Fundamental rights and frequencies: Right to broadcast

Chintan Nirala, 4th Year, B.A., LL.B(HONS.), Faculty of Law, Allahabad University

Frequencies or Signals are an indispensable requirement for Communication, Media, Entertainment, or Technology. In other words, it is sine qua non for CMET. They may be unsuccessful in serving their purpose without the involvement of frequencies. It is the part of technology through which Entertainment, Media or Communication executes their whole process. With emerging audio-visual telecommunication and social media involving frequencies so as to broadcast, this case came before the court as to decide on the question of the right to broadcast bearing serious questions regarding the fate of future policies to be adopted in India.

Game of cricket has been a great source for entertainment in India. With growth of technology, the broadcast of matches shifted from audio to audio-visual telecommunications involving frequencies for live telecast, the question as to freedom of broadcasting became inevitable.It was already established that providing entertainment is implied in freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution along with the right to acquire information and to disseminate it, the question regarding nature of the property with respect to airwaves needed to be answered. And if there was a right then what should be the regulatory framework with regard to the exercise of such right. Court also analyzed the claim of monopoly of the Government and its agencies over the field of telecast and broadcast in India. Its decision did not only answer these questions but also decided the future course of Communication, Media, Entertainment, and Technology in India.

During 1990’s, with India going into transitional stage with the technological boom in the country The Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal (CAB) with Cricket Association of Bengal and others v Union Of India and others (([1995]2 SCC 161: AIR 1995 SC 1236. Justice Sawant wrote the principal opinion in Cricket Association. He spoke for himself and Justice Mohan. Justice B.P. Jeevan Reddy wrote a separate, but concurring opinion.))gave a landmark judgement regarding the telecasting and broadcasting vis-a-vis airwaves or frequencies.

In this particular case, Cricket Association of Bengal ((Hereinafter CAB))hosted a six nation international cricket tournament in November 1993 under the name and style of ‘Hero Cup Tournament’. CAB agreed to Doordarshan creating the host broadcaster Signal and also granting exclusive rights for India without the Satellite Television Asia Region ((Hereinafter Star TV))getting it, subject to the payment of eight hundred thousand U.S. dollars. But on the other hand, Doordarshan offered to pay the sum of one crore only. Consequently, CAB changed its stance and decided to sell the worldwide television rights to Trans World International ((Hereinafter TWI.)), a foreign television company. However, with regard to the interest of the viewers in India, CAB made TWI agreed on the proposition of making co-production with Doordarshan. Doordarshan informed CAB that the proposal was unacceptable as it was not willing to take signals from TWI, a foreign company. In the absence of any agreement between CAB and Doordarshan, the Department of Telecommunication addressed a letter to Videsh Sanchar Nigam Limited ((Hereinafter VSNL.))that up-linking facility for telecasting by TWI should not be provided. Aggrieved by the developments CAB approached Calcutta High Court, by way of writ petition, praying that direction be given to provide telecasting and broadcasting facility of all the matches by agency appointed by CAB. An interim order of injunction restraining the respondents from preventing telecast was granted. The High Court expressly opined that there was already an implied grant of permission. After expressing the said opinion, the direction to consider was a mere formality and of little significance. As a matter of fact, the Secretary was directed to grant the license in so many words thus leaving no discretion in him to examine the matter in accordance. It became an empty formality. In the other case, the organizers approached directly the Supreme Court through a writ petition. When this decision came before the Supreme Court, the matches had been played and both tournaments were over. Broadly, the Court was asked to rule upon, inter alia, whether Governmental agencies such as Doordarshan could claim a monopoly over airwaves or alternatively or, did the organizer or the producer of the event have the right to select a broadcasting agency of his own choice?

The principle issues involved that the court addressed werethe scope of Article 19 (1)(a) vis-a-vis ((Art.19(1)(a)- All citizens shall have the right to freedom of speech and expression.))broadcasting and the extent of government control over frequencies and broadcasting. The court also considered the nature of the regulatory framework body governing broadcasting.

The scope Article 19(1)(a) with regard to broadcasting can be easily comprehended with the statement of Justice P. B. Sawant which deserves to be quoted:

“The right to impart and receive information is a species of the right to freedom of speech and expression guaranteed by Article 19 (1)(a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public property, Viz., the airwaves, involved in the exercise of the right and can be controlled and regulated by the public authority. This limitation imposed by the nature of the public property involved in the use of the electronic media is in addition to the restriction imposed on the right to freedom of speech and expression under Article 19 (2) of the Constitution ((Cricket Assn. case n(1) at p.124(i)(ii).)).”

The Court held that undoubtedly, broadcasting came within the ambit of the protected freedom under Art. 19(1)(a). It was observed by the court that the airwaves or frequencies involved in the telecast and broadcast constitute public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Since, the electronic media involves the use of the airwaves, this factor creates an in-built restriction on its use as in the case of any other public property.

