SAKAL PAPERS LTD. VS. UNION OF INDIA 1962 SCR (3) 842

FACTS OF THE CASE:

A private news organization distributed papers, documented petitions against the state testing the newsprint strategy of the public authority which confined the number of pages a paper was qualified for print. The distributing organization tested the sacred legitimacy of the Newspaper (Price and Page) act,1956, which enabled the Central Government to manage the cost of the paper according to their pages and the allotment of room for publicizing matter.
It was likewise tested by the distributing organization that Daily Newspapers (Price and Page) Order, 1960, passed by the public authority under the Newspaper Act to set up such guideline, abuses the right to speak freely and articulation ensured under Article 19(1)(a) of the Indian Constitution.

CONTENTION BY STATE:

The guidance from the state contends that the object of the guideline was to forestall out of line rivalry and the ascent of restraining infrastructures inside the paper business. Because of the economies of scale, set up enormous papers were in a situation to keep costs at a level which the more up to date and more modest papers couldn’t contend, and subsequently would be not able to enter the market and if effectively present, would be compelled to exit by offering to one of the set-up papers.
It is likewise contended that, by opening up the market, the guidelines were intended to advance the right to speak freely and articulation. The state attempted to legitimize its activities by calling them to be sensible limitations on the business activities of the paper offices for the sake of public interest.
In any case, the Hon’ble Court dismissed every one of these conflicts and held that the Newspaper Act and Newspaper Order was illegal.

JUDGEMENT:

It was held by the Hon’ble Court that the Newspaper Act and Newspaper Order was illegal and the supplication of the applicants was maintained by the court. After appropriately deciding the current issue, an undisputed choice of the court held that the distribution of paper not just related to the right to speak freely of discourse and articulation yet, in addition, direct a business compliant with Article 19(1)(g), which basically suggested sensible limitations on the paper business.
An unexceptionable comment was made by Justice Mudholkar in the judgment that Article 19(1)(a) covered the substance as well as the volume of the paper. The effect of the guideline challenged is straightforwardly limit the dissemination and volume of the paper and along these lines, this was an away from of the encroachment of the privilege to the right to speak freely of discourse and articulation and won’t be saved by the special case made under Article 19(2). This is one of the milestones decisions set forth opportunity of the press in the statute in India, which strengthened that it is a violation of Article 19(1)(a) to limit the number of pages, costs, promotions, paper flow.
On account of Bennett Coleman & Co. vs. Union of India [AIR 1973 SC 106], it was emphasized by the dominant part that the right to speak freely and articulation isn’t just in the volume of the course yet additionally in the volume of the news.
A comment was made by Justice Ray in his judgment that opportunity of the press qualifies the papers for accomplishing any volume of dissemination and opportunity of the press is both subjective and quantitative, thus opportunity lies both available for use and in substance. Consequently, therefore, the court struck down the News Print Policy figured by the public authority in the year 1972-1973 as being a violation of Article 19(1)(a) as the arrangements referenced in the approach didn’t fall under any of the special cases referenced in Article 19(2).

The post Does placing limitations on Press fall under special cases referenced in Article 19(2) appeared first on LexForti .

Amita vs Union Of India & Anr on 11 August 2005

Introduction

This case is a writ petition filed by a visually challenged girl in the Supreme Court of India on the grounds of her being rejected on the basis of her disability for the post of probationary officer in the Banking services recruitment board, Chennai.

Facts

An advertisement was released by the Banking services recruitment board Chennai for the appointment of a probationary officer. Seeing the advertisement, Amita, a visually challenged girl applied for the post. The criteria for the post were as follows.

1. The candidate must be a graduate from any recognized university.
2. The candidate should not be less than 21 years of age and not more than 30 years of age.
   These criteria also included any other qualifications mentioned by the government of India.
   The petitioner sent her application along with a demand draft. She mentioned in her application that she is visually impaired so that the board can make the necessary arrangements regarding providing of scribe for the examination. After a few days her application was returned to her and it was mentioned there that ‘As we don’t hire visually challenged candidates for the post of probationary officer, your application is rejected.’ Aggrieved by the decision of the board, Amita filed a writ petition in the supreme court of India under Article 32 of the constitution of India.
   The petitioner was also allowed to amend her petition in which she prayed for the following reliefs.
3. An order of mandamus should be passed in order to allow her to sit for the entrance examination.
4. The board in the instant case has not given her an equal opportunity which is a violation of articles 14, 16, 19, and 21.
5. An order of mandamus should be passed whereby a proper action should be taken keeping in view the rights of persons with a disability, equal opportunities Act 1995.

