IN THE HON’BLE SUPREME COURT OF INDIA ORIGINAL CIVIL JURISDICTION [UNDER ARTICLE 32 OF THE CONSTITTUTION OF INDIA]

WRIT PETITION (CIVIL) NO. OF 2020

IN THE MATTER OF:

NILESH NAVALAKHA AND ANR ....PETITIONERS

-VERSUS-

UNION OF INDIA & ORS. ....RESPONDENTS

(KINDLY SEE INDEX) PAPER BOOK

ADVOCATE FOR THE PETITIONER: PAI AMIT Filed on: 28.09.2020 INDEX OF RECORD OF PROCEEDINGS

SL.No. DATE OF RECORD OF PROCEEDINGS PAGE NO. INDEX SN Particulars Page no. of part Remark to which it belongs Part I Part II

(i) (ii) (iii) (iv) (v)

1. Listing Proforma A-A1 2. Cover Page of Paper Book A-3 3. Index of record of Proceedings 3A. Writ Proforma 4. Defect List 5. Note Sheet 6. Synopsis and List of Dates B-FF 7. Writ Petition (Civil) along with 1-75 supporting Affidavits. 8. Annexure P/1 76-88 True copy of the judgement of the Privy Council in Channing Arnold v. King Emperor AIR 1914 PC 116 9. Annexure P/2 89-157 True copy of the relevant excerpts of the CAD dated 1 December 1948, and 2 December 1948 10. Annexure P/3 158-179 News Policy for Broadcast Media” in May, 1982

11. Annexure P/4 180-198 True copy of the Cable Television Network Rules, 1994 12. Annexure P/5 199-210 True copy of the Cable Television Networks (Regulation) Act, 1955 13. Annexure P/6 211— True copy of the report of Sub- 233 committee of PCI dated 01.04.2010 accepted on 30.07.2020. 14. Annexure P/7 234-241 Uplinking/Downlinking Guidelines as on 2011 15. Annexure P/8 242-243 True copy of the subcommittee report dated 15.11.2013 16. Annexure P/9 244-256 True copy of the Code of Ethics & Broadcasting Standards and Regulations 17. Vakalatnama. 257-295 PROFORMA FOR FIRST LISTING SECTION - PIL (W) O Central Act: (Title):Constitution of India o Article: 32 o Central Rule: (Title): NA o Rule No (s): NA o State Act: (Title):NA o Section: NA o State Rule: (Title):NA o Rule No (s): NA o Impugned Interim Order: (Date):NA o Impugned Final Order/Decree: (Date): NA o High Court: (Name): NA o Name of Judges: NA o Tribunal/Authority: (Name): NA 1. Nature of matter: CIVIL 2. (a) Petitioner/Appellant: NILESH NAVALAKHA AND ANR (b) Email ID: N.A. (c) Mobile Phone No.: N.A. 3. (a) Respondent: UNION OF INDIA AND ORS (b) Email ID: NA (c) Mobile Phone No.: NA 4. (a) Main Category Classification: 32 (b) Sub Classification: 5. Not to be Listed Before: NA 6. (a) Similar disposed off matter with citation, if any, & case Details:- No similar disposed off matter. (b) Similar pending matter with case details:- No similar pending matter. 7. Criminal Matters: NO (a) Whether accused/convict has surrendered: NA (b) FIR No. and Date: NA (c) Police Station: NA (d) Sentence Awarded: NA (e) Period of Sentence Undergone (Including period of detention/ custody undergone): NA 8. Land Acquisition Matters: NA (a) Date of Section 4 Notification: NA (b) Date of Section 6 Notification: NA (c) Date of Section 1 Notification: NA 9. Tax Matters: State the tax effect: NA 10. Special Category (First Petitioner/Appellant Only): Senior Citizen/ 65 Years/ SC/ ST/ Woman/ Child/ Disabled/ Legal Aid Case/ In Custody: NA 11. Vehicle Number (In case of Motor Accident Claim matters): NA

PAI AMIT Advocate for the Petitioner 223, M.C. Setalvad Chambers, New Lawyers Chambers, Supreme Court of India, New Delhi 110001 AOR Code: 2649 Date: 28.09.2020 Place: New Delhi B

SYNOPSIS AND LIST OF DATES

The Petitioners, public spirited social activists, are constrained to approach this Hon‟ble Court under Article 32 of the

Constitution of India in public interest, inter alia, beseeching this Hon‟ble Court to lay down and issue appropriate guidelines outlining the broad regulatory paradigm within which media houses, i.e., broadcasters and electronic media, can exercise their rights under Article 19(1), so as to judicially regulate the same. The instant petition also prays for the establishment of an independent, regulatory Tribunal/judicial-body, known as

“„Media Tribunal,‟” to hear and expeditiously adjudicate upon complaint petitions against the Media-Businesses filed by the viewers/citizens.

It is submitted that the instant Petition, inter alia, raises important and substantial questions of law of national importance, which may be enumerated as follows:

1. Whether the news broadcasters/electronic media enjoy unfettered freedom, of a much higher degree than those enjoyed by the citizens of the Country and whether such freedom can only be subject to self-regulation? C

2. Whether misinformation/fake news, hate speech, propaganda, paid news, communal, indecent, aggressive, derogatory, sensational, scandalous and disproportionate reporting, incitement, etc. are covered under the right to freedom of press, emanating from Article 19(1)(a)?

3. Whether regulation of the news broadcasters/electronic media would amount to curtailing the freedom of press or media, if the same is done within the parameters specified in Article 19(2)?

4. Whether the Article 21 of the Constitution envisages the Right of the Citizens to Free, Fair and Proportionate Media Reporting?

5. Whether there is a need for laying guidelines and setting up of a judicial regulatory mechanism in respect of media houses?

The principal issue before this Hon‟ble Court is to bring about a balance between the right to freedom of speech and expression of the Media-Businesses and the competing right to information of the citizenry under Article 19(1)(a), right to reputation and the right to dignity under Article 21, as well as in the interests of preserving peace and harmony in the nation. At the very outset, it is submitted that the freedom of speech and expression enjoyed by the Media-Business is not unlimited, and subject to the restrictions imposed under Article 19(2). It is D submitted that the present petition is not to curb the fundamental rights of the Media-Business, but only to bring about some accountability for misinformation, inflammatory coverage, fake news, breach of privacy, etc. which the Media-

Business has indulged in, only with the aim to further their business, and to bring about consequences for acting in a fashion that is contrary to constitutional goals and morality. It is submitted the exercise of power by the Electronic Media without any accountability is severely detrimental to the due process of law, and contrary to the rule of law.

URGENT NEED FOR LAYING GUIDELINES AND SETTING UP OF A REGULATORY MECHANISM IN RESPECT OF MEDIA CORPORATES

At the outset, it may be noted that this Hon‟ble Court in Writ

Petition (Civil) No. 956/2020, Firoz Iqbal Khan v. Union of

India & ORS has expressed willingness to consider similar issues relating to the framing of guidelines for the regulation of the Media-Business.

This Hon‟ble Court in Vineet Narain v. Union of India, (1998)

1 SCC 226, in similar circumstances and in the absence of any legislative framework gave detailed directions for setting up of an independent body “CVC” to supervise the CBI and also E provided for directions regarding tenure of the officers, etc.

(refer to para 58 of the judgement).

Today, Electronic Media has become the most powerful medium with unprecedented influence over the minds of the people. The lack of accountability on the Electronic Media channels, which have the power and impetus to set the country ablaze with their hateful and fissiparous discourse. Over the last few years,

Media Trials, hate speech, propaganda news, paid news, have become the order of the day, thereby impeding the right to a fair trial of victims and right to fair and proportionate reporting. It is submitted that reckless reportage by the Electronic Media without accountability can, by no stretch of imagination, be read into the right to freedom of speech and expression enjoyed by the Electronic Media.

Unbridled power is always dangerous, as also the saying goes,

“Power corrupts; absolute power corrupts, absolutely.” The

Electronic Media has become like an unruly horse, which needs to be tamed. However, the Ministry of Information and

Broadcasting, Union of India, being the nodal ministry has totally failed in the discharge of its duties, in implementing the undertaking of the Electronic Media broadcasters, of F

compliance with the Programme Code in Rule 6 of the Cable

Television Rules, 1994. It is submitted that the Electronic Media

Broadcasters are bound by the undertaking to comply with the

Programme Code, which is made at the time of applying for

permission to Uplink/Downlink their respective channels.

Instead of doing service to the nation and working in the public

interest, of late, the media is afflicted with disseminating:

i. Misinformation, Fake News and Propaganda,

ii. Divisive and Schismatic Forces of Communalism, Ethnocentrism, Bigotry, Casteism, Linguism and Regionalism, iii. Indecent, Sleazy, Cheap, Sensational, Scandalous, Immoral, Inciting, Defamatory and Disproportionate Reports, iv. War-mongering,

v. Superstitious, Violent, Backward and Public Disorder- inducing Attitudes,

all of which are well beyond the periphery and contours of the

right to freedom of speech and expression guaranteed under

Article 19(1)(a) of the Constitution, and brazen misuse of the

said right. Moreover, by the nature of the broadcast, the G

Electronic Media is wholly negating the right to fair and proper information that is enjoyed by the citizenry.

Significantly, Article 51A of the Part IVA of the Constitution, provides the fundamental duties of every citizen, inter alia:

“(a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) To cherish and follow the noble ideals which inspired our national struggle for freedom; (c) To uphold and protect the sovereignty, unity and integrity of India; (e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; (f) To value and preserve the rich heritage of our composite culture; (g) To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; (h) To develop the scientific temper, humanism and the spirit of inquiry and reform; (j) To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;” H and since the Media is made up of nothing but a body- corporate/group/aggregate of citizens, so the same is also a bounden duty of the Media, to uphold the duties fundamental to all citizens.

Thus, it is a constitutional duty of the Media, the State and of the citizen, to abide by the fundamental duties. Although,

Article 51-A is not judicially enforceable by itself, it becomes judicially enforceable through a expanding interpretation of the

Article 21, and any failure of the foregoing duties may well be considered and entertained as a Public Interest Litigation under

Article 32.

Moreover, the nature of the reportage of the Electronic Media as enumerated hereinbefore, negates the fundamental rights of the citizenry at large, being Right to Live with Human Dignity, Right to Livelihood, Right to Education, Right to Know, Right to Fair

Information and Proportionate Media Reporting, et al, as enshrined under Article 21 of the Constitution, apart from being antithetical to the citizen‟s rights guaranteed under Article

19(1)(a), which owing to the dominance of Electronic Media, becomes subsidiary and inconsequential, further falling under I the mischief of arbitrariness and hit by Article 14 of the

Constitution.

In these circumstances, it has become imperative that this

Hon‟ble Court, as the ultimate sentinel on the qui vive, protects and balances the rights of various stake holders so that the fundamental rights of one class of stakeholders do not become subservient to the exercise of fundamental rights of the other class. It is submitted that this Hon‟ble Court has time and again expressed that the rights of the many are to supersede the rights of the few. It is submitted that the right to freedom of speech and expression enjoyed by the Electronic Media

Broadcaster cannot trump the right to fair information enjoyed by the citizenry.

FREEDOM OF SPEECH AND EXPRESSION ENJOYED BY THE MEDIA IS NO DIFFERENT FROM THAT ENJOYED BY THE CITIZENS, WITH ALL REASONABLE RESTRICTIONS UNDER ARTICLE 19(2)

There is no gainsaying that the Constitution of India does not specifically mention the freedom of press. Freedom of press is implied from the Article 19(1)(a) of the Constitution. Thus, the press is subject to the restrictions that are provided under the

Article 19(2) of the Constitution. The power enjoyed by the news J broadcasters/electronic media is immense, and without any accountability to the law or the Constitution. It is submitted that untrammelled power is prone to abuse, something that is antithetical to the rule of law. Further, it is submitted that the restrictions on the Electronic Media must be placed at a higher footing than the common citizen, in view of the fact that the

Electronic Media have a much larger reach, and are doing a public function by employing public airwaves.

Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, during Constituent Assembly debates on inclusion of the press in proposed Article 13 (Article 19) on freedom of speech and expression of the Draft Constitution, 1948, stated that press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity. The relevant portion is extracted hereunder, for convenience and ready reference:

“7.65.168 B.R. Ambedkar: The press is merely another way of stating an individual or a citizen. The press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers, they are merely exercising their right of expression, and in K

my judgment therefore no special mention is necessary of the freedom of the press at all.

It is submitted that the strong demands to encode freedom of the press within Article 19 (1) (a), were defeated because the framers did not see the „Press’ as a separate category.

It is submitted that the Privy Council in Channing Arnold v.

King Emperor AIR 1914 PC 116, @ 117 has observed that:

"The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from statute his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject".

Further, in Virendra v. State of Punjab, AIR 1957 SC

896, this Hon‟ble Court held that the freedom of press under our Constitution is not higher than that of an individual.

Further, this Hon‟ble Court has categorically stated, that owing to the effect „movies‟ have on people‟s minds, the same must be regulated and censored, if need be, in the L matter of S. Rangarajan v. P. Jagjivan Ram, (1989) 2

SCC 574, observing as:

“10. Movie doubtless enjoys the guarantee under Article 19(1)(a) but there is one significant difference between the movie and other modes of communication. The movie cannot function in a free marketplace like the newspaper, magazine or advertisement. Movies motivate thought and action and assures a high degree of attention and retention. It makes its impact simultaneously arousing the visual and aural senses. The focussing of an intense light on a screen with the dramatizing of facts and opinion makes the ideas more effective. The combination of act and speech, sight and sound in semi-darkness of the theatre with elimination of all distracting ideas will have an impact in the minds of spectators. In some cases, it will have a complete and immediate influence on, and appeal for everyone who sees it. In view of the scientific improvements in photography and production the present movie is a powerful means of communication. It is said: “as an instrument of education is has unusual power to impart information, to influence specific attitudes towards objects of social value, to affect emotions either in gross or in microscopic proportions, to affect health in a minor degree through sleep disturbance, and to affect profoundly the patterns of conduct of children.” (See Reader in Public Opinion and Communications, Second Edition by Bernard Berelson and Morris Janowitz, p. 390) The authors of this book have demonstrated (at pp. 391 to 401) by scientific tests the potential of the motion pictures in formation of opinions by spectators and also their attitudes. These tests have also shown that the effect of motion pictures is cumulative. It is proved that even though one movie relating to social issue may not significantly affect the attitude of an individual or M

group, continual exposure to films of a similar character will produce a change. It can, therefore, be said that the movie relating to a social issue may not significantly affect the attitude of an individual or group, continual exposure to films of a similar character will produce a change. It can, therefore, be said that the movie has unique capacity to disturb and arouse feelings. It has as much potential for evil as it has for good. It has an equal potential to instil or cultivate violent or good behaviour. With these qualities and since it caters for mass audience who are generally not selective about what they watch, the movie cannot be equated with other modes of communication. It cannot be allowed to function in a free market-place just as does the newspaper or magazines. Censorship by prior restraint is, therefore, not only desirable but also necessary.”

It is submitted that though this finding of this Hon‟ble Court was in the context of the cinematograph Act, it is more true for news broadcasters/electronic media. It is submitted that unlike a movie/film shown in a theatre, news broadcasters/electronic media have a reach into the houses of the people, giving them an untrammelled and unparalleled power to influence minds and ideas. That being so, it is submitted in a rule of law society, there can be no power exercised without accountability.

It is submitted that the news broadcasters and electronic media cannot claim immunity from the imposition of reasonable restrictions, and cannot claim to enjoy the fundamental rights N guaranteed under Article 19(1)(a), without being subject to restrictions under Article 19(2).

ROLE OF MEDIA IN POST-INDEPENDENCE INDIA

In the pre-Independence era, the Media was a form of “service” to the cause of the people‟s freedom, and was a great juggernaut of social change, reform and awakening, and acted as one of the greatest tools to mobilize the people and consolidate social consciousness for the freedom struggle. The Media of the pre- independence era was largely run and owned by freedom fighters and great personalities and heroes of our nation, such as Raja Ram Mohan Roy, Bal Gangadhar Tilak, Dadabhai

Naoroji, Mahatma Gandhi, Jawaharlal Nehru, Dr. B.R.

Ambedkar, et al.

While the press and the media continued in the pre- independence spirit, over time, with changes in the media and society, the news broadcaster and electronic media have used their power to only further their business interests. The Media has mutated from being a service, to being a business.

Journalism mutated from being a Mission, to being a

Profession. The Media came about from being owned by O benevolent and self-less freedom fighters, to being owned by profit-oriented big Business and Corporate Houses. With the passage of time, Media-Business became a monumentally competitive and cut-throat commerce, where sensationalism, sleaze and scandal have become the norm and Truth/Facts became subsidiary.

The existing bodies for the regulation of media such as the

Press Council of India which is a statutory body and the News

Broadcasting Standards Authority, a self-regulatory organization, issue standards which are more in the nature of guidelines. It is relevant to note that the broadcaster enters into a contractual obligation with the Government, to comply with the Programme Code and the Advertising Code specified in the

Cable Act and the Cable Rules. It is submitted that any broadcaster that does not comply with this undertaking is liable to be proceeded against, including by cancellation of the permission to uplink/downlink.

It is with utmost respect submitted that over 1000 television channels use the airwaves which is public property, but there is no organised and effective regulatory mechanism to regulate/adjudicate the challenges posed by the broadcasters. P

Moreover, as aforementioned, despite using public airwaves, the

Broadcasters are not accountable for the broadcast.

This Hon‟ble Court in Secretary, Ministry of Information and

Broadcasting, Government of India v. Cricket Association of

Bengal (1995) 2 SCC 161 examined the lacuna in the area of broadcasting regulation and directed the establishment of an autonomous broadcasting authority to control and regulate the broadcasting media.

SELF REGULATION BY MEDIA CANNOT BE THE ANSWER

It is pertinent to mention, that under the Indian Constitutional setup, it is solely the Judiciary which enjoys the privilege of

„self-regulation,‟ being Independent and conferred with the same status by the Constitution itself. Thus, equating the Media-

Business with the Judiciary, in terms of the privilege of „self- regulation‟ directly strikes upon the Independence of the

Judiciary and rattles and shakes the very foundations of the

Indian Constitutional Scheme and the Democracy, and the same goes against every notion and canon of law and justice prevailing in India. It is notable, that despite being self- regulated even this Hon‟ble Court is not immune from clutches Q of law and are amenable to regulations under “Judges (Inquiry)

Act, 1968.”

Despite there being no restrictions provided for in the First

Amendment to the US Constitution, the Hon‟ble Supreme Court of the United States, in Brandenburg v. Ohio, 395 U.S. 444

(1969) has held that free speech can be restricted the same is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. It is submitted, in India, even though free speech is not unlimited, even this test is not applicable to the news broadcasters/electronic media as of today, since there is a lack of regulatory control. It is relevant to mention the quote of the father of the Nation Mahatma Gandhi here: “An uncontrolled pen serves but to destroy.”

The self-regulation theory evolved by toothless and powerless bodies like the NBA, is nothing but sham and farcical, which abuses the bona fide privilege conferred upon the media as the

“Fourth-Pillar, and is in effect a myth.

At the cost of repetition, it is submitted that the Media is simply a Business, albeit one which is one of the most powerful structures of Power in itself, and thus, the same must by regulated by constitutional norms and principles, because the R

Democratic Principle expounds that all structures of power must be regulated for the good of all and to preserve the doctrine of Equality as enshrined under Article 14 of the

Constitution of India, which is the golden track on which the

Constitution runs, otherwise the same shall descend into arbitrariness and corruption. It is submitted that the whole self- regulatory process makes the Electronic Media Broadcaster a judge in his own case, thereby completely negating the rule of law enshrined in our Constitution. This is more so because the broadcast by the Electronic Media is not only the exercise of right to freedom of speech and expression of the broadcaster, but is a means to the right to information enjoyed by the citizenry, and therefore the exercise of the right must be done responsibly.

Importantly, the Media was only accorded the status of “fourth pillar” because of the “role” it played. Now, since its role has changed, from Service to Business, and from Mission to

Profession, in such circumstances, it cannot mechanically be referred to as the Fourth Pillar, to avert all judicial attempts at regulating the Media-Business. It cannot be termed as the

„Fourth Pillar‟ if it does not raise the people‟s issues and acts as S the voice of the voiceless, instead only acts as a TRP-hunting, profit-mongering machine.

In the present day, the judicially unregulated Media-Business is able to be used by politicians, police officers and other public officials who wish to put out propaganda to advance their own interests and influence public opinion. A hunger for “leaks” and

“scoops” (which sometimes precipitates the events which they predict) and some journalists‟ relationship with the sources who provide them with information, can make it difficult for the media to maintain its independence and a critical stance.

Searches for motivation, and even checks for accuracy, may suffer as a result. For example, over the last few months, errant police personnel who have been involved in encounter killings of purported criminals have been projected as heroes, despite the act being a complete negation of the rule of law by the errant police personnel exhibited with the full power of the State.

Further, the bane of fake news has led to a misinformation epidemic, plaguing the citizenry.

REGULATION DOES NOT MEAN CENSORSHIP OR CURTAILMENT OF FREEDOM OF PRESS

T

It is submitted that Regulation promotes the freedom or the facility which is required to be regulated in the interest of all concerned1. It is hence submitted that Regulation” means regulation in public interest and not contra public interest. The expression “regulation” cannot possibly be read as contra public interest but in the interest of the public. (see Haryana

SEB v. Suresh, (1999) 3 SCC 601).

It may not be incorrect to state that the media in India has unfortunately has been playing a disproportionate role in shaping public perceptions of politics, electoral outcomes and the way power is exercised.

This Hon‟ble Court in Cricket Assn. of Bengal (supra) held way back in 1995, that an autonomous broadcasting authority, independent of the government, to control all aspects of the operation of the electronic media was desirable and much needed.

It is, therefore, submitted, that in the circumstances, it is picturesque, that it is necessary and imperative for this Hon‟ble

Court to frame guidelines to regulate the news broadcasters and electronic media, in the absence of an effective legislative

1State of U.P. v. Hindustan Aluminium Corpn., (1979) 3 SCC 229. U mechanism for checks and balances on the exercise of the right of freedom of speech and expression by the news broadcasters;

And further, to constitute an Independent Committee, headed by sitting or retired Judges, to inter alia, recommend to the

Central Government for establishment of an independent, regulatory Tribunal/body “Media Tribunal” to hear and expeditiously adjudicate upon complaint petitions against the

Media Business, Corporates and Journalists, filed by the viewers/citizens, to regulate the broadcasting and media sector, and covering the multifarious segments of the Media, i.e., electronic, print and digital. It may also prescribe and impose sanctions where the laws of the land have been violated. It is submitted that the object is not to curb the freedom of the media, but to bring some accountability to the broadcaster, i.e.