CAB and BCCI through their learned counsel contended that the game of cricket provides entertainment which in turn is an expression within the ambit of freedom of speech and expression guaranteed under Art.19(1)(a). Right to disseminate and receive information is a part of the right guaranteed by Art.19(1)(a). Telecasting a cricket match is a form of dissemination of information ((ibid at p.148(e).)). On the other hand, it was argued by State that this was a purely commercial matter, and therefore Art. 19(1)(g) was not attracted ((ibid at p.149.)). It is notable that the Court rejected this argument primarily on the basis of the fact that sport was a form of expression, and dissemination of information about sport was also a part of the freedom of expression; and secondly, that the character of the telecasters, i.e. the BCCI and the Cricket Association of Bengal, was that of non-profit organizations seeking to popularize the game of cricket through the best possible methods. Indeed, the Court expressly distinguished the case of a purely profit-making organization, and an organization whose primary function involved an incidental inflow of profits.

The Court framed the debate in the language of an Article 19(1)(a) freedom of speech and expression violation, which was sought to be justified by recourse to Article 19(2). While deciding it took into consideration Odyssey Communications Pvt. Ltd. Case, It was held that the right of citizens to exhibit films on Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19 (1) (a) which can be curtailed only under circumstances set out under Article 19 (2). Similarly, in S. Rangarajan v. P. Jagjivan Ram & Ors., (([1989]2 SCC 574.))it was held that the-freedom of speech under Article 19 (1) (a) means the right to express one’s opinion by words of mouth, writing, printing, picture or in any other manner. It would thus include the freedom of communication and, their right to propagate or publish opinion. The communication of ideas could be made, through any medium, newspaper, magazine or movie. But this right is subject to reasonable restriction in the larger interests of the community and the country set out in Article 19 (2). Article 19 (1) (a) includes the right to propagate one’s views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution ((See Printers (Mysore) Ltd. & Anr v. Asst. Commercial Tax Officer & Ors., [1994] 2 SCC 434;  In Life Insurance Corporation of India v. Professor Manubhai D. Shah [1992] 3 SCC 6371.)).

Several Broadcasting laws of other countries were taken into account especially of European countries. It was observed that Constitutions of most of the countries of the Western Europe cast an obligation upon their Government to promote broadcasting freedom and not merelyto refrain from interfering with it. The Constitution of Germany expressively involves right to broadcast within the ambit of freedom of speech and expression. The main attributor for this development has been Article 10 of the European Convention on Human Rights which guarantees freedom of expression to all the citizens of the member countries and refers specifically to radio and television. It says:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and import information and ideas without interference by public authority and regardless of frontiers.

Para 11 of the Declaration of the Rights of Man adopted by the National Assembly in 1789- affirmed in the preamble to the Constitution of the Fifth Republic (1958) and treated as binding on all branches of the government guarantees freedom of dissemination of thought and opinion. This provision is regarded as the child of the French Revolution and has greatly influenced the development of broadcasting freedom in that country.

In Germany, Article 5 of the Basic Law of 1949 states, “Every one shall have the right freely to express and disseminate his opinion by speech, writing, and pictures and freely to inform himself from generally accessible sources.”

Broadly speaking, Broadcasting freedom comprises four facets in itself namely,
(a) Freedom of the Broadcaster which should not be understood as merely an immunity from government intervention but must be understood as a freedom to safeguard free speech right of -all the people without being dominated either by the State or any commercial group.

(b) Listeners/Viewers Right Broadcasting freedom involves and includes the right of the viewers and listeners who retain their interest in free speech. It is on this basis that the European courts have taken the view that restraints on freedom of broadcasters are justifiable on the very ground of free speech. It has been already held that freedom of expression includes the right to receive information and ideas as well as freedom to impart them.

(c) Access to Broadcasting; and

(d) The Right to establish private Broadcasting stations ((Cricket Assn. case n(1) at p.179.)).

Speaking of clause 2 of Article 19, reasonable restrictions are placed upon freedom of speech and expression so as to conceive them in national interest as well as in the interest of the society. The first set of grounds, viz., the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are grounds referable to national interest whereas the second set of grounds, viz., decency, morality, contempt of court, defamation and incitement to offence are conceived in the interest of society.Therefore, the fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2).

Justice Sawant observed that the right to free speech includes right to educate, inform, and entertain thus including the right to be educated, informed, and entertained subject to restrictions under Article 19(2). Right to communicate through any media was clearly recognized by the Court ((ibid at p.11.)).However, there is little ambiguity related to the question that whether there is a fundamental right to broadcasting or not. At one point, it was observed that the case did not involve the right of private broadcasters ((ibid at p.17))on the other hand it was also observed that right to telecast is implicit in the right to educate, inform, and entertain, which is an extension of the freedom of speech and expression. Ultimately, it is hard to consider keeping in mind the interpretation of Article 19(1)(a) done by the court that the right to communicate does not include right to broadcast ((See Union of India v. Association for Democratic Reforms, AIR [2002] SC 2112 at p.44.)).

Justice Sawant observed that CAB and BCCI could telecast their matches using a method or agency of their choicebut subject to the underlying character and objectives. In the cases before the Court, the tournament organizers were professional sporting bodies that promote cricket. They did not intend, Justice Sawant assumed, a large profit from telecasting the matches. They would use proceeds from the telecast contracts to develop the sport. Justice Jeevan Reddy, on the other hand, was unwilling to recognize any explicit constitutional right to telecast for private entities, including the tournament organizers ((Cricket Assn. case n(1) at p.94 and p.97(3)(b).)).

