Mass Media systems of the world vary from each other according to the economy, polity, religion and culture of different societies. In societies, which followed communism and totalitarianism, like the former USSR and China, there were limitations of what the media could say about the government. Almost everything that was said against the State was censored for fear of revolutions. On the other hand, in countries like USA, which have a Bourgeois Democracy, almost everything is allowed.
Shifting our view to the Indian perspective and its system of Parliamentary Democracy, it is true that, the Press is free but subject to certain reasonable restrictions imposed by the Constitution of India, 1950, as amended ("Constitution"). Before the impact of globalisation was felt, the mass media was wholly controlled by the government, which let the media project only what the government wanted the public to see and in a way in which it wanted the public to see it. However, with the onset of globalisation and privatisation, the situation has undergone a humongous change.
Before the invention of communication satellites, communication was mainly in the form of national media, both public and private, in India and abroad. Then came 'transnational media' with the progress of communication technologies like Satellite delivery and ISDN (Integrated Services Digital Network), the outcome: local TV, global films and global information systems.
In such an era of media upsurge, it becomes an absolute necessity to impose certain legal checks and bounds on transmission and communication In the due course of this article, we would discuss the various aspects of media and the relevant legal checks and bounds governing them.
Perspective of Mass Media Laws
Mass Media laws in India have a long history and are deeply rooted
in the country’s colonial experience under British rule. The
earliest regulatory measures can be traced back to 1799 when Lord
Wellesley promulgated the Press
Regulations, which had the effect of imposing pre-censorship
on an infant newspaper publishing industry. The onset of 1835 saw
the promulgation of the Press Act, which undid most of, the repressive features of earlier
legislations on the subject.
on 18th June 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.
followed the ‘Press and
Registration of Books Act’ in 1867 and which continues to
remain in force till date. Governor General Lord Lytton
promulgated the ‘Vernacular
Press Act’ of 1878 allowing 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. 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
the most significant day in the history of Media Regulations was
the 26th of January 1950
– the day on which the Constitution was brought into
force. The colonial experience of the Indians made them realise
the crucial significance of the ‘Freedom
of Press’. Such freedom was therefore incorporated in the
Constitution; to empower the Press to disseminate knowledge to the
masses and the Constituent Assembly thus, decided to safeguard
this ‘Freedom of Press’
as a fundamental right. Although, the Indian Constitution does
not expressly mention the liberty of the press, it is evident that
the liberty of the press is included in the freedom of speech and
expression under Article 19(1)(a). 
It is however pertinent to mention that, such freedom is not
absolute but is qualified by certain clearly defined limitations
under Article 19(2) in the interests of the public.
is necessary to mention here that, this freedom under Article
19(1)(a) is not only cribbed, cabined and confined to newspapers
and periodicals but also includes pamphlets, leaflets, handbills,
circulars and every sort of publication which affords a vehicle of
information and opinion:
although the freedom of the press is guaranteed as a fundamental
right, it is necessary for us to deal with the various laws
governing the different areas of media so as to appreciate the
vast expanse of media laws.
freedom depends in large part, on the continuation of a free
press, which is the strongest guarantee of a free society.”
Richard M. Schmidt
Freedom Of Press and the Freedom Of Expression can be regarded as
the very basis of a democratic form of government. Every business
enterprise is involved in the laws of the nation, the state and
the community in which it operates. Newspaper publishers find
themselves more ‘hemmed in’ by legal restrictions than many
other businesses do – despite the fact that the freedom of press
is protected by the Indian constitution. The various Acts, which
have to be taken into consideration when dealing with the
regulations imposed upon the Print Media, are:
Press and Registration of Books Act, 1867
– This Act regulates printing presses and newspapers and makes
registration with an appointed Authority compulsory for all
Press (Objectionable Matters) Act, 1951 –
This enactment provides against the printing and publication of
incitement to crime and other objectionable matters.
Newspaper (Prices and Pages) Act, 1956 –
This statute empowers the Central Government 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
dealing with this statute, it will be worthwhile to mention about
the case of Sakal
Papers Ltd. v.
of India .
