image of women. Women must not
be portrayed in a manner that emphasises passive, submissive qualities and
encourages them to play a subordinate, secondary role in the family and
society. Advertiser shall ensure that the portrayal of the female form is
. Chapter 12 : Media Law and Women * 143
tasteful and aesthetic, and is within the well-established norms of good taste
and decency.
Press council’s code of ethics

Obscenity and vulgarity to be eschewed: Newspapers shall not display
advertisements which are vulgar or which, through depiction of a woman in
nude or lewd posture, provoke lecherous attention of males as if she herself
was a commercial commodity for sale.
The objective of media law related to women is to make sure that the
rights of the women are preserved. Media laws protect the women’s right by
preventing the media from publishing/broadcasting anything which is against
their rights as well those affecting their privacy. But, ethically speaking, even
in the absence of any law, it is the duty of the media to protect and safeguard
women’s rights.
EXERCISES
Short Questions
1. Explain how does the Doordarshan’s code of ethics deal with women.
2. Explain the Press Council’s Code of Ethics as related to women.
Long Question
1. Expalin the salient features of the Indecent Representation of Women
(Prohibition) Act. What are the common violations of this Act you have
noticed in the Indian media?
FURTHER READING
Chapter 13
Media Law and

Children
13.1 INTRODUCTION
Children possess the tendency to believe anything and everything conveyed to
them impressively and attractively. The children imitating the scenes in
advertisements, actions of super-heroes and characters in their favourite
cartoons and as a result of these encountering danger has been a known
phenomenon in our country. Mass media of any country has the important
responsibility of safeguarding the interests of children who are going to
determine the future of the nation. But, sadly, instead of protecting the
children’s rights, at times media tends to use the children for their own
advantage. To prevent that and to safeguard the children’s well-being, certain
regulations are enforced on media in India. This chapter deals with these
regulations.
13.2 THE CHILDREN ACT, 1960

The Act meant to provide for the care, protection, maintenance, welfare,
training, education and rehabilitation of neglected or delinquent children-
prohibits publication of names, etc., of children involved in any proceeding
under the Act.
Prohibition of publication of names, etc. of children involved in any
proceeding under the Act.
Section 36 (1) No report in any newspaper, magazine or news sheet of
any inquiry regarding a child under this Act shall disclose the name, address
or school or any other particulars calculated to lead to the identification of the
child, nor shall any picture of any such child be published.
Provided that for reasons to be recorded in writing, the authority holding
the inquiry may permit such disclosure, if in its opinion such disclosure is in
the interest of the child.
144
—,———
Chapter 13 : Media Law and Children * 145
(2) Any person contravening the provisions of sub-section (1) shall be

punishable with fine which may extend to one thousand rupees.
13.3. The Young Persons (Harmful Publications)

Act, 1956
It is an Act to prevent the dissemination of certain publications harmful to
young persons.
“Harmful publication” means any book, magazine, pamphlet, leaflet,
newspaper or other like publication which consists of stories told with the aid
of pictures or without the aid of pictures or wholly in pictures, being stories
portraying wholly or mainly—
(i) the commission of offences; or
(ii) acts of violence or cruelty; or
(iii) incidents of a repulsive or horrible nature; in such a way that the
publication as a whole would tend to corrupt a young person into
whose hands it might fall, whether by inciting or encouraging him
to commit offences or acts of violence or cruelty or in any other
manner whatsoever.
“Young person” means a person under the age of twenty years.
Section 3. Penalty for sale, etc., of harmful publications.

(1) If a person—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner
puts into circulation, any harmful publication; or
(b) for purposes of sale, hire, distribution, public exhibition or
circulation, prints, makes or produces or has in his possession
any harmful publication; or
(c) advertises or makes known by any means whatsoever that any
harmful publication can be procured from or through any person,
he shall be punishable with imprisonment which may extend to
six months, or with fine; or with both.
(2) Onaconviction under this section, the Court may order the destruction
of all the copies of the harmful publication in respect of which the
conviction was had and which are in the custody of the Court or
remain in the possession or power of the person convicted.
Section 6. Power to seize and destroy harmful publications
(1) Any police officer or any other officer empowered in this behalf by
the State Government may seize any harmful publication.
(2) Any Magistrate of the first class may, by warrant, authorize any
police officer not below the rank of sub-inspector to enter and search
any place where any stock of harmful publications may be or may be
reasonably suspected to be, and such police officer may seize any
publication found in such place if in his opinion it is a harmful
publication.
(3) Any publication seized under sub-section (1) shall be produced, as
soon as may be, before a Magistrate of the first class, and any
publication seized under sub-section (2) shall be produced, as soon as
may be, before the Court which issued the warrant.
(4) If in the opinion of the Magistrate or Court such publication is a
harmful publication, the Magistrate or Court may cause it to be
destroyed, but if in the opinion of the Magistrate or Court, such
publication is not a harmful publication, the Magistrate or Court shall
dispose of it in the manner provided in Sections 523, 524 and 525 of
the Code of Criminal Procedure, 1898 (5 of 1898).
13.4 OTHER REGULATIONS

The code for commercial Advertising in AIR and DD state that advertise-
ments should not endanger the safety of children.
The advertising code of both AIR and DD have the section on
‘Advertising and children’. The AIR Code states that:
(1) No advertising for a product or service shall be accepted if it suggests
in any way that unless the children themselves buy or encourage other
people to buy the products or services, they will be failing in their
duty or lacking in loyalty to any person or organization.
(2 No advertisement shall be accepted which leads children to believe
—
that if they do not own or use the product advertised they will be
inferior in some way to other children or that they are liable to the
condemned or ridiculed for not owning or using it.
In addition to the above, the code for advertising in DD states:
(1) Any advertisement which endangers the safety of the children or

creates in them any interest in unhealthy practices, shall not be
accepted, e.g. playing in the middle of the road, leaning dangerously
out of a window, playing with match boxes and other goods which
can cause accidents.
(2 wn Children shall not be shown begging or in undignified or indecent
manner.
While Doordarshan fairly follows the programme code, the same cannot
be said about its advertising code, especially the code relating to the safety of
children. The advertisement code strictly states that no advertisement should
endanger the safety of children. Now it is common knowledge that the
advertisement for a soft drink ended the life of an eleven year old boy, in the
mid 1990s. The advertisement showcased a man jumping from a multi-storied
building and the boy tried to emulate the same and in the process lost his
precious life itself. This advertisement was carried by the Doordarshan as well
as the cable channels. Even after resulting in the death of an innocent boy, the
channels continued telecasting the advertisement with a statutory warning that
‘it is dangerous to repeat the same’. And the warning lasted not more than a
few seconds.
The ‘advice’ by the advertising code that the children should not be
made to feel inferior to other children just because they do not use a
particular product is also not taken care of. In the United States, way back in
1977 a group called Action for Children’s Television (ACT) filed suit against
General foods for commercials thought to be “fraudulent, misleading and
deceptive”. It was because the television spots of General Foods implied that
kids who ate the candied cereals were “stronger, more energetic, happier,
more invulnerable and braver’. But in India, even now, the advertisements
claiming that children get superior mentally and physically by drinking a
particular health drink and other children who do not consume that health
drink cannot compete with those using it are broadcast by the DD itself.
If that has been the ‘trend’ of advertisements, programmes are not much
lagging behind. Dance programmes with film numbers and even some of the
serials project women in such a way that they injure the morality of the
public in general and youth in particular. If that has been the problem with
all other programmes, the news bullettines—which are supposed to increase
the general awareness of the younger generation—are not better either. In the
case of tragedies—let it be a fire accident or road mishap or any other
event—the footages shown by the television channels are so frightening for
the elders themselves. The sort of psychological effect these footages leave on
children is extremely severe. A case in point is the tsunami tragedy that struck
some parts of India on 26th December, 2004. Psychologists who have gone to
the tsunami affected areas were taken aback by the children of these regions.
The tsunami affected children have lost everything including their parents and
siblings. But still, they wanted to study well and come up in life.
On the contrary, when these psychologists returned back to Chennai,
their help was sought by many leading schools in Chennai. The children
belonging to these schools were affluent and were least affected by tsunami.
They were so influenced by the tsunami footages they have seen on television
that they were afraid that they too would be struck by tsunami waves. So
much so that their schools were forced to seek the help of psychologists to
clear the fear of their wards. This incident aptly demonstrates that ‘reel’
images produce much more impact on children than their ‘real’ images.
Programme Code of The Cable Television Networks (Regulation)
Act, 1995 (specified under Cable Network Rules, 1994 ) states that no
programme should be carried in the cable service which denigrates children.
An important feature of the Cable Television Networks (Regulation) Act
is that it has certain special provisions to safeguard children from the
unwanted images on television. It states that “Care should be taken to ensure

that programmes meant for children do not contain any bad language or
explicit scenes of violence’ and ‘Programmes unsuitable for children must not
be carried in the cable service at times when the largest numbers of children
are viewing’.
Still, these provisions for children have their own loopholes, too. While
it is a must that children programmes should not contain any bad language or
explicit scenes of violence, the fact that seems to have been forgotten is that
children watch all kinds of programmes and do not stick on programmes for
children alone. In such a state of affairs, in all programmes—unless and
otherwise it is an adults—only programme—care should be taken that the
scenes are not harmful to children who constitute a significant percentage of
the audience.
It is extremely essential that ‘Programmes unsuitable for children must
not be carried in the cable service at times when the largest numbers of
children are viewing’. It is quite difficult to be put into practice, as many
foreign channels are available in India. Their programmes for adults do not
match Indian timings and some of the programmes are telecast when Indian
children are very much awake and watching the television. Also, the Act
sounds as if it is not a big harm if smaller numbers of children view
programmes unsuitable for children! Whether the number is small or large,
the harmful effect such programmes produce on children is the same.
Advertising Code of The Cable Television Networks (Regulation)
Act, 1995 (specified under Cable Network Rules, 1994) states that no
advertisement which endangers the safety of children or creates in them any
interest in unhealthy practices or shows them begging or in an undignified or
indecent manner shall be carried in the cable service.
13.5 GUIDELINES (ASCI)

As per Advertising Standards Council of India’s (ASCI) Self-Regulation
Guidelines on Advertising of foods and beverages directed at children under
13 years of age, its Preamble states that children’s choice of diet (food and
beverages) and level of physical activity, can impact their general health and
well being. It can have a positive influence by encouraging a healthy, well
balanced diet, sound eating habits and appropriate physical activity. Caution
and care therefore should be observed in advertising of foods and beverages,
especially ones containing relatively high fat, sugar and salt.
(1) Advertisements should not mislead consumers to believe that
consumption of product advertised will result directly in personal
changes in intelligence, physical ability or exceptional recognition.
Such claims if made in advertisements should be supported with
adequate scientific substantiation. All nutritional and health benefit
claims in foods and beverage advertisements are required to be

substantiated scientifically.
(2) Unless a food product has been nutritionally designed as a meal
replacement, it should not be portrayed as such.
(3) Messages in advertising to children will portray accurately the products,
in a way that is in keeping with their ability to understand.
(4) Advertisements should not show overconsumption of foods and
beverages. It should reflect moderation in consumption and portion
sizes appropriate to occasion or situation. Advertising of promotional
offers on food and beverage products should also not show excessive
consumption.
(5) Advertisements should not undermine the role of parental care and
guidance in ensuring proper food choices are made by children.
(6) Visual presentation of foods and beverages in advertisement should
not mislead the consumers of the material characteristics of the products
advertised.
It is to reduce the negative effects and increase the positive effects of
media on children, the law concerning media in India related to children
should be made more severe. First of all, the media should have its own set
of ethics related to the younger generation. In addition, the government
should increase the regulations governing media and children and make the
existing regulations even more severe. And if the private FM stations or
television channels are not abiding by the law, extreme steps like cancelling
their license and completely banning them should be taken by the
government. Because, the existence of law itself loses its meaning if it is not
catering to the welfare of the children and youth of the nation.
EXERCISES
Short Questions
1 What is the objective of Children Act 1960?
2. What are the guidelines for advertisements framed by Doordarshan and
AIR for safeguarding children?
a Explain the guidelines related to children in the ASCI’s regulations.
Long Question
1. What are the legal and ethical provisions existing in India to regulate the
media content for safeguarding the children? Do you think those provisions
are sufficient? Give reasons.
FURTHER READING
Chapter 14
Broadcasting
14.1 INTRODUCTION
Broadcasting is dissemination of information through audio or video.
Broadcasting—comprising both radio and television—constitutes a very large
part of the mass media. In India, radio broadcasting (All India Radio) started
in the year 1936 and television broadcasting (Doordarshan) was introduced in
the year 1959. For a long time, broadcasting in India was under the Control
of Government till Prasar Bharati (Broadcast Corporation of India) Act, 1990
was framed to provide autonomy to All India Radio and Doordarshan. A
change in the policy of the Indian Government in the early 1990s resulted in
mushrooming of private television channels and Cable Television Network
(Regulation) Act, 1995 was framed to regulate them.
14.2 THE PRASAR BHARATI (Broadcasting

Corporation of India) ACT, 1990
It is an Act to provide for the establishment of a Broadcasting Corporation
for India, to be known as Prasar Bharati, to define its composition, functions
and powers and to provide for matters connected therewith or incidental
thereto.
Section 3. Establishment and composition of corporation
(1) With effect from such date as the Central Government may by
notification appoint in this behalf, there shall be established for the
purposes of this Act a Corporation, to be known as the Prasar Bharati
(Broadcasting Corporation, of India).
(2 The Corporation shall be a body corporate by the name aforesaid,
No”
having perpetual succession and a common seal with power to acquire,

hold and dispose of property, both movable and immovable, and to
contract, and shall by the said name sue and be sued.
150
° Chapter 14 : Broadcasting * 151
(3) The headquarters of the Corporation shall be at New Delhi and the
Corporation may establish offices, kendras or stations at other places
in India and, with the previous approval of the Central Government,
outside India.
(4) The general superintendence, direction and management of the affairs
of the Corporation shall vest in the Prasar Bharati Board which may
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation under this Act.
(5) The Board shall consist of—
(a) a chairman
(b) one executive member
(c) one member (finance)
(d) one member (personnel)
(e) Six part-time members
(f) Director-General (Akashvani), ex-officio
(g) Director-General (Doordarshan), ex-officio
(h) one representative of the Union Ministry of Information and
Broadcasting, to be nominated by that ministry; and
(i) two representatives of the employees of the Corporation, of whom
one shall be elected by the engineering staff from amongst
themselves and one shall be elected by the other employees from
amongst themselves.
Section 12. Functions and powers of corporation

(1) Subject to the provisions of this Act, it shall be the primary duty of
the Corporation to organize and conduct public broadcasting services
to inform, educate and entertain the public and to ensure a balanced
development of broadcasting on radio and television.
(2) The Corporation shall, in the discharge of its functions, be guided by
the following objectives, namely:
(a) upholding the unity and integrity of the country and the values
enshrined in the Constitution;
(b) safeguarding the citizen’s right to be informed freely, truthfully
and objectively on all matters of public interest, national or
international, and presenting a fair and balanced flow of
information including contrasting views without advocating any
opinion or ideology of its own;
(c) paying special attention to the fields of education and spread of
literacy, agriculture, rural development, environment, health and
family welfare and science and technology;
(d) providing adequate coverage to the diverse cultures and languages
of the various regions of the country by broadcasting appropriate
programmes;
(e) providing adequate coverage to sports and games so as to

encourage healthy competition and the spirit of sportsmanship;
(f) providing appropriate programmes keeping in view the special
needs of the youth;
(g) informing and stimulating the national consciousness in regard to
the status and problems of women and paying special attention to
the upliftment of women;
(h) promoting social justice and combating exploitation, inequality
and such evils as untouchability and advancing the welfare of the
weaker sections of the society;
(i) safeguarding the rights of the working classes and advancing
their welfare;
(j) serving the rural and weaker sections of the people and those
residing in border regions, backward or remote areas;
(k) providing suitable programmes keeping in view the special needs
of the minorities and tribal communities;
(I) taking special steps to protect the interests of children, the blind,
the aged, the handicapped and other vulnerable sections of the
people;
(m) promoting national integration by broadcasting in a manner. that
facilitates communication in the languages in India; and facilitating
the distribution of regional broadcasting services in every State in
the languages of that State;
(n) providing comprehensive broadcast coverage through the choice
of appropriate technology and the best utilization of the broadcast
frequencies available and ensuring high quality reception;
(0) promoting research and development activities in order to ensure
that radio and television broadcast technology are constantly
updated; and
(p) expanding broadcasting facilities by establishing additional
channels of transmission at various levels.
(3) In particular, and without prejudice to the generality of the foregoing
provisions, the Corporation may take such steps as it thinks fit—
(a) to ensure that broadcasting is conducted as a public service to
provide and produce programmes;
(b) to establish a system for the gathering of news for radio and
television;
(c) to negotiate for purchase of, or otherwise acquire, programmes
and rights or privileges in respect of sports and other events,
films, serials, occasions, meetings, functions or incidents of public
interest, for broadcasting and to establish procedures for the
allocation of such programmes, rights or privileges to the services;
(d) to establish and maintain a library or libraries of radio, television
and other materials;
Chapter 14 : Broadcasting * 153
(e) to conduct or commission, from time to time, programmes,

audience research, market or technical service, which may be
released to such persons and in such manner and subject to such
terms and conditions as the Corporation may think fit;
(f) to provide such other services as may be specified by regulations.
(4) Nothing in sub-sections (2) and (3) shall prevent the Corporation
from managing on behalf of the Central Government and in accordance
with such terms and conditions as may be specified by that Government
the broadcasting of external services and monitoring of broadcasts
made by organizations outside India on the basis of arrangements
made for reimbursement of expenses by the Central Government.
(5) For the purposes of ensuring that adequate time is made available for
the promotion of the objectives set out in this section, the Central
Government shall have the power to determine the maximum limit of
broadcast time in respect of the advertisement.
(6) The Corporation shall be subject to no civil liability on the ground
merely that it failed to comply with any of the provisions of this
section.
(7) The Corporation shall have power to determine and levy fees and
other service charges for or in respect of the advertisements and such
programmes as may be specified by regulations:
Provided that the fees and other service charges levied and collected
under this sub-section shall not exceed such limits as may be determined by
the Central Government, from time to time.
Section 13. Parliamentary Committee
(1) There shall be constituted a Committee consisting of twenty-two

