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PDF Hosted at the Radboud Repository of the Radboud University Nijmegen PDF hosted at the Radboud Repository of the Radboud University Nijmegen The following full text is a publisher's version. For additional information about this publication click this link. http://hdl.handle.net/2066/107484 Please be advised that this information was generated on 2017-12-06 and may be subject to change. /ίΓ FREEDOM OF THE PRESS IN INDIA CONSTITUTIONAL PROVISIONS AND THEIR APPLICATION J. MINATTUR FREEDOM OF THE PRESS IN INDIA Promotor: PROF. MR. S. F. L. BARON VAN WIJNBERGEN FREEDOM OF THE PRESS IN INDIA CONSTITUTIONAL PROVISIONS AND THEIR APPLICATION ACADEMISCH PROEFSCHRIFT TER VERKRIJGING VAN DE GRAAD VAN DOCTOR IN DE RECHTSGELEERDHEID AAN DE KATHOLIEKE UNIVERSITEIT TE NIJMEGEN, OP GEZAG VAN DE RECTOR MAGNIFICUS DR. J. H. TERLINGEN, HOOGLERAAR IN DE FACULTEIT DER LETTEREN, VOLGENS BESLUIT VAN DE SENAAT IN HET OPENBAAR TE VERDEDIGEN OP VRIJDAG 10 NOVEMBER 1961 TE 14 UUR DOOR JOSEPH MINATTUR geboren te Cherpunkal, Kerala, India MARTINUS NIJHOFF 'S-GRAVENHAGE PREFACE This study is intended to present to the reader the main provisions of law affecting freedom of the press in India. It is specially concerned with examining how far freedom of the press obtains in free India. It is proposed to discuss constitutional provisions and their appücation through various legislative measures with a view to seeing whether these provisions are sufficiently protective of this freedom. The intro­ ductory chapter attempts to indicate what is meant by freedom of the press. In the first chapter constitutional provisions are set out and discussed. The next five chapters deal, in the main, with statutory provisions relating to this freedom. The concluding chapter purports to make certain suggestions in relation to repeal or amendment of a few of these provisions. It may be mentioned that this study deals only with freedom of the press in normal times. The subject of civil liberties in India during a period of emergency has been dealt with in the present writer's doctoral thesis, Emergency Powers in the States of Southern Asia (London Uni­ versity, 1959) In the preparation of this study, I have benefited from the guidance and encouragement given by several persons and the assistance and facihties provided by various institutions. I wish to express my thanks to all of them. It was a generous grant from the Netherlands Universities Foun­ dation for International Co-operation that enabled me to undertake this study. While expressing my gratitude to the Foundation, I wish to thank specially Dr H. G. Quik and Mr F. P. Thomassen of the Foundation for their unfailing helpfulness and kindness. The assistance rendered by the staffs of the libraries of the India House, London, the Institute of Advanced Legal Studies, London, the Institute of Social Studies, The Hague, the School of Oriental and African Studies, London, the Law Institute, Nijmegen and the Peace vi PREFACE Palace, The Hague, is gratefully acknowledged. My thanks are also due to a number of persons who helped me in various ways during the period of my research. It is impossible to name all of them in this brief preface ; special mention may, however, be made of Madame M. Colbach-Scheifer, Dr. J. M. С van Driel, Mr Z. Kahn, Mr J. В. M. Roes, Mr L. Vroemen, Miss L. Wezenberg and Mr G. S. White. J.M. The Hague, August, 1961 CONTENTS Preface ν Table of cases χ INTRODUCTION (i) Freedom of the Press 1 (ii) Judicial opinions in India 1 (iii) Judicial opinions in the United States 2 (iv) Further judicial opinions in India 4 I. CONSTITUTIONAL PROVISIONS (i) Guarantee of freedom of expression 6 (iii Reasonableness of restrictions 14 (iii) Prior restraints 24 (a) Pre-censorship 24 (b) Other prior restraints 25 II. SEDITION AND RELATED OFFENCES (i) The law of sedition in India 28 (a) Introductory remarks 28 (b) Section 124A of the Penal Code 30 (c) Section 505 of the Penal Code 35 (d) Police (Incitement to Disaffection) Act, 1922 36 (e) Section 27B of the Post Office Act 36 (f) Sections 181A to 181С of the Sea Customs Act 36 (g) Section 108 of the Criminal Procedure Code 37 (h) Sections 99A to 99G of the Criminal Procedure Code 37 (ii) Promoting feelings of enmity between different classes 37 (iii) The Official Secrets Act, 1923 39 (iv) Endangering friendly relations with foreign states 40 III. PUBLIC ORDER AND INCITEMENT TO AN OFFENCE (i) Public order 45 (a) Public order distinguished from security of State 46 (b) Section 5 of the Indian Telegraph Act 48 viii CONTENTS (c) Section 26 of the Post Office Act 49 (d) Section 144 of the Criminal Procedure Code 49 (e) Section 295A of the Penal Code 52 (f ) Public Security Acts 53 (g) Wide powers of the Executive 56 (h) The expression "in the interests of public order" 60 (ii) Incitement to an offence 61 IV. OBSCENITY (i) What is obscene? 