While emphasizing more on the current question Justice B.P. Jeevan Reddy observed that airwaves must be used for advancing public good. No one has a right to utilize them at his choice and pleasure with sole motive of making profit. The right of free speech guaranteed by Article 19 (1) (a) does not include the right to use airwaves, which are public property. The airwaves can be used by a citizen for the purpose of broadcasting only when allowed to do so by a statute and in accordance with such statute. It is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens ((ibid at p. 226(b).)).They must, therefore, be utilized only for the public good. For this reason, there is no fundamental right under article 19 (1) (a) to impart information using these frequencies. But since Justice Sawant’s opinion was in consonance with Justice Mohan, the third judge in the case, it represents the Supreme Court’s majority view. Despite the ambiguity in his language, Justice Sawant recognized a fundamental right to impart information and communicate through audio and visual means of one’s choice is very significant. This must surely mean that there is a fundamental right to broadcast even if its scope depends on the underlying entity exercising it.

This was indeed a leap forward in India constitutional law. The Supreme Court already declared in Romesh Thappar and Brij Bhushan that article 19 (1) (a) includes the freedom of the press which includes the right to print, publish, and circulate news and opinions without government interference ((Romesh Thappar v. The State of Madras, AIR 1950 SC 124: (1950) SCR 594; Brij Bhushan and Anr. V. The State of Delhi, [1950] SCR 605.See also Odyssey Communications Pvt. Ltd. v.Lokvidyan Sanghatana and Ors., AIR [1988] SC 1642; Bennett Coleman & Co. and Ors. V. Union of India and Ors.,[1973] 2 SCR 757; Indian Express Newspapers(Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors., [1986] 159 ITR 856(SC).)). Thus, when broadcasting emerged as an important expressive medium, it was only fair for the Supreme Court to extend to provide broadcasting with similar cover. A denial of free speech in broadcasting would have caused an unhealthy constitutional controversy. A person would have a fundamental right to say, write, and publish something, but not to telecast or broadcast it. That position would have been unfair and unjust.

The second issue which was raised was regarding the claim of monopoly by Doordarshan over airwaves. In India there has been monopoly of broadcasting/telecasting in the Government which was backed by the Section 4(1) Indian Telegraph Act of 1985.Further, the Cinematograph Act, 1952 and the Rules made thereunder empower the Government to pre-censor films. The power of the Government to license and to pre-censor under the respective legislations has to be exercised in conformity with the provisions of Article 19(2).

In this context the Court observed:

In a democratic polity, neither any private individual, institution or Organisation nor any Government or Government Organisation can claim exclusive right over it. Our Constitution also forbids monopoly either in the print or electronic media((Cricket Assn. case n (1) at p.48)).”

It was contended by the Government in favor of monopolization  that as to prevent the concentration of the frequencies in the hands of the rich few who can information to suit their interests and thus in fact to control and manipulate public opinion in effect smothering the right to freedom of speech and expression and freedom of information of others. But at the same time the claim to monopoly made on this ground may, however, lose all its raison d’etre if either any section of the society is unreasonably denied an access to broadcasting or the Governmental agency claims exclusive right to prepare and relay programmes ((ibid)). In other words, if the Government is vested with an unbridled discretion to grant or refuse to grant the license or access to the media, the reason for creating monopoly will lose its validity. A monopoly over broadcasting, whether by Government or anybody else, is inconsistent with free speech right of the citizens.

Justice Sawant held that the Constitution forbids monopoly in either print or electronic media. Though, he was of the view that if private broadcasters acted irresponsibly it would be impossible to repair the damage ((ibid at p.13)). But, he also countered that there are several regulatory provisions to handle such a situation. The judge seemed troubled that the government enjoyed virtually unbridled discretion to grant or refuse a broadcast licence. This situation could result, he warned, in the government suppressing the free speech right, instead of protecting it. Justice Reddy opined that both frequencies and radio spectrum are public property. Government control over the broadcast media effectively means control of political party in power which is again harmful for the free speech right ((ibid at p.90)).

Justice Sawant observed that frequencies being a public property must be used in the best interest of the society and for this purpose, a central agency could either establish its own broadcasting network or it could license private users. Because of the costs involved only few can own frequencies but to overcome this problem the fairness doctrine was evolved by U.S. Federal Communications Commission likewise for Indian scenario, a similar arrangement is available in the form of Press Council. Thus, Justice Sawant, while endorsing the public nature of frequencies, clearly indicated that private citizens and entities could also utilize them. Justice Reddy however do not trusted Private Broadcasters for this purpose reason being their acts motivated by earning profits. He was in the favour of establishing a public broadcasting corporation that would use the frequencies for public good.

Justice Sawant in the summary of conclusions issued order to the Central Government. He directed to take immediate steps to establish an independent autonomous public authority to control and regulate use of airwaves or frequencies representing all sections and interests of the society at large. Justice Reddy, too, favouring Justice Sawant but prescribing wider role. He observed that only a statutory corporation could ensure fair and balance presentation of news and public issues ((ibid at p.40.)).