In this case, the Daily
Newspapers (Price and Control) Order, 1960, which fixed a
minimum price and number of pages, which a newspaper is entitled
to publish, was challenged as unconstitutional. The State
justified the law as a reasonable restriction on a business
activity of a citizen. The Supreme Court struck down the Order
rejecting the State’s argument. The Court opined that, the right
of freedom of speech and expression couldn’t be taken away with
the object of placing restrictions on the business activity of the
citizens. Freedom of speech can be restricted only on the grounds
mentioned in clause (2) of Article 19.
of India Act, 1962 –
This Act came into force during the Emergency proclaimed in 1962.
This Act aimed at restricting the Freedom Of The Press to a large
extent keeping in mind the unrest prevailing in India in lieu of
the war against China. The Act empowered the Central Government to
issue rules with regard to prohibition of publication or
communication prejudicial to the civil defence/military
operations, prevention of prejudicial reports and prohibition of
printing or publishing any matter in any newspaper.
of Books and Newspapers (Public Libraries) Act, 1954 –
According to this Act, the publishers of books and newspapers are
required to deliver, free of cost, a copy of every published book
to the National Library at Calcutta and one copy each to three
other public libraries specified by the Central Government.
Working Journalists and other Newspaper Employees (Conditions of
Service and Miscellaneous Provisions) Act, 1955 –
It lays down the minimum standards of service conditions for
newspaper employees and journalists.
Defence Act, 1968 -
It allows the Government to make rules for the prohibition of
printing and publication of any book, newspaper or other document
prejudicial to the Civil Defence.
Council Act, 1978 –
Under this Act, the Press Council was reconstituted (after 1976)
to maintain and improve the standards of newspaper and news
agencies in India.
on one hand, the Constitution confers the fundamental right of
freedom of the press, Article 105 (2) provides certain
restrictions on the publications of the proceedings in Parliament.
In the famous Searchlight Case,
the Supreme Court held that, the publication by a newspaper of
certain parts of the speech of members in the House, which were
ordered to be expunged by the Speaker constituted a breach of
to the restrictive scope of this Article, it is not possible for
us to delve into all the other statutes; however, a few of the
legislations, which are worth mentioning are the
Contempt of Courts Act, 1971 and The Official Secrets Act, 1923.
The broadcast media was under complete monopoly of the Government
of India. Private organizations were involved only in commercial
advertising and sponsorships of programmes. However, in Secretary, Ministry of I&B v.
the Supreme Court clearly differed from the aforementioned
monopolistic approach and emphasized that, every citizen has a
right to telecast and broadcast to the viewers/listeners any
important event through electronic media, television or radio and
also provided that the Government had no monopoly over such
electronic media as such monopolistic power of the Government was
not mentioned anywhere in the Constitution or in any other law
prevailing in the country.
judgment, thus, brought about a great change in the position
prevailing in the broadcast media, and such sector became open to
adopted by the Fourth Asian Broadcasting Conference in 1962
listing certain cardinal principles to be followed buy the
electronic media, is of prime importance so far as laws governing
broadcast medium are concerned. Although, the Broadcast Code was
chiefly set up to govern the All India Radio, the following
cardinal principles have ideally been practiced by all
Broadcasting and Television Organization; viz: -
ensure the objective presentation of news and fair and unbiased
promote the advancement of education and culture
raise and maintain high standards of decency and decorum in all
provide programmes for the young which, by variety and content,
will inculcate the principles of good citizenship
promote communal harmony, religious tolerance and international
treat controversial public issues in an impartial and
respect human rights and dignity
Television Networks (Regulation) Act, 1995 basically
regulates the operation of Cable Television in the territory of
India and regulates the subscription rates and the total number of
total subscribers receiving programmes transmitted in the basic
tier. In pursuance of the Cable
Television Network (Regulation) (Amendment) Bill, 2002, the
Central Government may make it obligatory for every cable operator
to transmit or retransmit programme of any pay channel through an
addressable system as and when the Central Government so notifies.
Such notification may also specify the number of free to air
channels to be included in the package of channels forming the
basic service tier.
Direct-to-Home (DTH) Broadcasting Service, refers to distribution
of multi-channel TV programmes in Ku Band by using a satellite
system and by providing TV signals directly to the subscribers’
premises without passing through an intermediary such as a cable
operator. The Union Government has decided to permit
Direct-to-Home TV service in Ku band in India.
is one of the largest producers of motion pictures in the world.