Electronic Media.

It is submitted, that the Union of India and the State

Governments, must assume the role of the Police, to impose penal sanctions under the prevailing laws, and so as to work in tandem with the Media Tribunal so constituted, under recommendations by the Independent Committee of retired

Judges of this Hon‟ble Court. V

It is further submitted, that in the light of the aforesaid facts and submissions, the matter(s) and issue(s) raised herein, need to be decided and dealt with at the earliest.

In the circumstances adumbrated hereinbefore, the instant

Public Interest Litigation has been filed.

LIST OF DATES

1885 The earliest enactment of was the Indian

Telegraph Act, 1885. This Act gave power to

Government to control the establishment,

maintenance and working of wireless apparatus.

―Within India, the Central Government shall

have the exclusive privilege of establishing,

maintaining and working telegraphs.

The Government„s continued monopoly over

radio and television derives from this Act. This

Act, as amended by Act 15 of 1961. 1961 act

defined telegraph as ―any appliance,

instrument, material or apparatus used or

capable of use for transmission or reception of

signs, signals, writing, images and sounds for W

intelligence of any nature by wire, visual or other

electro-magnetic emissions, radio waves or

hertzian waves, galvanic electric or magnetic

means.

07.04.1914 The Privy Council in Channing Arnold v. King

Emperor AIR 1914 PC 116 has observed that

the freedom of the journalist is an ordinary part

of the freedom of the subject and to whatever

length, the subject in general may go, so also

may the journalist, but apart from statute his

privilege is no other and no higher. The range of

his assertions, his criticisms or his comments is

as wide as, and no wider than that of any other

subject.

1930 In 1930, the broadcasting was placed under the

direct control of the Government of India. A

service designated as the Indian State

Broadcasting Service began broadcasting

1933 The Indian Wireless Telegraphy Act, 1933 was

enacted to deal with the possession of wireless X

apparatus and radio receivers which were not

covered by the Telegraph Act, 1885 The new Act

made the possession of a radio set without a

licence an offence.

1936 In 1936, the Indian State broadcasting service

came to be called the All India Radio. In 1937,

All India Radio was transferred from the

Department of Labour to the Department of

Communications in the Government of India

1941/1947 In 1941, the Department of Information and

Broadcasting came into existence. After

Independence, in 1947, it became the Ministry of

Information and Broadcasting.

Before Independence, the British Government

had decided to give the Governments of princely

states the right to construct and use

transmitters and to regulate and impose fees in

respect of the construction and use of

transmitters and receiving apparatus in the

province or State. (see section 129 of Y

Government of India Act, 1935)

1.12.1948 The Constituent Assembly of India debated and Article 13 (Article 19) on freedom of speech and

02.12.1948 expression of the Draft Constitution, 1948) on 1

December 1948, 2 December 1948.

1950 Constitution of India came into force and

freedom of speech and expression become

fundamental right under Article 19(1)(a).

1951 In 1951, the government felt that there was a

need to introduce a Press Bill which would be

free from the objectionable features of the 1931

Act and be in consonance with the constitution

of free India. After Independence, the restrictive

regulations were either done away with or

suitably modified and codified to meet the urges

of a free Press in a free country

1952 Cinematograph Act, 1952 came into force,

bringing into place an apparatus for the

censorship of films. This Act of 1952, dealt with Z

two separate matters: (a) The examination and

certification of films suitable for public

exhibition, and (b) Regulation of cinemas

including their licensing. The Section 3 of the

Act created the Censor Board or the Board of

Film Certification. Any film intended for public

exhibition was required to get a certificate from

the Board Sanctioning the film for restricted or

unrestricted viewing. The guiding principles for

certification of films under the Act are an echo of

the restrictions under Article 19(2)

04.07.1966 The first Press Commission recommended the

setting up of a Press Council „ to safe guard the

freedom of the press‟ and „to encourage the

growth of the sense of responsibility and public

service among all those engaged in the

profession of journalism‟. The Press Council Act

was passed by the Parliament in 1965 and the

Press Council was set up on 4th July, 1966.

However, the Press Council was made the victim

of emergency and the Press Council Act, 1965 AA was repealed with effect from 1st January, 1976.

The reason was cited to abolish the Press

Council that it was not able to carry the functions to achieve the objects for which the

Council was established.

The Press in India was until recently the only medium not under the direct control of government and in a position to evaluate critically the implications of national policies.

The Indian Press is almost entirely privately owned and has been free in all the decades since

1947, except for an interregnum of nineteen months, between June 1975 and January 1977, when Indira Gandhi, as a prime minister, imposed the internal emergency and, among other things, suspended Press freedom. BB

The government appointed the 1952 and 1978

Press Commissions to inquire into the Press

laws and other developments affecting the Press

and its operations. State attitudes towards the

Press in the post-independence period varied

somewhat between the large, metropolitan Press

and the provincial Press.

1965 That the sole statutory, quasi-judicial body set

up for media regulation in the India is the Press

Council of India while it aims to preserve the

freedom of the press and maintain and improve

the standards of press in India, it has no way of

imposing punishments or enforcing its

directions for professional or ethical violations.

1975 In 1975 there was apparently abuse of television

by the Government. This led to a political

demand for the autonomy of television. After the

emergency ended, Government commissioned a

white paper titled ―White Paper on the Misuse of

the Mass Media during the Emergency. This CC

was presented to parliament in August 1977 and

around the same time in 1977, a working group

was constitute to look into autonomy for

Akashvani and Doordarshan with in the

Government framework.

1978 The Press Council Act, 1965 was enacted by the

Parliament, so as to bring about accountability

of the Press.

1982 The Advisory Committee, headed by Mr. G.

Parthasarathi, on Official Media attached to the

Ministry of information and Broadcasting, issued

“News Policy for Broadcast Media” in May, 1982.

1990 The Prasar Bharati (Broadcasting Corporation of

India) Act, 1990 came into existence in

September 1990 and came into force with effect

from 15th September 1997. The Act sought to

free Akashwani (All India Radio) and

Doordarshan from direct control of the

Government and provides for establishment of

an autonomous corporation for electronic media. DD

1994 The Cable Television Network Rules, 1994 were

enacted under the Cable Television Networks

(Regulation) Ordinance, 1994. The Programme

Code of the Cable Television Network Rules lays

down restrictions on the content of both

programmes and advertisements that can be

shown on cable TV

March Cable Television Networks (Regulation) Act, 1995 25, 1995 came to be enacted.

2009 Sub Committee of PCI submitted a report to

show how corruption in media undermines

democracy.

30.07.2010 PCI released its "Report on Paid News" on

30.07.2010 wherein one of the major

recommendations is to amend the Press Council

Act to bring electronic media under the

jurisdiction of the PCI and also to empower PCI.

2011 The Union Ministry of Information &

Broadcasting, framed uplinking/downlinking

guidelines as per existing policy guidelines, via EE

which the permissions for uplinking, and/ or

downlinking of satellite TV channels are issued

to Broadcasters by MIB on the basis of their

applications, aafter receiving the permission for

uplinking of satellite TV channels from MIB.

15.11.2013 The Sub-committee of PCI submitted a report on

issues related to Paid News and sought for

constituting of the Statutory body viz., Media

Council having eminent persons as its members

to look into all media contents both from print

media and electronic media (TV as well as Radio)

with powers to take strong action against the

defaulters.

The Broadcasters established regulator is

expected to watch over news broadcasts that

violate the NBA‟s code of ethics and

broadcasting standards. It is submitted that the

aforesaid authority is not a statutory authority

and has been ineffective.

It is submitted that NBF has no grievance FF

resolution mechanism. It is submitted that the

Respondent No. 4 is apparently an association of

over 50 news channels.

Hence, this writ petition. 27.09.2020

1

IN THE SUPREME COURT OF INDIA

[EXTRA ORDINARY WRIT JURISDICTION]

WRIT PETITION (CIVIL) No. ______OF 2020

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA R/W ORDER XXXVII, RULE 12(1) (D) AND (2) OF SUPREME COURT OF INDIA RULES, 2013)

[PUBLIC INTEREST LITIGATION]

IN THE MATTER OF:

1. MR. NILESH NAVALAKHA PETITIONER NO. 1 AGE: 44 YEARS, OCC: BUSINESSMAN SOCIAL ACTIVIST ADDRESS :620, PENTAGON, SHAHU COLLEGE ROAD, PARVATI, PUNE-411009. 2. MR. NITIN MEMANE PETITIONER NO. 2 AGE: 52 YEARS OCC: CIVIL ENGINEER SOCIAL ACTIVIST S/O, BHUJANGRAO M. MEMANE ADDRESS: B 701, GERA EMERALD CITY NORTH, KHARADI, PUNE-411014.

VERSUS

1. UNION OF INDIA RESPONDENT THROUGH THE SECRETARY/JOINT NO. 1 SECRETARY ( P&A ) MINISTRY OF INFORMATION AND BROADCASTING, ROOM NO 552, A WING, SHASTRI BHAWAN, NEW DELHI-110001. EMAIL: [email protected]

2. PRESS COUNCIL OF INDIA RESPONDENT THROUGH THE SECRETARY, NO. 2 1ST, 2ND & 3RD FLOOR, SOOCHNA BHAWAN, 8, C.G.O. COMPLEX, LODHI ROAD, NEW DELHI- 110 003 EMAIL: [email protected] 2

3. NEWS BROADCASTERS ASSOCIATION RESPONDENT THE SECRETARY GENERAL NO. 3 MANTEC HOUSE, C-56/5, 2ND FLOOR, SECTOR 62,NOIDA - 201 301 EMAIL: [email protected]

4. NEWS BROADCASTERS FEDERATION RESPONDENT 3-B, GG-2 BLOCK, VIKASPURI, NEW DELHI NO. 4 110018 (INDIA) EMAIL:[email protected]

5. NEWS BROADCASTING STANDARDS RESPONDENT AUTHORITY NO. 5 TH SECRETARY C/O NEWS BROADCASTERS ASSOCIATION MANTEC HOUSE, C-56/5, 2ND FLOOR, SECTOR 62, NOIDA - 201 301 EMAIL: [email protected]

THE PRESS TRUST OF INDIA LIMITED 6. TH. AUTHORISED REPRESENTATIVE RESPONDENT 4, PARLIAMENT STREET, NO. 6 NEW DELHI - 110 001. EMAIL: [email protected]

TO, HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA;

THE HUMBLE PETITION OF THE PETITIONERS, ABOVE-NAMED,

MOST RESPECTFULLY SHOWETH: -

1. The Petitioners, both public spirited social activists, are

constrained to approach this Hon‘ble Court under Article 32 of

the Constitution of India in public interest, interalia,

beseeching this Hon‘ble Court to frame guidelines to regulate 3

the news broadcasters and electronic media, in the absence of

an effective legislative mechanism for checks and balances on

the exercise of the right of freedom of speech and expression

by the news broadcasters.

2. That Petitioner no. 1 is a reputed filmmaker/producer and

has produced nine films containing social issues and has

received National Awards for three of his films, namely,

‗Shala‘, ‗Fandry‘ and ‗Anumati‘. Petitioner is also a social

activist, and is actively involved in various Social Causes, and

has been vocal about several social issues pertaining to

causes of the downtrodden sections of the society. The

Petitioner being a noble, upstanding and upright citizen of this

country has been relentlessly working towards upholding the

Rule of Law. The Petitioner has raised concerns with the

authorities (Respondent No. 1) in with respect to the falling

standards and unfair reporting by several news channels. The

Petitioner has also filed a PIL seeking postponement/restrain

on publishing of reports by Media by way of Media Trials and

Parallel investigations in celebrity actor‘s mysterious death

case. The aforesaid matter is pending before the Hon‘ble

Bombay High Court.

3. That Petitioner no. 1 is law abiding citizen of country and

believes in an independent and fearless media as the fourth

pillar of our democracy, at the same time is concerned with

falling standards of journalism and propaganda news. 4

Petitioner expects that journalists to be fair to all sides,

neutral and to provide diverse points of view. However what

can be seen is that "pure" news has more or less disappeared

and that the personal ideology of the editor or proprietor often

shapes news this process has also led to media losing its

credibility among people. The details of Petitioner, (Permanent

Account No: AANPN8475H, Aadhar No: 818894926176, and

Email: [email protected]). Copies of PAN card,

AADHAR card and bank account details have been enclosed

along with the vakalatnama.

4. That Petitioner No. 2, a law abiding citizen of India, is a Civil

Engineer by profession, and is also a social activist. The

Petitioner has done P.G. Diploma from School of Government,

MIT, Pune and is Member of Advisory Board of the same. He is

the Chairman of Kharadi Residents Association and was

instrumental in making Kharadi Societies‘ tanker, free from

Water Mafia. He had organised the Akhil Bharatiya Sahitya

Sammelan, Solapur, 2006 and the Akhil Bhartiya Sahitya

Sammelan, 2014, Saswad, Pune. The details of Petitioner,

(Permanent Account No: AAXPM9916E, Aadhar No:

647179301221, and Email: [email protected]).

Copies of PAN card, AADHAR card and bank account details

have been enclosed along with the vakalatnama.

5. That Respondent No. 1 is Ministry of Information and

Broadcasting. It is submitted that Respondent No. 1 is the 5

concerned wing for all matters related to regulation of content

telecast on private satellite TV channels and transmitted/re-

transmitted through cable television network in terms of the

Programme and Advertisement Codes prescribed in the Cable

Television Networks (Regulation) Act, 1995 and the Cable

Television Networks Rules, 1994 framed there under. Every

broadcaster through various Policy Guidelines has been

mandated to follow the Programme and Advertisement Code

prescribed under the Cable Television Networks (Regulation)

Act, 1995 and Rules framed thereunder.

6. That Respondent No. 2 is the It is a statutory, quasi judicial

authority functioning as a watchdog of the press, for the press

and by the press. It adjudicates the complaints against and by

the press for violation of ethics and for violation of the freedom

of the press respectively. The present Council functions under

the Press Council Act, 1978. Press Council is a mechanism for

the Press to regulate itself

7. That Respondent No. 3 is The News Broadcasters Association

(NBA) represents the private television news & current affairs

broadcasters. It is the collective voice of the news & current

affairs broadcasters in India .It is an organization funded

entirely by its members. The NBA has presently 26 leading

news and current affairs broadcasters (comprising 70 news

and current affairs channels) as its members. The NBA 6

presents a unified and credible voice before the Government,

on matters that affect the growing industry.

8. That Respondent no. 4 News Broadcasters Federation is an

independent body set up by the News Broadcasters. Its task is

to consider and adjudicate upon complaints about

broadcasts. It is submitted that on 09.11.2019, NBSA the self-

regulatory authority had ordered English news channel

Republic TV to air an unconditional apology for previously

undermining NBSA‘s authority in a different ethical violations

case. Not only did it not comply, but an alternate ―self-

regulatory‖ body named News Broadcasters Federation. It is

submitted that NBF no grievance resolution mechanism. It is

submitted that the Respondent No. 4 is apparently an

association of over 50 news channels.

9. That Respondent No. 5 News Broadcasting Standards

Authority is an independent body set up by the News

Broadcasters Association. Its task is to consider and

adjudicate upon complaints about broadcasts.

10. That Respondent no. 6 is Press Trust of India. Press Trust of

India is a non-profit sharing cooperative owned by the

country's newspapers.

11. It is submitted that since all the news broadcasters are

members of Respondent No. 3 and 4 respectively, none of the 7

broadcaster are required to be made parties in the present lis

in individual capacity.

12. It is submitted that there is no civil, criminal, or revenue

litigation involving the Petitioners which has or could have a

legal nexus with the issues involved herein. It is further stated

that the Petitioners are preferring the present Petition are

larger public interest and have no personal interest.

13. It is submitted that the instant Petition, inter alia, raises

important and substantial questions of law of national

importance, which may be enumerated as follows:

I. Whether the news broadcasters/electronic media enjoy unfettered freedom, of a much higher degree than those enjoyed by the citizens of the Country and whether such freedom can only be subject to self- regulation?

II. Whether misinformation/fake news, hate speech, propaganda, paid news, communal, indecent, aggressive, derogatory, sensational, scandalous and disproportionate reporting, incitement, etc. are covered under the right to freedom of press, emanating from Article 19(1)(a)?

III. Whether regulation of the news broadcasters/electronic media would amount to curtailing the freedom of press or media, if the same is done within the parameters specified in Article 19(2)?

IV. Whether the Article 21 of the Constitution envisages the Right of the Citizens to Free, Fair and Proportionate Media Reporting?

V. Whether there is a need for laying guidelines and setting up of a judicial regulatory mechanism in respect of media houses? 8

14. BRIEF FACTS LEADING TO FILING OF THE PRESENT PETITION IS AS UNDER:

i. In 1885 the earliest enactment of was the Indian

Telegraph Act, 1885. This Act gave power to

Government to control the establishment, maintenance

and working of wireless apparatus. ―Within India, the

Central Government shall have the exclusive privilege of

establishing, maintaining and working telegraphs.

ii. The Government‗s continued monopoly over radio and

television derives from this Act. This Act, as amended

by Act 15 of 1961. 1961 act defined telegraph as ―any

appliance, instrument, material or apparatus used or

capable of use for transmission or reception of signs,

signals, writing, images and sounds for intelligence of

any nature by wire, visual or other electro-magnetic

emissions, radio waves or hertzian waves, galvanic

electric or magnetic means.

iii. On 07.04.1914 Privy Council in Channing Arnold v. King

Emperor AIR 1914 PC 116 has observed that the

freedom of the journalist is an ordinary part of the

freedom of the subject and to whatever length, the

subject in general may go, so also may the journalist,

but apart from statute his privilege is no other and no

higher. The range of his assertions, his criticisms or his 9

comments is as wide as, and no wider than that of any

other subject.

True copy of the judgement of the Privy Council in

Channing Arnold v. King Emperor AIR 1914 PC 116 is

annexed hereto and marked as ANNEXURE P-1 [pages

76-88]

iv. In 1930, the broadcasting was placed under the direct

control of the Government of India. A service designated

as the Indian State Broadcasting Service began

broadcasting

v. The Indian Wireless Telegraphy Act, 1933 was enacted

to deal with the possession of wireless apparatus and

radio receivers which were not covered by the Telegraph

Act, 1885. The new Act made the possession of a radio

set without a licence an offence.

vi. In 1936, the Indian State broadcasting service came to

be called the All India Radio. In 1937, All India Radio

was transferred from the Department of Labour to the

Department of Communications in the Government of

India.

vii. In 1941, the Department of Information and

Broadcasting came into existence. After Independence,

in 1947, it became the Ministry of Information and

Broadcasting. 10

viii. Before Independence, the British Government had

decided to give the Governments of princely states the

right to construct and use transmitters and to regulate

and impose fees in respect of the construction and use

of transmitters and receiving apparatus in the province

or State. (see section 129 of Government of India Act,

1935)1

ix. The Constituent Assembly of India debated Article 13

(Article 19) on freedom of speech and expression of the

Draft Constitution, 1948) on 1 December 1948, 2

December 1948.

Broadcasting 129. (1) The Federal Government shall not unreasonably refuse to entrust to the Government of any, Province or the Ruler of any Federated State such functions with respect to broadcasting as may be necessary to enable that Government or Ruler- (a) to construct and use transmitters in the Province or State; (b) to regulate, and impose fees in respect of, the construction and use of transmitters and the use of receiving apparatus in the Province or State: Provided that nothing in this subsection shall be construed as requiring the Federal Government to entrust to any such Government or Ruler any control over the use of transmitters constructed or maintained by the Federal Government or by persons authorised by the Federal Government, or over the use of receiving apparatus by persons so authorised. (2) Any functions so entrusted to a Government or Ruler shall be exercised subject to such conditions as maybe imposed by the Federal Government, including, notwithstanding anything in this Act, any conditions with respect to finance, but it shall not be lawful for the Federal Government so to impose any conditions regulating the matter broadcast by, or by authority of, the Government or Ruler. (3) Any Federal laws which may be passed with respect to broadcasting shall be such as to secure that effect can be given to the foregoing provisions of this section. (4) If any question arises under this section whether any conditions imposed on any such Government or Ruler are lawfully imposed, or whether any refusal by the Federal Government to entrust functions is unreasonable, the question shall be determined by the Governor-General in his discretion. (5) Nothing in this section shall be construed as restricting the powers conferred on the Governor-General by this Act for the prevention of any grave menace to the peace or tranquility of India or any part thereof, or as prohibiting the imposition on Governments or Rulers of such conditions regulating matter broadcast as appear to be necessary to enable the Governor-General to discharge his functions in so far as he is by or under this Act required in the exercise thereof to act in his discretion or to exercise his individual judgment.

11

True copy of the relevant excerpts of the CAD dated 1

December 1948, and 2 December 1948 is annexed

hereto and marked as ANNEXURE P-2 [page 89-157]

x. In 1950 Constitution of India came into force and

freedom of speech and expression become fundamental

right under Article 19(1)(a).

xi. In 1951, the government felt that there was a need to

introduce a Press Bill which would be free from the

objectionable features of the 1931 Act and be in

consonance with the constitution of free India. After

Independence, the restrictive regulations were either

done away with or suitably modified and codified to

meet the urges of a free Press in a free country.

xii. In 1952 Cinematograph Act, 1952 came into force,

bringing into place an apparatus for the censorship of

films. This Act of 1952, dealt with two separate matters:

(a) The examination and certification of films suitable

for public exhibition, and (b) Regulation of cinemas

including their licensing. The Section 3 of the Act

created the Censor Board or the Board of Film

Certification. Any film intended for public exhibition

was required to get a certificate from the Board

Sanctioning the film for restricted or unrestricted

viewing. The guiding principles for certification of films 12

under the Act are an echo of the restrictions under

Article 19(2).

xiii. The first Press Commission recommended the setting

up of a Press Council ‗ to safe guard the freedom of the

press‘ and ‗to encourage the growth of the sense of

responsibility and public service among all those

engaged in the profession of journalism‘. The Press

Council Act was passed by the Parliament in 1965 and

the Press Council was set up on 4th July, 1966.