Summarizing, the court held that air waves or frequencies are public property and must be controlled and regulated by a public authority in the interest of public. Since, airwaves being a public property, there is an inbuilt restriction on its use as in the case of any other public property. Accordingly, while an individual has a right under Article 19(1) (a) to have an access to telecasting, this right is subject to the limitation on the account of the use of public property i.e. Article 19(2). The airwaves involved in the exercise of the right can be control and regulated by public authority even on the grounds not strictly covered under Article 19(2). The Court also directed to take immediate steps as to establish an independent autonomous public authority. The provision for the Prasar Bharti(Broadcasting Cooperation of India) seems to be taking care of this issue.

Often, this case is understood as an exception to freedom of speech and expression which can be created on grounds other than those in Article 19(2). It should be understood clearly that the Court was not adding any exceptions to those specified in Article 19(2). It was on the other hand laid down propositions as to restrictions on the use of airwaves owing to its technical nature and being a public property. Considering the importance of right to freedom of speech and expression, it should not be viewed as a door for creating new inroads to the right.

Supreme Court strike down Section 66A of IT Act as unconstitutional

Bench of Supreme Court, while observing public’s right to know is directly affected by Section 66A and the Section clearly affects the right to freedom of speech and expression enshrined under the Constitution of India, held that Section 66A was unconstitutional because it failed two major tests – the clear and present danger test and the tendency to create public disorder test.

The court also found the language used in the Section vague and nebulous saying it doesn’t properly define words like ‘offensive’ or even ‘persistent’. This section had been widely misused by police in various states to arrest innocent persons for posting critical comments about social and political issues and political leaders on social networking sites.

Court further, observed that, it can’t go by government assurances that the Section won’t be misused as any assurance would not bind on successive governments. Section 66 A it said, would have to be judged on its own merits. However, allowed the government to block websites if their content had the potential to create communal disturbance, social disorder or affect India’s relationship with other countries.

The court said such a law hit at the root of liberty and freedom of expression, the two cardinal pillars of democracy. The court said the section has to be erased from the law books as it has gone much beyond the reasonable restrictions put by the Constitution on freedom of speech. The Supreme Court said section 66A was vaguely worded and allowed its misuse by police.

The SC delivered its judgment on a bunch of petitions filed in the light of misuse of the penal provision by government authorities against persons who allegedly uploaded offensive posts on social networking sites against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death.

Vishwaroopam: A Critical Analysis On Fundamental Right Of Speech And Expression

Authors: Srividya K Kaimal and Nidhi Bhuwania

Speech is a God’s gift to mankind and the basic element for the subsistence of human race. Speech is a form of expression by virtue of which the bare requirement of communication is fulfilled and it is therefore, a basic human right. Every person must have a right to express his thoughts, feelings, opinions, ideas, etc in any form without interference and to seek, receive or impart information through any medium of communication.

In modern time it is widely accepted that the right to free speech is the essence of free society and it must be safeguarded at all time. The first principle of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance and especially without fear of punishment plays significant role in the development of a state.

The source of such right can be traced back to the Indian Constitution, 1950 which mandates such right as ‘fundamental’ in its existence. Meaning thereby, Article 19(1)(a), under Part 3 of the Indian Constitution inscribes such right as a Fundamental Right which forms the basic structure of the Constitution. It thus, includes the expression of one’s idea through any communicable medium or visual representation such as gestures, signs, symbols and the like. Meaning thereby, that though it does not explicitly specify that Freedom of Speech includes Freedom of Press but it is implicit in Article 19(1) (a) of The Constitution of India.

This right as provided under Article 19(1)(a) also connotes publication and thus, freedom of press is also included in this category. This freedom of press imbibes within its ambit not only publication of newspapers or news channels but also includes films which is a medium of spreading awareness, dissemination of information and knowledge about the prevailing scenarios and circumstances in such a way that public can closely relate to it. Any medium of speech which reaches out to the masses shall be included in the ambit of the Article.

As it is rightly stated by Mr. William Blackstone in his commentary that every free man has undoubted right to lay what sentiment he pleases before the public; to forbid this; is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity, which was quoted by M Patanjali Sastri in Brij Bhushan And Another Vs. State of Delhi ((1950 AIR 129)).

As it is rightly known that ‘no right is absolute’. This concept comes from the basic notion that ‘every right has a corresponding duty’. A person having a freedom to express his thoughts in whatever practicable way has a corresponding duty not to hurt other feelings by his words, gestures, sign, symbol or the like.

Thus, our Constitution while guaranteeing Freedom of Speech and Expression had put Reasonable Restriction to this Fundamental Right under Article 19(2) which states that ‘nothing in Article 19(1)(a) shall effect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the 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.’

The norm behind imposing such restrictions is the fact that the fundamental right of a person as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people ((CPM vs. Bharat Kumar, 1998 SC 184 [3J])).