Encompassing three major spheres of activity – production,
distribution and exhibition, the industry has an all-India spread,
employing thousands of people and entertaining millions each year.
The various laws in force regulating the making and screening of
films are: -
Cinematograph Act, 1952 –
The Cinematograph Act of 1952 has been passed to make provisions
for a certification of cinematographed films for exhibitions by
means of Cinematograph.
Under this Act, a Board of Film Censors (now renamed
Central Board of Film Certification) with advisory panels at
regional centres is empowered to examine every film and sanction
it whether for unrestricted exhibition or for exhibition
restricted to adults. The Board is also empowered to refuse to
sanction a film for public exhibition.
A. Abbas v. Union of India,
the petitioner for the first time challenged the validity of
censorship as violative of his fundamental right of speech and
expression. The Supreme Court however observed that,
pre-censorship of films under the Cinematograph Act was justified
under Article 19(2) on the ground that films have to be treated
separately from other forms of art and expression because a motion
picture was able to stir up emotion more deeply and thus,
classification of films between two categories ‘A’ (for adults
only) and ‘U’ (for all) was brought about.
Art International v.
Om Pal Singh Hoon,
the Supreme Court re-affirmed the afore-mentioned view and upheld
the order of the Appellate Tribunal (under the Cinematograph Act)
which had followed the Guidelines under the Cinematograph Act and
granted an ‘A’ certificate to a film.
Copyright Act, 1957 –
According to this Act, ‘copyright’ means the exclusive right
to commercially exploit the original literary, dramatic, artistic,
musical work, sound recordings or cinematographic films as per the
wishes of the owner of copyright subject to the restrictions
imposed in the Act.
this Act, is applicable to all the branches of media, in some
areas it is specific to this particular genre. In the case of a
Cinematographed film, to do or to authorise the doing of any of
the following acts would lead to the infringement of copyright.
Those acts are namely: -
make a copy of the film
cause the film, in so far, as it consists of visual images, to be
seen in public and in so far as it consists of sounds to be heard
make any record embodying the recording in any part of the
soundtrack associated with the film by utilizing such sound track
communicate the film by radio-diffusion
The Act also makes it a cognizable offence for
anyone to sell, hire, distribute, exhibit, possess or view any
unauthorised recordings and prescribes severe penalties, including
imprisonment, fines as well as confiscation of the equipment used
for the purpose of such recording and exhibition. The Amendments
to The Copyright Act also prohibit unauthorized transmission of
films on the cable television.
Cine Workers and Cinema
Theatre Workers (Regulation of Employment) Act, 1981 – This legislation affords a measure of
protection to those employed in the industry by imposing certain
obligations on motion picture producers and theatre owners
concerning the former’s condition of service.
Cine Workers Welfare Cess Act,
1981 and the Cine Workers Welfare Fund Act 1981 – They seek to create means of financial support
to cine employees, the seasonal and unpredictable nature of whose
employment often leaves them impoverished and helpless. Besides
these, there are also
a few local legislations, which affect the film medium; viz.
The Bombay Police Act, 1951 – It contains provisions
empowering the police to regulate the exhibition of films in the
state of Maharashtra (formerly Bombay).
ØBombay Cinemas (Regulation)
Act, 1953 – It provides a scheme for
state licensing of cinema theatres and other places where motion
pictures are exhibited
The Bombay Entertainments Duty
– It imposes a tax on the public exhibition of motion pictures and
other forms of entertainment.
Advertising communication is a mix of arts and
facts subservient to ethical principles. In order to be
consumer-oriented, advertisement will have to be truthful and
ethical. It should not mislead the consumer. If it so happens, the
credibility is lost.
In order to enforce an ethical regulating code, the
Council of India was set up. Inspired by a similar code of the
Authority (ASA) UK, ASCI follows the following basic
guidelines in order to achieve the acceptance of fair advertising
practices in the interest of the consumer: -
ensure the truthfulness and honesty of representations and claims
made by advertisements and to safe guard against misleading
ensure that advertisement are not offensive to generally accepted
standards of public decency;
safeguard against indiscriminate use of advertising for 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; and
ensure that advertisements observe fairness in competition so that
the consumers need to be informed on choices in the market places
and canons of generally accepted competitive behaviour in business
are both served.