Members of Parliament, of whom fifteen from the House of the People
to be elected by the Members thereof and seven from the Council of
States to be elected by the Members thereof in accordance with the
system of proportional representation by means of the single
transferable vote, to oversee that the Corporation discharges its
functions in accordance with the provision of this Act and, in particular,
the objectives set out in Section 12 and submit a report thereon to
Parliament.
(2) The committee shall function in accordance with such rules as may
be made by the Speaker of the House of the People.
Section 14. Establishment of Broadcasting Council, term of office and
removal, etc., of members thereof
(1) There shall be established, by notification, as soon as may be after the
appointed day, a Council, to be known as the Broadcasting Council,
to receive and consider complaints referred to in Section 15 and to
advise the Corporation in the discharge of its functions in accordance

with the objectives set out in Section 12.
(2) The Broadcasting Council shall consist of—
(i) a President and ten other members to be appointed by the
President of India from amongst persons of eminence in public
life;
(ii) four Members of Parliament, of whom two from the House of
the People to be nominated by the Speaker thereof and two
from the Council of States to be nominated by the Chairman
thereof.
Even though autonomy has been granted to the Prasar Bharati
Corporation the Central Government has also been provided powers to
control it.
Section 23. Power of Central Government to give directions
(1) The Central Government may, from time to time as and when occasion
arises, issue to the Corporation such directions as it may think necessary
in the interests of the sovereignty, unity and integrity of India or the
security of the State or preservation of public order requiring it not to
make a broadcast on a matter specified in the direction or to make a
broadcast on any matter of public importance specified in the direction.
(2) Where the Corporation makes a broadcast in pursuance of the direction
issued under sub-section (1), the fact that such broadcast has been
made in pursuance of such direction may also be announced along
with such broadcast, if the Corporation so desires.
(3) A copy of every direction issued under sub-section (1) shall be laid
before each House of Parliament.
Section 24. Power of Central Government to obtain Information
The Central Government may require the Corporation to furnish such
information as that Government may consider necessary.
Section 25. Report to Parliament in certain matters and recommen-
dations as to action against the Board
(1) Where the Board persistently makes default in complying with any
directions issued under Section 23 or fails to supply the information
required under Section 24, the Central Government may prepare a
report thereof and lay it before each House of Parliament for any
recommendation thereof as to any action (including supersession of
the Board) which may be taken against the Board.
(2) On the recommendation of the Parliament, the President may by
notification supersede the Board for such period not exceeding six
months, as may be specified in the notification:
*
Provided that before issuing the notification under this sub-section, the
President shall give a reasonable opportunity to the Board to show cause as to
why it should not be superseded and shall consider the explanations and
objections, if any, of the Board.
Section 33. Power to make regulations
(1) the Corporation may, by notification, make regulations not inconsistent
with this Act and the rules made thereunder for enabling it to perform
its functions under this Act.
Section 34. Rules and regulations to be laid before Parliament
Every rule and every regulation made under this Act shall be laid as
soon as may be after it is made, before each House of Parliament, while it is
in session for a total period of thirty days which may be comprised of in one
session or in two or more successive sessions, and if, before the expiry of
the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the rule or
regulation, or both Houses agree that the rule or regulation should not be
made, the rule or regulation shall thereafter have effect only in such modified
form or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of
anything previously done under that rule or regulation.
Section 35. Power to remove difficulties
If any difficulty arises in giving effect to provisions of this Act, the
Central Government may, by order, published in the Official Gazette, make
such provisions, not inconsistent with the provisions of this Act, as it may
deem necessary, for the removal of the difficulty:
Provided that no such order shall be made after the expiry of a period of
three years from the appointed day.
14.3. THE CABLE TELEVISION NETWORKS

(Regulation) ACT, 1995
It is an Act to regulate the operation of cable television networks in the
country and for matters connectec therewith or incidental thereto.
Regulation of cable television network

Section 3. Cable television network not to be operated except after
registration
No person shall operate a cable television network unless he is
registered as a cable operator under this Act:
156 * = Media Law and Ethics
Section 4. Registration as cable operator
(1) Any person who is operating or is desirous of operating a cable

television network may apply for registration as a cable operator to
the registering authority.
Section 4A. Transmission of programmes through addressable system,
etc.
(1) Where the Central Government is satisfied that it is necessary in the

public interest to do so, it may, by notification in the official gazette,
make it obligatory for every cable operator to transmit or retransmit
programme of any pay channel through an addressable system with
effect from such date as may be specified in the notification and
different dates may be specified for different states, cities, towns or
areas, as the case may be (‘addressable system’ means an electronic
device or more than one electronic devices put in an integrated system
through which signals of cable television network can be sent in
encrypted or unencrypted form, which can be decoded by the device
or devices at the premises of the subscriber within the limits of
authorization made, on the choice and request of such subscriber, by
the cable operator to the subscriber).
(2) If the Central Government is satisfied that it is necessary in the public
interest so to do, it may, by notification in the official gazette, specify
one or more free-to-air channels to be included in the package of
channels forming basic service tier and any or more such channels
may be specified, in the notification, genre-wise for providing a
programme mix of entertainment, information, education and such
other programmes.
(3) The Central Government may specify in the notification referred to in
sub-section (2), the number of free-to-air channels to be included in
the package of channels forming basic service tier for the purposes of
that sub-section and different numbers may be specified for different
States, cities, towns or areas, as the case may be.
(4) If the Central Government is satisfied that it is necessary in the public
interest so to do, it may, by notification in the official gazette, specify
the maximum amount which a cable operator may demand from the
subscriber for receiving the programmes transmitted in the basic service
tier provided by such cable operator.
Section 5. Programme code
No person shall transmit or re-transmit through a cable service any
programme unless such programme is in conformity with the prescribed
programme code:
Section 6. Advertisement code
No person shall transmit or re-transmit through a cable service any

advertisement unless such advertisement is in conformity with the prescribed
advertisement code.
Section 8. Compulsory transmission of doordarshan channels
(1) Every cable operator shall, from the commencement of the Cable
Television Networks (Regulation) Amendment Act, 2000, re-transmit
at least two Doordarshan terrestrial channels and one regional language
channel of a State in the prime band, in satellite mode on frequencies
other than those carrying terrestrial frequencies.
(2) The Doordarshan channels referred to in sub-section (1) shall be re-
transmitted without any deletion or alteration of any programme
transmitted on such channels.
Seizure and confiscation of certain equipment

Section 11. Power to seize equipment used for operating the cable
television network
[(1) If any authorized officer has reason to believe that the provisions of
Section 3, [4A], 5, 6 or 8 have been or are being contravened by any cable
operator, he may seize the equipment being used by such cable operator for
operating the cable television network.
Section 12. Confiscation
The equipment seized under sub-section (1) of Section 11 shall be liable
to confiscation unless the cable operator from whom the equipment has been
seized registers himself as a cable operator under Section 4 within a period of
thirty days from the date of seizure of the said equipment.
Section 13. Seizure or confiscation of equipment not to interfere with
other punishment
No seizure or confiscation of equipment referred to in Section 11 or
Section 12 shall prevent the infliction of any punishment to which the person
affected thereby is liable under the provisions of this Act.
Offences and penalties

Section 16. Punishment for contravention of provisions of this Act
[1] Whoever contravenes any of the provisions of this Act shall be
punishable,—
(a) for the first offence, with imprisonment for a term which may
extend to two years or with fine which may extend to one thousand
rupees or with both;
(b) for every subsequent offence, with imprisonment for a term which
may extend to five years and with fine which may extend to five
thousand rupees.
(1) Where an offence under this Act has been committed by a company,
every person who, at the time the offence was committed, was in
charge of, and was responsible to, the company for the conduct of the
business of the company, as well as the company, shall be deemed to
be guilty of the offence and shall be liable to be proceeded against
and punished accordingly:
person liable to any punishment, if he proves that the offence was committed
without his knowledge or that he had exercised all due diligence to prevent
the commission of such offence.
Section 18. Cognizance of offences
No court shall take cognizance of any offence punishable under this Act
except upon a complaint in writing made by any authorized officer.
Section 19. Power to prohibit transmission of certain programmes in
public interest
Where [any authorized officer], thinks it necessary or expedient so to do

in the public interest, he may, by order, prohibit any cable operator from
transmitting or re-transmitting [any programme or channel if, it is not in
conformity with the prescribed programme code referred to in Section 5 and
advertisement code referred to in Section 6 or if it is], likely to promote, on
grounds of religion, race, language, caste or community or any other ground
whatsoever, disharmony or feelings of enmity, hatred or ill-will between
different religious, racial, linguistic or regional groups or castes or
communities or which is likely to disturb the public tranquillity.
Section 20. Power to prohibit operation of cable television network in
public interest
[1] Where the Central Government thinks it necessary or expedient so to

do in public interest, it may prohibit the operation of any cable
television network in such areas as it may, by notification in the
Official Gazette, specify in this behalf.
Section 21. Application of other laws not barred

The provisions of this Act shall be in addition to, and not in derogation
of, the Drugs and Cosmetics Act, 1940, (23 of 1940) the Pharmacy Act,
1948, (8 of 1948) the Emblems and Names (Prevention of Improper Use) Act,
1950, (12 of 1950) the Drugs (Control) Act, 1950, (12 of 1950) the
Cinematograph Act, 1952, (37 of 1952) the Drugs and Magic Remedies
(Objectionable Advertisements) Act, 1954, (21 of 1954) the Prevention of
Food Adulteration Act, 1954, (37 of 1954) the Prize Competitions Act, 1955,
(42 of 1955) the Copyright Act, 1957, (14 of 1957) the Trade and
Merchandise Marks Act, 1958, (43 of 1958) the Indecent Representation of
Women (Prohibition) Act, 1986 (60 of 1986) and the Consumer Protection
Act, 1986 (68 of 1986).
Section 22. Power to make rules
(1) The Central Government may, by notification in the official gazette,

make rules to carry out the provisions of this Act.
14.4 THE CABLE TELEVISION NETWORKS

RULES, 1994
In exercise of the powers conferred by sub-section (1) of Section 22 of
the Cable Television Networks (Regulation) Ordinance, 1994 (9 of 1994) the
Central Government has made the Cable Television Network Rules, 1994.
The guidelines related to the following are provided in those rules:
Application for registration as a cable television network,
Examination of applications,
Registration,
Programme code,
Advertising code,
Register to be maintained by the cable operator,
Submission of report to the Central Government,
Declaration to channels as ‘free-to-air’ and ‘pay’,
Responsibility of cable operators,
Provisions for set top boxes and the manner of making provisions for
rent, security deposit, etc., for set top boxes.
The programme code and advertising code are given as follows:
Section 6. Programme code

(1) No programme should be carried in the cable service which—
(a) offends against good taste or decency;
(b) contains criticism of friendly countries;
(c) contains attack on religions or communities or visuals or words
contemptuous of religious groups or which promote communal
attitudes;
(d) contains anything obscene, defamatory, deliberate, false and
suggestive innuendos and half truths;
(e) is likely to encourage or incite violence or contains anything
against maintenance of law and order or which promote anti-

national attitudes.
(f) contains anything amounting to contempt of court.
(g) contains aspersions against the integrity of the President and
Judiciary; :
(h) contains anything affecting the integrity of the Nation;
(i) criticises, maligns or slanders any individual in person or
certain groups, segments of social, public and moral life of the
country;
(j) encourages supersition or blind belief;
(k) denigrates women through the depiction in any manner of the
figure of a woman, her form or body or any part thereof in such
a way as to have the effect of being indecent, or derogatory
to women, or is likely to deprave, corrupt or injure the public
morality or morals;
(1) denigrates children;
(m) contains visuals or words which reflect a slandering, ironical
and snobbish attitude in the portrayal of certain ethnic,
linguistic and regional groups;
(n) contravenes the provisions of the Cinematograph Act, 1952
(37 of 1952);
(0) is not suitable for unrestricted public exhibition.
(2) The cable operator should strive to carry programmes in his cable
service which project women in a positive, leadership role of sobriety,
moral and character building qualities.
(3) No cable operator shall carry or include in his cable service any
programme in respect of which copyright subsists under the Copyright
Act, 1957 (14 of 1957) unless he has been granted a license by
owners of copyright under that Act in respect of such programme.
(4) Care should be taken to ensure that programmes meant for children
do not contain any bad language or explicit scenes of violence.
(5) Programmes unsuitable for children must not be carried in the cable
service at times when the largest number of children are viewing.
Section 7. Advertising code
(1) Advertising carried in the cable service shall be so designed as to

conform to the laws of the country and should not offend morality,
decency and religious susceptibilities of the subscribers.
(2) No advertisement shall be permitted which—
(i) derides any race, caste, colour, creed and nationality;
shall contain references which are likely to lead the public to infer that the
product advertised or any of its ingredients has some special or miraculous or
super-natural property or quality, which is difficult of being proved.
(ii) is against any provision of the Constitution of India;

(ili) tends to incite people to crime, cause disorder or violence or
breach of law or glorifies violence or obscenity in any way;
(iv) presents criminality as desirable;
(v) exploits the national emblem, or any part of the Constitution
or the person or personality of a national leader or a State
dignitary;
(vi) in its depiction of women violates the Constitutional guarantees
to all citizens. In particular, no advertisement shall be permitted
which projects a derogatory image of women. Women must not
be portrayed in a manner that emphasises passive, submissive
qualitites and encourages them to play a subordinate, secondary
role in the family and society. The cable operator shall ensure
that the portrayal of the female form, in the programmes carried
in his cable service is tasteful and aesthetic, and is within the
well-established norms of good taste and decency;
(vii) exploits social evils like dowry, child marriage;
(viii) promotes directly or indirectly production, sale or consumption
of.——
(a) cigarettes, tobacco products, wine, alcohol, liquor or other
intoxicants;
(b) infant milk substitutes, feeding bottle or infant foods.
(3) No advertisement shall be permitted the objects whereof are wholly
or mainly of a religious or political nature; advertisements must not
be directed towards any religious or political end.
(A) No advertisement shall contain reference which hurt religious
sentiments.
(4) The goods or services advertised shall not suffer from any defect or
deficiency as mentioned in the Consumer Protection Act, 1986.
(5) No advertisement shall contain references which are likely to lead
the public to infer that the product advertised or any of its
ingredients has some special or miraculous or super-natural property
or quality, which is difficult of being proved
(6) The picture and the audible matter of the advertisement shall not be
excessively ‘loud’.
(7) No advertisement which endangers the safety of children or creates
in them any interest in unhealthy practices or shows them begging
or in an undignified or indecent manner shall be carried in the cable
service.
(8) Indecent, vulgar, suggestive, repulsive or offensive themes or
treatment shall be avoided in all advertisements.
(9) No advertisement which violates the standards of practice for
advertising agencies as approved by the Advertising Agencies
Association of India, Bombay, from time to time shall be carried in

the cable service.
(10) All advertisements should be clearly distinguishable from the
programme and should not in any manner interfere with the pro-
gramme, viz., use of lower part of screen to carry captions, static or
moving alongside the programme.
14.5 BROADCASTING SERVICES REGULATION

BILL, 2006
The objectives of the bill are as follows:
To promote, facilitate and develop in an orderly manner the carriage and
content of broadcasting,
To provide for regulation of broadcasting services in India for offering
a variety of entertainment, news, views and information in a fair, objective
and competitive manner and to provide for regulation of content for public
viewing and matters connected therewith or incidental thereto.
To provide for the establishment of an independent authority to be
known as the Broadcast Regulatory Authority of India for the purpose of
regulating and facilitating development of broadcasting services in India.
Whereas airwaves are public property and it is felt necessary to regulate
the use of such airwaves in national and public interest, particularly with a
view to ensuring proper dissemination of content and in the widest possible
manner;
Whereas Government has issued guidelines from time to time, with the
approval of the Union Cabinet, for regulating the Broadcasting Services and
it is felt necessary to give a statutory effect to these guidelines with retros-
pective effect.
EXERCISES
Short Questions
1. What is Broadcasting Act?
2. Explain the responsibility of Prasar Bharati.
Long Questions
1. Describe in detail the salient features of Broadcasting Act.
2. Explain the Cable Television Networks (Regulation) Act, 1995.
3. What are the objectives of Broadcasting Services Regulation Bill, 2006.
Chapter 15
Film Media
15.1 INTRODUCTION
The important regulation related to film media in India is Cinematograph Act,
1952. The others include The Cinematograph (Certification) Rules, 1983.
Those related to Cine Workers are The Cine-Workers and Cinema Theatre
Workers (Regulation of Employment) Rules, 1984, The Cine-Workers
Welfare Cess Act, 1981, The Cine-Workers Welfare Cess Rules, 1984, The
Cine-Workers Welfare Fund Act, 1981 and The Cine-Workers Welfare Fund
Rules, 1984.
15.2 CINEMATOGRAPH ACT, 1952

The salient features of the Act are as follows:
Section 3. Board of Film Censors
(1) For the purpose of sanctioning films for public exhibition, the Central
Government shall, by notification in the official gazette, constitute a
Board to be called the Board of Film Certification having not less
than twelve and not more than twenty five other members.
Section 4. Examination of films and SA. Certification of films
Any person desiring to exhibit any film shall in the prescribed manner
make an application to the Board for a certificate. The Board may, after
examining either;
A. Sanction the film for unrestricted public exhibition (in which case
certificate will be U).
B. If the board is of the opinion that whether children below the age
of twelve years should watch the film should be considered by their parents,
the Board may sanction the film/for unrestricted public exhibition with an
endorsement to that effect (certificate UA).
C. Sanction the film for public exhibition restricted to adults
(certificate A).
163
164 Zz Media Law and Ethics
D. Sanction the film for public exhibition restricted to members of any

profession or any class of persons, depending upon the nature, content and
theme of the film (certificate S).
E. Direct the applicant to carry out certain excisions or modifications
in the film before sanctioning the film for public exhibition under any of the
foregoing clauses; (or)
F. Refuse to sanction the film for public exhibition. (The
Cinematograph Bill 2010 proposes to replace ‘UA’ certificate by the
following two certificates: ‘12+’ certificate if the board is of the opinion that
the film is suitable for viewing by persons who have completed twelve yea:s
of age and ‘15+’ certificate if the film is suitable for viewing by persons who
have completed fifteen years of age.)
Section 5. Advisory panels
(1) For the purpose of enabling the Board to efficiently discharge its
functions under this Act, the Central Government may establish
advisory panels at such regional centres as it thinks fit. It shall consist
of such number of persons, who in the opinion of the Central Govern-
ment are qualified to judge the effect of the films on the public.
(2) At each regional centre there shall be as many regional officers as the
Central Government may think fit to appoint and rules made in this
behalf may provide for the association of regional Shean in the
examination of films.
(3) The Board may consult in such manner as may be prescribed any
advisory panel in respect of any film for which an application for a
certificate has been made.
(4) It shall be the duty of every such advisory panel to examine the film
and to ma: such recommendations to the Board as it thinks fit.
(5) The members of the advisory panel shall not be entitled to any salary
but shall receive such fees or allowances as may be prescribed.
Section 5B. Principles for guidance in certifying films
(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 offence.
(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.
Section 5C. Appeals
(1) Any person applying for a certificate in respect of a film who is
aggrieved by any order of the Board,—
Chapter 15 : Film Media * 165
(a) Refusing to grant a certificate; or