However, the Press Council was made the victim of

emergency and the Press Council Act, 1965 was

repealed with effect from 1st January, 1976. The reason

was cited to abolish the Press Council that it was not

able to carry the functions to achieve the objects for

which the Council was established.

xiv. The Press in India was until recently the only medium

not under the direct control of government and in a

position to evaluate critically the implications of

national policies. The Indian Press is almost entirely

privately owned and has been free in all the decades

since 1947, except for an interregnum of nineteen

months, between June 1975 and January 1977.

xv. The government appointed the 1952 and 1978 Press

Commissions to inquire into the Press laws and other

developments affecting the Press and its operations. 13

State attitudes towards the Press in the post-

independence period varied somewhat between the

large, metropolitan Press and the provincial Press.

xvi. In 1965 the sole statutory, quasi-judicial body set up for

media regulation in the India is the Press Council of

India while it aims to preserve the freedom of the press

and maintain and improve the standards of press in

India, it has no way of imposing punishments or

enforcing its directions for professional or ethical

violations.

xvii. In 1975 there was purported abuse of television by the

Government. This led to a political demand for the

autonomy of television. After the emergency ended,

Government commissioned a white paper titled ―White

Paper on the Misuse of the Mass Media during the

Emergency. This was presented to parliament in

August 1977 and around the same time in 1977, a

working group was constitute to look into autonomy for

Akashvani and Doordarshan with in the Government

framework.

xviii. In 1979 the committee proposed the setting up of a

trust named Akash Bharati or the National

Broadcasting Trust. The Akash Bharati Bill declared

that the trust was to be the ―trustee of the national

interest for radio and television and shall uphold the 14

collective right of the Indian people to freedom of

speech, expression and communication through

broadcast media. This Bill was introduced in

Parliament but lapsed after the dissolution of Lok

Sabha in 1979.

xix. In 1982, the Advisory Committee, headed by Mr. G.

Parthasarathi, on Official Media attached to the

Ministry of information and Broadcasting, issued ―News

Policy for Broadcast Media‖ in May, 1982. The true

copy of the News Policy for Broadcast Media is annexed

as ANNEXURE P-3 [pages 158-179]

xx. In 1990 the Prasar Bharati (Broadcasting Corporation of

India) Act, 1990 came into existence in September 1990

and came into force with effect from 15th September

1997. The Act sought to free Akashwani (All India

Radio) and Doordarshan from direct control of the

Government and provides for establishment of an

autonomous corporation for electronic media.

xxi. The Cable Television Network Rules, 1994 were enacted

under the Cable Television Networks (Regulation)

Ordinance, 1994. The Programme Code of the Cable

Television Network Rules lays down restrictions on the

content of both programmes and advertisements that

can be shown on cable TV.

15

True copy of the Cable Television Network Rules, 1994 is

annexed hereto and marked as ANNEXURE P-4 [pages

180-198]

xxii. On 25.03.1195 Cable Television Networks (Regulation)

Act, 1955 came to enacted.

True copy of the Cable Television Networks (Regulation)

Act, 1955 is annexed hereto and marked as ANNEXURE

P-5 [pages 199-210]

xxiii. On 01.04.2010 Sub Committee of PCI submitted a

report to show how corruption in media undermines

democracy. PCI released its "Report on Paid News" on

30.07.2010 wherein one of the major recommendations

is to amend the Press Council Act to bring electronic

media under the jurisdiction of the PCI and also to

empower PCI. True copy of the report of PCI dated

30.07.2010 is annexed hereto and marked as

ANNEXURE P-6 [pages 211-233]

xxiv. The Respondent No. 1 has framed

uplinking/downlinking guidelines as per existing policy

guidelines, via which the permissions for uplinking,

and/ or downlinking of satellite TV channels are issued

to Broadcasters by MIB on the basis of their

applications, after receiving the permission for

uplinking of satellite TV channels from MIB.

16

True copy of the Uplinking/Downlinking Guidelines as

on 2011 is annexed hereto and marked as ANNEXURE

P-7 [pages 234-241]

xxv. On 15.11.2013 the Sub-committee of PCI submitted a

report on issues related to Paid News and sought for

constituting of the Statutory body viz., Media Council

having eminent persons as its members to look into all

media contents both from print media and electronic

media (TV as well as Radio) with powers to take strong

action against the defaulters. True copy of the

subcommittee report dated 15.11.2013 is annexed

hereto and marked as ANNEXURE P-8 [pages 242-

243]

xxvi. It is submitted that the News Broadcasting Standards

Disputes Redressal Authority, a self-regulatory body is

set up by the 14-member NBA (representing 30

channels). The Broadcasters established regulator is

expected to watch over news broadcasts that violate the

NBA‘s code of ethics and broadcasting standards. It is

submitted that the aforesaid authority is not a

statutory authority does not get any powers from

Constitution of India or any statute emanating from the

Constitution. True copy of the Code of Ethics &

Broadcasting Standards and Regulations is annexed 17

hereto and marked as ANNEXURE P-9 [pages 244-

256]

xxvii. On 09.11.2019, NBSA the self-regulatory authority had

ordered English news channel Republic TV to air an

unconditional apology for previously undermining

NBSA‘s authority in a different ethical violations case.

Not only did it not comply, but an alternate ―self-

regulatory‖ body named News Broadcasters Federation.

It is submitted that NBF has no grievance resolution

mechanism.

xxviii. That this Hon‘ble Court in Writ Petition (Civil) No.

956/2020, Firoz Iqbal Khan v. Union of India &

ORS has expressed its willingness to consider framing

of guidelines for regulation of the Media-Business.

xxix. The Petitioner no. 1 submits that he has moved the

Bombay High Court by means of his PIL STM No.

92252/2020, Nilesh Navalakha & ors. V. Union of India

& ORS., for postponement of the reportage and media

trials in the Sushant Singh Rajput-death case, and

inter alia, for the Media-Respondents to be directed to

adhere to the tenets of the Programme Code of the

Union of India (I&B Ministry).

xxx. The Petitioner‘s herein, have moved this Hon‘ble Court

by means of instant writ petition in public interest, so 18

as to address the larger issue of Judicial Regulation of

the Media, which has no bearing or relation to the

petition filed by him pending in the Bombay High

Court, and the matters in both the petitions are totally

different and distinct.

15. That, the Petitioners are beseeching this Hon‘ble Court to lay

down and issue appropriate guidelines outlining the broad

regulatory paradigm within which media houses, i.e.,

broadcasters and electronic media, can exercise their rights

under Article 19(1), so as to judicially regulate the same. The

instant petition also prays for establishment of an

independent, regulatory Tribunal/judicial-body, known as

―‗Media Tribunal,‘‖ to hear and expeditiously adjudicate upon

complaint petitions against the Media-Businesses filed by the

viewers/citizens.

16. That, this Hon‘ble Court in Vineet Narain v. Union of India,

(1998) 1 SCC 226, in similar circumstances and in the

absence of any legislative framework gave detailed directions

for setting up of an independent body ―CVC‖ to supervise the

CBI and also provided for directions regarding tenure of the

officers etc (see para 58 of the judgement).

17. That, today, Electronic Media has become the most powerful

medium with unprecedented influence over the minds of the

people. The lack of accountability on the Electronic Media 19

channels, which have the power and impetus to set the

country ablaze with their hateful and fissiparous discourse.

18. That, over the last few years, Media Trials, hate speech,

propaganda news, paid news have become the order of the

day, thereby impeding the right to fair trial of victims and

right to fair and proportionate reporting. It is submitted that

reckless reportage by the Electronic Media without

accountability cannot be the reading of the right to freedom of

speech and expression enjoyed by the Electronic Media.

19. That, unbridled power is always dangerous, as also the saying

goes, ―Power corrupts; absolute power corrupts, absolutely.‖

The Electronic Media has become like an unruly horse, which

needs to be tamed. However, the Ministry of Information and

Broadcasting, Union of India, being the nodal ministry has

totally failed in the discharge of duties, in implementing the

undertaking of the Electronic Media broadcasters, of

compliance with the Programme Code in Rule 5 of the Cable

Television Rules, 1994. It is submitted that the Electronic

Media Broadcasters are bound by the undertaking to comply

with the Programme Code, which is made at the time of

applying for permission to Uplink/Downlink their respective

channels.

20. Instead of doing service to the nation and working in public

interest, of late, the media is afflicted with disseminating: 20

i. Misinformation, Fake News and Propaganda,

ii. Divisive and Schismatic Forces of Communalism, Ethnocentrism, Bigotry, Casteism, Linguism and Regionalism,

iii. Indecent, Sleazy, Cheap, Sensational, Scandalous, Immoral, Inciting, Defamatory and Disproportionate Reports,

iv. War-mongering,

v. Superstitious, Violent, Backward and Public Disorder- inducing Attitudes,

all of which are well beyond the periphery and contours of the

right to freedom of speech and expression guaranteed under

Article 19(1)(a) of the Constitution, and a brazen misuse of the

said right. Moreover, by the nature of the broadcast, the

Electronic Media is wholly negating the right to fair and

proper information that is enjoyed by the citizenry.

21. That, significantly, the Article 51A of the Part IVA of the

Constitution, provides the fundamental duties of every citizen,

inter alia:

―(a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem; (b) To cherish and follow the noble ideals which inspired our national struggle for freedom; (c) To uphold and protect the sovereignty, unity and integrity of India; (e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or 21

sectional diversities; to renounce practices derogatory to the dignity of women; (f) To value and preserve the rich heritage of our composite culture; (g) To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures; (h) To develop the scientific temper, humanism and the spirit of inquiry and reform; (j) To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;‖

and since the Media is made up of nothing but a body-

corporate/group/aggregate of citizens, so the same is also a

bounden duty of the Media, to uphold the duties fundamental

to all citizens.

22. That, thus, it is a constitutional duty of the Media, the State

and of the citizen, to abide by the fundamental duties.

Although, Article 51-A is not judicially enforceable by itself, it

becomes judicially enforceable through a expanding

interpretation of the Article 21, and any failure of the

foregoing duties may well be considered and entertained as a

Public Interest Litigation under Article 32.

23. That, needless to say, for the purpose(s) of plenary and

inherent powers and jurisdiction of this Hon‘ble Court under

Article 32 and Article 142 of the Constitution, the Media is

well covered under the definition of ‗State‘ under Article 12,

squarely falling within the ―Public Function Test,‖ as laid 22

down by this Hon‘ble Court in a plethora of cases. The role of

the Media corporations is comparable to the sovereign

functions because of their mass-reach and pervasive control

over the lives of individuals and having immense power of

shaping their lives, having direct control over the

content/news/―facts‖ being disseminated, and being heavily

relied upon by the nation‘s populace for information, which

eventually moulds their thoughts, opinions and ideas.

24. That, what is more, the nature of the reportage of the

Electronic Media as enumerated hereinabove, negates the

fundamental rights of the citizenry at large, being Right to Live

with Human Dignity, Right to Livelihood, Right to Education,

Right to Know, Right to Fair Information and Proportionate

Media Reporting, et al, as enshrined under Article 21 of the

Constitution, apart from being antithetical to the citizen‘s

rights guaranteed under Article 19(1)(a), which owing to the

dominance of Electronic Media, becomes subsidiary and

inconsequential, further falling under the mischief of

arbitrariness and hit by Article 14 of the Constitution.

25. That, this Hon‘ble Court has time and again expressed that

the rights of the many are to supersede the rights of the few. It

is submitted that the right to freedom of speech and

expression enjoyed by the Electronic Media Broadcaster

cannot trump the right to fair information enjoyed by the

citizenry. 23

26. That, in these circumstances, it has become imperative that

this Hon‘ble Court, as the ultimate sentinel on the qui vive,

protects and balances the rights of various stake holders so

that the fundamental rights of one class of stake holders do

not become subservient to the exercise of fundamental rights

of the other class.

27. That, it may not be incorrect to state that the Ministry of

Information and Broadcasting, Union of India has the nodal

ministry has failed in the discharge of its duties and holding

media houses accountable for breach of the program code

framed by it. That, it is crucial to foresee and understand the

consequences of paid, fake, and biased news which is all

unreliable news. The respected Ministry of Information and

Broadcasting, Union of India, which is the trustee of airwaves,

presumably has blindfolded itself just like King Dhritrashtra

of Mahabharata who knew that his children, the Kauravas,

were in the wrong and perpetrating evils, but he did not

reprimand, censure or stop them.

28. That, it is pertinent to mention, that the press does not enjoy

unfettered freedom, of any degree higher than that enjoyed by

the citizens. There is no gainsaying that the Constitution of

India does not specifically mention the freedom of press.

Freedom of press is implied from the Article 19(1)(a) of the

Constitution. Thus, the press is subject to the restrictions that

are provided under the Article 19(2) of the Constitution. The 24

power enjoyed by the news broadcasters/electronic media is

immense, and without any accountability to the law or the

Constitution. It is submitted that untrammelled power is

prone to abuse, something that is antithetical to the rule of

law.

29. That, most members of the Constituent Assembly welcomed

the inclusion of the right. However, conflict emerged around

the provision in the Article that placed restrictions on the

right: while some members opposed the mention of

restrictions on the right, others supported it. Members who

opposed the restrictions argued that:

i. There is no point in having a right to freedom of speech and expression in the presence of restrictions.

ii. Putting restrictions on the freedom of speech and expression was a British practice.

30. That, during the debates around Draft Article 13 (Article 19,

Constitution of India,1950):

i. Shri Damodar S Seth, proposed an amendment which sought to spell out “freedom of the press” along with the other freedoms. He noted while one might argue that press freedom might be implicit in freedom of speech and expression: “the present is the age of the Press and the Press is getting more and more powerful today. It seems desirable and proper, therefore, that the freedom of the Press should be mentioned separately and explicitly.”

ii. Shri. KT Shah was another strong proponent of freedom of the press. He wanted to insert “freedom of speech and expression; of thought and worship; of press and 25

publication”. He pointed out that several countries underwent ‗constitutional struggles‘ to ensure freedom of the press. Further, he implied that freedom of the press is explicitly guaranteed where ‗liberal constitutions prevailed‘. Shah insisted that leaving this out, as described by another member, was a “black Act”

iii. He further noted:

“To omit it altogether, I repeat, and I repeat with all the earnestness that I can command, would be a great blemish which you may maintain by the force of the majority, but which you will never succeed in telling the world is a progressive liberal constitution, if you insist on my amendment being rejected.”

31. That, Dr. B.R. Ambedkar, the Chairman of the Drafting

Committee, after a long debate on inclusion of the press in the

Article stated that press has no special rights which are not to

be given or which are not to be exercised by the citizen in his

individual capacity. The relevant portion is extracted

hereunder for convenience:

“7.65.168 B.R. Ambedkar: Now, the only point which I had noted down to which I had thought of making some reference in the course of my reply was the point made by my friend, Professor K. T. Shah, that the fundamental rights do not speak of the freedom of the press. The reply given by my friend, Mr.Ananthasayanam Ayyangar, in my judgment is a complete reply. The press is merely another way of stating an individual or a citizen. The press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers, they are merely exercising their right of expression, and in my judgment therefore no special mention is necessary of the freedom of the press at all.

26

32. That, the strong demands to encode freedom of the press

within Article 19 (1) (a), were defeated because the framers did

not see the ‗Press’ as a separate category. The Privy Council in

Channing Arnold v. King Emperor AIR 1914 PC 116, @

117 has observed that:

"The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from statute his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject".

ROLE OF MEDIA IN POST-INDEPENDENCE INDIA

33. That, in the pre-Independence era, the Media was a form of

―service‖ to the cause of the people‘s freedom, and was a great

juggernaut of social change, reform and awakening, and acted

as one of the greatest tools to mobilize the people and

consolidate social consciousness for the freedom struggle. The

Media of the pre-independence era was largely run and owned

by freedom fighters and great personalities and heroes of our

nation, such as Raja Ram Mohan Roy, Bal Gangadhar Tilak,

Dadabhai Naoroji, Mahatma Gandhi, Jawaharlal Nehru, Dr.

B.R. Ambedkar, et al.

34. That, in the pre-independence period, the Media/Journalism

was rooted in a Vision of Social Change, Awakening and

Reformation and Consolidation and Mobilization of the

Struggle for India‘s Freedom, and worked with the said

Mission. 27

35. That, while the press and the media continued in the pre-

independence spirit, over time, with changes in the media and

society, the news broadcasters and electronic media have

used their power to only further their business interests. The

Media has mutated from being a service, to being a business.

Journalism mutated from being a Mission, to being a

Profession.

36. That, further, the Media came about from being owned by

benevolent and self-less freedom fighters, to being owned by

profit-oriented big Business and Corporate Houses. With

passage of time Media-Business became a monumentally

competitive and cut-throat commerce, where sensationalism,

sleaze and scandal have become the norm and Truth/Facts

became subsidiary.

37. That, significantly, free speech cannot be without regulation

or consequence, especially when Article 19(1)(a) is subject to

restrictions in Article 19(2), to be imposed reasonably. It is

relevant to note that the spread of misinformation or falsities

by the news broadcasters and electronic media fall foul of the

right to information of the common citizens which is also

recognised and guaranteed under Article 19(1)(a).

38. That, for a full bird‘s eye view of the matter, the prevailing

legal regime as constituting the present regulatory framework 28

is germane and the same is being gainfully delineated as

follows:

PRESENT REGULATORY FRAMEWORK

35.1 The regulatory regime presently governing the media

sector is contained under the Prasar Bharti Act 1990 and

the Cable Networks Act 1995 and the rules framed

thereunder. The institutional structures and government

bodies regulating the sector include the Ministry of

Information and Broadcasting (MIB) (Respondent No. 1)

and the Prasar Bharti. These government bodies have

been entrusted with the activities of governance through

the issue of guidelines, policies and rules and the

granting of licences for the broadcasting and electronic

media sector.

Uplinking/Downlinking Guidelines as on 2011

35.2 As per existing guidelines, the permission for satellite TV

channels are granted under two categories viz. ―News

and Current Affairs TV channels‖ and "Non-News and

Current Affairs TV channels‖. The guidelines provides

following definitions of these two categories of channels

respectively:

a. ―A News & Current Affairs TV channel means a channel which has any element of news & current Affairs in its programme content.‖ and b. ―A Non-News & Current Affairs TV channel means a channel which does not have any element of 29

News &Current Affairs in its programme content

5. GENERAL TERMS & CONDITIONS …. … 5.2 The company shall comply with the Programme & Advertising Codes, as laid down in the Cable Television Networks (Regulation) Act, 1995 and the Rules framed there under.

35.3 As per existing policy guidelines, the permissions for

uplinking, and/ or downlinking of satellite TV channels

are issued to Broadcasters by MIB on the basis of their

applications. Accordingly, a satellite TV channel uses

the uplink spectrum (air waves), satellite transponder,

and the downlink spectrum for transmitting the signals

of TV channels from broadcaster to distributors of TV

channels.

35.4 The existing bodies for regulation of media such as the

Press Council of India which is a statutory body and

the News Broadcasting Standards Authority, a self-

regulatory organization, issue standards which are

more in the nature of guidelines. It is relevant to note

that the broadcaster enters into a contractual

obligation with the Government, to comply with the

Programme Code and the Advertising Code specified in

the Cable Act and the Cable Rules. It is submitted that

any broadcaster that does not comply with this 30

undertaking is liable to be proceeded against, including

by cancellation of the permission to uplink/downlink.

35.5 Over 1000 television channels use the airwaves which is

public property, but there is no organised and effective

regulatory mechanism to regulate/adjudicate the

challenges posed by the broadcasters.

35.6 What is matter of that the provisions of the programme

code which fixes atleast some accountability does not

govern the media and media is governed by the self-

regulated broadcasting code.

35.7 This Hon‘ble Court in Secretary, Ministry of

Information and Broadcasting, Government of India

v. Cricket Association of Bengal (1995) 2 SCC 161

examined the lacuna in area of broadcasting regulation

and directed the establishment of an autonomous

broadcasting authority to control and regulate the

broadcasting media.

THE PRASAR BHARATI (BROADCASTING CORPORATION OF INDIA) ACT, 1990

35.8 The Prasar Bharati Act aims at bringing the Government

electronic media under the control of an antonymous

organisation. The Act sought to free Akashwani (All

India Radio) and Doordarshan from direct control of the

Government and provides for establishment of an 31

autonomous corporation for electronic media. The Act

established a Broadcasting Corporation of India that is

known as Prasar Bharat.

THE CABLE NETWORKS ACT, 1995

35.9 The principal purpose of the Cable Networks Act was to

introduce regulatory certainty to the cable market that

had emerged in the early 1990s.

35.10 The statement of objects and reasons declared that cable

TV constituted a ‗cultural invasion‘ as cable

programmes were predominantly Western and alien to

Indian culture and way of life. It declared that the lack

of regulation had resulted in undesirable programmes

and advertisements being shown to Indian viewers

without any censorship.

Cable Television Networks (Regulation) Act, 1995 [Act 7 of 1995] [March 25, 1995] An Act to regulate the operation of cable television networks in the country and for matters connected therewith or incidental thereto Be it enacted by Parliament in the Forty-sixth Year of the Republic of India as follows:—

Prefatory Note—Statement of Object and Reasons.—There has been a haphazard mushrooming of cable television networks all over the country during the last few years as a result of the availability of signals of foreign television networks via satellites. This has been perceived as a ―cultural invasion‖ in many quarters since the programmes available on these satellite channels are predominantly western and totally alien to our culture and way of life. Since there is 32

no regulation of these cable television networks, lot of undesirable programmes and advertisements are becoming available to the viewers without any kind of censorship.

2. It is also felt that the subscribers of these cable television networks, the programmers and the cable operators themselves are not aware of their rights, responsibilities and obligations in respect of the quality of service, technical as well as content-wise, use of material protected by copyright, exhibition of uncertified films, protection of subscribers from anti-national broadcasts from sources inimical to our national interest, responsiveness to the genuine grievances of the subscribers and a perceived willingness to operate within the broad framework of the laws of the land, e.g., the Cinematograph Act, 1952, the Copyright Act, 1957, Indecent Representation of Women (Prohibition) Act, 1986.

3. It is therefore, considered necessary to regulate the operation of cable television networks in the entire country so as to bring about uniformity in their operation. It will thus enable the optimal exploitation of this technology which has the potential of making available to the subscribers a vast pool of information and entertainment.

4. The Bill seeks to achieve the above objects.

35.11 The Sections 5 and 6 of the Act deal with advertisement

code and programme code. All cable services should be

in conformity with the codes. The down linking

Guidelines issued by Ministry of information and

Broadcasting, Government of India in 2005 seeks to

bind broadcasters to certain provisions of the Cable

Television Networks (Regulation) Act, 1995, namely the

programme code and the advertisement code. 33

Statutory Violations and Offences

35.12 Sections 16, 17 and 18 of the Act deal with offences

under the Act. They lay down punishments for any act

which is in contravention with the provisions of the Act.

CABLE TELEVISION NETWORK RULES, 1994:

35.13 The Rules were enacted under the Cable Television

Networks (Regulation) Ordinance, 1994. The

Programme Code of the Cable Television Network Rules

lays down restrictions on the content of both

programmes and advertisements that can be shown on

cable TV. These restrictions are laid down in Section 6

of the Rules.

35.14 The broadcaster cannot carry any channels prohibited

by the MIB. The Broadcaster has to ensure that its

facilities are not used for transmitting any objectionable

or obscene content, messages or communication

inconsistent with the laws. The use of the facility or

service for anti-national activities would be construed

as an offence punishable under the Indian Penal Code

and applicable laws and it will result in the immediate

termination of the License. It is submitted that

Respondent No.1 (MIB) under the Cable Act has

authority to prohibit the transmission or reception of

programmes for violation of the programme code.