However, the Test of Reasonableness is based on the nature of the rights alleged to have been infringed, the underlying purpose of restriction imposed, the extent and urgency of the evil sought to be remedied (( M Patanjali Sastri ,CJI in St of Madras v. V G Row, 1952 AIR 196))

In Papanasam Labour Union vs. Madura Coats Ltd ((1995 AIR 2200)), Justice G N Ray laid down the following principles and guidelines which should be kept in mind for considering the constitutionality of a statutory provision on ground of unreasonable restrictions:

(a) The restriction sought to be imposed on the Fundamental Rights guaranteed by Article 19 must not be arbitrary or of an excessive nature so as to go beyond the requirement of felt need of the society and object sought to be achieved. (Chintaman Rao, 1951);
(b) There must be a direct and proximate nexus on a reasonable connection between the restriction imposed and the object sought to be achieved (Pathumma, 1978);
(c) No abstract or fixed principle can be laid down which may have universal application in all cases. Such consideration on the question of quality of reasonableness, therefore, is expected to vary from case to case (Pathumma, 1978);
(d) In interpreting constitutional provisions, Court should be alive to the felt need of the society and complex issues facing the people which the Legislature intends to solve through effective Legislation and the Judicial Approach must be dynamic, pragmatic and elastic (Pathumma, 1978);
(e) It is imperative that for consideration of reasonableness of restriction imposed by a Statute, the Court should examine whether the social control as envisaged in Article 19 id being effectuated by the restriction imposed on Fundamental Rights (Pathumma, 1978);
(f) Although Article 19 guarantees all the seven freedoms to the citizens, such guarantee does not confer any absolute or unconditional right but is subject to reasonable restriction which the legislature may impose in public interest. It is therefore necessary to examine whether such restriction is meant to protect social welfare satisfying the need of prevailing social values (Pathumma, 1978);
(g) The reasonableness has got to be tested both from the procedural and substantive aspects. It should not be bound by processual perniciousness or jurisprudence of remedies;
(h) Restriction imposed on the fundamental rights guaranteed under Article 19 must not be arbitrary, unbridled, uncanalised and excessive and also not unreasonably discriminatory. A restriction to be reasonable must also be consistent with article 14;
(I) In judging the reasonableness of the restriction imposed by Article 19(6), the Court has to bear in mind the Directive Principles of State Policy; and
(j) Ordinarily, any restriction so imposed which has the effect of promoting or effectuating a directive principle can be presumed to be reasonable restriction in the public interest.

The aforesaid mentioned are the guidelines which must be considered by the State while restricting one’s right to speech and expression by imposing certain ‘reasonable restriction’ on it.

Though Article 19(2) was added to the Constitution for the purpose of maintaining an ordered society, it has been used over years by many as a weapon to restrict such freedom of people according to their whims and fancies. This reasonable restriction is now turning into an unreasonable one for people to express their though either by words or through media including films.

A motion picture commonly known as ‘films’ is simply a series of still pictures shown quickly so they simulate motion. But a film can be much more than that. It can tell a story, inform people of news, or educate them or bring awareness as to what is happening in the society. Thus, freedom of expression without unnecessary curtailment in such aspect is a vital parameter for the development of a society.

As rightly said by Hidayatullah, CJ in K A Abbas vs. UOI and Anr. ((1971 AIR 481))that ‘The task of the censor is extremely delicate. The standards that we set out for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. We must not look upon such human relationships as banned in toto and forever from human thought and must give scope to talent to put them before society. The requirement of art and literature include within themselves a comprehensive way of social life and not only in its ideal form and then the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. If the deprived begins to see in these thing more than what an average person would, in much the same way as it is wrongly said, a Frenchman see’s a women’s legs in everything it cannot be helped.’

The test of average moral man stated by Vivian Bose, J. in Bhagwati Charan Shukla 1947 ‘is strong- minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.’

In Dr AR Lakshmanan, J in S Rangarajan (([1989] 2 SCC 574)), the Madras High Court revoked the ‘U’ certificate issued to a film on the ground that the exhibition of the film was likely to cause public disorder and violence. On appeal by the producer of the film and Union of India, the Supreme Court reversed. The Court not only reiterated the importance of speech and expression and the role of films as a legitimate media for its exercise, but also held that if exhibition of the film cannot be validly restricted under Article 19(2) it “cannot be suppressed on account of threat of demonstration and processions or threat of violence”. It further observed that “It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is obligatory duty to prevent it and protect the freedom of expression.”

While other clauses of Article 19 grant the right to do something, clause (a) grants the ‘freedom of right’ to do something. It leads to the creation of new ideas and knowledge, finding of truth, building tolerance and receptivity and is essential for self rule.

Thus, to see that peace is maintained in the society and every person is given an opportunity to express his views before the public, the Constitution has enacted the Cinematograph Act, 1952 and the Cinematograph (Certification) Rules, 1983, bringing the censorship of films under the Parliamentary domain according to Entry 60 of Union List of Schedule VII of The Constitution of India.

With the enactment of Cinematography Act, 1952 along with Article 19(2) of the Constitution, the Censor Board has played a great role to see that sentiments of no citizen would be hurt by public exhibition of a movie.

But there are many instances where certain group of the society tries to curtain the rights of the artists for their narrow minded thinking. This has been seen in many recent incidents, for instance in Rang De Basanti, where it ran into controversy because the story featured corrupt politicians and the repeated crash of fighter planes. The film was only cleared after a positive nod from the Defence Minister Pranab Mukherjee and the three chiefs of the Defence forces after viewing the film on the invitation from the Board.