(b) Granting only an “A” certificate; or
(c) Granting only a “S” certificate; or
(d) Granting only a “UA” certificate; or
(e) Directing the applicant to carry out any excisions or modifications,
may, within thirty days from the date of such order, prefer an appeal
to the Tribunal:
Provided that the Tribunal may, if it is satisfied that the appellant was
prevented by sufficient cause from filing the appeal within the aforesaid
period of thirty days, allow such appeal to be admitted within a further period
of thirty days.
(2) Every appeal under this section shall be made by a petition in writing
and shall be accompanied by a brief statement of the reasons for the
order appealed against where such statement has been furnished to
the appellant and by such fees, not exceeding rupees one thousand, as
may be prescribed.
Section 5D. Constitution of Appellate Tribunal
(1) For the purpose of hearing appeals against any order of the Board, the
Central Government shall, by notification in the Official Gazette,
constitute an Appellate Tribunal whose head office shall be at New
Delhi or at such other place as the Central Government may, by
notification in the Official Gazette, specify.
The Tribunal shall consist of a Chairman and not more than four other
members appointed by the Central Government. The Chairman of the
Tribunal should be a retired Judge of a High Court, or a person who is
qualified to be a Judge of a High Court. The Central Government may
appoint such persons who, in its opinion, are qualified to judge the effect of
films on the public, to be members of the Tribunal.
The Tribunal may, after making such inquiry into the matter as it
considers necessary, and after giving the appellant and the Board an
opportunity of being heard in the matter, make such order in relation to a film
as it thinks fit and the Board shall dispose of the matter in conformity with
such order.
Section 5E. Suspension and revocation of certificate
(1) Notwithstanding anything contained in sub-section (2) of Section 6,
the Central Government may, by notification in the Official Gazette,
suspend a certificate granted under this Part, for such period as it
thinks fit or may revoke such certificate if it is satisfied that—
(i) The film in respect of which the certificate was granted, was
being exhibited in a form other than the one in which it was
certified; or
(ii) The film or any part thereof it being exhibited in contravention

of the provisions of this part rules made there under.
No action under this section shall be taken except after giving an
opportunity to the person concerned for representing his views in the matter.
During the period in which a certificate remains suspended under this
section, the film shall be deemed to be an uncertified film.
Section 6. Revisional powers of the Central Government
(1) Notwithstanding anything contained in this Part, the Central
Government may call for the record of any proceeding in relation to
any film which is pending before, or has been decided by the Board
or, as the case may be, decided by the Tribunal (but not including
any proceeding in respect of any matter which is pending before the
Tribunal)] and after such inquiry into the matter as it considers
necessary, make such order in relation thereto as it thinks fit, and the
Board shall dispose of the matter.in conformity with such order.
Provided that no such order shall be made prejudicially affecting any
person applying for a certificate or to whom a certificate has been granted, as
the case may be, except after giving him an opportunity for representing his
views in the matter.
(2) Without prejudice to the powers conferred on it under sub-section (1),
the Central Government may, by notification in the official gazette,
direct that—
(a) A film which has been granted a certificate shall be deemed to be
uncertified film in the whole or any part of India, or
(b) A film which has been granted a “U” certificate or a “UA”
certificate or a “S” certificate shall be deemed to be a film in
respect of which an “A” certificate has been granted, or
(c) The exhibition of any film be suspended for such period as may
be specified in the direction.
Provided that no direction issued under clause (c) shall remain in force
for more than two months from the date of the notification.
(3) No action shall be taken under clause (a) or clause (b) of sub-section
(2) except after giving an opportunity to the person concerned for
representing his views in the matter.
Section 6A. Information and documents to be given to distributors

and exhibitors with respect to certified films
Any person who delivers any certified film to any distributor or
exhibitor shall, in such manner as may be prescribed, notify to the distributor
or exhibitor, as the case may be, the title, the length of the film, the number
and the nature of the certificate granted in respect thereof and the conditions,
Eee
ee eee eee
Chapter 15 : Film Media
ee eee
*eae
167
if any, subject to which it has been so granted, and any other particulars
respecting the film which may be prescribed.
Section 7. Penalties for contraventions of this Part
(1) If any person,—
(a) Exhibits or permits to be exhibited in any place;
(i) Any film other than a film which has been certified by the
Board as suitable for public exhibition and which, when
exhibited, displays the prescribed mark of the Board and has
not been altered or tampered with in any way since such
mark was affixed thereto.
(ii) Any film, which has been certified by the Board as suitable
for public exhibition restricted to adults, to any person who
is not an adult,
(iia) any film which has been certified by the Board as suitable for
public exhibition restricted to any profession or class or
persons, to a person who is not a member of such profession
or who is not a member of such class, or
(a) Without lawful authority (the burden of proving which shall be on
him), alters or tampers with in any way any film after it has been
certified, or
(b) Fails to comply with the provision contained in Section 6A or with
any order made by the Central Government or by the Board in the
exercise of any of the powers or functions conferred on it by this Act
or the rules made thereunder shall be punishable with imprisonment
for a term which may extend to three years, or with fine which may
extend to one lakh rupees, or with both, and in the case of a continuing
offence with a further fine which may extend to twenty thousand
rupees for each day during which the offence continues:
In the case of a continuing offence with a further fine which may extend
to twenty thousand rupees for each day during which the offence continues.
(2) If any person is convicted of an offence punishable under this section

committed by him in respect of any film, the convicting court may
further direct that the film shall be forfeited to the Government.
(3) The exhibition of a film, in respect of which an “A” certificate or
a “S” certificate or a “UA” certificate has been granted, to children
below the age of three years accompanying their parents or guardians
shall not be deemed to be an offence within the meaning of this
section.
Section 7A. Power of seizure
(1) Where a film in respect of which no certificate has been granted
under this Act is exhibited, or a film certified as suitable for public

exhibition restricted to adults is exhibited to any person who is not an.
adult or a film is exhibited in contravention of any of the other
provisions contained in this Act or of any order made by the Central
Government, the Tribunal or the Board in the exercise of any of the
powers conferred on it, any public officer may, enter any place in
which he has reason to believe that the film has been or is being or
is likely to be exhibited, search it and seize the film.
Section 7F. Bar of legal proceedings

No suit or other legal proceeding shall lie against the Central
Government, the Tribunal, the Board, advisory panel or any officer or
member of the Central Government, the Tribunal, the Board or advisory
panel, as the case may be, in respect of anything which is in good faith done
or intended to be done under this Act.
Section 9. Power to exempt
The Central Government may, by order in writing exempt, subject to
such conditions and restrictions, if any, as it may impose, the exhibition of
any film or class of films from any of the provisions of this Part or of any
rules made thereunder.
Section 10. Cinematograph exhibitions to be licensed
Save as otherwise provided in this Part, no person shall give an
exhibition by means of a cinematograph elsewhere than in a place licensed
under this Part or otherwise than in compliance with any conditions and
restrictions imposed -by such license.
Section 11. Licensing authority
The authority having power to grant licenses under this Part (referred to
as the licensing authority) shall be the district magistrate.
15.8 CASES RELATED TO CINEMATOGRAPH ACT.

Case 1: (Digest)
Tamil Nadu Medical Council rep by its President, Dr. K.R.

Balasubramaniam vs. The Chairman, Central Board of Film Certification,
The Central Board of Film Certification rep by its Regional Officer and The
Gemini Film Circuit (The Producer “Vasool Raja, M.B.B.S.”), 2004, High
Court of Madras.
The prayer in the writ petition was to issue a Writ of Mandamus
forbearing respondents 1 and 2, their men, agents, subordinates or any other
person assigned on their behalf, from certifying any film, in favour of the
third respondent or any other person, in the name and title of ““Vasool Raja,
M.B.B.S.
The writ petition was filed by Tamil Nadu Medical Council, which is a
statutory body created under Tamil Nadu Medical Registration Act, 1914.
This Act was made for the registration of Medical Practitioners in Tamil
Nadu and also to guide the Medical Practitioners in their professional
conduct, and the main object of the Act is to safeguard the interest of the
medical profession. The petitioners received complaints against the third
respondent that a film called “Vasool Raja, M.B.B.S.” has been produced and
the main theme of the film, as was published in the newspapers, was about a
medical practitioner. The petitioners opined that the title creates disrespect to
the medical practitioners in general; the general public are likely to be misled.
The petitioner also received complaints from Indian Medical Association
that the film causes disrespect to the medical fraternity. The petitioner
represented that a number of complaints have been made to the Censor Board
but there was no response from respondents | and 2 for the representations
made by the medical practitioners and Indian Medical Association.
The petitioner/Council is a statutory body safe guarding the interest of
medical practitioners and was seeking for a suitable remedy to prohibit the
film being certified with the title of “Vasool Raja, M.B.B.S.”. The petitioner
argued that according to the “Tamil Nadu Medical Council Code of Medical
Ethics (Professional Conduct, Etiquette and Ethics) Regulations, 2003”, the
members of the medical profession shall maintain dignity, since they are
providing service to the humanity. But, if the film with the title “Vasool Raja,
M.B.B.S.” is released, it will cause harm to the society as a whole. Because,
the very term “Vasool Raja, M.B.B.S.” gives an impression to the general
public that the medical practitioners are only interested in collecting money
from their patients and not bothered about the medical ethics. If the title
“Vasool Raja, M.B.B.S.” is translated in English, it will read as “King of
Collection”.
The Indian Medical Association had also sent notice to the third
respondent and the third respondent had replied that it was only a Tamil
version of a Hindi film “Munna Bhai M.B.B.S.”, and it cannot be termed
improper. The petitioner opined that the stand of the third respondent is not
correct, ‘Munna’ is a pet name of a man, and literally it would mean “small
boy”. But the title “Vasool Raja, M.B.B.S.” gives an impression that the very
purpose of getting M.B.B.S. degree is for the purpose of collecting money
using the degree. The title is scandalous in nature and therefore it should not
be certified by respondents | and 2. The usage of degree in the title is per se
scandalous and hence it is impermissible.
The petitioner contended that the title will give an impression that the
doctors are only for money and they serve the people only for money. The
title will lower the image of the doctors in the mind of the general public.
The third respondent. The Gemini Film Circuit, the producer of “Vasool Raja,
M.B.B.S”) followed no ethics whatsoever in naming his film as “Vasool Raja,

M.B.B.S.” and this unethical practice of the producer should be depreciated.
The petitioners mentioned that respondents 1 and 2 (The Chairman, Central
Board of Film Certification, The Central Board of Film Certification rep by
its Regional Officer) have not taken any action so far on the complaints given
by the petitioner. They added that the usage of the degree is an offence under
the Indian Medical Degree Act, 1916 and hence the need for the petition.
The third respondent has filed a counter stating as follows:
The writ petition is devoid of merits and the same is the result of
unnecessary apprehensions of a few of Medical Practitioners. It was informed,
time and again to the petitioner and the other office bearers of the Association
that the main theme of the film is not about a Medical Practitioner. The main
theme of the picture is that a local Dadha, by name, Vasool Raja, wants to
become an M.B.B.S. graduate. The life of an elderly student in the campus of
a medical college is the main line of the story; it is only a remake of a Hindi
film title “Munna Bhai M.B.B.S.”. The Code of Conduct for Medical
Practitioners cannot be considered in this case. Film is a fiction and it cannot
be related to real life situations.
The petitioner’s counsel submitted that under Section 5B of the
Cinematograph Act, “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 offence”. Therefore, respondents 1 and 2
cannot issue Certificate for public exhibition with this title, since the title
amounts to defamation of the entire Medical Practitioners.
The Counsel for the petitioner also contended that the petitioner Council
has no objection for using the word ‘Vasool Raja’ independently or using
the degree with any other individual names, just like ‘Vaijayanthi, I.P.S.’,
‘Parvathi, B.A.’ and ‘Archana, I.A.S.’. When the degree is used along with
the individual’s name, it would convey that the film is about the conduct of a
particular individual. But using of both the words ‘Vasool Raja’ and
‘M.B.B.S.’ together, it gives an impression that all the M.B.B.S. degree
holders are interested only in collection and nothing else. It characterizes the
entire medical profession as unethical and the Medical Practitioners are
interested only in getting the money. Therefore, this title amounts to
defamatory and hence the title “Vasool Raja, M.B.B.S.” cannot be used by
the third respondent and hence respondents 1 and 2 shall not certify the film
for public exhibition.
The third respondent also submitted that the story of this film is about a
person, who was originally a collection agent and later on a medical student.
The title is not defamatory and the film in no way defames any individual
doctor or the profession as a whole. Further, Indian Medical Association has
also filed a suit in the City Civil Court, Chennai for the very same relief. The
petitioner can only approach the civil court for any remedy, and it cannot
approach this Court for Writ of Mandamus.
Hence, the petition is liable to be dismissed.
The Court in its verdict said that it can interfere only when it comes to
the conclusion that the title is defamatory in nature. Whether the title is
defamatory or not, can be decided only on the facts of the particular case. To
arrive at a decision on the facts, the petitioner must approach only a Civil
Court by way of a civil suit. For that purpose, the extraordinary remedy under
Article 226 of the Constitution of India cannot be resorted to. It is a well
established principle that this Court while exercising the power under Article
226 of the Constitution of India cannot go into the disputed questions of facts.
Whether the film “Vasool Raja, M.B.B.S.” is defamatory, is a disputed
question of fact. That cannot be determined by the Court while exercising the
power under Article 226 of the Constitution of India. Therefore, the petitioner
ought to have filed a civil suit for this relief. In fact, Indian Medical
Association has filed a civil suit in the City Civil Court, Chennai.
The Court further said that the contention of the petitioner that the title
is per se defamatory is not acceptable. The title does not suggest the entire
profession of Medical Practitioners as collection agents. The words “Vasool
Raja, M.B.B.S.” is in singular. It may at the most mean an individual.
Therefore, it is not possible to hold that the title of the film is per se
defamatory. As per Section 5B of the Cinematograph Act, the Censor Board,
which views films for certification, may not issue certificate for public
exhibition if in its view the film is defamatory. If respondents 1 and 2 come
to the conclusion that the film as a whole is defamatory, they may refuse
to grant certificate. In order to direct respondents 1 and 2 not to issue a
certificate for public exhibition, this Court must satisfy itself that the film as
a whole is defamatory or the title is per se defamatory. The Court felt that the
title is not per se defamatory. The Court further said that whether the film as
a whole is defamatory is a disputed question of fact; it is not possible for the
writ Court to decide that. This Court therefore cannot direct respondents |
and 2 not to issue a certificate for public exhibition and therefore the prayer
in the writ petition cannot be granted. Due to these reasons, the writ petition
was dismissed.
Case 2: (Digest)
Ms. A. Arulmozhi vs. The Govt. of India and Ors., 2005, High Court of
Madras.
Tamil feature film “New”, produced by Annai Mari Madha Creations,
(the third respondent), was released for public exhibition in the second week
of July, 2004, throughout Tamil Nadu. Ms. Arulmozhi, an advocate practising
in the Madras High Court, after seeing the movie found the film full of dual
meaning dialogues and obscene visuals, appended by vulgarity and depravity,
obviously catering to the baser instincts of the viewers. She felt that the
certificate for public exhibition had been issued in gross violation of the
provisions of the Cinematograph Act, 1952, she sent a representation to
the Government of India, (the first respondent) on 23-8-2004, bringing to its
notice about the violations, requesting to revoke the certificate, by invoking
the revisional powers under Section 6 of the Cinematograph Act. Since she
felt that the action on representation may take some time and if such time is
allowed, the film would be continued to be screened thereby causing
imminent danger to the public morality and unable to bear the cultural
degradation due to this film, she has rushed to this Court and filed this writ
petition.
The main prayer in this writ petition was issuance of a Writ of
Mandamus, directing the Government of India, Ministry of Information and
Broadcasting, New Delhi, and the Central Board of Film Certification, Sastri
Bhavan, Chennai, (second respondent), to revoke the Censor Certificate for
public exhibition, issued to the Tamil Feature Film “New”.
The arguments put forth for the plaintiff were: The theme of the picture
is about a child of 8 years age being put to scientific tests, thereby getting
transformed to the youth of 28 years only during nights and getting married to
a girl of 20 years of age and begetting a child. There are several scenes in the
film, which are vulgar and obscene, which cater to the baser instincts of men.
The use of a child artist in the lead role depicts child abuse. The public
exhibition of the film has been sanctioned unmindful of the evil influence that
it could have on young minds. Under Section 5B(1) of the Cinematograph
Act, 1952, a film shall not be certified for public exhibition by the competent °
authority, if the film or any part of it is against public order, decency or
morality. Under Section 5B(2) of the Act, the Government of India issued
some guidelines for ensuring the Board of Film Certification to find out the
fitness for issuance of the said certificate. These guidelines mandate the
Censor Board to ensure that human sensibilities are not offended by vulgarity
and obscenity or depravity and those dual meaning words, which cater to the
baser instincts, are not permitted to be screened. Hence respondents 1 and 2
may be directed to withhold the certificate.
The arguments on behalf of the Central Government were: The
Examining Committee, comprising four Members and an Examining Officer,
examined the film by strictly applying the guidelines under Section 5B of the
Act and recommended for grant of ‘A’ Certificate to the Film, subject to
deletions of the objectionable portions, and restricted it to adult audience of
18 years and above. Though the film contains such sexually coloured remarks
and adult oriented dialogues and visuals, the Board allowed such things,
keeping in mind that the adults or matured persons can be permitted to view
with some restrictions, without unduly curbing the freedom of the film-maker.
Hence, it was argued that, as such, issuance of certificate cannot be said to be
in violation of the mandatory provisions.
The Court after listening to the arguments identified that the core of the
matter centred around the following questions:
(1) Whether the film “New”, was produced in accordance with the
guidelines issued under Section 5B of the Cinematograph Act, 1952.
(2) Whether the Censor Certificate, issued by the second respondent/
Central Board of Film Certification, is in consonance with the
provisions of the Act.
(3) Whether this Court could issue mandamus, directing the respondents
1 and 2 to revoke the Censor Certificate, issued to this film for public
exhibition.
The Court arrived at the following conclusions and issued certain
directions which are as follows:
(1) Though it is objected as to maintainability of the Writ Petition on