34

35.15 The sole statutory, quasi-judicial body set up for media

regulation in the India is the Press Council of India.

While it aims to preserve the freedom of the press and

maintain and improve the standards of press in India,

it has no way of imposing punishments or enforcing its

directions for professional or ethical violations.

35.16 The powers of the PCI are restricted in two ways: (1) The

PCI has limited powers of enforcing the guidelines

issued. It cannot penalize newspapers, news agencies,

editors and journalists for violation of the guidelines.

(2) The PCI only overviews the functioning of press

media. That is, it can enforce standards upon

newspapers, journals, magazines and other forms of

print media. It does not have the power to review the

functioning of the electronic media like radio, television

and internet media.

SELF-REGULATORY FRAMEWORK OF NEWS CHANNELS

35.17 The news channels are governed by mechanisms of self-

regulation. One such mechanism has been created by

the News Broadcasters Association. The NBA has

devised a Code of Ethics & Broadcasting Standards to

regulate television content. The News Broadcasting

Standards Authority (NBSA), of the NBA, is empowered

to warn, admonish, censure, express disapproval and

fine the broadcaster a sum upto Rs. 1 lakh for violation 35

of the Code. The NBA has presently 26 leading news

and current affairs broadcasters (comprising 70 news

and current affairs channels) as its members. The NBA

presents a unified and credible voice before the

Government, on matters that affect the growing

industry.

35.18 The News Broadcasting Standards Disputes Redressal

Authority, a self-regulatory body is set up by the 14-

member NBA (representing 30 channels). The

Broadcasters established regulator is expected to watch

over news broadcasts that violate the NBA‘s code of

ethics and broadcasting standards. It is submitted that

the aforesaid authority is not a statutory authority does

not get any powers from Constitution of India or any

statute emanating from the Constitution. It is

submitted adjudicating of any grievance by the

aforesaid authority is clearly in realm of being judge of

its own case.

35.19 Not all the news broadcasters are its members, it is

submitted that decisions if any made by the aforesaid

authority will be binding on its members and not such

broadcaster who are members of IBF. It is matter of

great concern that the members of the Association are

governed by News Broadcasting Standards Regulations

which only on an complaint to see if there is any 36

violation of the Code of Conduct being Code of Ethics &

Broadcasting Standards.

35.20 On 09.11.2019, NBSA the self-regulatory authority had

ordered English news channel Republic TV to air an

unconditional apology for previously undermining

NBSA‘s authority in a different ethical violations case.

Not only did it not comply, but an alternate ―self-

regulatory‖ body named News Broadcasters Federation.

It is submitted that NBF has no grievance resolution

mechanism so far. It is submitted that the Respondent

No. 4 is apparently an association of over 50 news

channels.

35.21 The News Broadcasting Standards Disputes Redressal

Authority (Respondent No. 5), a self-regulatory body is

expected to watch over news broadcasts that violate the

NBA‘s code of ethics and broadcasting standards. It is

submitted that the aforesaid authority is not a

statutory authority does not get any powers from

Constitution of India or any statute emanating from the

Constitution. It is submitted adjudicating of any

grievance by the aforesaid authority is clearly in realm

of being judge of its own case. The News Broadcasting

Standards Authority (NBSA), of the NBA, is empowered

to warn, admonish, censure, express disapproval and

fine the broadcaster a sum upto Rs. 1 lakh for violation

of the Code. 37

35.22 That, what is more, there are several other small/big

news channels which are neither members of NBA or

NBF and thus, continue to air or broadcast anything in

the garb of free speech.

35.23 That, the liberty and pleasure of self-regulation or

governance enjoyed by the Media has been deceitful. It

is submitted that the NSBA and other authorities have

miserably failed in promoting public accountability and

fairness in news reporting.

35.24 That, Press Council of India has on several occasions

has also recommended to amend the Press Council Act

to bring electronic media under the jurisdiction of the

PCI and sought for constituting of the Statutory body

and also to empower PCI to take strong action against

the defaulters.

SELF-REGULATION VS JUDICIAL REGULATION

39. That, self-regulation by media can never be the answer. Under

the Indian Constitutional setup, it is solely the Judiciary

which enjoys the privilege of ‗self-regulation,‘ being

Independent and conferred with the same by the Constitution

itself. Thus, equating the Media-Business with the Judiciary,

in terms of the privilege of ‗self-regulation‘ directly strikes

upon the Independence of the Judiciary and rattles and

shakes the very foundations of the Indian Constitutional

Scheme and the Democracy, and the same goes against every 38

notion and canon of law and justice prevailing in India. It is

notable, that despite being self-regulated even this Hon‘ble

Court are not immune from clutches of law and are amenable

to regulations under ―Judges (Inquiry) Act, 1968.”

40. That, the news broadcasters and electronic media cannot

claim immunity from the imposition of reasonable restrictions,

and cannot claim to enjoy the fundamental rights guaranteed

under Article 19(1)(a), without being subject to restrictions

under Article 19(2). It is relevant to note, that while there is

some method of censoring and screening of cinematograph

films, there is absolutely none to censor and screen the

broadcasters.

41. That, this Hon‘ble Court in S. Rangarajan v. P. Jagjivan

Ram, (1989) 2 SCC 574, has categorically stated:

“10. Movie doubtless enjoys the guarantee under Article 19(1)(a) but there is one significant difference between the movie and other modes of communication. The movie cannot function in a free marketplace like the newspaper, magazine or advertisement. Movies motivate thought and action and assures a high degree of attention and retention. It makes its impact simultaneously arousing the visual and aural senses. The focussing of an intense light on a screen with the dramatizing of facts and opinion makes the ideas more effective. The combination of act and speech, sight and sound in semi-darkness of the theatre with elimination of all distracting ideas will have an impact in the minds of spectators. In some cases, it will have a complete and immediate influence on, and appeal for everyone who sees it. In view of the scientific improvements in photography and production the present movie is a powerful means of communication. It is said: “as an instrument of education is has unusual power to impart information, to influence specific attitudes towards 39

objects of social value, to affect emotions either in gross or in microscopic proportions, to affect health in a minor degree through sleep disturbance, and to affect profoundly the patterns of conduct of children.” (See Reader in Public Opinion and Communications, Second Edition by Bernard Berelson and Morris Janowitz, p. 390) The authors of this book have demonstrated (at pp. 391 to 401) by scientific tests the potential of the motion pictures in formation of opinions by spectators and also their attitudes. These tests have also shown that the effect of motion pictures is cumulative. It is proved that even though one movie relating to social issue may not significantly affect the attitude of an individual or group, continual exposure to films of a similar character will produce a change. It can, therefore, be said that the movie relating to a social issue may not significantly affect the attitude of an individual or group, continual exposure to films of a similar character will produce a change. It can, therefore, be said that the movie has unique capacity to disturb and arouse feelings. It has as much potential for evil as it has for good. It has an equal potential to instil or cultivate violent or good behaviour. With these qualities and since it caters for mass audience who are generally not selective about what they watch, the movie cannot be equated with other modes of communication. It cannot be allowed to function in a free market-place just as does the newspaper or magazines. Censorship by prior restraint is, therefore, not only desirable but also necessary.”

42. That, despite there being no restrictions provided for in the

First Amendment to the US Constitution, the Hon‘ble

Supreme Court of the United States, in Brandenburg v. Ohio,

395 U.S. 444 (1969) has held that free speech can be

restricted the same is directed to inciting or producing

imminent lawless action and is likely to incite or produce such

action.

43. That, in India, even though free speech is not unlimited, even

this test is not applicable to the news broadcasters/electronic

media as of today, since there is a lack of regulatory control. It 40

is relevant to mention the quote of the father of the Nation

Mahatma Gandhi here: ―An uncontrolled pen serves but to

destroy.

44. That, it goes without saying, that self-regulation theory as was

evolved by toothless and powerless bodies like the NBA, are

nothing but sham and farcical, which abuses the bona fide

privilege conferred upon the media as the ―Fourth-Pillar‖ and

in effect a myth.

MEDIA AS THE “FOURTH ESTATE” / “FOURTH PILLAR”

45. That, the describing of journalists and the news outlets for

which they work, the broadcasters and the Media, in general,

as the members of the Fourth Estate is an acknowledge of

their influence and status among the greatest powers of a

Nation State. The expressions ―fourth-estate‖ or ―fourth-pillar‖

go back centuries, when they applied to any unofficial group

that wielded public influence, including, the mass of

common-folk – the public.

46. That, the earliest known user of the said expression,

designating the ordinary people as the ―fourth-estate,‖ was

the English author and magistrate Henry Fielding (1707-54)

writing, under the pseudonym of Sir Alexander Drawcansir,

Knt. Censor of Great Britain, in The Covent-Garden Journal of

Saturday, 13th June, 1752: 41

“It may seem strange that none of our political Writers, in their learned Treatises on the English Constitution, should take Notice of any more than three Estates, namely, King, Lords, and Commons, all entirely passing by in Silence that very large and powerful Body which form the fourth Estate in this Community, and have long been dignified and distinguished by the name of THE MOB.”

47. That, the Scottish Historian, Thomas Carlyle in his ‗On

Heroes, Hero-Worship, and The Heroic in History‘ (1841),

attributed the origin of the said expression, as applied to the

press, to the Anglo-Irish Statesman and Philosopher, Edmund

Burke, who supposedly used it to refer to the parliamentary

reporters, as:

“Does not, though the name Parliament subsists, the parliamentary debate go on now, everywhere and at all times, in a far more comprehensive way, out of Parliament altogether? Burke said there were Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat a Fourth Estate more important far than they all.”

48. That, four years earlier, Carlyle had used the phrase in his

French Revolution (1837) : “A Fourth Estate, of Able Editors,

springs up, increases and multiplies; irrepressible,

incalculable.” This way, Carlyle saw the press as instrumental

to the birth and growth of democracy, spreading facts and

opinions and sparking revolution against tyranny.

49. That, in India, the press had also served as a great tool to

unite the mass consciousness against the oppression of the

British Raj and, largely owned, controlled and run by the

foremost of our freedom fighters, was one of the highest forms

of service to the cause of India‘s tryst with freedom. 42

50. That, however, unfortunately, after independence the Press, or

so to say, Media – the broadcast media, in particular, was

taken over by the Corporates and Business Entities and soon

degenerated and corrupted into a cut-throat, commercial

enterprise, centred around TRPs, ratings, viewership and

profit-making; thereby making the original and true purpose

of Media in a democracy, subservient, thus, soiling and

debasing its nature and character as the “fourth estate.”

51. That, significantly, the Media of today, as we witness everyday

is, inter alia, marred by and is a super-spreader of divisive

and schismatic forces of communalism, ethnocentrism,

bigotry, casteism, linguism and regionalism, apart from being

scourged by sensationalism, scandal, misinformation, hatred

and war mongering, cheapness, sleaze, superstition,

backwardness, criminality and open mockery of the basic

ethos of our Constitution and this is completely in teeth of

Article 19(2).

52. That, it may not be incorrect to state that the

Corporate/Business-Media of today is in no way deserving of

the hallowed laurel of the ―fourth estate,‖ as it is no way

concerned with and is totally indifferent to the actual issues of

the people, such as fiscal stability, joblessness, healthcare

infrastructure, economy, education infrastructure,

governmental and executive accountability, public order and

safety, social reform, developing scientific temper, amplifying 43

the voices of the voiceless, women empowerment,

technological advancement, upliftment of the weaker sections

of the society, encouraging brotherhood, strengthening

national unity, etc.

53. That, on the other hand, the Corporate/Business-Media of

today thrives on fake, concocted and fabricated issues,

completely oblivious to and far detached from the problems

and issues of the ordinary people and this clearly forms of

part of the restrictions under 19(2).

54. That, the Media was only accorded the status of ―fourth pillar‖

because of the ―role‖ it played. Now, since its role has

changed, from Service to Business, and from Mission to

Profession, in such circumstances, it cannot mechanically be

referred to as the Fourth Pillar, to avert all judicial attempts at

regulating the Media-Business. It cannot be termed as the

‗Fourth Pillar‘ if it does not raise the people‘s issues and acts

as the voice of the voiceless, instead only acts as a TRP-

hunting, profit-mongering machine.

55. That, the judicially unregulated Media-Business is able to be

used by politicians, police officers and other public officials

who wish to put out propaganda to advance their own

interests and influence public opinion. A hunger for ―leaks‖

and ―scoops‖ (which sometimes precipitates the events which

they predict) and some journalists‘ relationship with the 44

sources who provide them with information, can make it

difficult for the media to maintain its independence and a

critical stance. Searches for motivation, and even checks for

accuracy, may suffer as a result. For example, over the last

few months, errant police personnel who have been involved

in encounter killings of purported criminals have been

projected as heroes, despite the act being a complete negation

of the rule of law by the errant police personnel exhibited with

the full power of the State. Further, the bane of fake news has

led to misinformation being spread amongst the citizenry

56. That, the context of the above, it places an extra responsibility

on the journalist, as both the journalist and the source have a

mutual interest: both want a headline. Yet if the journalist is

so undiscriminating that the perspective taken serves the

purposes of the source, then true independence is lost, and

with it the goes the right to claim the special privileges and

considerations which are usually claimed by the media

because of its claimed independence and ―watchdog‖ role, as

the ―Fourth Pillar‖. If the independence and the role are lost,

so is the claim to special consideration.

57. That, regulation (of the Media) does not mean censorship or

curtailment of freedom of press, instead, regulation promotes

the freedom or the facility which is required to be regulated in

the interest of all concerned2. It is hence submitted that

2State of U.P. v. Hindustan Aluminium Corpn., (1979) 3 SCC 229. 45

Regulation‖ means regulation in public interest and not contra

public interest. The expression ―regulation‖ cannot possibly be

read as contra public interest but in the interest of the public.

(see Haryana SEB v. Suresh, (1999) 3 SCC 601

58. That, it is submitted that Regulation has three components:

i. legislation, that is, defining appropriate rules; ii. enforcement, such as initiating actions against violators; and iii. adjudication, that is, deciding whether a violation has taken place and imposing an appropriate penalty.

59. That, the media in India has unfortunately has been playing a

disproportionate role in shaping public perceptions of politics,

electoral outcomes and the way power is exercised. The News

media-business is facing a serious crisis of credibility. Robbed

of authenticity, reliability and credibility, the media will cease

to matter to large numbers of people except as a source of

cheap entertainment and titillation. That being so, the whole

purpose of the protection of free speech guaranteed under the

Constitution gets defeated.

60. That, this Hon‘ble Court in Cricket Assn. of Bengal (supra)

has considerably widened the scope and extension of right to

freedom of speech and expression and held that the

government and private parties has no monopoly on electronic

media and under Article 19 (1)(a) a citizen has the right to

telecast and broadcast to the viewers through electronic

media. This Hon‘ble Court categorically noted that the, 46

‘airwaves are public property‘ and 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.

61. That, this Hon‘ble Court further holds that Article 19(1)(g)-the

right to trade and conduct business - but broadcasting, being

a means of expression and therefore covered by Article

19(1)(a), could not be monopolized, whether by the

government or private companies..

62. That, the Petitioners respectfully submit without prejudice to

the intentions of the Respondent No. 1 that Ministry has

hardly intervened or taken any action against any of such

channels as may be guilty of brazen, deliberate and blatant

flouting and violations of its own Programme Code, Rules or

the Laws of the Land. The said Ministry has either exercised

its powers selectively or has reduced itself to a mere, mute

spectator.

63. That, the media is often termed as the watchdog, since it acts

as a check and balance on the exercise of power of the three

branches of government i.e., the executive, the legislature and

the judiciary. It is, however, submitted that to monitor the

watchdog, there is no proper authority.

64. That, the media being in the occupation of gathering and

circulating information is supposed to hold dominant position, 47

a position that makes it very responsible and answerable to

public at large.

65. That, it is imperative that the news television channels adhere

to the elements of news and current affairs in their program

content, it is also important that the news channels show fair

and ‗fact-checked‘ news.

66. That, citizens have a right to access free, independent media

and that is precisely why India needs an exclusive regulatory

body and specific statutory laws for news television channels.

This Hon‘ble Court in T Secy., Ministry of Information &

Broadcasting, Govt. of India v. Cricket Assn. of Bengal,

(1995) 2 SCC 161 had directed the government to set up an

independent autonomous authority which would free Prasar

Bharati from the shackles of government control and ensure

conditions in which the freedom of speech and expression

could be meaningful and effectively enjoyed by one and all.

This Hon‘ble Court categorically held that the fundamental

right can be limited only by reasonable restrictions under a

law made for the purposes mentioned in Article 19(2) of the

Constitution. (see para 122 of the judgment).

67. That, the paid news, propaganda news, false and

misreporting, biased news is undermining our democracy

since the functioning of media has a direct impact on the

citizens, government and the society. The fact of paid news is 48

acknowledged by the Press Council of India (PCI) long ago

when it conducted a study of the widespread practice of ―paid

news‖ in India in 2010. In its report, the PCI stated that paid

news is ―a pervasive, structured and highly organized

practice‖ in Indian newspapers and other media outlets, where

news space and favorable coverage is exchanged for money.

68. That, the PCI also acknowledged other forms of paid news

including ―private treaties‖ between media companies and

corporate entities, wherein a non-media company transfers

certain shares of the company to the media company in lieu of

advertisement space and favourable coverage.

69. That, instead of discharging the responsibility of being

informative about the unreliable news being spread on social

media, most news channels have been competing with social

media while creating and circulating such unreliable news

including fake news, paid news and agenda driven news.

70. That, the content being aired on most news channels today

makes it easy to infer that the NBA‘s ‗Code‘ is essentially

ineffective. The office bearers and members of all such self

regulatory associations include the office bearers of leading

news channels, leaving no room for ambiguity that the self-

regulatory mechanism fails to be an effective, reliable and

trustworthy regulation. Adding to all these problems is the

non-unification of the self-regulatory news media regulations 49

in India, since the presence of multiple self-regulatory bodies

has led to issues over the enforceability of decisions.

71. That, the absence of regulation and lack of control over the

content of news television channels is the primary reason for

the content and credibility crisis of the Indian television news

industry. One of the primary effects of the absence of a

statutory regulatory body to regulate the content of news

channels in India is that viewers are in a conundrum as to

what content is reliable.

72. The NBSA‘s code of ethics and broadcasting standards is

limited to member news channels. This effectively means that

out of the nearly 400 permitted satellite news channels in the

country, NBSA can only adjudicate on matters relating to its

27 member broadcasters and their 77 channels.

73. That, this Hon‘ble Court in larger public interest can legislate

or frame judicial guidelines to fill the vacuum in the laws in a

particular field temporarily provide a solution till such time as

the legislature acts to perform its role by enacting proper

legislation to cover the field.

74. That, this Hon‘ble Court in Vineet Narain v. Union of India,

(1998) 1 SCC 226, gave exhaustive directions to enhance the

efficiency of the Central Bureau of Investigation (CBI) and

even directed that the Central Vigilance Commission be given

statutory status. 50

75. That, this Hon‘ble Court in Vineeth Narain (supra) also

observed, ―Where there is inaction even by the executive, for

whatever reason, the judiciary must step in, in exercise of its

constitutional obligations under the aforesaid provisions to

provide a solution till such time as the legislature acts to

perform its role by enacting proper legislation to cover the

field.‖

76. That, the instant petition comprises of matter which seeks

interpretation of the ambit, expanse and scope of the right to

freedom of speech and expression, envisaged under Article

19(1)(a) and limitations prescribed under 19 (2) of the

Constitution, and the determination of such questions of laws

as to whether the freedom of press, which emanates from the

said Article, is wider and more potent than the freedom of

speech and expression of an ordinary individual/citizen,

emanating from the same Article. This, coupled with the

substantial relook and possible diffraction from the ratio of

the Constitutional Bench of this Hon‘ble Court in the Sahara

India Real Estate Corpn. Ltd. v. SEBI, (2012) 10 SCC 603

deserves the consideration of a Constitutional Bench of this

Hon‘ble Court.

77. That, this Hon‘ble Court in Nivedita Jha vs State of Bihar &

Ors: SLP(C) NO.24978 of 2018 (Muzzafar Nagar Shelter Home

case) has also expressed its desire to evolve a mechanism for 51

enforcement and implementation of the statutory provisions

and guidelines.

78. That, as regards the issue of constitution of a Media

Tribunal/Statutory Judicial Body, several High Courts3 all

over the country are seized with the said issue, one of which

has even placed it before a Full-Bench of the High Court. In

the circumstances, the Petitioners beseech this Hon‘ble Court,

taking due note and cognizance of the same, to settle it once

and for all, by a Constitution Bench of this Hon‘ble Supreme

Court.

79. That, the present Petition raises an issue which is writ large

and seeks to fix accountability on broadcasters who under the

guise of the freedom of press and exploiting such rights

without ever being held accountable.

80. That, in exercise of the powers of this Court under Article 32

read with Article 142, guidelines and directions have been

issued in a large number of cases. (see para 51 of Vineet

Narain (supra)).

3 i. Peoples Movement Against Sexual Assault (PMASA) vs Department of Women and Child Department, State of Karnataka & Ors. Writ Petition No. 6301 of 2017 pending before the High Court of Karnataka at Bangalore; ii. Shakeel Ahmed and Ors. vs. Suwarna News 24 x 7 and Ors.: Writ Petition No. 13677 of 2012 pending before the High Court of Karnataka at Bangalore iii. Lucknow Bench of the Allahabad High Court Dr. Nutan Thakur vs Union of India Writ Petition No. 9976 of 2013. iv. High Court of Kerala K. Biju vs. Union of India and Others. Writ Petition (Civil) No. 21336 of 2013 pending before the High Court of High Court of Kerala 52

81. That, the framing of judicial guidelines and holding the

media business accountable would strengthen the system,

ensure fair coverage of news stories, ethical conformity,

higher standards and less yellow journalism, while also

keeping the need for government interference at bay.

SUGGESTIONS FOR FORMULATING GUIDELINES

82. The Petitioners for the convenience of this Hon‘ble Court, are

making the following suggestions, which may be considered by

this Hon‘ble Court while framing guidelines and issuing

necessary directions:

1) A ‗Media Tribunal‘ on the lines of NGT, or the Motor Vehicles Accidents Tribunal, etc. must be set up for the judicial regulation of the Media; as opposed to executive regulation thereof, as the same would do more harm than good.

2) A committee of retired Judges of the Hon‘ble Supreme Court must look into the existing legislative framework and suggest rehauling, revision and strengthening of the same.