Similarly, in Water, a 2005 movie by Deepa Mehta which is set of 1938 and examines the plight of impoverished widows at a temple in Varanasi. India ran into controversy with the Hindu fundamentalists. Mehta originally intended to direct Water in February, 2000 but before filming had begun, some 2,000 protesters destroyed the main film set and even gave death threats to Mehta. Eventually the film was shot secretly with a different cast in Sri Lanka, under the title River Moon in 2003. In spite of wide international recognition, the film is yet to be released in India. The Censor Board finally cleared the movie to be released in India in November 2006.
The list of the films are not exhaustive but only a tip of the iceberg of what goes on day in and day out has been mentioned. There are numerous such instances where films got into trouble while dealing with matters of serious nature. However, the phenomenon is not all together new. Past films have also been targets of community and government ire. Many years back, two films Aandhi and Kissa Kursi Kaa were perceived to be about the then-Prime Minister Indira Gandhi. Kissa Kursi Kaa turned out to be the most controversial film ever made in the history of Indian cinema. The film was accused of scathing criticism of the functioning of the Central Government under Mrs. Gandhi. The film’s negative was burnt and the film had to be re-shot.

In yet another film of Rakesh Sharma which drew similar controversy is Aftershocks: The Rough Guide to Democracy (2002). Set in Gujarat’s post-earthquake situation of 2001, it engages itself with the debate of Environment vs Development and examines the fate of marginal citizens in a welfare state. It shows how the government controlled mining company sees the quake as God sent opportunity to acquire two quake-affected lignite rich villages. This was also rejected by the government-run Mumbai International film festival in 2002.

Even though Vivian Bose, J. had once stated that ‘open criticism of government policies and operations is not a ground of restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to the democracy as to the person himself.’ This shows that even the judicial decision is not given heed to when certain group’s sentiments are hurt. Even when the facts depiction is merely a truth.

The latest controversy on the Freedom of Speech and Expression in India is on the newly released film ‘Vishwaroopam’. The State of Tamil Nadu banned the screening of the film for two weeks which is directed and starred by Actor, Kamal Hasan. The thriller, which was produced in Tamil, Telegu and Hindi versions was banned in the State after 20 Muslim groups objected its content by believing that some scenes in the film portrayed the community in a bad light. Though the Single Judge of Madras High Court ordered the State to lift the ban but the Court’s orders were over-turned by the Government’s appeal to the Divisional Bench. The ban was imposed on the strong apprehension of riots and public disorder in the State which might have taken place after the release of the film as the Muslim Organisation found certain scenes in the film to be derogatory and against their common interest. Kamal Hasan had filed a petition in the Madras High Court to lift the ban imposed by the State.

Though the Muslim Organisations at first refused to amicably settle the matter by ways of discussion with the Representatives of the film, the meeting had finally been arranged at the behest of Chief Minister, J Jayalalitha, which finally led to the end of the row after Kamal Hasan agreed for seven sound cuts in his film.

These examples give a dynamic proof of the arbitrary nature of the authorities, various groups or political parties and their die-hard efforts to curb the freedom of speech and expression through films which fell out of their taste. The filmmakers, to exercise one of the most coveted right, have to depend either upon the whims and fancies of those elements or to fight legal battles; still there are many films which never saw the light of the day.
Considering ourselves to be living in the 21st century modern world we are still surrounded by our narrow-mindedness, thus, still living in a small world. It’s a myth that the public has got to taste the freedom in its true sense. The bitter truth lies in the fact that the freedom is molded according to the wishes of the society.

As rightly observed by Ronald Dwarkin in his Anti-Utilitarian Theory, where he talks about two types of preferences:

1) Internal Preference – What one wants to do in his life according to his moral consciousness?
2) External preference –What a group of people want others to do in their life because of their moral preference.

If an artistic expression in the form of film seems to affect the feeling of others it should be stopped from being brought to cinema hall. This shows that moral conviction of others is taken into consideration while protecting one’s freedom, thereby proving that one’s own personal conviction is absolutely irrelevant. Thus, giving more significance to External Preference. This shows that a person’s right is not taken seriously. If the State is not protecting an artist’s interest in expressing himself just because a certain group of society thinks that he should not do such act, then this confirms that the state is not taking his rights seriously.

Dwarkin also mentions the concept of ‘Equal Treatment’, which according to him includes both the expression: ‘Equal treatment’ And ‘Treatment as equals’.

Thus, if an artist is stopped from expressing his feeling in the form of films, simply because a certain group of society’s feeling are considered superior to the feelings of the artist, then this shows that State considers him(the artist) as ‘less intelligent’ than the rest. This shows that the State is not treating him as ‘equal’ by not taking his rights seriously.

Thus, in a country like India which is socialist, secular and democratic, everyone has a right to express their feelings. This right has been also protected by the Constitution of India. But, certain restrictions have been imposed on this Fundamental Right so as to create a balance in the society. But, in availing this right the Court should not only look at the interest of the society at large but also take into consideration the intention of the creator of such thought or expression. If such thought or expression helps in understanding the truth or the current scenario it should not be restricted merely because it is not liked by a certain section of public or public unrest is apprehended.