the ground that a representation has been sent to the authority
concerned for invoking revisional powers under Section 6 of the
Cinematograph Act, the said objection is not a valid one, and it is
open to the parties to approach the Court of Law for revocation.
There are several scenes in the film “New”, which are vulgar and
obscene, catering to the baser instincts of the audience.
The countless number of dual meaning dialogues in the film shows
the sexual perversions and the use of child artiste in the lead role,
depicting child abuse.
The direction given by the Central Government to the Central Board
of Film Certification that no picture shall be certified for public
exhibition, which will lower the moral standards of those who see
it, has not been given due consideration by the Board, while
certifying the film.
(5) The film “New” does not provide a clean and healthy entertainment.
The guidelines given in the Cinematograph Act, 1952, that the
scenes, showing children being subjected to any form of child abuse
or tending to encourage and justify smoking, are not to be shown
and human sensibilities should not be allowed to be offended by
vulgarity and obscenity and dual meaning words, obviously catering
to the baser instincts of the viewers are not allowed, have not been
followed by the Censor Board, even though the film depraves the
morality of the audience.
(6) The Censor Board has failed to follow the principle that it should
step in firmly and insist that the film being released as a message
is meant to improve the values of life and should see that the law
against obscenity protects the society, particularly the young, from
harmful consequences of the anti-social and commercial activities of
the peddlers of pornographic materials.
(7) The Censor Board is duty bound to see that the young and the
impressionable are guarded against the subtle machinations of
pseudo-artistes and producers, as the young persons try to emulate
or imitate what they have seen in the movies. But, in this case, the
Censor Board has failed to take into consideration the guidelines,
given by the Government, as well as the principles, laid down by
the Supreme Court.
(8) Despite a number of vulgar and obscene scenes, the Censor Board,
second respondent, has sanctioned certificate to this film for public
exhibition, unmindful of the evil influence that it could have on the
young minds.
(9) As pointed out by the Supreme Court in (1989) 2 SCC 574, Section
Rangarajan v. P. Jagjivan Ram, this is a land of Adi-guru
Sankaracharya, Ramanujacharya, Madhwacharya, Chaitanya Maha
Prabhu, Swami Rama Krishna Paramhamsa, Guru Nanak,
Sant Kabir, Thiruvalluvar and Mahatma Gandhi, who have all
enlightened our path. In the name of new innovation, if we throw
away the teaching of these great people, which is a general human
morality and wisdom, we are throwing away our ethical standards
and the tradition of our country into the winds. Of course, the
Censor Board need not have an orthodox or conservative look, but
the Board must display more sensitivity to motives, which will have
a markedly harmful effect to lower the moral standards of the
viewers, especially the young. In this case, we are of the definite
opinion, that the film has been picturized purposely for arousing the
sensual feelings of the public, depicting the theme, scenes,
sequences and songs, with full of child abuse, vulgarity and
obscenity and dialogues giving dual meaning, catering to the baser
instincts of the public. In view of the utter violations of the statutory
provisions and the guidelines and also in view of the utter failure on
the part of the Censor Board to take into consideration the general
principles and the guidelines while certifying the film, given by the
Central Government and the provisions of the Act, the Censor
Certificate, which has been issued by the Board to the film “New”,
has to be held invalid and the same is liable to be revoked.
(10) Immediately after the release of the film, women groups sent
petitions after petitions to the Censor Board, complaining about the
obscene scenes in the film. The publicity materials have been
published through advertisements in various papers and audio
cassettes, violating the provisions of the Tamil Nadu (Compulsory
Censorship of Film Publicity Materials) Act 25 of 1987 and though
it is brought to the notice of the State Government, the State
Government has not taken immediate action. Further, the
uncensored obscene scenes are screened in the theatres. The adult
rated scenes in the film are allowed to be telecast, to enable the

children also to view, in spite of the prohibition, contained in The
Cable Television Networks (Regulation) Act, 1995. With reference
to this, a complaint has been given and the police registered a case
against the Producer. After release of the film, the Producer
attempted to introduce one more song with full of ugly meanings.
During the enquiry, the Producer threatened both the Board officers
in their rooms and threw away his cell phone towards the head of
the lady member. With regard to this also, a case has been
registered against Mr. Surya, the Producer. This shows that the
Producer has not only produced the picture, exhibiting ugly scenes
to the viewers, but created ugly situation, by publishing the
publicity materials, without any clearance from the State
Government and also created ugly scenes in the Office of the
Regional Officer of the Censor Board, by manhandling the Board
Members and making an attempt to assault the lady member.
(1) After the arguments were over, the matter was posted for orders. In
the meantime, the film “New” has finished its run. Therefore,
originally, we thought of disposing of the Writ Petition by simply
making an observation that the issuance of Censor Certificate is not
valid in law and, as considerable time has passed by, the order of
revocation is unnecessary. But, when we perused the records,
summoned from the Censor Board, and noticed the conduct of the
Producer of the film, we are constrained to pass an order, directing
the authorities to revoke the certificate issued to the film “New”, or
else, we would feel that we will be failing in our duty. If we do not
give such a direction, it would amount to allowing the BLACK
SPOT to be alive for ever, in the history of Tamil Film World.
(12) As indicated above, it conveys only one message, namely, vulgarity .
and vulgarity alone and nothing more and does not convey any
other message; does not educate the public and also does not give a
healthy entertainment. On the other hand, the film has been
picturized only to show the sexual perversions and child abuse, in
order to cater to the baser instincts of the viewers, purely with a
commercial purpose. Innovations may be good, but those
innovations should not be at the cost of culture and traditions of this
great country.
(13) Though The Cable Television Networks (Regulation) Act and the
Tamil Nadu (Compulsory Censorship of Film Publicity Materials)
Act 25 of 1987 have come into force, as complained by the Censor
Board itself, the implementation of ‘those Acts by the State
Government is not effective; with the result, uncensored vulgar
scenes are displayed in the advertisements and the adult rated films
are being shown to the children in television channels. Therefore,
the Chief Secretary to the State Government is directed to ensure

the proper implementation of these Acts, at least in future.
(14) Already, there are two complaints, given against Mr. Surya, the
Producer; one by Srinivasa Entertainments, detective agency, on
behalf of the Central Board of Film Certification; and the other by
Mrs. Vanathi Srinivasan, member of the Advisory Board, regarding
the assault on her. Already these two cases are registered in police
stations. The Commissioner of Police is directed to ensure that those
cases are investigated and reports are filed immediately before the
Court of Law.
(5) Therefore, we are constrained to issue a mandamus to first and
second respondents, to revoke the Censor Certificate issued to the
film “New”, and the same is, accordingly, ordered.
EXERCISES
Short Questions
1. What is the role of Advisory Panel?
2. Explain the principles followed in certifying films.
3: Explain the different certificates given to films.
Long Questions
LF Explain the salient features of the Cinematography Act.
2. Explain two cases related with the Cinematography Act.
FURTHER READING
http://nrcew.nic.in/shared/sublinkimages/20.htm
Chapter 16
Media Ethics
16.1 INTRODUCTION
Ethics need to be part and parcel of all the professions. It is even more
needed to be followed by media professionals to keep the image of media as
‘fourth estate’ intact. According to Webster’s New World Dictionary, ‘ethics’
is a system or code of morals, of a particular person, religion, group,
profession, etc. Ethics, according to the Macquarie Dictionary, is a system of
moral principles, by which human actions and proposals may be judged good
or bad or right or wrong.
Dictionary.com defines ethics as:
e A theory or a system of moral values: “An ethic of service is at war
with a craving for gain”.
e@ The rules or standards governing the conduct of a person or the
members of a profession.
Etymologically, “ethics” comes from the Greek “ethos” meaning
“character” which denotes a set of principles or standards for correct conduct
and reliable character within society. Ethics refers to principles that define
behaviour as right, good and proper. Ethics asks what we should do in some
circumstance, or what we should do as participants in some form of activity
or profession.
Ethics is the difficult practical task of applying norms and standards to
ever new and changing circumstances. Ethics is the process of inventing new
and better ethical responses to problems and conflicts.
16.2. ETHICS vs. LAW

Law is imposed on journalists by the government of a nation similar to how it
is imposed on all the citizens of a nation. Laws like defamation, contempt of
court, contempt of parliament, exist to check the excesses and errors of the
journalists. Seasoned journalists are well aware of all these and hence they are
177
mostly cautious of media law, when they write an article or report of an

event.
Ethics on the other hand need to be self-imposed. What may not be
illegal may be unethical.
16.3 ETHICS vs. PRINCIPLES OF JOURNALISM

Principles of journalism deal with how news should be got from various
sources and reported. Ethics are the moral principles involved in news
reporting and coverage.
16.3.1 Code of Ethics
A journalist needs to have certain moral principles to be followed in his/her

profession which could be termed ‘professional ethics’. Ethics could not be
forced on anyone but each professional “Codes of Ethics” or “Codes of
Conduct” can be seen as rules of practice, or an ethical framework, in respect
to a certain category of human actions. Ethical guidelines are peculiar to each
profession and are designed to prevent the abuse or unrestrained use of the
powers and privileges of that profession. Ethics tend to be codified into a
formal system or set of rules which are explicitly adopted by a group of
people. Many newspapers in India have formulated their own code of ethics
for their employees to follow.
Gone are the days when journalism was considered to be an idealistic
profession and pen’s mightiness over sword was well-maintained. Now the
journalists as well as the society has accepted that journalism is just another
profession and media organizations are considered to be business ventures
who compete with each other to win the race and be ahead in ratings. The
rising popularity of electronic media and their giving utmost importance to
entertainment aspect has paved the way for this sort of unhealthy competition.
Even in such a scenario, some basic ethical considerations need to be
kept in mind by the journalists.
Objectivity: A newspaper or channel might be having affiliation

towards a particular political party or a business group. But, in news
reporting, such priorities of the media organizations should not get reflected.
Also, the reporter of a news item should also be careful that his individualistic
opinions should not form part of the report. On the whole, views and news
need always to be separated if objectivity has to be maintained by the
journalists.
Conflict of interests: When there is a conflict of interests, i.e. when
public interest and the interest of a particular media organization may not go
hand in hand in certain instances. Still, priority needs to be given to the
public interest and not business interests.
——¢y—__——
Chapter 16 : Media Ethics * 179
Crass commercialism: Crass commercialism must be avoided, i.e.

indulging in unfair practices like obscene scenes, pictures and writings must
be totally given up. That such portrayal would spoil the mind of the
youngsters and children should be kept in mind by the media.
Sensationalism: Sensationalizing the events/happenings needs to be
avoided by an ethical journalist. Especially in times of communal clashes and
disasters, there is a rush and anxiety among the people to know the latest
news. Instead of cashing on such expectations, media should see to that the
reporting should be in such a way that it does not aggravate the clashes
or create unnecessary fear in minds of the people about a disaster. The
temptation to give the latest news and be ahead in the ratings need to be
overcome by the concern for societal order.
Privacy: It is true that sources are needed for breaking news but at the
same time their privacy also should be respected and safeguarded and should
not be taken for granted by media.
Obscenity: Extreme care must be taken by journalists that obscene

words and depiction are avoided especially while reporting crime and
involving women.
Bribes/Gifts: Not accepting bribes/gifts, even when voluntarily given,
is the norm of an ethical journalist.
Not just the journalists, but each and everybody involved in media
business right from advertisers, marketing department and non-working
journalists need to follow ethics if media ethics need to be safeguarded.
16.3.2 Print Media
Press Council of India (PCI) has formulated Code of Ethics for press in India.
The excerpts from the Press Council’s code of ethics:
Press council’s code of ethics

(1) Principles and ethics: The fundamental objective of journalism is
to serve the people with news, views, comments and information on
matters of public interest in a fair, accurate, unbiased, sober and
decent manner. Towards this end, the Press is expected to conduct
itself in keeping with certain norms of professionalism universally
recognized. The norms enunciated below and other specific
guidelines appended thereafter, when applied with due discernment
and adaptation to the varying circumstance of each case, will help
the journalist to self-regulate his or her conduct.
(2) Accuracy and fairness: The Press shall eschew publication of
inaccurate, baseless, graceless, misleading or distorted material. All
sides of the core issue or subject should be reported. Unjustified

rumours and surmises should not be set forth as facts.
(3) Pre-publication verification: On receipt of a report or article of
public interest and benefit containing imputations or comments
against a citizen, the editor should check with due care and attention
its factual accuracy apart from other authentic sources with the
person or the organization concerned to elicit his/her or its version,
comments or reaction and publish the same with due amendments in
the report where necessary. In the event of lack or absence of
response, a footnote to that effect should be appended to the report.
(4) Caution against defamatory writings: Newspaper should not
publish anything which is manifestly defamatory or libellous against
any individual organization unless after due care and checking, they
have sufficient reason to believe that it is true and its publication
will be for public good.
(5) Truth is no defence for publishing derogatory, scurrilous and
defamatory material against a private citizen where no public
interest is involved.
(6) No personal remarks which may be considered or construed to be
derogatory in nature against a dead person should be published
except in rare cases of public interest, as the dead person cannot
possibly contradict or deny those remarks.
(7) The Press shall not rely on objectionable past behaviour of a citizen
for basing the scathing comments with reference to fresh action of
that person. If public good requires such reference, the Press should
make pre-publication inquiries from the authorities concerned about
the follow up action, if any, in regard to those adverse actions.
(8) The Press has a duty, discretion and right to serve the public interest
by drawing reader’s attention to citizens of doubtful antecedents and
of questionable character but as responsible journalists they should
observe due restraint and caution in hazarding their own opinion or
conclusion in branding these persons as ‘cheats’ or ‘killers’ etc. The
cardinal principle being that the guilt of a person should be
established by proof of facts alleged and not by proof of the bad
character of the accused. In the zest to expose, the Press should not
exceed the limits of ethical caution and fair comments.
(9) Where the impugned publication are manifestly injurious to the
reputation of the complainant, the onus shall be on the respondent
to show that they were true or to establish that they constituted for
comment made in good faith and for public good.
(10) Parameters of the right of the Press to comment on the acts and
conduct of public officials: So far as the government, local
authority and other organs/institutions exercising governmental

power are concerned, they cannot maintain a suit for damages for
acts and conduct relevant to the discharge of their official duties
unless the official establishes that the publication was made with
reckless disregard for the truth. However, judiciary which is
protected by the power to punish for contempt of court and the
Parliament and Legislatures, protected as their privileges are by
Articles 105 and 194 respectively, of the Constitution of India,
represent exception to this rule.
(11) Publication of news or comments/information on public officials
conducting investigations should have a tendency to help the
commission of offences or to impede the prevention or detection of
offences or prosecution of the guilty. The investigative agency is
also under a corresponding obligation not to leak out or disclose
such information or indulge in disinformation.
(12) The Official Secrets Act, 1923 or any other similar enactment or
provision having the force of law equally bind the press or media
though there is no law empowering the state or its officials to
prohibit, or to impose a prior restraint upon the Press/media.
(13) Cartoons and caricatures in depicting good humour are to be placed
in a special category of news that enjoy more liberal attitude.
(14) Right to privacy: The Press shall not intrude or invade the
privacy of an individual unless outweighed by genuine overriding
public interest, not being a prurient or morbid curiosity. So,
however, that once a matter becomes a matter of public record, the
right to privacy no longer subsists and it becomes a legitimate
subject for comment by Press and media among others.
Explanation: Things concerning a person’s home, family, religion,
health, sexuality, personal life and private affairs are covered by the
concept of PRIVACY excepting where any of these impinges upon
the public or public interest.
(15) Caution against identification: While reporting crime involving
rape, abduction or kidnap of women/females or sexual assault on
children, or raising doubts and questions touching the chastity,
personal character and privacy of women, the names, photographs
of the victims or other particulars leading to their identity shall not
be published.
(16) Minor children and infants who are the offspring of sexual abuse or
‘forcible marriage’ or illicit sexual union shall not be identified or
photographed.
(17) Recording interviews and phone conversation: The Press
shall not tape-record anyone’s conversation without that person’s
knowledge or consent, except where the recording is necessary to

protect the journalist in a legal action, or for other compelling good
reason.
(18) The Press shall, prior to publication, delete offensive epithets used
by an interviewer in conversation with the Press person.
(19) Intrusion through photography into moments of personal grief shall
be avoided. However, photography of victims of accidents or
natural calamity may be in larger public interest.
(20) Conjecture, comment and fact: Newspaper should not pass on or
elevate conjecture, speculation or comment as a statement of fact.
All these categories should be distinctly stated.
(21) Newspapers to eschew suggestive guilt: Newspapers should
eschew suggestive guilt by association. They should not name or
identify the family or relatives or associates of a person convicted
or accused of a crime, when they are totally innocent and a
reference to them is not relevant to the matter reported.
It is contrary to the norms of journalism for a paper to identify itself
with and project the case of any one party in the case of any
controversy/dispute.
Corrections: When any factual error or mistake is detected or
confirmed, the newspaper should publish the correction promptly
with due prominence and with apology or expression of regrets in a
case of serious lapse.
(24) Right to reply: The newspaper should promptly and with due
prominence, publish either in full or with due editing, free of
cost, at the instance of the person affected or feeling aggrieved/or
concerned by the impugned publication, a contradiction/reply/
clarification or rejoinder sent to the editor in the form of a letter or
note. If the editor doubts the truth or factual accuracy of the
contradiction/reply/clarification or rejoinder, he shall be at liberty to
add separately at the end a brief editorial comment doubting its
veracity, but only when this doubt is reasonably founded on
unimpeachable documentary or other evidential material in his/
her possession. This is a concession which has to be availed of
sparingly with due discretion and caution in appropriate cases.
However, where the reply/contradiction or rejoinder is being
published in compliance with the discretion of the Press Council, it
is permissible to append a brief editorial note to that effect.
Right of rejoinder cannot be claimed through the medium of Press
Conference, as publication of a news of a conference is within the
discretionary powers of an editor.
Freedom of the Press involves the readers’ right to know all sides of
A
an issue of public interest. An editor, therefore, shall not refuse to