3) The said committee may/should also recommend to the Central Government the creation of a Judicial Tribunal, being the Media Tribunal, on the lines of CVC, NGT, to look into complaints against the Media, in cases of violation of the Programme Code or violations of other laws (eg. IPC, SC/ST Act, etc.) during broadcast, or otherwise. 53

4) The tribunal so constituted must have a mechanism for both physical and e-filing of the complaint petitions, against the Media by the viewers/citizens, as in the case of NGT, NHRC, etc.

5) This Hon‘ble Court must consider the setting up a Monitoring Panel appointed by this Hon‘ble Court, helmed by sitting or retired Judges of this Hon‘ble Court, or such persons of high regard as this Court deems fit, to monitor and regulate the Media, so as to enable implementation and adherence of the guidelines as may be laid by this Hon‘ble Court, to fill the judicial-regulatory vacuum, until the establishment and constitution of ―Media Tribunal‖ under a statutory enactment.

6) The Media-Persons/Journalist/Anchors must state facts and facts only, and all formulation of opinion(s) thereon, must be left upon the viewers/citizens.

7) In any case, whenever, a Journalist/Anchor has to give any opinion based on the facts of the particular ‗news item/article,‘ he/she must specifically and explicitly state that the same is his own opinion and that they take full responsibility for the same.

8) The Hon‘ble Court must lay down and emphasize the principle of ‗Proportionate Reporting‘ in matters of broadcast and coverage, i.e., issues of national, international and public importance, for eg., issues relating to economy, healthcare, education, environment, public order, women rights, farmer and agrarian issues, etc., must be given due and proportionate coverage and TV-time, 54

and it must be ensured that a singular issue doesn‘t hog the limelight ‗disproportionately‘.

9) Ours being a developing country, the key and special function of broadcasting must be the coverage of Development, its meaning, achievements and obstacles. The coverage must encompass a wide range of developmental activities – economic, technological, social and cultural. It should not be confined to mere statements and plans, but their significance must also be explained.

10) The style and method of news reporting, the theme, conduct and pattern of the programmes, should reflect and reinforce the fundamental and root principles on which national policies are based, such as, unity, territorial integrity, brotherhood, national integration, secularism, maintenance of public order, upholding human dignity and the prestige of the Parliament, State Legislatures and the Judiciary.

11) There must be adequate representation and coverage of all areas and cultures of India, so as to inculcate a sense of we-feeling, belongingness and mutual affection among all the pluralistic peoples of the country, including, the North-Eastern, Southern, Western, Northern and Eastern States.

12) The Anchors/Journalists must call scholarly and non-political persons, for eg. professors, scientists, engineers, academicians, doctors, experts of their particular fields, etc. in TV-debates on multifarious social and public issues, instead of representatives of various political parties who engage in mindless 55

quibbling and mudslinging; so as to ensure that the Media becomes a tool of information and social education, awareness and upliftment, rather than an arena for political pig-fights.

13) The Anchors/Journalists, in any case, must give equivalent and adequate speaking time to every panellist and be respectful and courteous towards them all.

14) The Anchor/Journalist must refrain from making the show self-centred and ranting in monologues or be biased towards or against certain panellists.

15) The Anchor/Journalist must maintain neutrality at all times, and at no point should state his opinions (without explicitly stating that it‘s his own opinion), thereby leaving the formulation of opinions wholly upon the audience.

16) It must be ensured that Media Studios act as temples of information and knowledge, and raise the issues of the people and act as a ―watchdog‖ of the democracy, always tending to have a constructively critical relationship with the Government, in keeping with the Media‘s role as the ―Fourth-Estate‖ or the ―Fourth-Pillar‖ of Democracy.

17) The Hon‘ble Court must unequivocally and emphatically lay down, that the role of the Media in a democracy, is supposed to act as a second- opposition, apart from the political opposition, and be the voice of the voiceless, to always fight for the real issues of survival that the people are confronted with on a daily basis, in keeping with 56

the Constitutional Scheme of India as a Welfare State.

18) In order to ensure responsible reporting, the Hon‘ble Court must direct the Government to acquire certain stakes in all the Broadcasting networks, so as to fix a greater the liability upon the Government in case of any reporting which violates any of the laws of the land.

19) The Hon‘ble Court must censure the Media as to the showing of sensational, sleazy and scandalous programmes, which must be abhorred at all costs.

20) The system of TRPs which leads to a cut-throat and unprincipled rat-race among the media channels, in the unholy quest for ratings and TRPs, and thereby lure advertisements, investment and profits, must be outlawed.

21) The TRP System must be substituted with an Award-System, on the lines of National Awards, etc., to be conferred for heads such as ‗Most Informative News Channel,‘ ‗People‘s Voice Award,‘ ‗Best Anchor: People‘s Voice,‘ ‗Best Investigative Journalist,‘ etc., judged by an independent panel of senior, retired and ex-journalists and luminaries, and persons having special and practical knowledge in matters of Literature, Science, Art and Social Service.

22) The ownership/share-holding framework of the Broadcasting Network or Media Channels must be prominently published on the website of the respective broadcasting/media network/channel. 57

23) The revenue model of the Media/Broadcasting Company/Network must be published on the website, inter alia, detailing the advertisements and the quantum thereof, as received from the Government.

24) There must be sensitivity counselling of the Journalists and the persons-in-charge of the Media Networks, so as to get well versed with the pluralistic, diverse and vulnerable nature of our society and the wide plethora of cultures, faiths and belief-systems.

25) There must be social-impact assessment conducted by every channel to estimate and account for the sociological harm/damage which a particular program might create, before running such programs; and the said impact assessment reports must be mandatorily maintained and kept safe.

26) There must be minimum, educational eligibility criteria to become an anchor/ journalist/reporters, and the same with all the educational qualifications and degrees of the journalists must be displayed on the website of the respective media channels.

27) The freelance media, particularly the digital media, i.e., youtube/web-journalists, etc. must be mandatorily registered as a Media-Portals with the I&B Ministry, so as to be subject to the same liabilities and checks as the electronic media.

28) The Persons-In-Charge of the Media Channels, along with the Journalists and the News Anchors, 58

must be well-versed with the Programme Code framed under the Cable Television Networks (Regulation) Act, 1995, and for the same, the main tenets of the Programme Code must be displayed on the TV Channels, as disclaimers or otherwise as running-flickers during the ongoing shows.

83. That, in the circumstances, it has become imperative that

this Hon‘ble Court as the ultimate sentinel on the qui vive

protects and balances the rights of various stake holders so

that the fundamental rights of one class of stake holders do

not become subservient to the exercise of fundamental rights

of the other class.

84. It is, therefore, submitted, that in the circumstances, it is

picturesque, that it is necessary and imperative for this

Hon‘ble Court to frame guidelines to regulate the news

broadcasters and electronic media, in the absence of an

effective legislative mechanism for checks and balances on the

exercise of the right of freedom of speech and expression by

the news broadcasters; And further, to constitute an

Independent Committee, headed by sitting or retired Judges,

to inter alia, recommend to the Central Government for

establishment of an independent, regulatory Tribunal/body

―Media Tribunal‖ to hear and expeditiously adjudicate upon

complaint petitions against the Media Business, Corporates

and Journalists, filed by the viewers/citizens, to regulate the

broadcasting and media sector, and covering the multifarious 59

segments of the Media, i.e., electronic, print and digital. It may

also prescribe and impose sanctions where the laws of the

land have been violated. It is submitted that the object is not

to curb the freedom of the media, but to bring some

accountability to the broadcaster, i.e. Electronic Media.

85. It is submitted, that the Union of India and the State

Governments, must assume the role of the Police, to impose

penal sanctions under the prevailing laws, and so as to work

in tandem with the Media Tribunal so constituted, under

recommendations by the Independent Committee of retired

Judges of this Hon‘ble Court.

86. It is further submitted, that this Hon‘ble Court is the country‘s

last hope and the nation‘s saviour. It is humbly beseeched,

that this Hon‘ble Court, and in the light of the aforesaid facts

and submissions, the matter(s) and issue(s) raised herein,

need to be decided and dealt with at the earliest.

87. That, the petitioners have not filed any similar petition/case

previously before this Hon‘ble Court or before any other High

Court.

88. That, this Hon'ble Court has the jurisdiction to entertain the

present Writ Petition. This writ petition is made bona fide and

in the interest of justice and the Petitioners have no other

efficacious remedy left other than approaching this Hon‘ble

Court. 60

89. That, the Petitioners crave leave of this Hon‘ble Court to

amend or alter the grounds at the appropriate stage, as and

when required.

GROUNDS

90. That, the Petitioners have no other equally efficacious and

alternative remedy, except to invoke the jurisdiction of this

Hon‘ble Court under Article 32 of the Constitution, inter alia,

on the following grounds:

a. For that an unregulated media which promotes hate

speech and fake is anthitetical to the exercise of the

rights under Article 19(1) and is also a gross violation of

the mirror right of citizens under Article 19(1) of Right

to Fair Information and Proportionate Media

Reporting, read with Article 21 of the Constitution.

b. FOR THAT, the principal issue before this Hon‘ble Court

is to bring about a balance between the right to freedom

of speech and expression of the Media-Businesses and

the competing right to information of the citizenry under

Article 19(1)(a), right to reputation and the right to

dignity under Article 21, as well as in the interests of

preserving peace and harmony in the nation. 61

c. FOR THAT, the freedom of speech and expression

enjoyed by the Media-Business is not unlimited, and

subject to the restrictions imposed under Article 19(2).

d. FOR THAT, the present petition is seeking framing of

appropriate guidelines by this Hon‘ble Court outlining

the broad regulatory paradigm within which media

houses can exercise their rights under Article 19(1). The

instant petition also prays for establishment of an

independent, regulatory Tribunal/body ―‗Media

Tribunal‘‖ to hear and expeditiously adjudicate upon

complaint petitions against the Media-Businesses filed

by the viewers/citizens. e. FOR THAT, the present petition is not to curb the

fundamental rights of the Media-Business, but only to

bring about some accountability for misinformation,

inflammatory coverage, fake news, breach of privacy, etc.

which the Media-Business has indulged in, only with the

aim to further their business, and to bring about

consequences for acting in a fashion that is contrary to

constitutional goals and morality. It is submitted the

exercise of power by the Electronic Media without any

accountability, is severely detrimental to the due process

of law, and contrary to the rule of law. 62

f. FOR THAT, that this Hon‘ble Court has time and again

expressed that the rights of the many are to supersede

the rights of the few. It is submitted that the right to

freedom of speech and expression enjoyed by the

Electronic Media Broadcaster cannot trump the right to

fair information enjoyed by the citizenry.

g. FOR THAT the restrictions on the Electronic Media must

be placed at a higher footing than the common citizen,

in view of the fact that the Electronic Media have a much

larger reach, and are doing a public function by

employing public airwaves

h. FOR THAT, over the last few years Media Trials have

become the order of the day. These media trials not only

have a prejudicial effect on the rights of the accused but

also the very concept of media trial is an anathema to

the administration of justice. Media has become like an

unruly horse, which needs to be tamed. However,

Ministry of Information and Broadcasting, Union of India

has the nodal ministry has totally failed in its discharge

of duties and holding media houses accountable for

breach of the program code framed by it.

i. FOR THAT, it is crucial to foresee and understand the

consequences of paid, fake, and biased news which is all

unreliable news. The respected Ministry of Information

and Broadcasting, Union of India, which is the trustee of 63

airwaves, presumably has blindfolded itself just like King

Dhritrashtra of Mahabharata who knew that his

children, the Kauravas, were in the wrong and

perpetrating evils, but he did not reprimand, censure or

stop them. j. FOR THAT, Electronic Media has become the most

powerful medium with unprecedented influence over the

minds of the people. The lack of accountability on the

Electronic Media channels, which have the power and

impetus to set the country ablaze with their hateful and

fissiparous discourse. Over the last few years, Media

Trials, hate speech, propaganda news, paid news have

become the order of the day, thereby impeding the right

to fair trial of victims and right to fair and proportionate

reporting. It is submitted that reckless reportage by the

Electronic Media without accountability cannot be the

reading of the right to freedom of speech and expression

enjoyed by the Electronic Media. k. FOR THAT, unbridled power is always dangerous, as

also the saying goes, ―Power corrupts; absolute power

corrupts, absolutely.‖ The Electronic Media has become

like an unruly horse, which needs to be tamed. However,

the Ministry of Information and Broadcasting, Union of

India, being the nodal ministry has totally failed in the

discharge of duties, in implementing the undertaking of 64

the Electronic Media broadcasters, of compliance with

the Programme Code in Rule 5 of the Cable Television

Rules, 1994. It is submitted that the Electronic Media

Broadcasters are bound by the undertaking to comply

with the Programme Code, which is made at the time of

applying for permission to Uplink/Downlink their

respective channels.

l. FOR THAT instead of doing service to the nation and

working in public interest, of late, the media is afflicted

with disseminating:

i. Misinformation, Fake News and Propaganda,

ii. Divisive and Schismatic Forces of Communalism, Ethnocentrism, Bigotry, Casteism, Linguism and Regionalism,

iii. Indecent, Sleazy, Cheap, Sensational, Scandalous, Immoral, Inciting, Defamatory and Disproportionate Reports,

iv. War-mongering,

v. Superstitious, Violent, Backward and Public Disorder-inducing Attitudes,

all on which are well beyond the periphery and contours

of the right to freedom of speech and expression

guaranteed under Article 19(1)(a) of the Constitution.

Moreover, by the nature of the broadcast, the Electronic

Media is wholly negating the right to fair and proper

information that is enjoyed by the citizenry. 65

m. FOR THAT, in the circumstances, it has become

imperative that this Hon‘ble Court as the ultimate

sentinel on the qui vive protects and balances the rights

of various stake holders so that the fundamental rights

of one class of stake holders do not become subservient

to the exercise of fundamental rights of the other class. n. FOR THAT, the Constitution of India does not

specifically mention the freedom of press. Freedom of

press is implied from the Article 19(1)(a) of the

Constitution. Thus, the press is subject to the

restrictions that are provided under the Article 19(2) of

the Constitution. The power enjoyed by the news

broadcasters/electronic media is immense, and without

any accountability to the law or the Constitution. It is

submitted that untrammelled power is prone to abuse,

something that is antithetical to the rule of law. o. FOR THAT, in the pre-Independence era, the Media was

a form of ―service‖ to the cause of the people‘s freedom,

and was a great juggernaut of social change, reform and

awakening, and acted as one of the greatest tools to

mobilize the people and consolidate social consciousness

for the freedom struggle. The Media of the pre-

independence era was largely run and owned by freedom

fighters and great personalities and heroes of our nation,

such as Raja Ram Mohan Roy, Bal Gangadhar Tilak, 66

Dadabhai Naoroji, Mahatma Gandhi, Jawaharlal Nehru,

Dr. B.R. Ambedkar, et al.

p. FOR THAT, while the press and the media continued in

the pre-independence spirit, over time, with changes in

the media and society, the news broadcaster and

electronic media have used their power to only further

their business interests. The Media has mutated from

being a Service, to being a Business. Journalism

mutated from being a Mission, to being a Profession. The

Media came about from being owned by benevolent and

self-less freedom fighters, to being owned by profit-

oriented big Business and Corporate Houses. With

passage of time Media-Business became a

monumentally competitive and cut-throat commerce,

where sensationalism, sleaze and scandal have become

the norm and Truth/Facts became subsidiary.

q. FOR THAT, free speech cannot be without regulation or

consequence, especially when Article 19(1)(a) is subject

to restrictions in Article 19(2), to be imposed reasonably.

It is relevant to note that the spread of misinformation or

falsities by the news broadcasters and electronic media

fall foul of the right to information of the common

citizens which is also recognised and guaranteed under

Article 19(1)(a).

67

r. FOR THAT, under the Indian Constitutional setup, it is

solely the Judiciary which enjoys the privilege of ‗self-

regulation,‘ being Independent and conferred with the

same by the Constitution itself. Thus, equating the

Media-Business with the Judiciary, in terms of the

privilege of ‗self-regulation‘ directly strikes upon the

Independence of the Judiciary and rattles and shakes

the very foundations of the Indian Constitutional

Scheme and the Democracy, and the same goes against

every notion and canon of law and justice prevailing in

India. It is notable, that despite being self-regulated even

this Hon‘ble Court are not immune from clutches of law

and are amenable to regulations under ―Judges

(Inquiry) Act, 1968.” s. FOR THAT, the Media is simply a Business, albeit one

which is one of the most powerful structures of Power in

itself, and thus, the same must by regulated by

constitutional norms and principles,, because the

Democratic Principle expounds that all structures of

power must be regulated for the good of all and to

preserve the doctrine of Equality as enshrined under

Article 14 of the Constitution of India, which is the

golden track on which the Constitution runs, otherwise

the same shall descend into arbitrariness and

corruption. 68

t. FOR THAT the whole self-regulatory process makes the

Electronic Media Broadcaster a judge in his own case,

thereby completely negating the rule of law enshrined in

our Constitution. This is more so because the broadcast

by the Electronic Media is not only the exercise of right

to freedom of speech and expression of the broadcaster,

but is a means to the right to information enjoyed by the

citizenry, and therefore the exercise of the right must be

done responsibly. u. FOR THAT, importantly, the Media was only accorded

the status of ―fourth pillar‖ because of the ―role‖ it

played. Now, since its role has changed, from Service to

Business, and from Mission to Profession, in such

circumstances, it cannot mechanically be referred to as

the Fourth Pillar, to avert all judicial attempts at

regulating the Media-Business. It cannot be termed as

the ‗Fourth Pillar‘ if it does not raise the people‘s issues

and acts as the voice of the voiceless, instead only acts

as a TRP-hunting, profit-mongering machine. v. FOR THAT it is needless to say, for the purpose(s) of the

plenary and inherent powers and jurisdiction of this

Hon‘ble Court under Articles 32 and 142 of the

Constitution, the Media is well covered under the

definition of ‗State‘ under Article 12, squarely falling

within the ―Public Function Test,‖ as laid down by this 69

Hon‘ble Court in a plethora of cases. The role of the

Media corporations is comparable to the sovereign

functions because of their mass-reach and pervasive

control over the lives of individuals and having immense

power of shaping their lives, having direct control over

the content/news/―facts‖ being disseminated, and being

heavily relied upon by the nation‘s populace for

information, which eventually moulds their thoughts,

opinions and ideas.

w. FOR THAT, the Union of India and the State

Governments, must assume the role of the Police, to

impose penal sanctions under the prevailing laws, and

so as to work in tandem with the Media Tribunal so

constituted, under recommendations by the Independent

Committee of retired Judges of this Hon‘ble Court.

x. FOR THAT, It is submitted that Regulation promotes the

freedom or the facility which is required to be regulated

in the interest of all concerned. It is hence submitted

that Regulation‖ means regulation in public interest and

not contra public interest. The expression ―regulation‖

cannot possibly be read as contra public interest but in

the interest of the public.

70

PRAYERS

91. In the facts and circumstances of the case, it is Most

Respectfully prayed, that this Hon‘ble Court may graciously be

pleased:-

a) Issue a writ, order or direction for setting up of an independent High Powered Committee headed by a retired Chief Justice or Judge of this Hon‘ble Court or High Court and consisting of distinguished citizens from different fields/professions and concerned stake holders of the Official Respondents to scrutinize and review the entire legal framework relating to Media-Business regulation and recommend appropriate guidelines to be laid down by this Hon'ble Court; AND/OR

b) On the receipt of the recommendations of the High Powered Committee, issue a writ order or direction laying down appropriate guidelines for regulation of media in exercise of the plenary and inherent power of this Hon‘ble Court under Article 32 and 142 of the Constitution until a legislation is introduced; AND/OR

c) Issue a writ, order or direction, in the nature of Mandamus issuing necessary directions to the Respondents that the guidelines so framed by this Hon‘ble Court in consonance with the prevailing programme code under the Cable Act will govern the field until special legislation is enacted and

d) Issue a writ, order or direction, recommending to the Union of India, for constitution/setting up of a ―Media Tribunal‖ to adjudicate upon the complaint petitions against the Media/Broadcasting Channels/Networks, as 71

may be filed by the viewers/citizens and for enforcement of the Guidelines laid down by this Hon‘ble Court ; AND/OR

e) Pass any such other and further order(s) in addition to or in substitution for the prayers, supra, as this Hon‘ble Court may deem fit and proper in the facts and circumstances of the case;

f) Award the costs of the petition.

AND FOR THIS ACT OF KINDNESS THE PETITIONERS, AS IN DUTY BOUND, SHALL EVER PRAY.

DRAWN BY: FILED BY: MR. RAJESH INAMDAR, ADV. MR. SHASHWAT ANAND, ADV. MR. PAI AMIT, ADV. ON RECORD MR. RAHAT BANSAL, ADV. MS. SMITA PANDEY, ADV. PAI AMIT SETTLED BY: ADVOCATE FOR THE PETITIONER DEVADATT KAMAT SR ADVOCATE

PLACE: NEW DELHI DRAWN ON: 19.09.2020 FILED ON: 28.09.2020 72

IN THE SUPREME COURT OF INDIA EXTRA ORDINARY JURISDICTION WRIT PETITION (CIVIL) NO. ______2020

IN THE MATTER OF:

NILESH NAVALAKHA AND ANR ....PETITIONER (S)

-VERSUS-

UNION OF INDIA & ORS. ....RESPONDENTS

AFFIDAVIT

I, Sh. Nilesh Navalakha, aged about 45 years (Major), address; 620, Pentagon, Shahu College Road, Parvati, Pune-

411009, do hereby solemnly declare as under,: -

1. That I am the Petitioner No. 1 in the instant petition and I am

fully competent to swear and depose this affidavit and as

such I am aware of the facts and circumstances of the

present case.

2. I say that I have read and understood the contents of the

Synopsis & List of Dates at pages B to FF and contents of

Writ Petition as contained in paras 1 to 91. I state that the

averments of facts made therein are true to my knowledge,

based on records, information from the newspapers/news

broadcasters and those of submission of law made in

grounds, prayer, and interlocutory applications are true and

correct to the best of my knowledge and belief.

3. That the Annexures filed along with the Writ Petition are true

copies of their respective originals. 73

4. That the Petitioner (s) are/is preferring the present Petition in

larger public interest and that there is no personal gain

private motive or oblique reason in filing the Public Interest

Litigation.

5. That the Petitioner(s) are/is seeking exemption from

attestation of the instant affidavit, since the country is under

a lockdown due to COVID-19 since 24th March 2020 and

undertakes to furnish an attested affidavit at a later stage.

DEPONENT

VERIFICATION:

Verified at Pune on this 27th day of September 2020 that the contents of this affidavit are based on the information derived from the records and also on the basis of the information received and believed to be correct. No part of it is false and nothing material has been concealed or suppressed there from.