Arguments on behalf of the petitioner

The learned counsel on behalf of the petitioner argued that the denial of opportunity by the Board only on the ground of her disability is erroneous on the face as the advertisement only mentioned that the candidates applying for the post should be more than 21 and less than 30 years of age and should be a graduate. The petitioner had fulfilled these criteria. The order of the Board has violated article 14, 16, 19, and 21 of the constitution.

Arguments on behalf of the respondent

The learned counsel on behalf of the respondent argued that the post of a probationary officer is not earmarked for the visually challenged so the rejection of application of the writ petitioner is valid.

Judgment

It was held that the order of the Board cannot be sustained as the writ petitioner has fulfilled all the criteria mentioned in the advertisement, hence she cannot be rejected only on the grounds of her visual impairment. It was also found that the petitioner also applied for the same post in Bangalore and she was given the admit card for the entrance test even after mentioning that she is visually impaired. This clearly proves that visual impairment cannot be a reason for the rejection of the application.

The post One cannot be rejected only on the grounds of his/her disability appeared first on LexForti .

Introduction

Democracy is a government formed and sustained by discussion. Public opinion and effective participation in the government are compulsorily needed in the democratic society. Freedom of speech is required to maintain the moral and intellectual value of both individuals and the nation. An individual attains self-fulfillment in knowing the truth by invoking free speech and thought. In Article 19 of the Indian Constitution, freedom of speech and expression forms as one of the six freedoms guaranteed. It is considered as the foundation of all democratic organizations.^[1] Opportunity for the free exchange of thoughts with reasonable restrictions is ensured in the constitution. Article 10(1) of the European Convention on Human Rights stresses the freedom of speech.^[2]

A person can express his/her opinion freely through word of mouth or in writing in the form of art, literature, visual, or any other mode of communication. Freedom of speech also includes the right to know or acquire information and convey that information to the public at large.^[3] Motion pictures are not expressly mentioned in Article 19 (1) (a) as a part of freedom of speech and expression, but various court decisions have accepted it. Even in the medium of motion pictures, there is a restriction or denial of freedom of speech and expression by way of “censorship”. Films or part of films can be censored on the basis of sex, obscenity, violence and to maintain public order. But public criticism is very helpful in the working of the institutions,^[4] but due to censorship, the thoughts are not freely shared in society. 

Censorship of films

Censorship is derived from the word the Latin word ‘censere’. The power of legislation of censorship is vested under Entry 60 of the Union List of Schedule 7 of the Indian Constitution. Subject to Central legislation, the State has also the power to make laws regarding films under Entry 33 of State List. The Cinematograph Act, 1952 is regarded as the prime legislation which regulates the films by ensuring that it satisfies the objectives prescribed by law. This Act also empowers the Government to establish a Central Board of Film Certification. The censor board constitutes of 12 to 25 people. They examine the films and provide sanctions for the films to release for public exhibition. The public exhibition can be restricted or unrestricted and sometimes the board may restrict the film from the exhibition or directs to make changes before the exhibition. Section 5B of the Cinematograph Act, 1952 provides principles in certifying films and grounds for restriction of films from public exhibitions. Section 5B of the Act aligns with the reasonable restrictions mentioned under Article 19(2) of the Constitution.

If a party is not satisfied with the order of the Board, then they can appeal to the Central Government. K. A. Abbas v. The Union of India^[5] was one of the first cases filed against the issue of film censorship. In this case, the court held that pre-censorship is constitutionally valid but the board should not impose any unreasonable restriction on the freedom of speech and expression. The amendment in 1974 transferred the appellate jurisdiction of the Central Government to Film Certification Appellate Tribunal (FCAT).^[6] This body consists of Chairman and 4 other members. The Cinematograph Act was again amended in 1981.^[7] This amendment vested the revisional powers with the Central Government under Section 6(1) and diminished the powers of FCAT.^[8]

Types of film certifications

1. Universal (U): This certificate is provided for unrestricted public exhibition. There is no limitation based on age groups. 
2. Parental Guidance (UA): This certificate is provided for all age groups. But children below the age of 12 should be accompanied by their parents.
3. Adults only (A): This certificate is restricted only to adults. Persons above the age of 18 years are only allowed to watch the movie. 
4. A special class of Persons (S): The nature and theme of the movie restricts the audience. Only a few special classes of people are allowed to watch the movie.

The Central Government may issue directions to the board in issuing the certificates for films.