publish the reply or rejoinder merely on the ground that in his
opinion the story published in the newspaper was true. That is an
issue to be left to the judgement of the readers. It also does not
behove an editor to show contempt towards a reader.
(28) Letters to editor: An editor who decides to open his columns for
letters on a controversial subject, is not obliged to publish all the
letters received in regard to that subject. He is entitled to select and
publish only some of them either in entirety or the gist thereof.
However, in exercising this discretion, he must make an honest
endeavour to ensure that what is published is not one-sided but
represents a fair balance between the views for and against with
respect to the principal issue in controversy.
(29) In the event of rejoinder upon rejoinder being sent by two parties on
a controversial subject, the editor has the discretion to decide at
which stage to close the continuing column.
(30) Obscenity and vulgarity to be eschewed: Newspapers/journalists
shall not publish anything which is obscene, vulgar or offensive to
public good taste.
(31) Newspapers shall not display advertisements which are vulgar or
which, through depiction of a woman in nude or lewd posture,
provoke lecherous attention of males as if she herself was a
commercial commodity for sale.
(32) Whether a picture is obscene or not, is to be judged in relation to
three tests; namely,—
(i) Is it vulgar and indecent?
(ii) Is it a piece of mere pornography?
(iii) Is its publication meant merely to make money by titillating the
sex feelings of adolescents and among whom it is intended to
circulate? In other words, does it constitute an unwholesome
exploitation for commercial gain. Other relevant considerations
are whether the picture is relevant to the subject matter of the
magazine. That is to say, whether its publication serves any
preponderating social or public purpose, in relation to art,
painting, medicine, research or reform of sex.
(33) Violence not to be glorified: Newspapers/journalists shall avoid

presenting acts of violence, armed robberies and terrorist activities
in a manner that glorifies the perpetrators, acts, declarations or death
in the eyes of the public.
(34) Glorification/encouragement of social evils to be eschewed:
Newspapers shall not allow their columns to be misused for writings
which have a tendency to encourage or glorify social evils like
Sati Pratha or ostentatious celebrations.
(35) Covering communal disputes/clashes: News, views or comments

relating to communal or religious disputes/clashes shall be published
after proper verification of facts and presented with due caution and
restraint in a manner which is conducive to the creation of an
atmosphere congenial to communal harmony, amity and peace.
Sensational, provocative and alarming headlines are to be avoided.
Acts of communal violence or vandalism shall be reported in a
manner as may not undermine the people’s confidence in the law
and order machinery of the State. Giving community-wise figures of
the victims of communal riot, or writing about the incident in a
style which is likely to inflame passions, aggravate the tension, or
accentuate the strained relations between the communities/religious
groups concerned, or which has a potential to exacerbate the
trouble, shall be avoided. Headings not to be sensational/provocative
and must justify the matter printed under them.
(36) In general and particularly in the context of communal disputes or
clashes—
(a) Provocative and sensational headlines are to be avoided;
(b) Headings must reflect and justify the matter printed under them;
(c) Headings containing allegations made in statements should
either identify the body or the source making it or at least carry
quotation marks.
(37) Caste, religion or community references: In general, the caste
identification of a person or a particular class should be avoided,
particularly when in the context it conveys a sense or attributes a
conduct or practice derogatory to that caste.
(38) Newspapers are advised against the use of word ‘Scheduled Caste’
or ‘Harijan’ which has been objected to by some persons.
(39) An accused or a victim shall not be described by his caste or
community when the same does not have anything to do with the
offence or the crime and plays no part either in the identification of
any accused or proceeding, if there be any.
(40) Newspaper should not publish any fictional literature distorting
and portraying the religious characters in an adverse light trans-
gression of the norms of literary taste and offending the religious
susceptibilities of large sections of society who hold those
characters in high esteem, invested with attributes of the virtuous
and lofty.
(41) Commercial exploitation of the name of prophets, seers or deities is
repugnant to journalistic ethics and good taste.
(42) Reporting on natural calamities: Facts and data relating to
spread of epidemics or natural calamities shall be checked up
—. ANS
thoroughly from authentic sources and then published with due

restraint in a manner bereft of sensationalism, exaggeration,
surmises or unverified facts.
(43) Paramount national interest: Newspapers shall, as a matter of
self-regulation, exercise due restraint and caution in presenting any
news, comment or information which is likely to jeopardise,
endanger or harm the paramount interests of the State and society,
or the rights of individuals with respect to which reasonable
restrictions may be imposed by law on the right to freedom of
speech and expression under Clause (2) of Article 19 of the
Constitution of India.
(44) Publication of wrong/incorrect map is a very serious offence,
whatever the reason, as it adversely affects the territorial integrity of
the country and warrants prompt and prominent retraction with
regrets.
(45) Newspapers may expose misuse of diplomatic immunity: The
media shall make every possible effort to build bridges of co-
operation, friendly relations and better understanding between India
and foreign States. At the same time, it is the duty of a newspaper
to expose any misuse or undue advantage of the diplomatic
immunities.
(46) Investigative journalism, its norms and parameters: Investigative
reporting has three basic elements.
(a) It has to be the work of the reporter, not of others he is
reporting;
(b) The subject should be of public importance for the reader to
know;
(c) An attempt is being made to hide the truth from the people.
(i) The first norm follows as a necessary corollary from
(a) that the investigative reporter should, as a rule, base his story
on facts investigated, detected and verified by himself and not
on hearsay or on derivative evidence collected by a third party,
not checked up from direct, authentic sources by the reporter
himself.
(ii) There being a conflict between the factors which require
openness and those which necessitate secrecy, the
investigative journalist should strike and maintain in his
report a proper balance between openness on the one hand
and secrecy on the other, placing the public good above
everything.
(iii) The investigative, journalist should resist the temptation
of quickies cr quick gains conjured up from half-baked
incomplete, doubtful facts, not fully checked up and

verified from authentic sources by the reporter himself.
(iv) Imaginary facts, or ferreting out or conjecturing the non-
existent should be scrupulously avoided. Facts facts and yet
more facts are vital and they. should be checked and cross-
checked whenever possible until the moment the paper goes
to Press.
(v) The newspaper must adopt strict standards of fairness and
accuracy of facts. Findings should be presented in an
objective manner, without exaggerating or distorting, that
would stand up in a court of law, if necessary.
(vi) The reporter must not approach the matter or the issue
under investigation, in a manner as though he were the
prosecutor or counsel for the prosecution. The reporter’s
approach should be fair, accurate and balanced. All facts
properly checked up, both for and against the core issues,
should be distinctly and separately stated, free from any
one-sided inferences or unfair comments. The tone and
tenor of the report and its language should be sober, decent
and dignified, and not needlessly offensive, barbed, derisive
or castigatory, particularly while commenting on the version
of the person whose alleged activity or misconduct is being
investigated. Nor should the investigative reporter conduct
the proceedings and pronounce his verdict of guilt or
innocence against the person whose alleged criminal acts
and conduct were investigated, in a manner as if he were a
court trying the accused.
(vii) In all proceedings including the investigation, presentation
and publication of the report, the investigative journalist
newspaper should be guided by the paramount principle of
criminal jurisprudence, that a person is innocent unless the
offence alleged against him is proved beyond doubt by
independent, reliable evidence.
(viii) The private life, even of a public figure, is his own.
Exposition or invasion of his personal privacy or private
life is not permissible unless there is clear evidence that the
wrong doings in question have a reasonable nexus with the
misuse of his public position or power and has an adverse
impact on public interest.
(ix) Though the legal provisions of Criminal Procedure do
not in terms, apply to investigating proceedings by a
journalist, the fundamental principles underlying them can
be adopted as a guide on grounds of equity, ethics and
good conscience.
(47) Confidence to be respected: If information is received from a

confidential source, the confidence should be respected. The
journalist cannot be compelled by the Press Council to disclose such
source; but it shall not be regarded as a breach of journalistic ethics
if the source is voluntarily disclosed in proceedings before the
Council by the journalist who considers it necessary to repel
effectively a charge against him/her. This rule requiring a
newspaper not to publish matters disclosed to it in confidence, is not
applicable where:
(a) consent of the source is subsequently obtained: or
(b) the editor clarified by way of an appropriate footnote that since
the publication of certain matters were in the public interest, the
information in question was being published although it had
been made ‘off the record’.
(48) Caution in criticizing judicial acts: Excepting where the court
sits ‘in-camera’ or directs otherwise, it is open to a newspaper to
report pending judicial proceedings, in a fair, accurate and
reasonable manner. But it shall not publish anything:
e@ which, in its direct and immediate effect, creates a substantial
risk of obstructing, impeding or prejudicing seriously the due
administration of justice; or
e@ which is in the nature of a running commentary or debate,
or records the paper’s own findings conjectures, reflection or
comments on issues, sub-judice and which may amount to
arrogation to the newspaper the functions of the court; or
e regarding the personal character of the accused standing trial on
a charge of committing a crime. Newspaper shall not as a
matter of caution, publish or comment on evidence collected as
a result of investigative journalism, when, after the accused is
arrested and charged, the court becomes seized of the case: Nor
should they reveal, comment upon or evaluate a confession
allegedly made by the accused.
(49) While newspapers may, in the public interest, make reasonable
criticism of a judicial act or the judgement of a court for public
good; they shall not cast scurrilous aspersions on, or impute
improper motives, or personal bias to the judge. Nor shall they
scandalize the court or the judiciary as a whole, or make personal
allegations of lack of ability or integrity against a judge.
(50) Newspaper shall, as a matter of caution, avoid unfair and
unwarranted criticism which, by innuendo, attributes to a judge
extraneous consideration for performing an act in due course of his/
her judicial functions, even if such criticism does not strictly amount
to criminal Contemnt of Court.
188 x Media Law and Ethics
(51) Newspapers to avoid crass commercialism: While newspapers

are entitled to ensure, improve or strengthen their financial viability
by all legitimate means, the Press shall not engage in crass
commercialism or unseemly cut-throat commercial competition with
their rivals in a manner repugnant to high professional standards and
good taste.
(52) Predatory price wars/trade competition among newspapers, laced
with tones disparaging the products of each other, initiated and
carried on in print, assume the colour of unfair ‘trade’ practice,
repugnant to journalistic ethics. The question as when it assumes
such an unethical character, is one of the facts depending on the
circumstances of each case.
(53) Plagiarism: Using or passing off the writings or ideas of another
as one’s own, without crediting the source, is an offence against
ethics of journalism.
(54) Unauthorised lifting of news: The practice of lifting news from
other newspapers publishing them subsequently as their own, ill-
comports the high standards of journalism. To remove its
unethicality the ‘lifting’ newspaper must duly acknowledge the
source the report. The position of features articles is different from
‘news’: Feature articles shall not be lifted without permission and
proper acknowledgement.
(55) The Press shall not reproduce in any form offending portions or
excerpts from a proscribed book.
(56) Non-return of unsolicited material: A paper is not bound to
return unsolicited material sent for consideration of publication.
However, when the same is accompanied by stamped envelope, the
paper should make all efforts to return it.
(57) Advertisements: Commercial advertisements are information as
much as social, economic or political information. What is more,
advertisements shape attitude and ways of life at least as much, as
other kinds of information and comment. Journalistic propriety
demands that advertisements must be clearly distinguishable from
editorial matters carried in the newspaper.
(58) Newspaper shall not publish anything which has a tendency to
malign wholesale or hurt the religious sentiments of any community
or section of society.
(59) Advertisements which offend the provisions of the Drugs and
Magical Remedies (Objectionable Advertisement) Act, 1954, should
be rejected.
(60) Newspapers should not publish an advertisement containing
anything which is unlawful or illegal, or is contrary to good taste or
to journalistic ethics or proprieties.
(61) Newspapers while publishing advertisements, shall specify the

amount received by them. The rationale behind this is that
advertisements should be charged at rates usually chargeable by a
newspaper since payment of more than the normal rates would
amount to a subsidy to the paper.
(62) Publication of dummy advertisements that have neither been
paid for, nor authorized by the advertisers, constitute breach of
journalistic ethics.
(63) Deliberate failure to publish an advertisement in all the copies of a
newspaper offends against the standards of journalistic ethics and
constitutes gross professional misconduct.
(64) There should be no lack of vigilance or a communication gap
between the advertisement department and the editorial department
of a newspaper in the matter of considering the propriety or
otherwise of an advertisement received for publication.
(65) The editors should insist on their right to have the final say in the
acceptance or rejection of advertisements, specially those which
border on or cross the line between decency and obscenity.
(66) An editor shall be responsible for all matters, including advertise-
ments published in the newspaper. If responsibility is disclaimed,
this shall be explicitly stated beforehand.
All India Newspapers Editors’ Conference (AINEC) code

of ethics
The Code of Ethics, formulated by the All India Newspapers Editors’
Conference, is applicable to its members. The code states:
i As the press is a primary instrument in the creation of public
opinion, journalists should regard their calling as a trust and be
eager to serve and guard their public interests.
In the discharge of their duties, journalists should attach due value
to fundamental, human and social rights and shall hold good faith
and fair play in news reports and comments as essential professional
obligations.
Journalists should observe special restraint in reports and comments
dealing with tensions, likely to lead, or leading to civil disorder.
(a) Journalists shall particularly observe maximum restraint in
publishing reports and comments relating to communal tension,
incidents, riots, incipient situations likely to lead to communal
disturbances. The identification of communities which may lead
to chain reactions should be avoided.
(b) Journalists should endeavour at all times to promote the unity of
the country and nation, pride in the country, its people, its
achievements and its strength in diversity. Journalists should be
most circumspect in dealing with movements and ideas which

promote regionalism at the cost of national unity.
(c) Any reportage on ideas of fresh partition and secessionism must
be treated with the greatest caution. Any comment likely to give
comfort to the proponents of such ideas and further their
interests should be avoided. The integrity of the country and of
Indian peoples must be considered sacrosanct and beyond
question.
Journalists should endeavour to ensure that information
disseminated is factually accurate. No fact shall be distorted or the
essential facts deliberately omitted. No information known to be
false shall be published.
Responsibility shall be assumed for all information and comments
published. If responsibility is disclaimed, this will be explicitly
stated.
Confidences shall always be respected. Professional secrecy must be
preserved.
Any report found to be inaccurate and any comment on inaccurate
reports shall be voluntarily rectified. It shall be obligatory to give
fair publicity to a correlation of contradiction when a report
published is shown to be false or inaccurate in material particulars.
Journalists shall not exploit their status for non-journalistic
purposes.
Journalists shall not allow personal interest to influence professional
conduct.
10. There is nothing so unworthy as the acceptance or demand of a
bribe or inducement for the exercise by a journalist of his power to
give or deny publicity to news or comments.
|bby Freedom in the honest collection and publication of news and facts
and the rights of their comments and criticism and principles which
every journalist should always defend.
12 Journalists shall be very conscious of their obligation to their
fellows in the profession and shall not seek to deprive fellow-
journalists of their livelihood by unfair means.
13: The carrying on of personal controversies in the press in which no
public interest is involved shall be regarded as derogatory to the
dignity of the profession.
14. It is unprofessional to give currency to rumours or loose talk
affecting the private life of individuals. Even verifiable news
affecting the private life of individuals shall not be published unless
the public interest as distinguished from public curiosity demands its
publication.
15. The Press shall refrain from publishing matters likely to encourage
vice and crime.
- Chapter 16 : Media Ethics * 191
16.4 ADVERTISING
16.4.1 Code for Commercial Advertising Over All

India Radio
Scope
(a) The Director General, All India Radio, shall be the sole judge of
the suitability or otherwise of an advertisement or a sponsored
programme for broadcast, his decision in this regard shall be final.
(b) Broadcast time shall be sold to the Advertiser/Advertising Agencies
at the sole discretion of the Director General, All India Radio,
according to the prescribed rates.
(c) The advertisement must be clearly distinguishable from the
programme.
(d) A sponsored programme shall constitute a substantive broadcast/
programme, as distinct from material which directly advertise any
specific wares or goods/products/services. The name of the sponsor
shall be broadcast immediately before and after the sponsored
programme.
The sponsor shall, however, undertake to indemnify All India Radio
against any legal claim that may be brought against it as a result of the
broadcast of a sponsored programme or any portion thereof.
Advertising is an important and legitimate means for the seller to
awaken interest in his goods and services. The success of advertising depends
on public confidence; hence no practice should be permitted which tends to
impair this confidence. The standards laid down here should be taken as
minimum standards of acceptability which would be liable to be reviewed
from time to time in relation to the prevailing norm of listener’s
susceptibilities.
The following standards of conduct are laid down in order to develop
and promote healthy advertising practices in All India Radio. Responsibility
for the observance of these rules rests equally upon the advertiser and the
advertising agency.
All those engaged in advertising are strongly recommended to
familiarize themselves with the legislation affecting advertising in this
country, particularly the following Acts and the Rules framed under them:
1. Drugs and Cosmetics Act, 1940
2. Drugs Control Act, 1950
3. Drugs and Magic Remedies (Objectionable Advertisement) Act,
1954
4. Copyright Act, 1957
5. Trade and Merchandise Marks Act, 1958
Prevention of Food Adulteration Act, 1954

Pharmacy Act, 1948
Prize Competition Act, 1955
Emblems and Names (Prevention of Improper Use) Act, 1950
Consumer Protection Act, 1986
Indecent Representation of Women (Prohibition) Act, 1986
AIR/Doordarshan Code
Code of ethics for advertisement in India issued by the Advertising
Council of India
Code of standards in relation to the advertising of medicines and
treatments
13: Standards of practice for advertising agencies
(The list is illustrative and not exhaustive).
16.4.2 The Code
General rules of conduct in advertising