DEPONENT 74

IN THE SUPREME COURT OF INDIA EXTRA ORDINARY JURISDICTION WRIT PETITION (CIVIL) NO. ______2020

IN THE MATTER OF:

NILESH NAVALAKHA AND ANR ....PETITIONER (S)

-VERSUS-

UNION OF INDIA & ORS. ....RESPONDENTS

AFFIDAVIT

I, Sh. Nitin Memane, s/o Bhujangrao M. Memane aged about 52 years, Occupation: Civil Engineer, Social Activist,

Address: B 701, Gera Emerald City North, Kharadi, Pune-

411014, do hereby solemnly declare as under,: -

1. That I am the Petitioner No. 2 in the instant petition and I

am fully competent and authorized to swear and depose

this affidavit. I am fully aware of the facts and

circumstances of the present case.

2. I say that I have read and understood the contents of the

Synopsis & List of Dates at pages B to FF and contents of

Writ Petition as contained in paras 1 to 91. I state that the

averments of facts made therein are true to my knowledge,

based on records, information from the newspapers and

those of submission of law made in grounds, prayer, and 75

interlocutory applications are true and correct to the best

of my knowledge and belief.

3. That the Annexures filed along with the Writ Petition are

true copies of their respective originals.

4. That the Petitioner (s) are/is preferring the present Petition

in larger public interest and that there is no personal gain

private motive or oblique reason in filing the Public Interest

Litigation.

5. That the Petitioner(s) are/is seeking exemption from

attestation of the instant affidavit, since the country is

under a lockdown due to COVID-19 since 24th March 2020

and undertakes to furnish an attested affidavit at a later

stage.

DEPONENT VERIFICATION:

Verified at Pune on this 27th day of September 2020 that the contents of this affidavit are based on the information derived from the records and also on the basis of the information received and believed to be correct. No part of it is false and nothing material has been concealed or suppressed there from.

DEPONENT SCC Online Web Edition, Copyright © 2020 Page 1 Saturday, September 19, 2020 Printed For: 76 SCC Online Web Edition: http://www.scconline.com

------

1914 SCC OnLine PC 89 : 1914 Cri LJ 309

Privy Council Appeal From the Chief Court of Lower Burma (S.C. 23 Ind. Cas. 661) (BEFORE LORD SHAW, LORD SUMNER, LORD PARMOOR, JOHN EDGE AND AMEER ALI, JJ.)

Channing Arnold … Appellant; Versus Emperor … Respondent. Decided on April 7, 1914

Page: 315

The Judgment of the Court was delivered by LORD SHAW:— By leave granted by His Majesty in Council this appeal is brought from a conviction of and sentence upon the appellant by the Chief Court of Lower Burma, pronounced on the 19th October, 1912. The charge was one of defamation or criminal libel, and the prosecution was laid under the 21st Chapter of the Indian Penal Code. In that Chapter section 499 gives a definition of defamation, and sets forth categorically no fewer than ten exceptions, any one of which forms a proper defence to the charge. By section 500 it is provided that the punishment of defamation shall be “simple imprisonment for a term which may extend to two years, or with fine, or with both.” 2. The appellant was charged with having defamed Mr. G.P. Andrew, Deputy Commissioner and District Magistrate of Mergui, by the publication of two articles in the Burma Critic, a Rangoon newspaper, on the 28th April 1912. These articles were entitled “A Mockery of British Justice.” 3. Mr. Arnold has had experience as a journalist; and it appears from the proceedings that he was at one time the Chief editor of the Rangoon Times. He ceased to be Editor of that journal in the end of September 1911, and in January 1912 he was registered as one of the proprietors and the editor of the Burma Critic. The articles bear witnesses to the writer's possession of great invective and declamatory power; and it ought to be said at once that his motives have not been challenged except in so far as that is necessarily involved in the contention that he published serious libels and did so otherwise than in good faith. 4. The proceedings against him were initiated on the 11th June 1912 by Mr. Andrew, the District Magistrate already mentioned. On the 3rd October 1912 the trial of of the case began before Sir Charles Fox, the Chief Judge, with a Jury. It was protracted and lasted from the 3rd to the 16th October. On the latter date the Jury returned a unanimous verdict of guilty, and a sentence of one yenr's simple imprisonment was pronounced. The Board were informed that after undergoing four months' imprisonment the remainder of the sentence was remitted. 5. Their Lordships listened to a lengthy argument in support of this appeal, during which the entire history of three stages of proceedings or sets of circumstances was discussed. These were, first, the details of the conduct of one McCormick, a planter, SCC Online Web Edition, Copyright © 2020 Page 2 Saturday, September 19, 2020 Printed For: 77 SCC Online Web Edition: http://www.scconline.com

------who was charged with having abducted and committed rape upon a Malay girl of about eleven years of age; secondly, the conduct and proceedings of Mr. Andrew as District Magistrate at the investigation which was conducted before him into this charge and which ended in his declining to commit McCormick for trial; and thirdly, the proceedings at the trial in the present case. 6. From one point of view of the discussion might have been greatly shortened by the exclusion of the consideration of the two first elements mentioned. 7. But their Lordships were unwilling, in view of the importance which is said to attach to the appeal, to adopt any step which would appear to prevent the fullest statement by the appellant's Counsel of his entire position. And secondly, it has to be admitted that Sir Robert Finlay was justified in his observation that, although there was no justification of the libel pleaded, still the circumstances demanded a prolonged investigation on this other issue, namely, whether the appellant, from the materials placed before him when he wrote the libel, was acting in good

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faith. If he did so act he would stand within the exception under the Indian Penal Code, and the libel, otherwise unjustified, would be excused by Statute. In these circumstances the fullest investigation was permitted to take its course.

8. It is now important to see what are the provisions of the Penal Code which apply to the case. “Whoever” says section 499 of the Indian Penal Code, “by words, either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. “Of the ten exceptions under the section three were mentioned. The first exception is in these terms:” It is not defamation to impute anything which is true concerning any person if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.” It was admitted by the Counsel for the appellant at their Lordships' Bar that their client claimed no benefit under this exception: he did not suggest that the series of libels or any one of them was true; on the contrary, all of them in so far as they were assertions of fact were admitted to be false. 9. In point of form the same course was taken in the Court below. But while this was so and while the plea of Veritas was not openly or plainly made, their Lordships regret to observe that surreptitiously it did appear and re-appear in the case by way of repeated innuendo. It may be as well to bring this matter to a point at once. In Sir Charles Fox's charge to the Jury this passage occurs: “You will observe that under the first exception the only question apart from the question of the public good, that could arise was whether what had been said was true or not. Now it is noticeable that the defence does not rely on that exception, although up to the end we have had reiterated that what was said was true.” Upon being questioned the learned Counsel for the appellant frankly admitted that the exception was not in point of fact pleaded as a defence, and their Lordships do not understand that they disputed that the learned Chief Judge's statement of what occurred at the trial by reiterated innuendo was correct. It was open to the appellant to defend his utterances as true. But he declined to take that course. Their falsehood stood as an admission in the case, the words themselves being so plainly of a libellous character. This part of the case may SCC Online Web Edition, Copyright © 2020 Page 3 Saturday, September 19, 2020 Printed For: 78 SCC Online Web Edition: http://www.scconline.com

------accordingly be definitely dismissed. 10. The second exception is in these terms: “It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions or respecting his charactor so far as his character appears in that conduct, and no further.” The distinction between this and the first exception is that the former deals with allegations of fact, and this second exception deals with the expression of opinion. This also has nothing to do with the case as it now stands, because it was, as it must be, admitted that the articles did not confine themselves to expressing an opinion as to the conduct of Mr. Andrew, but in much detail made definite defamatory allegations of fact against him. 11. It is accordingly upon the ninth exception that the determination of the present appeal solely depends. That is in these terms:— “It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good. “In connection with this exception it is necessary to take its language along with that of section 52 of the Code, which is to this effect: “Nothing is said to be done or believed in good faith which is done or believed without due care and attention.” 12. Notwithstanding the elaboration of the arguments and the introduction of much matter affecting the conduct of McCormick and the conduct of Mr. Andrew, it was accordingly this question, and this question only, which the Jury charged by Sir Charles Pox had to try, namely, whether in publishing the libels admitted to be false Mr. Arnold did so in good faith because be be-lieved them to be true, having given due care and attention to seeing that they were

Page: 317

so. If the Jury were satisfied that he did give that due care and attention, and that he acted in good faith, then the exception formed a good defence, and the accused would be found not guilty. If, on the other hand, they were not so satisfied, then no course, according to the Indian Criminal Law and the Indian Evidence Act, was open to them but to negative the exception and to find the accused guilty. No question is made that each of these propositions is sound.

13. It is contended, however, by the appellant that in the course of the charge there was misdirection by the Judge, and that the Jurys' minds were diverted from this, which it is admitted was the true and only issue, to other questions. What were these? They were the very things which the prisoner's Counsel throughout the trial insisted on introducing, namely the question of the conduct of McCormik and of Mr. Andrew, the narrative as to Mr. Andrew being accompanied by the suggestion that it was after all indefensible and corrupt. Their Lordships recognise that this mode of conducting the defence, which it appears to have been difficult to repress, was not unlikely to lead to confusion; but it is at least satisfactory to find that the learned Judge in charging the Jury made no mistake in stating what the true issue was. It is admitted by the appellant's Counsel that this is so. “What you will have to consider,” said the learned Judge to the Jury, is “whether the imputations in these articles were published in good faith, after due care and attention had been exercised on the part of the writer of them. What is ‘due care and attention’ must depend on the circum- stances of each particular case.” It is also fair to the learned Judge to say that, while he felt constrained—a course which, in view of the conduct of the defence, is not to be wondered at—to go with some fulness into a narrative of fact, he concluded his charge to the Jury by bringing their minds directly back to the exact issue which they had to SCC Online Web Edition, Copyright © 2020 Page 4 Saturday, September 19, 2020 Printed For: 79 SCC Online Web Edition: http://www.scconline.com

------try. He did so in this language: “It is now for you to consider these matters, and to decide whether the accused has satisfied you that he used the reasonable care that he ought to have used. If you are satisfied that he did, and that he did not overstep the bounds of law, as I have explained the law to you, then you must acquit him, but if he has not satisfied you that he has exercised such due care and attention before he committed himself to paper in this way, then it is your bounden duty to convict him.” 14. Before the exception and the alleged misdirection of the Jury are dealt with, it is expedient to state what the libel contatined. Being headed “A Mockery of British Justice,” after a considerable amount of inflammatory matter, it proceeds to “speak out against those officials who have forgotten their duty and have dared to trifle with the fair fame of England.” Having made these very serious allegations the appellant aded: “The facts before us indicate that he (Mr. Andrew) conspired with Mr. Finnie to burke the case; that he conducted it in camera; that he refuted to heed the protest of the complainants that the interpreter employed was a paid parasite of McCormick, and did, in fact, deliberately mistranslate; that of the witnesses for the prosecution only those called by the District Superintendent of Police, and not even all of them, were allowed to give evidence; that in a word the whole inquiry was an outrageous make- believe and a mockery of what he is nominally representative, the fair play and judicial honour associated with the name of England. By what looks like the meanest of tricks, the unfortunate complainants were unrepresented by any lawyer at this judicial farce.” 15. It would serve no good purpose to cite further from the libels; they mention disgusting details and incriminate other officers besides Mr. Andrew, as engaged in a corrupt plot. They contain not one, but a series of libels of the grossest character. These libels were at least seven in number. First, of conspiracy with Finnie to prostitute justice by saving McCormick. Secondly, of having, apparently knowingly and as part of the partisanship, bailed out McCormick for a non-bailable offence. Thirdly, of having misled the Malay girl, her parents and friends by leaving them without professional advocacy, which they had been led to expect. Fourthly, of having perverted the course of truth by a partisan interpreter. Fifthly, of having tried the

Page: 318

case in camera. (Very little was made of this in argument.) Sixthly, of not having called certain witnesses in the inquiry; and seventhty, of Mr. Andrew having heard the case knowing that certain people objected to his doing so.

16. Of these libels the first was the real basis of all. It imputed corruption. Several of the others might not appear but for their resting upon that basis of corruption to be of so serious a type. But in their Lordships' opinion this cannot be said of the third and fourth; for if it were true that the Magistrate had designedly deprived the complainants of legal assistance, and provided them with a false interpreter, then such wicked conduct would not only be itself indefensible but would colour all the rest. Upon the whole it cannot be denied that if any substantial part of this defamation was true, it meant ruin to the career of Mr. Andrew and any others engaged in conspiring with him as alleged. 17. The points put forward in the appellant's favour, as establishing that although the charges were false yet he was excused by Statute because he believed them bona fide and had given due care and attention to their truth, were substantially three. In the first place it was urged that he relied upon a letter published with the signature of “Vigilance,” and addressed to the Rangoon Times. It is dated the 31st August 1911, and at that time the appellant was connected with that paper. It contains a long SCC Online Web Edition, Copyright © 2020 Page 5 Saturday, September 19, 2020 Printed For: 80 SCC Online Web Edition: http://www.scconline.com

------narrative incriminating McCormick and also Mr. Andrew and others. 18. The second element proponed in support of Mr. Arnold's good faith is of a different and an important character. It is this: In the dstrict of Tenasserim referred to, the position of Sub-Divisional Magistrate was occupied by Mr. Buchanan. It is alleged that Mr. Buchanan had been on unfriendly terms with McCormick, but their Lordships do not think that there is anything substantial in this allegation, and they further think it right to put on record their opinion, which is in entire concurrence with that of the Chief Judge, that Mr. Buchanan in his investigations and conduct was actuated by entire good faith. Although his conclusions and suspicions may have been erroneous, their Lordships see no reason to think that from beginning to end he did not act in accordance with the best traditions of the service. He had been absent on leave from the middle of April to about the middle of May 1921, and on his return he heard rumours of misconduct by McCormick. Towards the end of June Mahomed Din, who had legal differences with McCormick, made allegations which amounted to a charge that the crimes of abduction and of rape had been committed. Mr. Buchanan himself made enquiries and came to the conclusion that McCormick should be put upon his trial. It is a point in the accused's favour that the Sub-Divisional Magistrate thought that there was a case for committal. 19. The third point in these protracted proceedings, which is more important than either of the foregoing in support of the contention that the writer of the libels believed them to be true, is the admitted conduct of McCormick himself. Their Lordships do not attach much weight to the question of abduction, because it appears to be the case that the child had formely lived in McCormick's house for a short period, and the evidence is somewhat confused as to the conduct of the mother of the child in regard to her absence from the house. But the allegation made by McCormick was that he had been informed that this child was suffering from gonorrhoea, that he had taken her to his house, and himself (there being a hospital eight miles away) had personally examined her, and had then passed her on for treatment by the mistress of one of his male servants. But their Lordships find themselves in entire agreement with the learned Judge when he says: “It is not surprising that there should be indignation and hot feeling on the part of the sympathisers with the mother of the child Aina, and good reason for feeling of indignation at some of the conduct—the admitted conduct—of McCormick However strong his inclination for amateur doctoring may have been, there could have been no justification for that. It was a thing that no man with a poper sense of decency should have done.” 20. Although accordingly it is no part of the submission of the Counsel for the appellant at their Lordships' Bar that McCormick was guilty, their Lordships think it is an

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element relevant to the consideration of whether Mr. Arnold was acting in good faith in these libels to show that he believed that McCormick's own admissions would have justified his committal for trial.

21. The last matter which their Lordships reckon to be a perfectly relevant one in the category of elements in the case which bore upon the point of the accused's good faith was this. Importance is attached to a pronouncement by the Magistrate. After investigating the facts, and declining to commit, he went on to say that in his opinion McCormick's conduct was pure and philanthropic. Their Lordships cannot agree with such an opinion, and their views coincide with those of the Chief Judge upon that subject. SCC Online Web Edition, Copyright © 2020 Page 6 Saturday, September 19, 2020 Printed For: 81 SCC Online Web Edition: http://www.scconline.com

------

22. They are of opinion that there were thus several elements in the case which were all with perfect propriety submitted to the Jury in support of the defence. Their Lordships, however, do not attach so much importance to the other allegations. That as to bail having been granted to the accused rests on a slender foundation. It is held by the Judges on the spot, and it was proved to be also the opinion of the civil authorities, that the discretion of granting bail applied to this case. It was evidently a case, unless forbidden by Statute, for discretion being exercised, and it would rather appear to their Lordships looking to the great distance to be traversed before the authority claimed by the appellant as requisite for granting bail could be obtained, that much practical hardship would ensue to prisoners unless such a discretion existed. They are not prepared to say that the humane view which was taken of an accused's rights was mistaken. It is unnecessary in this case to decide or dwell upon the point, because their Lordship's opinion is very clear to the effect that this difficult and delicate point of law could never have been viewed as a substantial element weighing with any reasonable writer in justification of his belief in the truth of the libel. The same observation applies to the other elements in the case which need not be entered upon but all of which have been fully considered. Their Lordships are of opinion that a fair and statable case in support of the statutory defence and of the belief in the wickedness of Mr. Andrew was put forward on the points which have been already enumerated, but that no others were of any real weight. In putting forward, however, the points mentioned, their Lordships think that a case was made which demanded an answer. 23. Such an answer was given and it also was both fair and statable. 24. In the first place a serious and weighty reply was made on the subject of the letter signed “Vigilance.” It was not confined to the remark that the letter was no valid excuse for a belief in gross slander. The points proved were these: When that letter was received by the Rangoon Times a most proper course was taken, and that with the appellant's knowledge. It was forwarded by Mr. Stokes, the Assistant Editor, to the Chief Secretary to the Government of Burma, so that there might be official confirmation of its allegations prior to its being published. These allegations were examined into, and on the 31st October the Chief Secretary wrote stating that the Lieutenant-Governor had caused inquiry to be made and had found that the allegations against the officers were without foundation. By this time the appellant had ceased to be Editor of the Rangoon Times but on the 2nd November 1911 Mr. Stokes forwarded a reply to the Chief Secretary stating that the incident, so far as the Rangoon Times was concerned, was closed. 25. This was not so however, with regard to the appellant, for in the following spring, namely, on the 7th March 1912, an article appeared in the Burma Critic, of which he was then Editor, entitled “Alleged Grave Scandals in Tenasserim.” On inquiry being officially made of the appellant, asking for particulars, the answer given was that the case referred to was that inquired into and disposed of in the Pret vious autumn. The appellant's attention was at the same time called to the fact that Mr. Stokes had accepted the reply of the Lieutenant-Governor. All this took place before the libels in question were published. Their Lordships cannot see their way to hold this part of the appellant's case to be satisfactory. An investigation in the department of a Lieutenant- Governor of great experience having resulted in

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exonerating Mr. Andrew from blame, the appellant assumed the grave responsibility for re-opening the matter. He gave the authorities no inkling of any fresh infor-mation SCC Online Web Edition, Copyright © 2020 Page 7 Saturday, September 19, 2020 Printed For: 82 SCC Online Web Edition: http://www.scconline.com

------which had come to his band, and in answer to their inquiry he simply stated that it was the old incident which he was reviving. Up to the present the appellant has not given at their Lordships' Bar or in any Court any statement of any fresh facts which he had discovered. This circumstance was, in their Lordships opinion, Well worthy of consideration by the Jury.

26. In the second place, both Judge and Jury had seriously to consider the attitude of Mr. Arnold himself. He neither defended the article as true nor did he give any assistance on the subject of what were the actual things upon which he founded his own beliefs nor finally upon what the steps were, if any, which he took to investigate their truth before giving them to the public. 27. Thus, although the true issue in the case was as to his own bona fides and the care and attention which would verify that, Mr. Arnold's action when charged, gave no help to the Court and must to some extent have embarrassed even his own defence. Having admitted that he assumed responsibility for the articles, he was asked by the Magistrate as follows: Q. Do you wish to make any explanation of your position in the case as to your bona fides, etc.? (I pointed out to the accused that, under section 105 the burden of proof lies upon him). “A. No. I have nothing to say. Everyone, from the Lieutenant-Governor downwards, knows my character, and I leave it at that.” But of course, it was quite impossible to leave it at that, because the libels were there, in all their number and seriousness; the charge was made under the Statute, and the law had prescribed that the author of such libels could only be excused by showing good faith after due care and attention. It is not in accordance with the due or proper administration of justice for an accused to brush all the statutory regulations affecting his position aside in this manner. The attitude and absence of the accused may well have been considered by the Jury rather destructive than helpful to the defence set up. 28. In the third place, this has to be borne in mind. Every officer, judicial or administrative, who investigated this case, except Mr. Buchanan, had agreed with the conclusion at which Mr. Andrew had arrived, namely, that the charge should be dismissed. This circumstance was one peculiarly suited for the appraisement of a local Jury. 29. The next circumstance in the case is one to which their Lordships do not conceal that they attach serious importance. They were moved by the allegation that the prosecutors and those in that interest were alleged to have been led on to the trial by Mr. Andrew, and that Mr. Andrew had wickedly conspired suddenly to leave them in the lurch without an advocate, and to furnish them with a false interpreter. This allegation was, as it turned out, not only untrue, but was, as was made abundantly clear at the trial, particularly cruel. Letters were produced showing that instead of Mr. Andrew having taken up such an attitude, his desire, and indeed his emdeavour and entreaty, throughout were that in the inquiry before him an advocate should not only be employed for the prosecution, but should, in fact, be paid by the Government. Letter after letter was written to this effect—to engage a Pleader. On the 3rd August 1911. Mr. Andrew had intimated to Mr. Buchanan that he would engage an Advocate to prosecute, and that his presence and the presence of Mr. Sherard, the investigating officer, would also be required. On the 4th he specially wrote to Mr. Buchanan, “Can you bring up interpreter trusted by all parties? Ask complainants to choose between” two Advocates named “to conduct their case.” On the 7th Mr. Buchanan, having been unable to get such an interpreter, but having stated that the complainant wished to consult a certain Vakil in Rangoon before choosing a lawyer to conduct the case, Mr. Andrew wrote to Mr. Buchanan. Kindly do so, and name Advocate early. As regards interpreter, your Court interpreter must come along to assist at any rate.” Oh the 10th sanction was asked to engage Mahomed Ayoob “on the terms he asks.” It most clearly SCC Online Web Edition, Copyright © 2020 Page 8 Saturday, September 19, 2020 Printed For: 83 SCC Online Web Edition: http://www.scconline.com

------appears from the letters that the arrangement as to legal assistance broke

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down, because upon the 12th August the Commissioner at Mergui declined to sanction the proposal to retain an Advocate, he having demanded of Mr. Andrew to state whether he thought the charges could be substantiated and Mr. Andrew having stated in answer to this difficult question that he thought the abduction charge alone could be made out. In short the refusal to provide an Advocate was made neither by Mr. Andrew nor by connivance or consent of Mr. Andrew, but in spite of him. With regard to the interpreter it should also be added that Mr. Andrew's anxiety upon that subject was manifest, and it was entirely in the right direction. Mr. Buchanan objected to one Chean Gee and he recommended Musaji. As mentioned Mr. Andrew wanted an “interpreter trusted by all parties” and Musaji, Mr. Buchanan's nominee was employed. Mr. Buchanan was present at Mer-gni during the investigation and he made no objections to this. There was, of course, no proof that a single word was interpreted falsely. In their Lordships' opinion these two parts of the libel were very gross, and they can see no justification for the proposition that the appellant had any reasonable ground for believing them to be true.