65 (ii) Statutory provisions 71 (a) Sections 292 and 293 of the Penal Code 71 (b) Sections 18 and 19A of the Sea Customs Act 73 (c) Section 20 of the Post Office Act 74 (d) The Young Persons (Harmful Publications) Act 74 (iii) Problems of application 75 V. CONTEMPT OF COURT AND OF LEGISLATURE (i) The law of contempt of Court 78 (ii) Constitutional provisions 82 (iii) Statutory provisions 84 (a) The Contempt of Court Act, 1952 84 (b) Provisions in the Penal Code 88 (c) Provisions in the Code of Criminal Procedure 88 (iv) Procedure in contempt cases 90 (v) Contempt of legislature 94 VI. DEFAMATION (i) Introductory remarks 102 (ii) Civil liability 103 (iii) Criminal liability 104 (iv) Defamation of public servants 109 (a) Section 198B of the Code of Criminal Procedure 110 (b) Press Commission's views 111 (c) Suggested procedure 112 (v) Suggested changes in the law of defamation 113 VII. CONCLUSION 117 (i) Article 19(2) of the Constitution 120 (ii) The Press and Registration of Books Act, 1867 123 (iii) Section 124A of the Penal Code 124 (iv) Section 292 of the Penal Code 125 (v) Section 295A of the Penal Code 126 (vi) Contempt of Court 126 CONTENTS ІХ (vii) Contempt of legislature 128 Bibliography 130 Index 133 TABLE OF CASES Abdul Hameed v. District Magistrate 19 Abrams v. United States 29 Adkins v. Children's Hospital 6 In re Alavandar 27, 123 Amamath Bali v. The State 11 Ambard v. Attorney-General for Trinidad and Tobago .... 80 Anantha Krishnan v. State of Madras 97 Anon. (1877) I.L.R. 1 Madras 305 90 Associated Press v. National Relations Board 3 Associated Press v. United States 3 Aswini Kumar Ghose v. Arabinda Bose 80 Balasubramonia Mudaliar v. Rajagopalachanar 108 Barucha v. Excise Commissioner 19 Bengal Immunity Company v. State of Bihar 2 In re Bharati Press 10,11,12,65 Bowman v. Secular Society, Limited 32, 33 Brahma Prakash Sharma v. State of Uttar Pradesh 87 Brajnandan Sinha v. Jyoti Narain 87 Bridges v. California 82, 120 Brij Bhushan v. State of Delhi 2, 8, 9, 12, 24, 25, 46, 47 Cantwell v. Connecticut 45 P.T. Chandra v. The Emperor 50 Chaplinsky v. New Hampshire 45, 119 Chintaman Rao v. State of Madhya Pradesh 14,18 N.N. Choudhuri v. Bela Bala Devi 90,91 Commonwealth v. Gordon 68 Cox v. New Hampshire 120 Craig v. Harney 82 TABLE OF CASES ІХ Debi Soran ν. The State 33, 125 Debs ν. United States 29 Dennis ν. United States 28 Dina Nath v. Sayad Habid 104 Doraiswami Naidu v. Kanniappa Ghetti 107 Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh ... 16 Emmens v. Pottle 104 Emperor v. Ambalal Paranngji 73 Emperor v. Genda Ram 109 Emperor v. Ghulam Hussain 72 Emperor v. Hamam Das 72 Emperor v. Inderman 72 Emperor v. Kherode Chandra Roy Chaudhury 72 Emperor v. Kundammal 107 Emperor v. Maniben Kara 38 Emperor v. Maung Sein 109 Emperor v. G. V. Mavlankar 50 Emperor v. Nga On Thin 107 Emperor v. Alex Pimento 109 Emperor v. Salig Ram 88 Emperor v. Sankara Narasimha Bharati 108 Emperor v. Sree Ram Saksena 70 Emperor v. Sukdeo 107 Emperor v. Thakkar Datt 72 Emperor v. Venkatrao 89 Emperor v. Vishnu Krishna 72, 73 Eubank v. Richmond 7 Express Newspapers v. Union of India 2, 4, 14 Forrester v. Tyrell 102 K. L. Gauba v. Chief Justice and Judges, Lahore 127 Girdharlal Popatlal Shah v. State of Bombay 72 Gitlow v. New York 29 A. K. Gopalan v. State of Madras 6, 15, 18 Govinda Ghetti v. Perumal Ghetti 50 Grosjean v. American Press Company 3 Hamdard Dawakhana v. Union of India 5, 121 xii TABLE OF CASES Hira Lai Dixit v. State of Uttar Pradesh 80,81 Hussain Buksh Kausar v. The State 34 Indu Kumar Shankerlal Saherwala v. The State 11 Ismail v. State of Orissa 20 In re Jackson 3 Jagannath Satha v. Union of India 43, 58 Jang Bahadur Santpal v. Principal, Mohindra College . 13, 121 Jnanendra Prasad Bose v. Gopal Prasad Sen 85, 86 In re Johnson 92 De Jonge v. Oregon 120 Kamini Mohan Das Gupta v. Narendra Kumar 50 Kartar Singh v. State of Panjab 53,54,109 Kelly v. Sherlock 109 N. B. Khare v. State of Delhi 14, 16, 17, 18, 20, 57, 94 King Emperor v. Sadashiv Narayan 32, 125 Kovacs v. Cooper 46 Lee v. Argus 104 Legal Remembrancer v. B. B. Das Gupta 83, 85 Loknath v. State of Orissa 19 Lovell v. Griffin 3 Mahmud Zaman v. District Magistrate 124 Marsh v. Alabama 24 In re Motilal Ghose and others 83 Municipal Corporation г>. Virgo 19 Muthuramalinga v.
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