Le Advertising shall be designed as to confirm to the laws of the
country and should not offend against morality, decency and
religious susceptibilities of the people.
No advertisement shall be permitted which:
(i) derides any race, caste, colour, creed and nationality;
(ii) is against any of the directive principles, or any other provision
of the Constitution of India;
(111) tends to incite people to crime, cause disorder or violence, or
breach of law or glorifies violence or obscenity in any way;
(iv) presents criminality as desirable;
(v) adversely affects friendly relations with foreign States;
(vi) exploits the national emblem, or any part of the constitution or
the person or personality of a national leader or State Dignitary;
(vii) relates to or promotes cigarettes and tobacco products, liquor,
wines and other intoxicants;
a No advertisements message shall in any way be presented as news.
4. No advertisements shall be permitted the objects whereof are wholly
or mainly of a religious or political nature; advertisement must not
be directed towards any religious or political end or have relation to
any industrial dispute.
>: Advertisements for services concerned with the following shall not
be accepted:
(i) Money lenders;
(11) Chit funds;
(ili) Saving schemes and lotteries other than those conducted by
SSeS
SSS ee Ee
Chapter 16 : Median Ethics *®
eee
193
Oe
Central and State Government organizations, nationalized or

recognized banks and public sector undertakings;
(iv) Matrimonial agencies;
(v) Unlicenced employment services;
(vi) Fortune-tellers or sooth-sayers etc. and those with claims of
hypnotism;
(vii) Foreign goods and foreign banks.
(viii) Betting tips and guide books etc. relating to horse-racing or the
other games of chance.
6. The items advertised shall not suffer from any defect or deficiency
as mentioned in Consumer Protection Act 1986.
Ts No advertisement shall contain reference which are likely to lead
the public to infer that the product advertised or any of its
ingredients has some special or miraculous or super-natural property
or quality, which is difficult of being proved, e.g. cure for baldness,
skin whitener, etc.
No advertisement shall contain the words Guarantee or Guaranteed
etc., unless the full terms of the guanrantee are available for
inspection by the Directorate General, All India Radio, are clearly
set out in the advertisement and are made available to the purchaser
in the writing at the point of sale or with the goods; in all cases,
terms must include details of the remedial action available to the
purchaser. No advertisement shall contain a direct or implied
reference to any guarantee which purports to take away or diminish
the legal rights of the purchaser.
Advertisers or the agents must be prepared to produce evidence to
substantiate any claims or illustrations. The Director General
reserves the right to ask for such proofs and get them examined to
his full satisfaction. In case of goods covered by mandatory quality
control orders, the advertiser shall produce quality certificate from
the institutions recognized by the Government for this purpose.
10. Advertisements shall not contain disparaging or derogatory
references to another product or service.
Lis Testimonials must be genuine and used in a manner not to mislead
the listeners. Advertisers or advertising agencies must be prepared
to produce evidence in support of their claims.
No advertisement of any kind of jewellery (except artificial
jewellery) or precious stones shall be accepted.
Information to consumers on matters of weight, quality or prices of
products where given shall be accurate.
Advertisements indicating price comparisons or reductions must
comply with relevant laws.
No advertisement shall be accepted which violates AIR Broadcast
Code.
16. Any such effects which might startle the listening public must not
be incorporated in advertisements. For example, and without limit-
ing the scope, the use of the following sound effects will not be
permitted:
Rapid gunfire or rifle shots;
Sirens;
Bombardments;
Screams;
Raucous laughter and the like.
Wg Any pretence in advertising copy must be avoided and such copy
shall not be accepted by All India Radio. The simulation of voices
of a personality in connection with advertisements for commercial
products is also prohibited unless bona fide evidence is available
that such personality has given permission for the simulation and it
is clearly understood that station broadcasting such announcements
are indemnified by the advertiser or advertising agency against any
possible legal action.
18. No advertising for a product or service shall be accepted if it
suggests in any way that unless the children themselves buy or
encourage other people to buy the products or services, they will
be failing in their duty or lacking in loyalty to any person or
organization.
19: No advertisement shall be accepted which leads children to believe
that if they do not own or use the product advertised they will be
inferior in some way to other children or that they are liable to
the condemned or ridiculed for not owning or using it.
20. No advertisement likely to bring advertising into contempt or
disrepute shall be permitted. Advertising shall not take advantage of
the superstition or ignorance of the general public.
Ei No advertising of talismans, charms and character-reading from
photographs or such other matter as well as those which trade on
superstition of general public shall be permitted.
pipe Advertising shall be truthful, avoid distorting facts and misleading
the public by means of implications by false statements, as to:
(i) the character of the merchandise, i.e. its utility, materials, ingre-
dients, origin etc.
(ii) the price of the merchandise, its value, its suitability or terms of
purchase.
(iii) the services accompanying purchase, including delivery,
exchange, return, repair, upkeep etc.
(iv) personal recommendations of the article or service.
(v) the quality or the value of competing goods or trustworthiness
of statement made by others.
23. Testimonials of any kind from experts etc. other than Government
recognized standardization agencies shall not be permitted.
24. No advertisement shall be permitted to contain any claim so
exaggerated as to lead inevitably to disappointment in the minds of
the public.
25. Methods of advertising designated to create confusion in the mind
of the consumer as between goods by one maker and another maker
are unfair and shall not be used. Such methods may consist in:
(i) the imitation of the trademark of the name of competition or
packaging or labelling of goods; or
(ii) the imitation of advertising devices, copy, layout or slogans.
26. Indecent, vulgar, suggestive, repulsive or offensive themes or
treatment shall be avoided in all advertisements. This also applies
to such advertisements which themselves are not objectionable
as defined above, but which advertise objectionable books, photo-
graphs or other matter and thereby lead to their sale and circulation.
27. No advertisement in respect of medicines and treatments shall be
accepted which is in contravention of the code relating to standards
of advertising medicines and treatments (given in annexure II).
Note I: In all other respect, the Director General will be guided for
purposes of commercial broadcasting in All India Radio by Code of Ethics
for Advertising in India as modified from time to time (relevant excerpts
given in annexure I).
Note II: Notwithstanding anything contained herein, this code is
subject to such modification/directions as may be made/issued by the Director
General from time to time.
Note III: All advertising agencies shall adhere to the standards of
practice as prescribed by Advertising Agencies Association of India, Bombay
(given in annexure III).
16.5 PROCEDURE FOR THE ENFORCEMENT OF

THE CODE
1. Complaints or reports on contraventions of the code, received by
All India Radio may in the first instant be referred by Director
General to Advertiser’s Association concerned with request for
suitable action.
2. If complaints under the Code cannot be satisfactorily resolved at
Association(s)’s level, they shall be reported to Director General
who will then consider suitable action.
3. For any complaints under the Code received by All India Radio
concerning a party outside the preview of various member
Association(s), the Director General will draw attention of such

party to the complaint and where necessary, take suitable action on
his own.
16.6 CODE FOR COMMERCIAL ADVERTSING ON

DOORDARSHAN
The code for commercial advertising on Doordarshan contains the same
principles as that of All India Radio. In addition, it contains the following
principles:
1. Doordarshan accepts the advertisements of educational institutions/
colleges. However, it must be ensured that the institutions/colleges
are genuine so as to ensure that students do not get misled.
Doordarshan will also accept advertisements relating to holiday resorts
and hotels.
Doordarshan also accepts the advertisements relating to real estate
including sale of flats/land, flats for rent both commercial and residential.
However, to ensure that viewers do not get misled by false claims, it has been
decided that all such advertisements must carry a statutory message at the end
in the form of super imposition or caption as follows:
“Viewers are Advised to Check the Genuineness of The Claims Made”
Doordarshan has also allowed the telecast of:

(i) Foreign products and foreign banks including financial services;
(ii) Jewellery and precious stones;
(iii) Mutual funds approved by SEBI;
(iv) Hair dyes;
(v) Matrimonial agencies;
2. Scientific or statistical excerpts from technical literature etc., may be
used only with a proper sense of responsibility to the ordinary
viewer. Irrelevant data and scientific jargon shall not be used to
make claims appear to have a scientific basis they do not possess.
Statistics of limited validity should not be presented in a way as to
make it appear that they are universally true.
oe Imitation likely to mislead viewers shall be avoided.
4. Visual and verbal representation of actual and comparative prices
and costs shall be accurate and shall not mislead on account of
undue emphasis or distortion.
5. The picture and the audible matter of the advertisement shall not be
excessively ‘loud’. This is to ensure that between the programme
and the advertisement there is a smooth change-over avoiding
jerkiness or shock to the viewers.
* Chapter 16 : Media Ethics * 197
6. Any advertisement which endangers the safety of the children or

creates in them any interest in unhealthy practices, shall not be
accepted, e.g. playing in the middle of the road, leaning dangerously
out of a window, playing with matchboxes and other goods which
can cause accidents.
7. Children shall not be shown begging or in undignified or indecent
manner.
16.7 PROCEDURE FOR THE ENFORCEMENT OF

THE CODE
1. Complaints or reports on contraventions of the Code, received by
Doordarshan may in the first instance be referred by Director
General to the Advertisers’ Association(s) concerned with request
for suitable action.
2. If complaints under the Code cannot be satisfactorily resolved at
association(s)’s level they shall be reported to the Director General
who will then consider suitable action.
3. For any complaint under the Code received by Doordarshan con-
cerning a party outside the purview of the various member associa-
tion(s), the Director General will draw attention of such party to the
complaint and where necessary, take suitable action on his own.
The Cable Television Networks (Regulation) Act, 1995 (specified
under Cable Network Rules, 1994 ) also has an Advertising Code (already
given in the Chapter on Broadcasting).
16.8 EXCERPTS OF ADVERTISEMENT STANDARD

COUNCIL OF INDIA’S CODE OF ETHICS
16.8.1 Purpose
The purpose of the Code is to control the content of advertisements, not to
hamper the sale of products which may be found offensive, for whatever
reason, by some people. Provided, therefore, that advertisements for such
products are not themselves offensive, there will normally be no ground for
objection to them in terms of this Code.
16.8.2 Declaration of Fundamental Principles

This Code for self-regulation has been drawn up by people in professions
and industries in or connected with advertising, in consultation with
representatives of people affected by advertising, and has been accepted by
individuals, corporate bodies and associations engaged in or otherwise

concerned with the practice of advertising, with the following as basic
guidelines, with a view to achieve the acceptance of fair advertising practices
in the best interest of the ultimate consumer:
I. To ensure the truthfulness and honesty of representations and claims
made by advertisements and to safeguard against misleading
advertisements.
II. To ensure that advertisements are not offensive to generally
accepted standards of public decency.
Ill. To safeguard against the indiscriminate use of advertising for the
promotion of products which are regarded as hazardous to society
or to individuals to a degree or of a type which is unacceptable to
society at large.
IV. To ensure that advertisements observe fairness in competition so
that the consumer’s need to be informed on choices in the market-
place and the canons of generally accepted competitive behaviour in
business are both served.
The Code’s rules form the basis for judgement whenever there may be
conflicting views about the acceptability of an advertisement, whether it is
challenged from within or from outside the advertising business. Both the
general public and an advertiser’s competitors have an equal right to expect
the content of advertisements to be presented fairly, intelligibly and
responsibly. The Code applies to advertisers, advertising agencies and media.
16.8.3 Responsibility for the Observance of this Code

The responsibility for the observance of this Code for self-regulation in
advertising lies with all who commission, create, place or publish any
advertisement or assist in the creation or publishing of any advertisement. All
advertisers, advertising agencies and media are expected not to commission,
create, place or publish any advertisement which is in contravention of this
Code. This is a self-imposed discipline required under this Code for self-
regulation in advertising from all involved in the commissioning, creation,
placement or publishing of advertisements.
This Code applies to advertisements read, heard or viewed in India even
if they originate or are published abroad so long as they are directed to con-
sumers in India or are exposed to significant number of consumers in India.
16.8.4 The Code and the Law

The Code’s rule are not the only ones to affect advertising.
There are many provisions, both in the common law and in the statutes,
which can determine the form or the content of an advertisement.
; Chapter 16 : Media Ethics * 199
The Code is not in competition with law. Its rules, and the machinery
through which they are enforced, are designed to complement legal controls,
not to usurp or replace them.
Chapter I
To ensure the truthfulness and honesty of representations and claims made by
advertisements and to safeguard against misleading advertisements:
1. Advertisements must be truthful. All descriptions, claims and
comparisons which relate to matters of objectively ascertainable fact
should be capable of substantiation. Advertisers and advertising
agencies are required to produce such substantiation as and when
called upon to do so by The Advertising Standards Council of India.
2. Where advertising claims are expressly stated to be based on or
supported by independent research or assessment, the source and
date of this should be indicated in the advertisement.
3. Advertisements shall not, without permission from the person, firm
or institution under reference, contain any reference to such person,
firm or institution which confers an unjustified advantage on the
product advertised or tends to bring the person, firm or institution
into ridicule or disrepute. If and when required to do so by the
Advertising Standards Council of India, the advertiser and
the advertising agency shall produce explicit permission from the
person, firm or institution to which reference is made in the
advertisement.
4. Advertisements shall neither distort facts nor mislead the consumer
by means of implications or omissions. Advertisements shall not
contain statements or visual presentation which directly or by
implication or by omission or by ambiguity or by exaggeration are
likely to mislead the consumer about the product advertised or the
advertiser or about any other product or advertiser.
5. Advertisements shall not be so framed as to abuse the trust of
consumers or exploit their lack of experience or knowledge.
No advertisement shall be permitted to contain any claim so
exaggerated as to lead to grave or widespread disappointment in
the minds of consumers.
For example:
(a) Products shall not be described as ‘free’ where there is any direct
cost to the consumer other than the actual cost of any delivery,
freight, or postage. Where such costs are payable by the consumer,
a clear statement that this is the case shall be made in the
advertisement.
(b) Where a claim is made that if one product is purchased another
product will be provided ‘free’, the advertiser is required to show,

as and when called upon by The Advertising Standards Council of
India, that the price paid by the consumer for the product which is
offered for purchase with the advertised incentive is no more than
the prevalent price of the product without the advertised incentive.
(c) Claims which use expressions such as “Upto five years’ guarantee”
or “Prices from as low as Rs. Y” are not acceptable if there is a
likelihood of the consumer being misled either as to the extent of
the availability or as to the applicability of the benefits offered.
(d) Special care and restraint has to be exercised in advertisements
addressed to those suffering from weakness, any real or perceived
inadequacy of any physical attributes such as height or bust
development, obesity, illness, impotence, infertility, baldness and
the like, to ensure that claims or representations directly or by
implication, do not exceed what is considered prudent by generally
accepted standards of medical practice and the actual efficacy of the
product.
(e) Advertisements inviting the public to invest money shall not contain
statements which may mislead the consumer in respect of the
security offered, rates of return or terms of amortization; where any
of the foregoing elements are contingent upon the continuance of or
change in existing conditions, or any other assumptions, such
conditions or assumptions must be clearly indicated in the
advertisement.
(f) Advertisements inviting the public to take part in lotteries or prize
competitions permitted under law or which hold out the prospect of
gifts shall state clearly all material conditions as to enable the
consumer to obtain a true and fair view of their prospects in such
activities. Further, such advertisers shall make adequate provisions
for the judging of such competitions, announcement of the results
and the fair distribution of prizes or gifts according to the advertised
terms and conditions within a reasonable period of time. With
regard to the announcement of results, it is clarified that the
advertiser’s responsibility under this section, of the Code is
discharged adequately if the advertiser publicizes the main results in
the media used to announce the competition as far as is practicable,
and advises the individual winners by post.
Obvious untruths or exaggerations intended to amuse or to catch the
eye of the consumer are permissible provided that they are clearly
to be seen as humorous or hyperbolic and not likely to be
understood as making literal or misleading claims for the advertised
product.
In mass manufacturing and distribution of goods and services it is
possible that there may be an occasional, unintentional lapse in the
2 Chapter 16 : Media Ethics * 201
fulfilment of an advertised promise or claim. Such occasional,

unintentional lapses may not invalidate the advertisement in terms
of this Code.
In judging such issues, due regard shall be given to the following:
(a) Whether the claim or promise is capable of fulfilment by a typical
specimen of the product advertised.
(b) Whether the proportion of product failures is within generally
acceptable limits.
(c) Whether the advertiser has taken prompt action to make good the
deficiency to the consumer.
Chapter II
To ensure that Advertisements are not offensive to generally accepted
standards of public decency.
Advertisements should contain nothing indecent, vulgar or repulsive
which is likely, in the light of generally prevailing standards of decency and
propriety, to cause grave or widespread offence.
Chapter III
To safeguard against the indiscriminate use of advertising in situations or of
the promotion of products which are regarded as hazardous or harmful to
society or to individuals, particularly minors, to a degree or of a type which is
unacceptable to society at large.
1. No advertisement shall be permitted which:
(a) Tends to incite people to crime or to promote disorder and
violence or intolerance.
(b) Derides any race, caste, colour, creed or nationality.
(c) Presents criminality as desirable or directly or indirectly
encourages people—particularly minors—to emulate it or
conveys the modus operandi of any crime.
(d) Adversely affects friendly relations with a foreign State.
2. Advertisements addressed to minors shall not contain anything,
whether in illustration or otherwise, which might result in their
physical, mental or moral harm or which exploits their vulnerability.
For example, Advertisements:
(a) should not encourage minors to enter strange places or to
converse with strangers in an effort to collect coupons,
wrappers, labels or the like.
(b) should not feature dangerous or hazardous acts which are likely
to encourage minors to emulate such acts in a manner which
could cause harm or injury.
(c) should not show minors using or playing with matches or any
inflammable or explosive substance; or playing with or using
sharp knives, guns or mechanical or electrical appliances, the
careless use of which could lead to their suffering cuts, burns,
shocks or other injury.
(d) should not feature minors for tobacco or alcohol-based
products.
(e) should not feature personalities from the field of sports, music
and cinema for products which, by law, either require a health
warning in their advertising or cannot be purchased by minors.
3. Advertisements shall not, without justifiable reason, show or refer to
dangerous practices or manifest a disregard for safety or encourage
negligence.
4. Advertisements should contain nothing which is in breach of the
law nor omit anything which the law requires.
5. Advertisements shall not propagate products, the use of which is
banned under the law.
6. Advertisements for products whose advertising is prohibited or
restricted by law or by this code must not circumvent such
restrictions by purporting to be advertisements for other products the
advertising of which is not prohibited or restricted by law or by this
code. In judging whether or not any particular advertisement is an
indirect advertisement for product whose advertising is restricted or
prohibited, due attention shall be paid to the following:
(a) Visual content of the advertisement must depict only the
product being advertised and not the prohibited or restricted
product in any form or manner.
(b) The advertisement must not make any direct or indirect
reference to the prohibited or restricted products.
(c) The advertisement must not create any nuances or phrases
promoting prohibited products.
(d) The advertisement must not use particular colours and layout or
presentations associated with prohibited or restricted products.
(e) The advertisement must not use situations typical for promotion
of prohibited or restricted products when advertising the other
products.
Chapter IV
To ensure that Advertisements observe fairness in competition such that
the consumer’s need to be informed on choice in the market-place and the
canons of generally accepted competitive behaviour in business are both
served.
‘ Chapter 16 : Media Ethics * 203
1. Advertisements containing comparisons with other manufacturers or

suppliers or with other products including those where a competitor
is named, are permissible in the interests of vigorous competition
and public enlightenment, provided:
(a) It is clear what aspects of the advertiser’s product are being
compared with what aspects of the competitor’s product.
(b) The subject matter of comparison is not chosen in such a way
as to confer an artificial advantage upon the advertiser or so as
to suggest that a better bargain is offered than is truly the case.
(c) The comparisons are factual, accurate and capable of sub-
stantiation.
(d) There is no likelihood of the consumer being misled as a result
of the comparison, whether about the product advertised or that
with which it is compared.
(e) The advertisement does not unfairly denigrate, attack or
discredit other products, advertisers or advertisements directly
or by implication.
2. Advertisements shall not make unjustifiable use of the name or
initials of any other firm, company or institution, nor take unfair
advantage of the goodwill attached to the trademark or symbol of
another firm or its product or the goodwill acquired by its
advertising campaign.
3. Advertisements shall not be similar to any other advertiser’s earlier
run advertisements in general layout, copy, slogans, visual
presentations, music or sound effects, so as to suggest plagiarism.
4. As regards matters covered by Sections 2 and 3 above, complaints
of plagiarism of advertisements released earlier abroad will lie
outside the scope of this Code except in the undermentioned
circumstances:
(a) The complaint is lodged within 12 months of the first general
circulation of the advertisements/campaign complained against.
(b) The complainant provides substantiation regarding the claim of
prior invention/usage abroad.
16.8.5 Broadcasting Ethics