Reasonable restrictions for social control

An individual can exercise his right to an extent without colliding with the rights of others. Liberty always comes with the aspect of social control. Reasonable limitations are acceptable to maintain social order and public interest. Clause 2 of Article 19 of the Indian Constitution enumerates the grounds on which reasonable restriction can be imposed. The principle of reasonableness calls for the judicial review, which checks upon the constitutionality of the acts of legislative and executive bodies.^[9]

Section 5B (1) is similar to Article 19(2) of the constitution, because both insist on the grounds of reasonable restrictions, like:

• Sovereignty and integrity of India
• Security of the State
• Incitement to an offence
• Friendly relations with foreign states
• Public order
• Decency and morality
• Involves defamation 
• Contempt of court

In a few instances, the FCAT has placed a ban on movies that would provoke communal feeling and the desire for revenge which will lead to obstruction of peace in society.^[10] Many films have been pulled into controversy because they hurt the religious feeling of their community. “PK”, a Hindi movie, is one such movie which hurt the religious sentiments of the people and it led to a huge controversy in the Bollywood. All forms of freedom of speech are subject to censorship. Often the reasonableness of censorship regulations is questioned. But cinema has the potential to influence people and there is a possibility of misuse of this medium of freedom of speech and expression, therefore restrictions like film censorship are justifiable in this society. 

One of recent attack on freedom of speech is the letter issued by Ministry of Defence to the Central Board of Film Certification demanding “No objection certificate” for films and series depicting the military personnel in their uniforms.^[11]The increased number of army themed movies has become a concern for the ministry of defence. Article 33 of the Indian Constitution specifies that the armed forces should be given special treatment for their services. For proper discharge of their duties and to maintain discipline among them in their field of work, a reasonable restriction can imposed on the freedom of speech. 

Judicial intervention in safeguarding freedom of speech and promoting individual liberty.

“Censorship in a free society can be tolerated within the narrowest possible confines and strictly within the limits which are contemplated in a constitutional order.^[12]” 

The Supreme Court and High Court have contributed a lot in safeguarding the rights of the people with reasonable restrictions. Many films, documentaries, and television series have been censored by the judiciary, but in most of the cases, the court has upheld the freedom of speech and expression. In S. Rangrajan v. Jagjivan Ram^[13], the Madras High Court revoked the certificate issued to a Tamil movie. The film was based on the reservation policy and it also mentioned remarks about B.R. Ambedkar and other personalities. The appeal was made to the Supreme Court, and the freedom of speech and expression was upheld. The Supreme Court held that people in a democratic government can be ruled only through open discussion. The prosperity of democracy attains only when the people share their views and it is the duty of the state to protect the fundamental rights of the people. Therefore, the order of the High Court was overruled. 

In “Bandit Queen” case^[14], it was held that the film should be judged based on the entirety and its overall impact, therefore the court upheld the freedom of speech and expression. Authorities cannot pass an order for restriction of the exhibition without watching the movie. The court can quash the impugned order as arbitrary.^[15] An act of abuse of power by the Censor board is a clear violation of freedom of speech and expression.^[16] The protest of Christians against the movie “Da Vinci Code” was very popular in the media. A writ petition was filed by the All India Christians Welfare Association for placing a ban on the movie as it hurts their religious sentiments. The Courts of few states like Kerala^[17] quashed that the ban imposed by the state government as it was irrational and unconstitutional. The Supreme Court upheld the fundamental right to freedom of speech and expression even in this case. In one of the cases filed against the channel Doordarshan, the court held that there is no prima facie evidence to prove that the show was against the public interest, therefore the injunction order was struck down and freedom of speech was ensured.^[18]

Conclusion

The Indian Constitution protects both the fundamental rights of the people and the rights of the artist or filmmakers to portray the reality of society. But a conflict arises between these two rights when the portrayal challenges the peace and order of society. In this censored society, freedom of speech and expression is been restricted. Legal restraints on the exhibition of movies should be imposed only if it is not arbitrary. In a democratic society, people have the right to be aware of the changes or developments that take place.^[19] Banning movies is equal to banning of freedom of speech and expression. Motion pictures are an instrument used to freely share their ideas and make people aware. The basic human right should not be restricted in this civilized society. On the other hand, a person should consider the practical realities before exhibiting anything in the public. A strike of balance should be implemented to protect the personal liberty of the filmmakers and social control in society.

^[1] Romesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124.

^[2] The European Convention on Human Rights (1975) 151-157.