As rightly quoted by Dr AR Lakshmanan, J in S Rangarajan ((ibid))that While other clauses of Article 19 grant the right to do something, clause (a) grants the ‘freedom of right’ to do something. It leads to the creation of new ideas and knowledge, finding of truth, building tolerance and receptivity and is essential for self rule.

Freedom of Religion

Author : Vipin Upadhyay

All religions, with their Gods, their Demi-Gods, and their Prophets, their Messiahs and their Saints, were created by the prejudiced fancy of men who had not attained the full development and full possession of their faculties.” Generally Speaking, Religion is s system of faith and worship of supernatural force which ordains regulates and controls the destiny of human kinds.

There is no universally acceptable definition as to what exactly “religion” is. There appears to be near unanimity that religion, generally, is a belief or faith in the existence of a Supernatural Being and the precepts which people follow for attaining salvation.
Religion may be regarded as belief and patterns of behaviours by which human try to deal with what they view as important problems that cannot be solved through the application of known technologies and techniques of organization. To overcome these limitations people turn to the manipulation of supernatural beings and powers.
Religion consists of various rituals, prayers, songs, dances, offerings and sacrifices, through which people try to manipulate supernatural beings and powers to their advantages. These being and power may consist of Gods and Goddesses, ancestral and other spirits or impersonal power either by themselves or in various combinations. In all societies there are certain individuals especially skilled at dealing with these beings and powers and who assist other members of society in their ritual activities. A body of myths rationalizes or explains the system in a manner consistent with peoples experience in the world in which they live.
Every individual has a natural entitlement of religious faith and freedom of conscience, a right to adopt or abandoned any faith of his own choice. In this sense freedom of religion and freedom of conscience is fundamental right both constitutionally and conventionally.
The freedom of religion and freedom of conscience has been recognized under the international law. The General Assembly of united nations adopted without dissenting vote on 10th December,1948 the Universal Declaration on Human Rights recognizing fact that the entire humanity enjoys certain alienable rights which constitute the foundation of freedom, justice and peace in the world.
The Government of India by its declaration on 10th of April, 1979 had accepted Universal Declaration of Human Rights with certain reservations which do not cover the right to freedom of religion. Apart from this the Constitution of India also enshrines the freedom of religion and freedom of conscience as fundamental rights under Article 25, 26, 27, 28, 30.