As far as broadcasting ethics in India are concerned, Doordarshan and AIR
were regulated by the Code of Ethics. It was only quite recently that News
Broadcasters Association based in New Delhi has formulated their own code
of ethics and submitted it to the Central Government.
(i) Broadcast code of AIR/DD forbids the following

Broadcast code of AIR/DD forbids the following:
criticism of friendly countries;

attack on religions or communities;
anything obscence or defamatory;
ie
Fp incitement to violence or anything against maintenance of law and
order;
anything amounting to contempt of court;
aspersions against the integrity of the President and Judiciary;
anything affecting the integrity of the Nation; and
Ee criticism by name of any person.
ciate
The Cable Television Networks (Regulation) Act, 1995 (specified under
Cable Network Rules, 1994 ) also has a Programme Code [already given in
Chapter 13 (Broadcasting)].
(ii) News Broadcasters Association
Code of Ethics and Broadcasting Standards

Background
(1) The Constitution of India guarantees to all its citizens, the right to
free speech, which right has been liberally construed by our
Supreme Court as encompassing not-just the freedom of press, but
also the right of the citizen to be informed of matters of public
moment and concern.
(2) The fundamental premise of a democracy is the accountability of all
its institutions to the political sovereign, viz. the people. It is
axiomatic that for democracy to survive and flourish, freedom must
live in the hearts of people, and the citizenry must be ever vigilant
against all attempts to subvert the rule of law. Democracies have
decayed into anarchy not merely on account of major events such as
coups, but also by insidious erosion caused by egregious corruption
and abuse of power. Exposing the threat within itself has become
one of the most important roles of the news media, particularly the
electronic media whose reach and penetration has the promise to
make democracy a living reality for those who do not have access
to the print media for want of literacy or otherwise, and giving them
a sense of involvement in the process of governance.
(3) India is the world’s largest democracy, demographically marked by
diversity in religion, language and caste, and undoubtedly has
problems that are significantly peculiar to it. Yet at the same time, it
shares certain common values with other vibrant democracies, and
one of them is balancing the freedom of the press with putting
in place checks and balances that seek to instill a sense of
responsibility and to prevent abuse of this freedom, without the
“chilling effect” that would impair journalistic freedom.
(4) It is the duty of media to keep the citizenry informed of the state
of ‘governance, which mostly puts it at odds with the establishment.
A media that is meant to expose the lapses in government and in
public life, cannot obviously be regulated by government—it would
lack credibility. It is a fundamental paradigm of freedom of speech
that media must be free from governmental control in the matter
of “content”—censorship and free speech are sworn enemies. It
therefore falls upon the journalist profession to evolve institutional
checks and safeguards, specific to the electronic media, that can
define the path that would conform to the highest standards of
rectitude and journalistic ethics and guide the media in the discharge
of its solemn constitutional duty.
(5) There are models of self-governance evolved in other countries who
have seen an evolution of the electronic media including the news
media much before it developed in India. The remarkable feature of
all these models is self-governance, and a monitoring by a “jury of
its peers”.
(6) There are undoubtedly limitations in any model of self-governance
in which compliance is entirely voluntary. However this does not
suggest that such models are ineffective. Their efficacy flows from
the fact that the basic strength of a news channel lies in its
credibility, from which flows its ability to influence public opinion.
A censure emanating from a jury of its peers would indisputably
affect the credibility of a channel. Besides, such a process is not
without its legal ramifications. One of the important defences to
civil and criminal actions (based on defamation) is “fair comment”
and bona fide attempts to unravel the truth. The difference between
inaccuracy and falsehood lies many a time in the motive. A channel
acting in breach of established guidelines could hardly defend its
motives or suggest that it was acting fairly, if it is censured by a
jury of its peers.
(7) The interference by the government, however well intentioned,
would imperil not just this method of independent journalism, but
the very process of investigation itself. It therefore has become
imperative that the news channels lay down guidelines, procedural
safeguards and establish a body that would act as a watchdog and a
grievance redressal forum.
16.9 SECTION 1: FUNDAMENTAL PRINCIPLES

(1) Professional electronic journalists should accept and understand that
they operate as trustees of public and should, therefore, make it
their mission to seek the truth and to report it fairly with integrity
and independence. Professional journalists should stand fully

accountable for their actions.
(2) The purpose of this code is to document the broad paradigms
accepted by the members of the News Broadcasters Association
(NBA) as practice and procedures that would help journalists of
electronic media to adhere to the highest possible standards of
public service and integrity.
(3) News channels recognize that they have a special responsibility in
the matter of adhering to high standards of journalism since they
have the most potent influence on public opinion. The broad
principles on which the news channels should function are,
therefore, as stated hereinafter.
(4) Broadcasters shall, in particular, ensure that they do not select news
for the purpose of either promoting or hindering either side of any
controversial public issue. News shall not be selected or designed to
promote any particular belief, opinion or desires of any interest
group.
(5) The fundamental purpose of dissemination of news in a democracy
is to educate and inform the people of the happenings in the
country, so that the people of the country understand significant
events and form their own conclusions.
(6) Broadcasters shall ensure a full and fair presentation of news as the
same is the fundamental responsibility of each news channel.
Realizing the importance of presenting all points of view in a
democracy, the broadcasters should, therefore, take responsibility in
ensuring that controversial subjects are fairly presented, with time
being allotted fairly to each point of view. Besides, the selection of
items of news shall also be governed by public interest and
importance based on the significance of these items of news in a
democracy.
16.10 SECTION 2: PRINCIPLES OF SELF

REGULATION
The News Broadcasters Association (NBA) have established commonly
accepted content guidelines as a way of practicing self-regulation. The
purpose is to define editorial principles which are consistent with the tenets of
the freedom of speech articulated in the constitution of India; the regulatory
framework; common sensibilities of television viewers.
The purpose of these principles of self-regulation is to serve as an

affirmative declaration of understanding of, and compliance with, the basic
values and objectives that news channels enshrine. It is to ensure that these
principles are observed in spirit, and not just in the letter.
The purpose of putting together the principles of self-regulation is to

avoid compromising the genre of television news by broadcasting content that
is malicious, biased, regressive, knowingly inaccurate, hurtful, misleading, or
aimed at willfully concealing a conflict of interest.
The purpose of these principles of self-regulation is to empower the
profession of television journalism by an abiding set of values, which will
stand the test of time, and ensure that balanced and comprehensive
journalism flourishes, to strengthen India’s democracy.
Detailed below are some of the areas where the broadcasters seek to
self-regulate.
16.10.1 Impartiality and Objectivity in Reporting

Accuracy is at the heart of the news television business. Viewers of 24 hour
news channels expect speed, but it is the responsibility of Television news
channels to keep accuracy, and balance, as precedence over speed. If despite
this there are errors, channels should be transparent about them. Errors must
be corrected promptly and clearly, whether in the use of pictures, a news
report, a caption, a graphic or a script. Channels should also strive not to
broadcast anything which is obviously defamatory or libelous. Truth will be a
defence in all cases where a larger public interest is involved, and in even
these cases, equal opportunities will be provided for individuals involved to
present their point of view. This also applies in cases where television chan-
nels report on those holding public office, though by virtue of doing so, no
person can claim immunity from scrutiny from or criticism by news channels.
16.10.2 Ensuring Neutrality

Television news channels must provide for neutrality by offering equality for
all affected parties, players and actors in any dispute or conflict to present
their point of view. Though neutrality does not always come down to giving
equal space to all sides (news channels shall strive to give main view points
of the main parties)news channels must strive to ensure that allegations are
not portrayed as fact and charges are not conveyed as an act of guilt.
16.10.3 Reporting on Crime and Safeguards to Ensure

Crime and Violence Not Glorified
Television news has greater reach, and more immediate impact than other
forms of media, and this makes it all the more necessary that channels
exercise restraint to ensure that any report or visuals broadcast do not induce,
glorify, incite, or positively depict violence and its perpetrators, regardless of
ideology or context. Specific care must be taken not to broadcast visuals that
can be prejudicial or inflammatory. Equally, in the reporting of violence
(whether collective or individual) the act of violence must not be glamorized,

because it may have a misleading or desensitizing impact on viewers. News
channels will ensure that such reconstructions will not cross boundaries of
good taste and sensibility. This includes taking adequate precaution while
showing any visual instance of pain, fear or suffering, and visuals or details
of methods of suicide and self-harm of any kind and will not cross boundaries
of good taste and decency.
16.10.4 Depiction of Violence or Intimidation

Against Women and Children
As an elaboration of Point 3, news channels will ensure that no woman or
juvenile, who is a victim of sexual violence, aggression, trauma, or has been a
witness to the same is shown on television without due effort taken to conceal
the identity. In reporting all cases of sexual assault, or instances where the
personal character or privacy of women are concerned, their names, pictures
and other details will not be broadcast/divulged. Similarly, the identity of
victims of child abuse and juvenile delinquents will not be revealed, and their
pictures will be morphed to conceal their identity.
16.10.5 Sex and Nudity

News channels will ensure that they do not show, without morphing, nudity
of the male or female form. Channels will also not show explicit images of
sexual activity or sexual perversions or acts of sexual violence like rape or
molestation, or show pornography, or the use of sexually suggestive language.
(As a qualifier however, channels are not expected to be moralistic or
prudish, and this self-regulation is aimed not at moral policing, but rather at
ensuring that overtly regressive and explicit acts and visuals do not slip into
broadcasts).
16.10.6 Privacy
As a rule, channels must not intrude on private lives, or personal affairs of

individuals, unless there is a clearly established larger and identifiable public
interest for such a broadcast. The underlying principle that news channels
abide by is that the intrusion of the private spaces, records, transcripts,
telephone conversations and any other material will not be for salacious
interest, but only when warranted in the public interest. However, it is also
understood that the pursuit of the truth and the news is not possible through
the predetermined principle of prior permission; hence door-stepping
individuals or authorities for the purpose of news gathering may be used only
in the larger purpose of public interest. Further, in the case of minors, in any
broadcast that intrudes on their privacy, the channel should attempt, where
possible, to seek the consent of the parent or legal guardian. However, the
defence of the premise of privacy cannot be misconstrued as the denial of
access, and this applies to all individuals, including those in the public eye
and public personalities. It does however apply in its entirety, as per the
provisions mentioned above, to their children and kin who are minors.
16.10.7 Endangering National Security

In the use of any terminology or maps, that represent India and Indian
strategic interests, all news channels will use specific terminology and maps
mandated by law and Indian government rules. (The depiction of the map of
the territory of India will reflect official guidelines, as detailed in official
literature). News channels will also refrain from allowing broadcasts that en-
courage secessionist groups and interests, or reveal information that endangers
lives and national security. However, it is in the public interest to broadcast
instances of breach of national security and loopholes in national security and
reporting these cannot be confused with endangering national security.
16.10.8 Refraining from Advocating or Encouraging

Superstition and Occultism
News channels will not broadcast any material that glorifies superstition and
occultism in any manner. In broadcasting any news about such genre, news
channels will also issue public disclaimers to ensure that viewers are not
misled into believing or emulating such beliefs and activity. Therefore news
channels will not broadcast “as fact” myths about “supernatural” acts,
apparitions and ghosts, personal or social deviations or deviant behaviour, and
recreations of the same. Wherever references are made to such cases, news
channels will issue on air riders/disclaimers/warnings to ensure that such
beliefs or events are not passed off “as fact” since they can hurt rational
sensibilities.
16.10.9 Sting Operations

As a guiding principle, sting and undercover operations should be a last resort
of news channels in an attempt to give the viewer comprehensive coverage of
any news story. News channels will not allow sex and sleaze as a means to
carry out sting operations, the use of narcotics and psychotropic substances or
any act of violence, intimidation, or discrimination as a justifiable means in
the recording of any sting operation. Sting operations, will also abide by the
principles of self-regulation mentioned above, and news channels will ensure
that they will be guided, as mentioned above, by an identifiable larger public
interest. News channels will as a ground rule, ensure that sting operations are
carried out only as a tool for getting conclusive evidence of wrong doing or
criminality, and that there is no deliberate alteration of visuals, or editing,

or interposing done with the raw footage in a way that it also alters or
misrepresents the truth or presents only a portion of the truth.
16.10.10 Corrigendum
All news channels will, keeping with the principle of due accuracy and
impartiality, ensure that significant mistakes made in the course of any
broadcast is acknowledged and corrected on air immediately. Corrections
should also be scheduled in such a way that they attract enough viewer
attention and are not concealed. This, like the other principles, must be
observed in spirit, and not just in letter, to avoid any compromise to the
reputation of the news broadcasting industry in India.
16.10.11 Viewer Feedback
All News Channels will on their website, create provision to receive

consumer feedback. Further any specific viewer complaints will be responded
to. In the event any news channel gets a specific complaint, if found to be
true, it will admit to the same on air and will respond in fullness and fairness
to the viewer. In the event, a viewer/body perceives prejudice by any specific
report carried by the news channel, it will respond in fullness and without
impartiality to the viewer.
EXERCISES
Short Questions
1. How do ethics differ from laws?
2. Explain the broadcast code for AIR/DD.
3. What are the codes of ethics existing for advertising in India?
Long Questions
1. Explain the code of ethics for print media in India.
2. Explain the code of ethics for broadcasting in India.
3. Explain the code of ethics for advertising in India.
FURTHER READING
Vir Bala Aggarwal and V.S. Gupta, Handbook of Journalism and Mass
Communication, Concept Publishing, New Delhi, 2002.
Appendix I
Excerpts from the Code of Ethics for

Advertising in India Issued by the
Advertising Council of India
Along with the development of a very complex distribution system, the

requirements of a market economy, faced with the need for ensuring a regular
flow of mass production, have given rise to the development of new
techniques of sales promotion.
Of these, advertising has proved itself to be of inestimable value for
producers and distributors as well as for consumers. It enables the former to
maintain contact with customers who are widely scattered and often unknown,
and it assists the latter in choosing those goods and services that are the best
suited to their particular requirements.
Advertising has become an important social and economic force in the
world today. It is therefore, essential that any unfair advertising practice likely
to alienate public confidence, would be eliminated. Hence the need for rules
of conduct drawn up for the purpose of preventing possible abuse and of
promoting and increasing sense of responsibility towards the consumer on the
part of the advertisers, advertising agencies and media owners and suppliers.
Recognizing that the legitimate function of advertising is the advocacy
of the merits of particular products or services, this code is intended to be
applied in the spirits as well as in the letter and should be taken to set out
the minimum standards to be obsereved by the parties concerned. This code
does override all ethical standards in advertising laid down by individual
organizations, but it does not supersede the standards of practice laid down by
individual organizations as incumbent upon their own members and applying
to their own particular trade or industry.
211
Appendix II
Code of Standards in Relation to

the Advertising of Medicines
and Treatments
This code has been drafted for the guidance of advertisers, manufacturers,
distributors, advertising agents, publishers and suppliers or various advertising
media. The harm to the individual that may result from exaggerated,
misleading or un-guaranteed claims justified the adoption of a very high
standard and the inclusion of considerable detail in a Code to guide those who
are concerned with this form of advertising. Newspaper and other advertising
media are urged not to accept advertisements in respect of any product or
treatment from any advertiser or advertising agent who disregards the
provisions of this Code in any form of advertising or publicity relating to that
product or treatment. The provisions of this Code do not apply to an
advertisement published by or under the authority of a Government, Ministry
or Department nor to an advertisement published in journals circulated to
Registered Medical Practitioners, Registered Dentists, Registered Pharmacists
or Registered Nurses.
Section 1: GENERAL PRINCIPLES
1. Cure: No advertisement should contain a claim to cure any

ailment or symptoms of ill-health, nor should any advertisement
contain a word or expression used in such a form or context as to
mean in the positive sense the extirpation of any ailment, illness or
disease.
2. Illness etc. properly requiring medical attention: No advertise-
ment should contain any matter which can be regarded as offer of
medicine or product for, or advice relating to, the treatment of
serious diseases, complaints, conditions, indications or symptoms
which should rightly receive the attention of a Registered medical
practitioner (see Section 2).
212
Appendix II : Code of Standards... * 213
°
Misleading or exaggerated claims: No advertisement should

contain any matter which directly or by implication misleads or
departs from the truth as to the composition, character or action of
the medicine or treatment advertised or as to its suitability for the
purpose for which it is recommended.
Appeals to fear: No advertisement should be calculated to induce
fear on the part of the reader that he is suffering, or may without
treatment suffer from an ailment, illness or diseases.
Diagnosis or treatment by correspondence: No advertisement
should offer to diagnose by correspondence disease, conditions or
any symptoms of ill-health in a human being or request from any
person or a statement of his or any other person’s symptoms of ill-
health with a view to advertising as to or providing for treatment of
such conditions of ill-health by correspondence. Nor should any
advertisement offer to treat by correspondence any ailment, illness,
disease or symptoms thereof in a human being.
Disparaging references: No advertisement should directly or by
implication disparage the products, medicines or treatments of
another advertiser or manufacturer or registered medical practitioner
or the medical profession.
College, clinic, institute, laboratory: No advertisement should
contain these or similar terms unless an establishment corresponding
with the description used does in fact exist.
Doctors, hospitals ete.: No advertisement should contain any
reference to doctors or hospitals, whether Indian or foreign, unless
such reference can be substantiated by independent evidence and
can properly be used in the manner proposed.
Products offered particularly to women: No advertisement of
products, medicines or treatments of disorders or irregularities
peculiar to women should contain expression which may imply that
the product, medicine or treatment advertised can be effective in
inducing miscarriage.
10. Family planning: Advertisement for measures or apparatus
concerning family planning would be permissible insofar as they
conform to the generally accepted national policy in this behalf.
il Illustrations: No advertisement should contain any illustration
which by itself or in combination with words used in connection
therewith is likely to convey a misleading impression, or if the
reasonable inference to be drawn from such advertisement infringes
any of the provision of this Code.
Exaggerated copy: No advertisement should contain copy which
is exaggerated by reason of improper use of words, phrases or
214 * Appendix II : Code of Standards...
methods of presentation, e.g., the use of words magic, magical,

miracle, miraculous.
133 Natural remedies: No advertisement should claim or suggest
contrary to the fact that the article advertised is in the form in which
it occurs in nature or that its value lies in its being a ‘natural’
product.
14. Special claims: No advertisement should contain any reference
which is calculated to lead the public to assume that the article,
product, medicine or treatment advertised has some special property
or quality which is in fact unknown or unrecognized.
LS: Sexual weakness, premature ageing, loss of virility: No
advertisement should claim that the product, medicine or treatment
advertised will promote sexual virility or be effective in treating
sexual weakness or habits associated with sexual excess or
indulgence or any ailment, illness or disease associated with those
habits. In particular such term as ‘premature ageing’, ‘loss of
virility’ will be regarded as conditions for which medicines,
products appliances or treatment may not be advertised.
16. Slimming, weight reduction or limitation or figure control: No
advertisement should offer any medical product for the purpose of
slimming, weight reduction or limitation or figure control. Medical
products intended to reduce appetite will usually be regarded as
being for slimming purposes.
Lie Tonics: The use of this expression in advertisements should not
imply that the product or medicine can be used in the treatment of
sexual weakness.
18. Hypnosis: No advertisement should contain any offer to diagnose
or treatment of complaints or conditions by hypnosis.
19: Materials to students: Materials meant for distribution in
educational institutions must not carry advertisement of anything
other than those of value to students.
Section 2. RESTRICTIONS IMPOSED BY STATUTE