^[3] Secretary, Ministry of I & B v. Cricket Association of Bengal, A.I.R. 1995 S.C. 1236.

^[4] Bennett Coleman v. Union of India, A.I.R. 1973 S.C. 106.

^[5] K. A. Abbas v. The Union of India, A.I.R. 1971 S.C. 481.

^[6] The Cinematograph (Amendment) Act, 1974, No. 27, Acts of Parliament, 1974.

^[7] The Cinematograph (Amendment) Act, No. 49, Acts of Parliament, 1981.

^[8] M.P. JAIN & S.N. JAIN, PRINCIPLES OF ADMINISTARTIVE LAW 428-29.

^[9] Shashi P.Mishra, Fundamental Rights and the Supreme Court: Reasonableness of Restrictions (1984) 43-46.

^[10] Ramesh Pimple v.  Central Board of Film Certification, (2004) 5 B.O.M. C.R. 214.

^[11]Defence Ministry to CBFC: Production houses may be advised to seek NOC on Army theme content, THE TIMES OF INDIA, July 31^st, 2002, available at https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/defence-ministry-to-cbfc-production-houses-may-be-advised-to-seek-noc-on-army-theme-content/articleshow/77288805.cms.

^[12] F.A. Picture International v. Central Board of Film, A.I.R. 2005 Bom 145.

^[13] S. Rangrajan v. Jagjivan Ram, (1989) 2 S.C.C. 574.

^[14] Bobby Art International v. Om Pal Singh Hoon, (1996) 4 S.C.C. 1.

^[15] Sree Raghavendra Films v. Government of Andhra Pradesh, 1995 (2) A.L.D. 81.

^[16] Anand Patwardhan v. Central Board of Film Certification, 2004 (1) M.A.H. L.J. 856.

^[17] Kerala HC declines to ban The Da Vinci Code, THE TIMES OF INDIA, May 25, 2006, available at    http://timesofindia.indiatimes.com/articleshow/1568062.cms.

^[18] Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, A.I.R. 1988 S.C. 1642.

^[19] Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, A.I.R. 1986 S.C. 515.

The post Censorship – A Strife between individual liberty and social control appeared first on LexForti .

Chennai Hoardings Associations Vs The Secretary To Government Of Tamil Nadu

FACTS:

In this case, the petitioners- Chennai Hoarding Association filed a writ petition in the High court of madras against a law which did not allow the municipal corporations to place hoardings in the land which did not belong to them, which meant that the organisations or association who did the work of erecting hoardings had lost their business completely as their rights were taken away by the above mentioned amendment of the law. The petitioner had the concern that this was taking away his constitutional right of practicing any trade he wants as this amendment was not allowing him to do so and it was a violation under Article 19 of the Indian Constitution. 

ISSUE:

Whether mentioning “Belonging to corporation” is a violation of article 14 under the Constitution of India and whether it is a violation of Article 19 of the Indian Constitution by not allowing the petitioner to practice any trade?

PETITIONER CONTENTION:

The petitioner contended that the amendment which was made in the Section 410-A of the Coimbatore City Municipal Corporation Act, 1981 does not hold any rational value as the amendment itself is illogical as it prevents the placing of hoardings in any building wall, structure or any land which does not belong to the municipal corporation and which is visible to the public eye. The petitioner further said that the extent of powers that are of privilege to the Municipal Corporations and Municipal Bodies is enough to protect any given hazard or environmental violation or being contrary to the ambience of a town and city.

RESPONDENT CONTENTION:

The respondent contended that, it would help in keeping track of the hoardings put up and regulates the whole process, there is not restriction of trade as alleged by the Chennai Hoarding association as it does not stop them from conducting their trade and business. The respondent further said that the amendment was made for a valid reason and there are no irregularities in it., they said that the amendment defines only the places where hoardings can or should be set up for advertisement, which is in purview with the policy that was adopted after consulting experts and after examining such material that was relevant for the particular purpose.

JUDGMENT:

The bench said that “There is no rationality in totally excluding private land or State government land or otherwise the land belonging to the Central government like the Railways. The choice to grant licence or otherwise is still there and any violation of the restrictions imposed can still be a matter of application by the municipal corporation.” Further the court emphasized that only the Phrase “belonging to the corporation” is a violation of article 14 of the Indian Constitution and that should be removed by the Chennai Hoarding Association, and concluded that the ban should be lifted but with the exception that they cannot be permitted to put up hoardings in land which they are not permissible to do so.

The post Putting up hoardings on land which does not belong to the municipal corporation is not banned appeared first on LexForti .