Right to freedom of religion, covered in the Articles 25, 26, 27, 28, 30 of the Constitution, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice.
Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health.  No person shall be compelled to pay taxes for the promotion of a particular religion.  A State run institution cannot impart education that is pro-religion.  Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform.
The Constitution of India aims at securing freedom of religion and freedom of conscience under the above mentioned Articles and at the same time it seeks to create a harmony among all religions. Being suitable to the pluralistic society and historical lineage, such freedom needs to continue. Any other policy will not be unconstitutional but also extremely harmful and suffocative for the public. However, there is a need to be realized that an incessant process of transformation and change is also going on as change is the rule of nature. The ideas, faith, psyche, behaviour and attitude of people have always been subject to change, though, the factors of change are spatial and temporal. An important aspect with respect to change of faith is the state of One’s awareness and ignorance. More awareness and enlightenment does definitely have an impact on the thought, belief and action of a person, faith and elements of conscience. Thus as regards conscience , state of knowledge is itself under a constant process of change and every human being is undergoing a metamorphosis of understanding with continuing with continuing process of experience of life and learning . Therefore, it is advisable to tie up someone to a particular faith for all the times.
But in Indian perspective, an aspect of freedom of conscience which has attained a problematic dimension is the right to propagate faith. The meaning of propagation is to promote, spread and publicize one’s relating to one’s own faith for the edification of others. The term propagation implies persuasion and exposition without any element of fraud, coercion and allurement. The right to propagate one’s religion does not give a right to convert any other person to one’s own religious faith. It may be pointed out that the right to convert other person to one’s own religion is distinct from and individual right to get convert to any other religion on his own choice. The later is undisputedly is in conformity with the freedom of religion and freedom of conscience under Article 25 of the constitution while the former is the subject of long prevailing controversy with reference to propagation of faith.
India’s secular Constitution guarantees freedom of faith. The source of religious freedom in India is our civilisational and social ethos, which has respected and tolerated pluralism in matters of faith since time immemorial. Our ancient rishis said: “Ekam sat, viprah bahudha vadanti” (Truth is one, the wise interpret it differently.) Our Constitution-makers did not import the concept of religious freedom from Western democracies. They could not have, for the simple reason that the dominant religious establishments in these Western democracies—be it Britain, France, Spain, Portugal or Holland—had a scandalous record of respecting and guaranteeing the religious freedom of the peoples they colonised in Asia, Africa and America. How the church became an active accomplice in establishing the West’s imperialist rule in these three continents and, how, in the name of “civilising” the heathen races, millions were killed and untold atrocities committed to erase their indigenous spiritual and cultural heritage is a part of the dark history of mankind.
Religious Conversion is multifaceted and multi dimensional phenomenon. Indian society is a pluralist and heterogeneous society with multiplicity of races, religious cultural, castes and languages etc. Religious Conversion has always been a problematic issue in India. Every incident of conversion causes lot of hue and cry in society; especially it causes nostalgic feelings to Hindu organization because of its inherent socio- political. Rigid and Stringent caste system prevailing in Hindu Religion is one of the most significant factors behind the religious conversion. This is because of this caste system Dalits (in most comprehensive and inclusive sense the word Dalit includes Untouchables, Shudras and Adivasis) are the most susceptible section of the society to religious conversion.
The religious conversion into Islam by a person from non Islamic faith is not valid if the conversion is done for the purpose of polygamy. Neither Islam nor any other law recognizes any such conversion in India. In the case of Sarla Mudgal vs Union of India  a married Hindu male converted in to Islam for the sake of solemnising another marriage as polygamy is permitted in Islam. The Hon’ble SC held that conversion in to another faith Ipso-facto does not dissolve the first marriage because no one is allowed to take the benefit of his own wrong. Moreover the court held that the married person converting into Islam is not entitled to marry another woman after conversion. It was held to be an act of bigamy prohibited U/S 17 of Hindu Marriage Act, 1955 and punishable U/S 494 of IPC and it was further observed that the second marriage is void.
In Vilayat Raj vs. Smt. Sunita  it was observed by the court that if both the parties to the marriage were Hindu at the time of marriage, pre-nuptial law i.e. Hindu Marriage Act applied even after conversion in Islam.
In Lilly Thomas vs. Union of India  it was observed that an apostate husband is guilty of bigamy U/S 494 of IPC if he marriage another woman after converting into Islam. It was observed that holding such person guilty of bigamy is not violation of freedom of religion U/Article 25 of the Constitution; hence, Section 17 of H.M.A. 1955 is applicable.
From the above it is clear that after the pronouncement of the aforesaid judicial verdicts, polygamy is no more a valued person for religious conversion into Islam.
A person does not cease to be Hindu nearly because he declares that he has no faith in his religion. A person will not cease to be Hindu even if he does not practice his religion till he does not renounces his religion or starts living and behaving like an atheist or agnostic or starts eating beef or insulting God or Goddesses. He does not cease to be member of the religion even if he starts expressing his faith in any other religion, he continuous to be a Hindu Chandra Shekharan vs. Kulundurivalu
If a person converts from Hindu religion to Sikh , Buddhism or Jainism he does not cease to be Hindu since all these religions do not fall beyond the definition of ‘Hindu’ in the relevant section of Hindu Marriage Act . He ceases to be Hindu if he converts into Islam Christianity or Jews or Zoroastrian, conversion into these religions is a ground for desolation of marriage for the other spouse and not for the spouse who converts into any such religion (U/S 13 H.M.A)
Under Section 80 of the Hindu Adoption and Maintenance Act, 1956 if the husband gets converted into Non-Hindu faith wife is entitled to live Separately without forfeiting her right of maintenance but if she herself also ceases to be Hindu, she loses her claim of maintenance under the section, But she is entitled under section 24 of H.M.A in 1955 for pedente lite and permanent alimony.
Special Marriage Act 1954 reflects the true spirit of Indian Secularism as it is in consonance with India’s heterogeneity and multiplicity of religious faith. Conversion does not make any effect on matrimonial ties as the Act is the secular legislations and it contemplates inter caste and inter religious marriages.
The Indian Divorce Act, 1869- If the husband gets converted into non Christian faith, wife is entitled for divorce but vice versa is not possible. If wife gets converted into non Christian faith husband can not apply for divorce. NANG vs. LABYA
Under Dissolution of Muslim Marriage Act, 1939 Section 4 says if a wife renounces Islam, the marriage does not Ipso-facto dissolve unless the circumstances warrant otherwise.
The picture is complete if we account for the fact that most of these laws are aimed to keep the low caste Hindus within the fold of Hinduism. And so while law prohibits conversion, ‘reconversion’ of low caste Hindus is permissible. If a low caste Hindu who had converted to another faith or any of his descendants reconverts to Hinduism, he might get back his original caste In Kailash Sonkar.
We can conclude from the above discussion that any protest against religious conversion is always branded as persecution, because it is maintained that people are not allowed to practice their religion, that their religious freedom is curbed. The truth is entirely different. The other person also has the freedom to practice his or her religion without interference. That is his/her birthright. Religious freedom does not extent (sic) to having a planned programme of conversion. Such a programme is to be construed as aggression against the religious freedom of others.
Finally, as far as Hinduism is concerned, besides it being vindicated as a way of life, efforts must be made to augment its role as a form of religion, that is, Hinduism must be practiced as a religion that upholds the principles of personal freedom, self-dignity, social equality and economic security. This will reduce the chances of transgression by way of conversion in any manner. Scriptures like the Vedas, Upanishads and the Gita should gather larger weight age and reach the necessary quarters for sufficient lobbying to match the access and emotional respect gained by the Bible and the Koran. The image of a Hindu will go up not by blaming others for conversion but by creating conditions that will make conversion by and large unnecessary for the fellow members of his religion.