ON ADVERTISING ON MEDICINES AND
TREATMENTS
i, Rule 106 of the Drug Rules, 1945, provides that, no drug may convey
to the intending user thereof any idea that it may prevent or cure one
or more of the diseases or ailments specified in schedule ‘J’.
- Appendix II : Code of Standards... * 215
Schedule J
Blindness
Bright’s disease
Cancer
Cataract
Deafness
Delayed menstruation
Diabetes
Epilepsy
Hydrocele
Infantile paralysis
Leprosy
Leucoderma
Lockjaw
Locomotor ataxia
Insanity
Tuberculosis
Tumors
Venereal diseases (in general)
Female diseases (in general)
Fevers (in general)
Fits
Glaucoma
Goitre
Gonorrhea
Heart diseases
Soft cancer
High blood pressure
Paralysis
Sexual impotence
Obesity
Rupture
Lupus
Plague
Small pox
N No drug may purport or claim to procure or assist to procure, or may

convey to the intending user thereof any idea that it may procure or
assist to procure miscarriage in women.
Definition: ‘Drug’ includes for internal or external use for human
being or animals all substances intended to be used for or in the treatment,
mitigation, or prevention of disease in human being or animals, other than
medicines and substances exclusively used or prepared for use in accordance
with the Ayurvedic or Unani system of medicines.
Appendix III
Standards of Practice for

Advertising Agencies
(As approved by the Advertising Agencies
Association of India, Bombay)
Every member of the Association shall carry on his profession and

business in such a manner as to uphold the dignity and interests of the
Association.
Every member shall refrain from canvassing advertisers or prospective
advertisers in such a way as to reflect detrimentally upon advertising
agents in particular.
Convassing is permitted subject to the condition that a member may
make known to the client of another member its own capabilities as
an advertising agency but may not submit a specific report or detailed
recommendations concerning the client’s advertising unless so
requested by him in writing.
No member shall pay or undertake to pay or allow to an advertiser
or his agent or representative, the whole or any portion of the standard
rate of commission resulting or to result to such member from any
advertising medium nor promise or procure or undertake to procure
advertising, or at a reduced rate nor supply free or partly free to any
advertiser, any advertising material, including finished drawings,
or other artwork, photographs, blocks, stereos, matrice or the like,
typesetting or printing nor defray in whole or in part, the salary of any
employee of an advertiser, nor grant any allowances, discount or the
like nor render any service having the effect of rebating the commission
allowed by an advertising medium. The sharing of commission with
member or overseas agency or with agent by this Association shall,
however, be permitted.
The practice of submitting speculative campaigns is unhealthy to the
growth of the advertising services and no speculative campaign shall
be submitted by any member of the Advertising Agencies Association
of India. By speculative campaign, it is meant, producing a campaign
216
Appendix III : Standards of Practice for Advertising Agencies * 217
unsolicited by an advertiser and equally producing a campaign where

the advertiser had requested one or more advertising agencies to do
sO, unaccompanied by a firm offer of business. That member shall
notify the Secretary of the Association if any such queries were made
by prospective advertiser, and that such information shall be circulated
by the Secretary to all members.
Any member relinquishing an Account on the ground of slow payment,
doubtful credit or incurring a bad debt, shall immediately notify the
Secretary of the Association and such information shall be circulated
in strict confidence for information and protection of the members.
No business shall be accepted which is conditional upon the payment
of commission fee or reward to a third party not a full time employee
of the members either for introducing the business or for services in
connection with the account thereafter. This rule, however, shall not
preclude a member from employing copywriters or production men at
fees commensurate with the values of their work.
Obligation to clients
th Member agencies must continue to render full agency service in
reasonable conformity to the Association Agency Service Standards.
4p Members shall retain either commission granted by media owners or
charge the clients a service fee which shall never be less than 15% of
the client’s gross expenditure.
Nor shall they supply material for advertising on any basis that can
be considered as direct or indirect or secret rebating. Where no
commission is allowed by the Media Owner, the member will charge
his clients-minimum of 15% on the gross cost.
Members will not accept discounts or commission, other than the

regular agency commission allowed by the publishers without the client’s
knowledge and consent.
Members shall at all times use their best efforts to obtain for their
clients the lowest rates to which such clients are entitled.
Obligation to suppliers
Members shall take all steps to assure themselves as to the financial
soundness of their clients.
Obligation to fellow agencies

i Members are required to use fair methods of competition; not to offer
the services enumerated above or services in addition to them without
adequate remuneration or extension of credit facilities or banking
services.
218 * Appendix III : Standards of Practice for Advertising Agencies
2. Members shall neither prepare nor place any advertisement in any

medium, which
(a) is knowingly a copy or a plagiarism of any other advertisement

of any kind whatsoever;
(b) makes attacks of a personal character, or makes un-called for
reflections on competitors or competitive goods;
(c) is indecent, vulgar, suggestive, repulsive or offensive either in
theme or treatment;
(d) is objectionable medical advertising that makes remedial or curative
claims, either directly or by inference, not justified by the facts
of common experience;
(e) concerns a product known to the member to contain habit forming
or danger drugs; or any advertisement which may cause money-
loss to the reader, or injury in health or morals or loss of confidence
in reputable advertising and honourable business or which is
regarded by the Executive Committee of the Advertising Agencies
Association of India, as unworthy. In the event of a member
providing to the satisfaction of the Executive Committee that a
client has withdrawn his account on the grounds of the member’s
refusal to undertake unethical advertising (as described above)
no other member shall accept any business whatever from the
said client.
References
Aggarwal, Vir Bala and V.S. Gupta, Handbook of Journalism and Mass
Communication, Concept Publishing Company, New Delhi, 2002.
Barua, Vidisha, Press and Media Law Manual, Universal Law Publishing Co.,
Delhi, 2002.
Basu, Durga Das, Introduction to the Constitution of India, Prentice-Hall of India,
New Delhi, 1993.
Basu, Durga Das, Law of the Press, Prentice-Hall of India, New Delhi, 1994.
Govindarajan, M.S. Natarajan and V.S. Senthil Kumar, Engineering Ethics,
Prentice-Hall of India, New Delhi, 2006.
http;//india.gov.in/govt/acts.php
Shantha Kumar, S., Human Rights, People’s Watch-Tamil Nadu, Madurai, 2005.
Sharma, Brij Kishore, Introduction to the Constitution of India, PHI Learning,
New Delhi, 2009.
219
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Index
Advertising, 3, 118, 122, 191 Caution against defamatory writings,

Drugs and Magic Remedies 180
(Objectionable Advertisement) Censor Board, 174
Act, 1954, 122 Censorship, 16, 20
Monopolies and Restrictive Trade Centre—State relations, 10
Practices Act, 1969, 3 administrative relations, 10
Advertising Council of India, 211 legislative relations, 10
Advertsing on doordarshan, 196 Children Act, 1960, 144
Advisory panels, 164 Cinematograph Act, 1952, 163
Amendment of the Constitution, 13 Civil Defence Act, 1968, 2
Bill, 13 Civil law, 27
Appellate Tribunal, 165 defences, 27
Article 19 1(a), 2 fair comment, 27
justification, 27
privilege, 27
Board of Film Certification, 163 Civil remedies, 105
Broadcasting, 3 Code of ethics, 178
Cable Television Networks bribes/gifts, 179
(Regulation) Act, 1995, 3 conflict of interests, 178
Indian Telegraph Act, 1885, 3 crass commercialism, 179
Prasar Bharati (Broadcasting objectivity, 178
Corporation of India), 3 obscenity, 179
Broadcasting Services Regulation Bill, privacy, 179
2006, 162 sensationalism, 179
Concurrent list, 10
Constitution, 15
Cable television networks freedom of speech, 15
cognizance of offences, 158 right to equality, 5
confiscation, 157 right to freedom, 6
offences and penalties, 157 Constitution of India, 2, 5, 16, 21
offences by companies, 158 advertising, 2
seizure and confiscation of certain amendment of the Constitution, 5
equipment, 157 Article 19 l(a), 2
Cable Television Networks (Regulation) centre-state relations, 5
Act, 1995, 155 directive principles, 5
Cable Television Networks Rules, 1994, emergency provisions, 5
159 freedom of expression, 2, 21
advertising code, 160 freedom of press, 2
programme code, 159 freedom to speech, 21
221
222
Ne * Index
Constitution of India (Continued) Effect of registration, 92

fundamental rights, 5 Emergency provisions, 12
Newspaper (Price and Page) Act, Establishment of broadcasting council,
1950;92 153
parliamentary privileges, 5 Expression, 18
Press (Objectionable Matter) Act,
19515 2
Contempt of Courts Act, 1971, 2, 55 Film media, 3
Copyright, 95 Cinematograph Act, 1952, 3
copyright board, 95 Foreign agent, 51
powers and procedures of the Freedom of media, 15
copyright board, 95 Freedom of speech, 16, 18
Copyright Act, 1957, 2, 95 Freedom of press, 15
Criminal Procedure Code, 1973, 1, 34 Fundamental rights, 5, 16
search warrant, 40 cultural and educational rights, 5
Cultural and educational rights, 7 right against exploitation, 5
Cyber crimes, 126 right to constitutional remedies, 5
cracking, 126 right to equality, 5
cyber terrorism, 127 right to freedom, 5
data diddling, 126 right to freedom of religion, 5
email bombing, 127
hacking, 126
internet pharming, 128 Government of India, 11
logic bomb, 127 Supreme Court, 12
phishing, 128 Union List, 12
phreaking, 127
spamming, 127
spoofing, 127 Indecent Representation of Women
virus, 126 (Prohibition) Act, 18, 139
Cyber crimes against women, 128 prohibition of advertisements, 139
cyber defamation, 129 prohibition of publication, 139
morphing, 129 Indecent Representation of Women
(Prohibition) Rule, 141
Indian Penal Code, 19, 25, 34, 35
Indecent Representation of Women
Declaration of forfeiture, 42 Act, 19
- Defamation, 25 sedition, 35
Defence of India Act, 1962, 2 Information Technology Act, 2000, 129
Designs Act, 1911, 77 Intellectual property right, 76
application for registration of copyright, 77
designs, 78 geographical indications, 77
certificate of registration, 78 industrial designs, 76
copyright in registered designs, 79 patents, 76
registration of designs, 77 protection for new plant varieties,
registration of designs in new a
classes, 78 trademark and service mark, 76
Digital signature, 135
Directive principles, 8, 16
Directive principles of state policy, 8 Journalistic ethics, 187
Seee
Index
eea
*
ae
223a
Legislative relations, 10 opposition to registration, 89

Licensing authority, 168 withdrawal of acceptance, 88
Proclamation of emergency, 16
Magic remedy, 123

Media ethics, 177 Registration of newspapers, 66
Media law, 1 Right against exploitation, 7
Monopolies and _ Restrictive Trade Right to constitutional remedies, 8
Practices Act, 118 certiorari, 8
habeas corpus, 8
mandamus, 8
News Broadcasters Association (NBA), prohibition, 8
206 quo warranto, 8
background, 204 Right to equality, 5
Newspapers (Incitement to Offences) Right to freedom, 6
Act, 1908, 2 freedom of assembly, 6
Ninth Schedule, 7, 16 freedom of association, 6
freedom of movement, 6
freedom of profession, occupation,
Official Secrets Act, 1923, 2 trade or business, 6
freedom of religion, 7
freedom of residence and settlement,
Parliamentary privileges, 13 6
Patents Act, 1970, 82, 94 freedom of speech and expression,
Penalty for harbouring spies, 52 6
Power of High Court, 57
Prasar Bharati (Broadcasting Corporation
of India), 150 Search-warrant, 53
Press and Registration of Books Act, Spies, 52
1867, 2, 64 State list, 10
Press Council Act, 1978, 3, 19, 68 Supreme Court, 16
freedom of the press, 3
Press Council of India, 18, 187
Press council’s code of ethics, 179 Term of copyright, 99
accuracy and fairness, 179 infringement of copyright, 101
caution against defamatory writings, license to produce and _ publish
180 translations, 100
caution against identification, 181 registration of copyright, 101
letters to editor, 183 term of copyright in cinematograph
pre-publication verification, 180 films, 100
principles and ethics, 179 term of copyright in government
right to reply, 182 works, 100
right to privacy, 181 term of copyright in photographs,
Press regulations, | 100
Preventive detention, 6 term of copyright in records, 100
Print media, | term of copyright in works of inter-
Procedure for and duration of national organization, 100
registration, 88 Trade and Merchandise Marks Act,
advertisement of application, 89 1958, 82
application for registration, 88 registrar of trademarks, 83
224 * Index
Uniform Civil Code, 9 Wrongful communication, 51

Union list, 10 official code, 52
Working journalists, 72 Young Persons (Harmful Publications)

and other newspaper employees, Act, 1956, 145
TZ harmful publication 145
M. Neelamalar
esigned as a textbook for undergraduate and postgraduate students ofjournalism,
MeateKcmee)aavanlelalrercladrelaMmUierelmee)anvealelal(erlale)am) (=teidge)aliouael-lolt-mr-lalemeiaal=)anaslicjactel
media courses, this compact text provides a detailed description of the rules, acts and
ethics concerning print, electronic, film and advertising media as prevalent in India.
The book begins with the history of media law in India Tale) discusses the specific provisions
in the Constitution of India which are essential for a journalist to know. It then goes on
to define the concepts of freedom of media, defamation and Intellectual Property
Rights. Besides, the text discusses in detail the provisions of the Indian Penal Code and the
Criminal Procedure Code relevant to the media. In addition to covering different types of
cyber crimes such as hacking, cracking and e-mail bombing, it includes regulations related
to film media and advertising. Finally, the book throws light on media law concerning
women and children. The book also includes several important cases to enable students
to relate various acts and regulations to real-life situations.
Besides students, journalists and other media professionals who cover courts ane law-
related beats would also find this book oy valuable.
M. NEELAMALAR, PhD, is ee Professor in the Department of Media Sciences, S

Anna University, Chennai. She has about 14 years of teaching experience. Dr. M. Neelamalar
has published a number of research articles iin various national and international journals,
as well as presented several papers in conferences/se ninars. Her specializations include
Media Law and Ethics, War and WICIER Women an Media, and Children and Media. She -
has authored a number of books on -
ISBN:978-81-203-3
tation
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PHI Learning > rive Vintec

MEDIA LAW AND ETHICS

Fourth Printing August, 2015

CHAPTER 1 HISTORY OF MEDIA LAW IN INDIA

CHAPTER 2 INDIAN CONSTITUTION

CHAPTER 3 FREEDOM OF MEDIA

CHAPTER 5 PROVISIONS OF THE INDIAN PENAL

CHAPTER 6 OFFICIAL SECRETS ACT 1923

CHAPTER 7 THE CONTEMPT OF COURTS ACT, 1971 55-63

CHAPTER 8 PRINT MEDIA: ACTS 64-75

CHAPTER 9 INTELLECTUAL PROPERTY RIGHTS

9.3.3 The Patents Act, 1970 94

CHAPTER 10 ADVERTISING 118-125

CHAPTER |] CYBER CRIMES 126-138

CHAPTER 12 MEDIA LAW AND WOMEN 139-143

CHAPTER 13 MEDIA LAW AND CHILDREN 144-149

13.3. The Young Persons (Harmful Publications)

CHAPTER 14 BROADCASTING 150-162

CHAPTER 15 FILM MEDIA 163-176

CHAPTER 16 MEDIA ETHICS 177-210

16.8.3 Responsibility for the Observance of this

APPENDIX I Excerpts from the Code of Ethics for Advertising in

In the current scenario, students of media come across a variety of options to

Chapter no. Details of cases

R. Rajagopal @ R.R. Gopal @ Nakkheeran Gopal and A. Kamaraj

Advocate General of Tamil Nadu vs. Shri M. Karunanidhi

Time Warner Entertainment Company I.P. and Ors. vs. RPG

Asian Paints Limited vs. Home Solutions Retail (India) Limited,

15 Tamil Nadu Medical Council rep by its President, Dr. K.R.

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too. Its provisions authorized the government to search and forfeit

1.1.1 Other Major Acts

powers of certain courts in passing the orders related to the contempt of

Press Council Act 1978: This is an Act to establish a Press Council

2.2; FUNDAMENTAL RIGHTS

* Specific Provisions Related to Media.

before law, prohibition of discrimination on grounds of religion, race, caste,

detention. (Preventive detention is detaining somebody in custody even before

Right against exploitation

Right to freedom of religion

Cultural and educational rights

Saving of certain laws

Right to constitutional remedies

2.3 DIRECTIVE PRINCIPLES OF STATE POLICY

1. To secure a social order for the promotion of welfare of the people

15. To protect every monument or place or object of artistic or historic

2.4 CENTRE-STATE RELATIONS

2.4.1 Legislative Relations

Disputes relating to water

Co-ordination between States

It shall be lawful for the President by order to establish an inter-State council