Complaints filed with ASCI –
Clinic All Clear Dandruff shampoo claimed that it had ZPTO, the
special ingredient in Clinic All Clear that stops dandruff. This
claim was found to be untrue since ZPTO is a micro biocide, when
in reality, dandruff is known to be caused by several other
factors, besides, microbes. HLL’s multi-crore research wing
‘clearly overlooked’ this aspect. The advertisement has been
India claimed that their disposable contact lenses ensure there is
no protein build-up. This claim was found to be totally false. The
truth is that build up is a natural biological phenomenon with all
contact lenses. The ad was discontinued.
The other legislations
affecting the area of advertising are: -
Drug and Magic Remedies
(Objectionable Advertisement) Act, 1954 –
This Act has been enacted to control the advertisements of drugs
in certain cases and to prohibit the advertisement for certain
purposes of remedies alleged to possess magic qualities and to
provide for matters connected therewith.
Dawakhana v. Union
the Supreme Court was faced with the question as to whether
the Drug and Magic Remedies
Act, which put restrictions on the advertisements of drugs in
certain cases and prohibited advertisements of drugs having magic
qualities for curing diseases, was valid as it curbed the freedom
of speech and expression of a person by imposing restrictions on
advertisements. The Supreme Court held that, an advertisement is
no doubt a form of speech and expression but every advertisement
is not a matter dealing with the expression of ideas and hence
advertisement of a commercial nature cannot fall within the
concept of Article 19(1)(a).
Press Ltd. v. Mahanagar
Telephone Nigam Ltd,
a three judge bench of the Supreme Court differed from the view
expressed in the Dawakhana
case and held that ‘commercial advertisement’ was
definitely a part of Article 19(1)(a) as it aimed at the
dissemination of information regarding the product. The Court,
however, made it clear that the government could regulate
commercial advertisements, which are deceptive, unfair, misleading
Monopolies and Restrictive
Trade Practices Act, 1969
- Section 36 A of the Act deals with 5 major Unfair Trade
Any misleading, false, and wrong representation either in writing (i.e. in advertisements, warranty, guarantee etc.) or oral (at the time of sale) actual or intended, even if actual injury or loss is not caused to the consumer/buyer constitutes as unfair trade practices;
Sales, where there is element of deception;
business promotion schemes announcing ‘free gifts’,
‘contests’, etc. where any element of deception is involved;
of laws existing for protection of consumers;
sales with a view to raising prices.
Parle’s mango drink ‘Maaza’ gave the
advertisement of Maaza mango and the MRTP issued a notice against
Parle Exports Pvt. Ltd. The advertisement implied that the soft
drink was prepared from fresh mango while actually preservatives
were added to it. The company had to suspend production pending
In this age of media explosion, one cannot simply
remain confined to the boundaries of the traditional media. The
media world has expanded its dimensions by encompassing within its
orbit, the widening vistas of cyber media etc. As a consequence,
the laws governing them are also numerous. It is not within the
scope of this Article to deal with the whole subject of media
laws, but this Article makes a person aware of the various
important legislations affecting the various branches of Media
Communication, making him aware of his rights and facilitating him
to exercise them within the framework of law existing in India and
in the end furthering the cause of “Freedom
Of Speech And Expression” and “Dissemination
CAD, Vol VII page 980 (as per
Dr. B.R. Ambedkar); view reiterated by the Supreme Court in Indian Express Newspapers v.
Of India, (1985) 1 SCC 641. Lowell
v Griffin (1938)
303 US 444; this view was followed and relied upon by the
Supreme Court of India in Sakal Papers Ltd. v Union
of India, AIR 1962 SC 305. Cf.
Herbert Lee Williams, Newspaper
Organization and Management, 5th Edn., page 347. AIR 1962 SC 305. AIR 1959 SC 395. (1995) 2 SCC 161. The prohibition on the
reception and distribution of television signal in Ku band has
been withdrawn by the Government vide notification No. GSR 18
(E) dated 9th January 2001 of the Department of
Telecommunications. AIR 1971 SC 481. This view was re-iterated in Life
Insurance Corporation of India v. Manu
Bhai D. Shah,
(1992) 3 SCC 637. (1996) 4 SCC 1. Section 37 of the Copyright
Act, 1957. AIR 1960 SC 554. (1995) 5 SCC 139.