30. It does, not appear that in any view of the case there could have been a defence under the Statute in regard to those substantial portions of the libellous matter, and the case of Reg. v. Newman(7) was founded upon to this effect. But their Lordships are very anxious, however, not to have the case disposed of on what may be considered a narrow ground. They take these points as included in the sum of the matter to be considered before the Jury as relevant to the general case of Mr. Arnold's justification on the ground of having, after due care and attention, and so in good faith, believed that these things were true. 31. One final matter has however, to be kept in view. Some of the letters last cited were undoubtedly not before Mr. Arnold when he wrote the libels. But they were before him in the course of his trial. In their Lordships' opinion, when it was discovered that the truth with regard to Mr. Andrew had not been that in these particulars he wickedly conspired to defeat justice, but that he was, on the contrary, anxiously endeavouring to secure that justice should be furthered and guarded, then the duty of the accused, Mr. Arnold, was plain. Their Lordships make every allowance for the heat of advocacy which, as noted by the Chief Judge, seems to have been in this case great. But when a gross mistake of that kind on a matter of fact—the truth of which when exposed would have ruined any administrative or judicial officer's career —was discovered, the libel should not have been adhered to for a moment. The mistake should have been acknowledged and an apology tendered. This was not done, but upon the contrary the case was conducted to its close upon the footing that an unstated defence was the real and good defence, namely, that the libels and all the libels were true. Nobody is to be blamed in these circumstances for thinking that the plea of good faith on the part of Mr. Arnold had sustained a serious shock. 32. The speeches of the learned Counsel for the accused have not been printed, but their Lordships had the advantage of hearing Mr. Wilson, who had been in communication with those engaged in the case and who informed their Lordships that the views presented by the senior and junior Counsel for the appellant somewhat diverged. It is, however, unnecessary to labour this matter, because no doubt was thrown upon the narrative of the proceedings given by Sir Charles Fox in his charge. There is enough disclosed in the case to show that no light task was thrown upon the Judge in disentangling relevant from irrelevant topics and in presenting the true issue SCC Online Web Edition, Copyright © 2020 Page 9 Saturday, September 19, 2020 Printed For: 84 SCC Online Web Edition: http://www.scconline.com

------to the minds of the Jury. The real objection taken at their Lordships' Bar to this charge was that the Jury were misdirected in this sense, and that the narrative of the learned Judge must have left the impression upon the mind that Mr. Andrew had not acted wickedly as the libel alleged. But it was, looking to the advocacy, necessary for the learned Judge to state his own view, and their Lordships do not see anything in the charge to give countenance to the idea that he withdrew this question from the Jury or from their province. With a large portion even of narrative their Lordships see no occasion to quarrel. Some

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portions of it here and there might be the subject of difference of opinion.

33. A charge to a Jury must be read as a whole. If there are salient proposition in law in it, these will, of course, be the subject of separate analysis. But in a protracted narrative of fact, the determination of which is ultimately left to the Jury, it must needs be that the view of the Judge may not coincide with the views of others who look upon the whole proceedings in black type. It would, however, not be in accordance either with usual or with good practice to treat such cases as oases of misdirection, if, upon the general view taken, the case has been fairly left within the Jury's province. Their Lordships do not say that upon any particular in this case they would differ from the views laid down by Sir Charles Fox, but these observations are made in order to discounteuance the idea that in the region of fact, unless something gross amounting to a complete misdescription of the whole bearing of the evidence has occurred, this Board will interfere. The separate and peculiar position of this Committee under the constitution will be afterwards dealt with. 34. Their Lordships regret to find that there appeared on the one side in this case the time-worn fallacy that some kind of privilege attaches to the profession of the Press as distinguished from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute-law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful but the range of his assertions, his criticisms, or his comments is as wide as, and no wider than that of any other subject. No privilege attaches to his position. 35. Upon the other side it would appear from certain observations of the learned Judge that this false and dangerous doctrine may have been hinted at, that some privilege or protection attaches to the public acts of a Judge which exempts him, in regard to these, from free and adverse comment. He is not above criticism, his conduct and utterances may demand it. Freedom would be seriously impaired if the judicial tribunals were outside of the range of such comment. The present case affords a good illustration of what is meant. When the examination before Mr. Andrew concluded with his declaration that in his judgment the action of McCormick was pure and philanthropic, the whole trial would seem to have been laid open to searching and severe observations, and no blame could be attached to these. But when the criticism was converted into an attack upon the Magistrate as a conspirator against justice, a traitor to his oath, a trickster, a man who had manoeuvred his procedure so as to defeat truth and protect an associate, then, of course, it is for the person who has uttered these things to justify them, or, under the Indian Penal Code, to establish affirmatively that he believed them to be true, and that on reasonable grounds. On both of these matters last mentioned the learned Judge seems to have properly SCC Online Web Edition, Copyright © 2020 Page 10 Saturday, September 19, 2020 Printed For: 85 SCC Online Web Edition: http://www.scconline.com

------directed the Jury. 36. This also has to be said. A large part of the criticism directed against the charge of the learned Judge in this case was to the effect that the narrative of the proceedings led up to the conclusion inevitably that Mr. Andrew was innocent of the wicked dereliction of duty which was alleged. If it was so, the result upon _ the case is somewhat remarkable. For then the charge had in fact impressed the Jury's minds with the innocence of Mr. Andrew, and it is that very innocence which is in the foreground of the admissions made in this case. The foregoing narrative in this view might have been spared, because it is now seen that nearly all, if not all, of the items in the narrative which are said to constitute misdirection are parts of a narrative which leads to a conclusion that that is in accordance with fact which has all along been admitted to be true. 37. It is here that the peculiarity of the procedure becomes evident, for the narrative thus criticised was undoubtedly, as it appears to their Lordships, the narrative given by the learned Judge to the Jury

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in order to counteract an improper use which was being made of the procedure. While the truth of the libels was not asserted formally, and while the admission of their falshehood was formally granted, an endeavour was repeatedly made to withdraw all this and to persuade the Jury to take all that was asserted as true. Such things may occur; but it is the duty of Judges to put what check they can upon them, and in the present case their Lordships see no occasion to think that the learned Judge failed to excercise that duty with propriety.

38. From what has been said it will, their Lordships think, clearly appear that there was material before the Jury on both sides of this case, and that the determination was on a subject peculiarly within the Jury's province. In their Lordships' opinion the case was not improperly withdrawn from the Jury's domain on fact, and they were not misdirected in law. But even if it were conceded that upon a meticulous examination of the Judge's charge or conduct of the case certain flaws could be discovered, it is the duty of their Lordships to consider the special position and function of the Board, in criminal cases, as the advisers of the King. The frequency of applications made to the Board for leave to appeal against the judgments of criminal tribunals in various parts of the Empire as well as the thoroughness with which the powers and practice of the Judicial Committee were discussed in this case incline their Lordships to make a deliberate survey of this important topic. 39. The question is not truly one of jurisdiction. The power of His Majesty under his Royal authority to review proceedings of a criminal nature, unless where such power and authority have been parted with by Statute, is undoubted. Upon the other hand, there are reasons, both constitutional and administrative, which make it manifest that this power should not be lightly exercised. The overruling consideration upon the topic has reference to justice itself. If throughout the Empire it were supposed that the course and execution of justice could suffer serious impediment, which in many cases might amount to practical obstruction, by an appeal to the Royal Prerogative of review on judical grounds, then it becomes plain that a severe blow would have been dealt to the ordered administration of law within the King's dominions. 40. These views are not new. They were expressed more than 50 years ago by Dr. Lushington in his judgment in Queen-Empress v. Joykissen Mukerji(6), and Lord Kingsdown, in the case of Falkland Islands Company v. Reg.(8), stated the matter SCC Online Web Edition, Copyright © 2020 Page 11 Saturday, September 19, 2020 Printed For: 86 SCC Online Web Edition: http://www.scconline.com

------compendiously in these words: “It may be assumed that the Queen has authority, by virtue of Her Prerogative to review the decisions of all Colonial Courts, whether the proceedings be of a civil or criminal character, unless Her Majesty has parted with such authority. But the inconvenience of entertaining such appeals in cases of a strictly criminal nature is so great, the obstruction which it would offer to the administration of justice in the Colonies is so obvious, that it is very rarely that applications to this Board similar to the present have been attended with success”. Their Lordships desire to state that in their opinion the principle and practice thus laid down by Lord Kingsdown still remain those which are followed by the Judicial Committee. 41. There have been various important cases in recent times to which, naturally, reference has been made. The first is the case of In re Billet(9). It should be observed that while Dillet's case was in form an application within the ambit of criminal law the matter of substance which was truly brought before the Judicial Committee was a civil matter. The appeal was by a Barrister and Solicitor against a verdict convicting him of perjury, but there had been a consequential order of the Court directing him to be struck off the roll of practitioners, and special leave was granted to appeal in reference to the consequential order. Lord Blackburn referred to Lord Kingsdown's judgment in the Falkand. Islands case(8) as authoritative and binding. After citing that learned Judge, Lord Blackburn added: “In this statement of the general, practice their Lordships agree. They are not prepared to advise Her Majesty to make this conviction for perjury

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an exception if it were not made the sole foundation for the subsequent order of the 27th March 1885,” and liberty accordingly was granted “to appeal against the order of the 27th March 1885, striking him off the roll, and also to the extent above stated and no further, against conviction for perjury”.

42. While accordingly the familiar sentences again about to be quoted from Lord Watson are frequently cited with reference to criminal review in general by this Board, this outstanding circumstance just alluded to ought not to be forgotten. It appears to dispose of the argument that the practice of the Board was in purely criminal matters in any respect either advanced or distorted from the position that it occupied under the judgments of Dr. Lushington and Lord Kingsdown pronounced about a quarter of a century before. Lord Watson in Dillet's case(9) observed that “the rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings unless if is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done”. 43. The present case brings prominently before the Board the question of what is the sense in which those words are to be interpreted. If they are to be interpreted in the sense that wherever there has been a misdirection in any criminal case, leaving it uncertain whether that misdirection did or did not affect the Jury's mind, then in such oases a miscarriage of justice could be affirmed or assumed, then the result would be to convert the Judicial Committee into a Court of criminal Review for the Indian and Colonial Empire. Their Lordships are clearly of opinion that no such proposition is sound. This Committee is not a Court of Criminal Appeal. It may in general be stated that its practice is to the following effect; It is not guided by its own doubts of the appellant's innocence or suspicion of his guilt. It will not interfere with the course of criminal law unless there has been such an interference with the elementary rights of an accused as has placed him outside of the pale of regular law, or, within that pale, SCC Online Web Edition, Copyright © 2020 Page 12 Saturday, September 19, 2020 Printed For: 87 SCC Online Web Edition: http://www.scconline.com

------there has been a violation of the natural principles of justice so demonstratively manifest as to convince their Lordships first, that the result arrived at was opposite to the result which their Lordships would themselves have reached and secondly, that the same opposite result would have been reached by the local tribunal also if the alleged defect or misdirection had been avoided. The limited nature of the appeal in Dillet's case(9) has been referred to, and their Lordships do not think that its authority goes beyond those propositions which have now been enunciated. 44. The argument for the appellant was to an entirely contrary effect. In the forefront of it the case, of Makin v. Attorney-General for Neiv South Wales(1) was cited. Makin's case in truth did not raise the question at issue in the present case. It depended upon the construction of section 423 of the Criminal Law Amendment Act of 1833 (a New South Wales Statute). That section set up the Judges of the Supreme Court as a tribunal to determine questions submitted to them in a case stated by the Judge at the trial, and there was a proviso that there should be no quashing “unless for some substantial wrong or other miscarriage of justice.” It was stated by this Board that under that section the Judges have not been substituted for the Jury. As they said “In their Lordships' opinion substantial wrong will be done to the accused if he were deprived of the Jury on the facts proved by legal evidence and there were substituted for it a verdict of the Court founded merely upon the perusal of the evidence.” 45. The second case founded on is that of Vaithinatha Pillai v. Emperor(10) in which this Board sustained an appeal. The circumstances of the case, however, were of the most extraordinary character, and were such as appeared to the Board imperatively to demand that it should interpose, because the very foundations of justice seemed to have been attacked in proceedings. A whole body of inadmissible evidence had been received in the case. The one witness, whose evidence was relevant and who remained in the case, was supporting

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another witness who was a confessed perjurer. The remaining witness himself had given under oath conflicting and contradictory accounts in previous judicial proceedings before the Magistrate and certain officials. “If true,” observed Lord Atkinson, “they show that these officials, or at least Sub-Inspec-tor, induced the witness to forswear himself and found in him a pliant instrument ready to give false evidence upon oath to secure the conviction of his own father; and if false they show that the witness was ready to commit deliberate perjury whenever he was confronted with the inconsistencies in his former statements. There is no alterative. “The simple case accordingly confronting the Board was a case of a subject sentenced to death upon no evidence at all. In these circumstances, although the principle of Dillets case (9) was again re-affirmed, their Lordships did not see their way to refrain from interfering.

46. The third case referred to is that of Louis Edouard Lanier v. The King(11) and, fortunately, it is seldom that such a travesty of justice can be witnessed. One of the notable features of the case had reference to the Judge himself. He, as narrated in the report, was a member of the family Council which instigated the proceedings and himself was a party to appointing two Barristers to conduct the prosecution and arranged about their fee. The facts need not be referred to. The indictment was altered by drastic amendments, the trial was hurried on; but the narrative need go no further, for, as the report states, “In short, Council for the Crown at the Bar of this Board very properly admitted that he could not contend that any Jury upon the evidence submitted would have convicted the appellant of crime.” The Board were of opinion SCC Online Web Edition, Copyright © 2020 Page 13 Saturday, September 19, 2020 Printed For: 88 SCC Online Web Edition: http://www.scconline.com

------that the sentence pronounced against the appellant “formed such an invasion of liberty and such a denial of his just rights as a citizen that their Lordships feel called upon to interfere.” But the Board took care to repeat that it did not lightly interfere, and the language of Lord Watson in Dillefs case(9) was again cited. It was pointed out that the interference was not on any matter of form, but because of matters lying at the very foundation of justice (the Judge had been a Judge in his own cause), justice had gravely and injuriously miscarried. Lanier stands as a fair type of almost the only case in which this Board would advise the interposition of His Majesty the King with the course of criminal justice in the Colonies or dependencies. That extreme case is this, that it must be established demonstrably that justice itself in its very foundations has been subverted, and that it is, therefore, a matter of general imperial concern that by way of an appeal to the King it be then restored to its rightful position in that part of the Empire. Their Lordships were referred to the dicta of Judge and the rules set up with regard to the procedure of the Court of Criminal Appeal in England; but they are not the rules adopted by this Board, which, as already stated, is not a Court of Criminal Appeal. And the authority of these decisions, which apply to a different system, a different procedure, and a different structure of principle, must stand out of the reckoning of any body of authority on the matter of the procedure of this Board in advising His Majesty. This view is in entire accord with the recent proceedings of this Board, on applications for leave to appeal. One instance of this is that of Clifford v. Emperor(12) on the 17th November last, and their Lordships refer to the judgment of the Lord Chancellor in this and the other refusals referred to. 47. The application to the present case is simple. Even had this Committee been a Court of Criminal Appeal it is hardly doubtful that the appeal would fail. A fortiori their Lordships are left in no doubt as to their own duty in conformity with the practice of the Board. They will humbly advise His Majesty that the appeal be dismissed. There will be no order as to costs. 48. Appeal dismissed. ——— (1) (1894; A.C. 57; 63 L.J. P.C. 41; 6 R. 373; 69 L.T. 778; 17 Cox.C.C. 704; 58 J.P. 148

(6) 1 Moore P.C. (N.s.) 272; 15 E.E. 704; 133 R.R. 522.

(7) 1 E. & B. 558; 22 L.J.Q.B. 156; 93 R.R. 275; 7 Jur. 617; 118 E.R. 544.

(8) (8) 1 Moo P.C. (N.s.) 299 at P. 312; 15 E.R. 713 at p. 718; 10 Jur. 807 (N.S.); 9 L.T. 103 (N.S.); 12 W.R. 220; 9 Cox C.C. 351; 138 R.R. 535.

(9) 12 A.C. 459; 56 L.T. 615; 36 W.R. 81; 16 Cox. C.C. 241

(10) 21 Ind. Cas. 369; 17 C.W.N. 1110; 14 M.L.T. 263; (1913) M.W.N. 806; 15 Bom. L.R. 910; 25 M.L.J. 518; 11 A.L.J. 881; 18 C.L.J. 365; 14 Cr. L.J. 577; 36 M 501; 40 I.A. 193.

(11) 23 Ind. Cas. 657; (1914) A.C. 221; 18 C.W.N. 98; 26 M.L.J. 1; 15 Cr. L.J. 305.

(12) 22 Ind Cas. 496; (114) M.W.N. 11; 16 Bom. L.R. 1; 12 A.L.T. 75; 15 M.L.T. 84; 19 C.L.J. 107; 18 C.W.N. 374; 15 Cr. L.J. 144: 7 Bur. L.T. 37 (P.C.); 40 I.A. 241,

Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of this text must be verified from the original source. 9/27/2020 Constituent Assembly OF India De 89

CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUME VII

Wednesday, the 1st December 1948

The Constituent Assembly of India met in the Constitution Hall, New Delhi at Half Past Nine of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee), in the Chair.

DRAFT CONSTITUTION-(contd.)

Article12-(contd.)

Shri H. V. Kamath (C. P. & Berar: General): Sir, before we proceed with the business of the day, may I request you to be so good as to see that my learned friend, Shri Alladi Krishnaswami Ayyar, who is frequently called upon to give us the benefit of his sage counsel is allotted a seat somewhere in the centre of the hall, neither too much to the right nor to the left so that he may be heard and appreciated in the House?

Mr. Vice-President (Dr. H. C. Mookherjee): We shall try to meet the wishes of the House.

We finished our discussion on Article 12 and Dr. Ambedkar gave his reply. I am sorry I cannot accommodate those Members who want to reopen it. I shall now put the different amendments to the vote one after the other.

Mr. Vice-President: The question is:

"That in clause (1) of article 12, after the word `title' the words `not being a military or academic distinction' be inserted."

The motion was adopted.

Mr. Vice-President: The question is:

"That in clause (1) of article 12, after the words `be conferred' the words `or recognised' be inserted".

The motion was negatived.

Mr. Vice-President: The question is:

"That in clause (1) of article 12, after the word State' the words `and the State shall in no way recognize any title conferred by the British Government on any citizen of India prior to August 15, 1947' be inserted."

The motion was negatived.

Mr. Vice-President: The question is:

"That in clause (1) of article 12, after the word conferred 'the words `or recognised' be inserted."

The motion was negatived.

Mr. Vice-President: The question is:

"That for clause (2) of article 12, the following clause be substituted. '(2) No title conferred by any foreign State on any citizen of India shall be recognised by any State'."

The motion was negatived.

Mr. Vice-President: The question is:

"That article 12, as amended, stand part of the Constitution."

The motion was adopted.

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Article 12, as amended, was added to the Constitution.

Article 13

Mr. Vice-President: We shall now take up article 13 for consideration.

Shri Damodar Swarup Seth (United Provinces: General): Sir, I beg to move:

"That for article 13, the following be substituted:

'13. Subject to public order or morality the citizens are guaranteed--

(a) freedom of speech and expression;

(b) freedom of the press;

(c) freedom to form association or unions;

(d) freedom to assemble peaceably and without arms;

(e) secrecy of postal, telegraphic and telephonic communications.

13-A. All citizens of the Republic shall enjoy freedom of movement throughout the whole of the Republic. Every citizen shall have the right to sojourn and settle in anyplace he pleases. Restrictions may, however, be imposed by or under a Federal Law for the protection of aboriginal tribes and backward classes and the preservation of public safety and peace.' "

Sir, article 13, as at present worded, appears to have been clumsily drafted. It makes one significant omission and that is about the freedom of the press. I think, Sir, it will be argued that the freedom is implicit in clause (a), that is, in the freedom of speech and expression. But, Sir, I submit that the present is the age of the Press and the Press is getting more and more powerful today. It seems desirable and proper, therefore, that the freedom of the Press should be mentioned separately and explicitly.

Now, Sir, this article 13 guarantees freedom of speech and expression, freedom to assemble peaceably and without arms, to form association and unions, to move freely throughout the territory of India, to sojourn and settle in any territory, to acquire and hold and dispose of property, and to practise any profession or trade or business. While the article guarantees all these freedoms, the guarantee is not to affect the operation of any existing law or prevent the State from making any law in the general interests of the public. Indeed, Sir, the guarantee of freedom of speech and expression which has been given in this article, is actually not to affect the operation of any existing law or prevent the State from making any law relating to libel, slander, defamation, sedition and other matters which offend the decency or morality of the State or undermine the authority or foundation of the State. It is therefore clear. Sir, that the rights guaranteed in article 13 are cancelled by that very section and placed at the mercy or the high-handedness of the legislature. These guarantees are also cancelled, Sir, when it is stated that, to safeguard against the offences relating to decency and morality and the undermining of the authority or foundation of the State, the existing law shall operate. This is provided for in very wide terms. So, while certain kinds of freedom have been allowed on the one hand, on the other hand, they have been taken away by the same article as I have just mentioned. To safeguard against "undermining the authority or foundation of the State" is a tall order and makes the fundamental right with regard to freedom of speech and expression virtually ineffectual. It is therefore clear that under the Draft Constitution we will not have any greater freedom of the press than we enjoyed under the cursed foreign regime and citizens will have no means of getting a sedition law invalidated, however flagrantly such a law may violate their civil rights.

Then, Sir, the expression `in the interests of general public' is also very wide and will enable the legislative and the executive authority to act in their own way. Very rightly, Sir, Shri S. K. Vaze of the Servants of India Society while criticising this article has pointed out that if the mala fides of Government are not proved--and they certainly cannot be proved- -then the Supreme Court will have no alternative but to uphold the restrictive legislation. The Draft Constitution further empowers the President, Sir, to issue proclamations of emergency whenever he thinks that the security of India is in danger or is threatened by an apprehension of war or domestic violence. The President under such circumstances has the power to suspend civil liberty.

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Now, Sir, to suspend civil liberties is tantamount to a declaration of martial law. Even in the United States, civil liberties are never suspended. What is suspended there, in cases of invasion or rebellion, is only the habcas corpus writ. Though individual freedom is secured in this article, it is at the same time restricted by the will of the legislature and the executive which has powers to issue ordinances between the sessions of the legislature almost freely, unrestricted by any constitutional provision. Fundamental rights, therefore, ought to be placed absolutely outs de the jurisdiction, not only of the legislature but also of the executive. The Honourable Dr. Ambedkar, Sir, while justifying the limitations on civil liberties, has maintained that what the Drafting Committee has done is that, instead of formulating civil liberties in absolute terms and depending on the aid of the Supreme Court to invent the doctrine or theory of police powers, they have permitted the State to limit civil liberties directly. Now, if we carefully study the Law of Police Powers in the United States, it will be clearly seen that the limitations embodied in the Draft Constitution are far wider than those provided in the United States. Under the Draft Constitution the Law of Sedition, the Official Secrets Act and many other laws of a repressive character will remain intact just as they are. If full civil liberties subject to Police Powers, are to be allowed to the people of this country, all laws of a repressive character including the Law of Sedition will have either to go or to be altered radically and part of the Official Secrets Act will also have to go. I therefore submit that this article should be radically altered and substituted by the addenda I have suggested. I hope, Sir, the House will seriously consider this proposal of mine. If whatever fundamental rights we get from this Draft Constitution are tempered here and there and if full civil liberties are not allowed to the people, then I submit, Sir, that the boon of fundamental rights is still beyond our reach and the making of this Constitution will prove to be of little value to this country.

Mr. Vice-President: Do I understand that amendment No.441 will not be moved? I shall not allow any discuss on but I shall put it to vote. Do I understand that the mover does not intend to move this amendment.?

(Amendment 441 was not moved.)

(Amendments No. 413 and No. 414 were not moved.)

Mr. Vice-President: Amendments Nos. 415 and 418. They are the same. I will allow amendment No. 415 to be moved. It stands in the names of Pandit Lakshmi Kanta Maitra and others, including Mr. Kamath.

Shri Mihir Lal Chattopadhyay (West Bengal: General): Sir, I beg to move:

"That in clause (1) of article 13, the words `Subject to the other provisions of this article' be deleted."

Various provisos have been mentioned in this Section in clauses (2), (3), (4), (5) and (6). Therefore the words "subject to the other provisions of this article" are unnecessary.

Mr. Naziruddin Ahmad (West Bengal: Muslim): I submit that this is a drafting amendment.

Mr. Vice-President: Proceed, Mr. Chattopadhyay.

Shri Mihir Lal Chattopadhyay: Moreover, this section deals with Fundamental Rights and there should be positive enumeration of these rights and privileges at the beginning and it should not begin with provisos. Each proviso should in the natural course come afterwards. I therefore move this amendment.

(Amendment No. 419 was not moved.)

Mr. Vice-President: Then we come to amendment No. 416 standing in the name of Prof. K. T. Shah.

Prof. K. T. Shah (Bihar: General): Mr. Vice-President, Sir, I beg to move:

"That in clause (1) of article 13, for the words, "the other provisions of this article" the words `this constitution and the laws there under or in accord there with at any time in force' be substituted, and after the words all citizens shall have' the words `and are guaranteed' be added."

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The article, as amended, would read:

"Subject to this Constitution and the laws there under or in accord there with at any time in force, all citizens shall have and are guaranteed the right" etc.

Sir, my purpose in bringing forward this amendment is to point out that, if all the freedoms enumerated in this article are to be in accordance with only the provisions of this article, or are to be guaranteed subject to the provisions of this article only, then they would amount more to a negation of freedom than the promise or assurance of freedom, because in everyone of these clauses the exceptions are much more emphasised than the positive provision. In fact, what is given by one right hand seems to be taken away by three or four or five left hands; and therefore the article is rendered nagatory in any opinion.

I am sure that was not the intention or meaning of the draftsmen who put in the other articles also. I suggest therefore that instead of making it subject to the provisions of this article, we should make it subject to the provisions of this Constitution. That is to say, in this Constitution this article will remain. Therefore if you want to insist upon these exceptions, the exceptions will also remain. But the spirit of the Constitution, the ideal under which this Constitution is based, will also come in, which I humbly submit, would not be the case, if you emphasise only this article. If you say merely subject to the provisions of this article, then you very clearly emphasise and make it necessary to read only this article by itself, which is more restrictive than necessary. I am aware it might be said that, under the rules of interpretation, the whole Constitution will have to be read together and not only one clause of it. If so, I ask where is the harm in then saying, as you have said in many other articles, "subject to the provisions of this Constitution"? and "subject also to the laws in force at any time and the laws there under"? Those laws which have not been abrogated or abolished under this article or any other article will be enforced. Those new laws which you make in accordance with this article will also be enforced, so that all the safeguards that you wish to introduce, and which you may wish to maintain against any abuse of the freedoms guaranteed or granted by this Constitution, will be available.

Why then should we draw attention and emphasize only this article, which is more full. I repeat, of exceptions and delimitations of freedom than of freedom itself? The freedoms are curtly enumerated in 5.6 or 7 items in one sub-clause of the article. The exceptions are all separately mentioned in separate sub-clauses. And their scope is so widened that I do not know what cannot be included as exception to these freedoms rather than the rule. In fact, the freedoms guaranteed or assured by this article become so elusive that are would find it necessary to have a microscope to discover where these freedoms are, whenever it suits the State or the authorities running it to deny them. I would, therefore, repeat that you should bring in the provisions of the whole Constitution, including its preamble, and including all other articles and chapters where the spirit of the Constitution should be more easily and fully gathered than merely in this article, which, in my judgment, runs counter to the spirit of the Constitution. Somebody described yesterday the Constitution as a paradise for lawyers. All written Constitutions, and even un-written ones, do admit themselves to legal chicanery of a very interesting type. Constitutions of Federal States are generally more so. But whether or not it was deliberately intended to be so, this particular Draft seems to be a very fertile ground for legal ingenuity to exercise. And that will, of course, be at the expense of the Community. Whether the State wins or loses, the public, the country in any case, will lose to one small section, that of the legal practitioners.

I also suggest that it would not be enough to enumerate these freedoms, and say the citizen shall have them. I would like to add the words also that by this Constitution these freedoms are guaranteed. That is to say, any exception which is made, unless justified by the spirit of the Constitution, the Constitution as a whole and every part of it included, would be a violation of the freedoms guaranteed hereby.

For instance, sub-clause (5) uses such a wide expression as to make anything come within the scope of the exception, and suffice to deny the practical operation of the freedoms that by one big clause you are supposed to guarantee. I, therefore, think that it is necessary to make the substitution I have suggested in this article, that the words "this Constitution and the laws there under or in accord there with at any time in force" may be substituted for the words "the other provisions of this article" and after the words "all

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citizens shall have" the words "and are guaranteed" be added. I hope the amendment will prove acceptable to the House.

Mr. Vice-President: Amendment Nos. 417 and 418 are of similar import. I can allow No. 417 to be moved. This amendment stands in the name of Mr. Lari.

An Honourable Member: He is not in the House.

Mr. Vice-President: Then amendment No. 418 which stands in the name of Shri Mukut Behari Lal Bhargava.

The amendment was not moved.

Mr. Vice-President: Amendment Nos. 420, 421, and 424 are of similar import and I suggest that the House should consider them together. I suggest that amendment No. 421 be moved. This stands in the name of Prof. K. T. Shah.

Prof. K. T. Shah: Mr. Vice-President, Sir, I beg to move:

"That in sub-clause (a) of clause (1) of article 13,after the word `expression'; the words `of thought and worship; of press and publication;' be added."

so that the article as amended would read:

"Subject to the other provisions of this article, all citizens shall have the right--

(a) to freedom of speech and expression; of thought and worship; of press and publication;"

In submitting this amendment, I must confess to a feeling of amazement at the omission whether it is by oversight or deliberate. I do not know of these very essential and important items in what are known as Civil Liberties. The clause contents itself merely with the freedom of speech and of expression. I do not know what type of freedom of speech the draftsman had in mind when he adds to it the freedom of expression separately. I thought that speech and expression would run more or less parallel together. Perhaps "expression" may be a wider term, including also expression by pictorial or other similar artistic devices which do not consist merely in words or in speech.

Allowing that is the interpretation, or that is the justification for adding this word "expression", I still do not see why freedom of worship should have been excluded. I am not particularly a very worshipful man myself. Certainly I do not indulge in any overt acts of worship or adoration. But I think a vast majority of people feel the need and indulge in acts of worship, which may often be curtailed or be refused or in other words be denied unless the Constitution makes it expressly clear that those also will be included. All battles of religion have been fought--and it must be very well known to the draftsman that they are going on even now--in connection with the right of free worship. The United States itself owes its very origin to the denial of freedom of worship in their original home to the Fathers of the present Union some 300 odd years ago. That is why in most modern constitutions, the freedom of worship finds a very clear mention. I certainly feel therefore that this omission is very surprising, to say the least. Unless the Drafting Committee is in a position to explain rationally, is in a position to explain effectively why this is omitted, I for one would feel that our Constitution is lacking and will remain lacking in a most essential item of Civil Liberties if this item is omitted.

The same or even a more forceful logic applies to the other "freedom of the press, and freedom of publication." The freedom of the press, as is very well known, is one of the items round which the greatest, the bitterest of constitutional struggles have been waged in all constitutions and in all countries where liberal constitutions prevail. They have been attained at considerable sacrifice and suffering. They have now been achieved and enshrined in those countries. Where there is no written constitution, they are in the well established conventions or judicial decisions. In those which have written constitutions, they have been expressly included as the freedom of the press.

Speaking from memory, I am open to correction, although I think it would not be necessary, even the United Nations Charter gives good prominence and special mention of freedom of the press. Why our draftsmen have omitted that, I find beyond me even to

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imagine. I dare say they must have very good reasons why the freedom of the press has not found specific mention in their draft. But, unless and until they give the reasons and explain why it has been omitted, I feel that an amendment of the kind I am proposing is very necessary.

The Press may be liable to abuse; I feel there may have been instances where the press has gone, at least in the mind of the established authority, beyond its legitimate limits. But any curtailment of the liberty of the press is, as one of the present Ministers, who was then a former non-official member, called, a "black Act," in the last but one session of the legislature when there was an attempt to curtail the liberty of the press under certain circumstances. This endeared him at least so much to me that in spite of many differences with him. I felt he had done yeoman service, though singly opposing even at the third reading of the Bill.

With the presence of such men in this House, I am amazed that in this Constitution a very glaring omission has taken place in the draft by leaving out the freedom of the press. I cannot imagine, why these draftsmen, so experienced and so seasoned, should have felt it desirable to leave out the freedom of the press, and leave it to the charity of the administrators of the Constitution when occasion arose to include it by convention or implication, and not by express provision. Freedom of the press, I repeat, is apt to be misunderstood, or, at any rate, apt to be regarded as licence which you may want to curtail. There are many ways by which laws can be passed or laws can be administered whereby you can regard the liberty as verging upon licence and as such to be curtailed. To omit it altogether, I repeat, and Ire peat with all the earnestness that I can command, would be a great blemish which you may maintain by the force of the majority, but which you will never succeed in telling the world is a progressive liberal constitution, if you insist on my amendment being rejected.

Mr. Vice-President : Amendment No. 420. Is it pressed?

(Mr. Naziruddin Ahmad rose in his seat to speak.)

You need not come. I only want to know whether you intend to press this, in which case, I shall put it to the vote.

Mr. Naziruddin Ahmad : Sir, I wish to speak on this.

Mr. Vice-President: You can speak in the course of the general discussion, provided, of course, you get a chance.

You have given me the power to rule out; take yours eat, please; it will be put to the vote.

Mr. Naziruddin Ahmad: Without any debate, Sir?

Mr. Vice-President: Amendment No. 422.

(Shri Lakshminarayan Sahu came to the rostrum.)

You are not allowed to speak. Do you want to press it?

Shri Lakshminarayan Sahu (Orissa: General): Yes, Sir.

(Amendment No. 424 was not moved.)

Mr. Vice-President: Amendment No. 423 is disallowed.

(Amendment No. 425 was not moved.)

Mr. Vice-President: Amendment No. 426.

Giani Gurmukh Singh Musafir (East Punjab: Sikh): *[I do not wish to move my amendment, as it is covered by clause (1) of the Explanation to article 19.]*

Mr. Vice-President: I cannot follow what he is saying.

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An Honourable Member: He is not moving the amendment.

(Amendment No. 427 was not moved.)

Mr. Vice-President: Amendments numbers 428, 429, 430 and 432 are of similar import and are therefore to be considered together. Amendment No. 428 may be moved.

Mr. Naziruddin Ahmad : Sir, am I to move all the amendments and speak, on all of them?

Mr. Vice-President: On amendment No. 428 only.

Mr. Naziruddin Ahmad: Will all the others be put to the vote?

Mr. Vice-President: Of course.

Mr. Naziruddin Ahmad: Sir, I beg to move:

"That at the end of sub-clause (c) of clause (1) of article 13, the words `for any lawful purpose' be inserted."

The Honourable Shri K. Santhanam (Madras: General): Sir, on a point of order, sub-clause (4) covers exactly this position in greater detail.

Mr. Naziruddin Ahmad: I had carefully thought about this objection, Sir, and I was just going to mention the difficulty of that view. That is the only reason why I have come here to move the amendment.

Mr. Vice-President: Proceed.

Mr. Naziruddin Ahmad: Sir, all that I wish to convey by means of this amendment is that the people's freedom of speech, freedom of forming associations or unions, and moving freely throughout the territory and residing in any place, should be subject to the condition that they do it for a lawful purpose.

So far as Mr. Santhanam is concerned, he does not quarrel with the principle. His contention is that these conditions are sufficiently expressed in the clauses (2), (3), (4), (5) and (6). I shall draw the attention of the House and particularly of Mr. Santhanam to sub-clause (b) of clause (1) of article 13. It gives the right to assemble 'peaceably and without arms'. The words `peaceably and without arms' should be objectionable from the point of view of Mr. Santhanam because it may be argued that the words are unnecessary and the condition is sufficiently provided for in clause (3). I submit that the amendments which stand in my name are merely an application of this method of draftsmanship to the other sub-clauses. I submit if we have them in the sub-clauses (b), they should also be in (a), (c), (d), (e), (f) and (g). If we introduce the words "for any lawful purpose" there, they will be beyond the scope of any legislature to interfere. But if we are satisfied with clauses (2), (3), (4), (5) and (6), they can be interfered with by the Legislature. So there is this difference that with the inclusion of the words in the sub-clauses as I suggest, they would be part of the Fundamental Right. That is, if any one speaks, he should do so for a lawful purpose; if he forms associations and unions, he should do it in a lawful manner, i.e., he should not join or form into a conspiracy or other forbidden things of the sort. Then if he wants to move throughout the territory of India, I think this should be also limited by the condition that it should be for a lawful purpose. No male person should enter a female compartment in railway carriage or enter into lady's dressing room: and then somebody might say "I shall reside in this Assembly Hall"; there must be limiting conditions. My point is if you insert them in sub-clauses (a), (c), (d), (e), (f) and (g), as you have already inserted specifically in sub-clause (b)--if you insert them in these sub- clauses, then they will be part of the Fundamental Right and clauses (2), (3), (4), (5), and (6) will not give any power to the legislatures to abrogate them. This is the reason which induced me to move this amendment. Sir, this point of view should be carefully considered.

(Amendments No. 431 and Nos. 433 to 437 were not moved.)

Mr. Vice-President: No. 438 and first part of 443. Mr. Kamath.

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Shri H. V. Kamath : Mr. Vice-President, I move:

"That after sub-clause (g) of clause (1) of article 13the following new sub-clause be added:

I move this amendment, as amended by my own amendment No. 79 in List No. II, which runs thus:

"That for amendment No. 438 of the List of Amendments, the following be substituted:

"That after sub-clause (g) of clause (1) of article 13,the following new sub-clause be added:--

(h) to keep and bear arms;

and the following new clause be added after clause (6):

(7) Nothing in sub-clause (h) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing, in the interests of public order, peace and tranquility, restrictions on the exercise of the right conferred by the said sub-clause.' "

Sir, I feel a little pardonable pride in moving this amendment before the House today. Considering as I do that it puts an end or brings to an end one phase of our ignominious past, the past of more than a hundred years, and in view of the importance of this matter involved in the amendment, may I appeal to you, Sir, to give me a little latitude in the matter of time, because I want to put the case in its entirety before the House? And may I also make a personal request to Dr. Ambedkar or whoever it may be that will reply on behalf of the Drafting Committee, to pay close attention to what is going out in the House? Yesterday we found at the fag end of the day Dr. Ambedkar--perhaps he was a bit fagged out and tired--I felt that he had not followed the debate on titles.

Mr. Vice-President: I will not allow you to make any reference to what happened yesterday.

Shri H. V. Kamath: Before I come to the amendment itself may I say a word as to an important omission which has been made before article 13? I find from the Report of the Fundamental Rights Sub-Committee over which the Honourable Sardar Patel presided, the rights from 13 up to 18 have been titled or designated as the Rights of Freedom. This sub-title `Rights of Freedom' has been omitted from the draft as presented to the Assembly now. In this report which I am reading--Report of the Committee--First Series from December 1946 to July 1947--the sub-title is `Rights of Freedom' just before we come to article 13.

Then, Sir, I come to the amendment itself. It is common knowledge to all of us who have lived and worked in India during the last thirty years or more that this has been a universal demand emanating from all sections of the population, firstly as a protest against the degrading and humiliating Arms Act passed by the British Government in the last century, and secondly, Sir, as a guarantee of the right of self-defence. This demand has been embodied in various Congress Resolutions during the last two decades. The most important Resolution and most historic, the most momentous was the Resolution on Fundamental Rights passed at Karachi. I read, Sir, from that Resolution the relevant extracts:

"This Congress is of opinion that to enable the masses to appreciate what Swaraj as conceived by the Congress will mean to them, it is desirable to state the position of the Congress in a manner easily understood by them. In order to end the exploitation of the masses, political freedom must include real economic freedom of the starving millions. The Congress, therefore, declares that any constitution.

Mark these words--any constitution.

* * * which may be agreed to on its behalf, should provide or enable the Swaraj Government to provide for the following...... "

and various fundamental rights are enumerated, among them being this one--

"Every citizen has the right to keep and bear arms in accordance with Regulations and reservations made in that behalf."

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I find, Sir, from this list of Fundamental Rights, adopted at the Karachi session of the Congress, almost all of them have been incorporated in this Draft Constitution, except this one, and this is a very serious omission.

I might also make an observation about this amendment, that I am in a very good company, because amendment No. 443which is similar to my amendment has been tabled by the General Secretaries of the Congress-Shri Shankar Rao Deo and Acharya Jugal Kishore.

Mr. Vice-President: Do you suggest that it is the work of the Congress only? I thought it is the co-operative work of all the parties.

Shri H. V. Kamath: But, Sir, all will agree that the dominant party in this House is the Congress Party, and if this party is not going to stand by its past professions, if it is going to prove false to its past, and not implement its resolution of the past, what has that party come to? If the fundamental idea of this resolution passed at Karachi is to be given the go-by, I ask this House, shall we not fall in the estimation of the people of the country? Sir, this demand has not been a mere demand. I very well remember that in Nagpur in 1923 or 1924 there was a Satyagraha movement against the Arms Act and this Satyagraha movement attracted Satyagrahis from all over-India. That went on for six months, and the Congress put its seal of approval on this Satyagraha movement against the Arms Act. Today we may say that conditions have changed and we do not want this sort of thing to be incorporated in our fundamental rights. But, Sir, I will come to that argument a little later.

I can appreciate the force of the argument that this absolute right should not be conceded today. Perhaps there is a lurking fear in the minds of those in power that the right may be abused. For that reason I have given this proviso in conformity with and in line with the other provisos which have been embodied in this article. I am personally not very much in favour of these elaborate provisos. Here again, I would like to draw the attention of the Honourable Dr. Ambedkar to pages 21 and 29 of this Report of the Committees' First Series. On page 21, we have the Report of the Fundamental Rights Sub-Committee presided over by the Honourable Sardar Patel, and later on the same report was discussed in the Assembly and modifications were made in that, and the elaborate provisos which appeared in the original report of the Fundamental Rights Committee do not find a place in the resolution on the report which was adopted by the Constituent Assembly. This perhaps needs an explanation from Dr. Ambedkar.

Reverting to the subject matter of the amendment. I have already said that I do not want to make this right absolute. That is why I have tabled this proviso, imposing restrictions in the interests of public order, peace and tranquility. It may be said that saboteurs and other elements are abroad in the country and these may abuse this privilege and take advantage of this privilege conferred upon the ordinary citizen. But may I tell the House that saboteurs and other evil elements, villains and criminals have managed and will always manage to get arms, Arms Act or no Arms Act; and it is the law- abiding citizen who has always suffered in the bargain, and it is he who has to be protected against these elements. The history of the last twelve months has proved this to us most unmistakably, that those who suffer in these criminal riots and disturbances are not the violent elements or the saboteurs, but the law-abiding citizens, and these have to be protected.

Again, the argument may be put forward that we should incorporate only such rights about which there is fear that they might be denied to the citizen. But if we examine this argument a little closely, and also this article, in the light of this argument, we will find that rights like free movement throughout India; freedom to reside and settle in any part of India, and such other rights about which there is no doubt or fear that they will be denied, have been incorporated in this article. But this one right, to keep and bear arms has not found a place in this article. If this very diluted proposal of mine, if even this very abridged freedom to bear arms is not acceptable to the House, I am afraid it will create a most unfortunate impression on our countrymen that the Government does not trust the people, that the Government has no faith in the people, that the Government is afraid of the people. It is all right. Sir, for Ministers of Government to say, "We are here to protect you". But, with security guards outside their bungalows, it is very well for them to put forward this plea. But the ordinary citizen has no armed guard about him, no guards standing outside his house. If the Government wishes to convey the impression to the

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people that the Government has no faith in them, that it is afraid of them, if that is the attitude of the Government, then it is welcome to say so. It will prove to the people that you are not a popular government, that you are a government which has no faith in the people. If you are a popular government, this is the least that you can do today to put an end to this ignominy of the past one hundred years.

It may be argued also that the Congress and Mahatma Gandhi and our leaders have taught us to defend ourselves by Ahimsa, and not by Himsa, by non-violence and not by violence. But, Sir, may I, in all humility remind the House that Mahatma Gandhi used to say, "Resist, defend, non-violently, if possible, but violently, if necessary. What I hate is cowardice." And this doctrine, Sir, has been propagated recently by the Honourable Sardar Patel himself who has been going about the country asking the people never to run away, never to be cowards, but to resist violently if necessary, not to run away from the assassin, from the hooligan, from the criminal. Defend yourself by all means and at all costs. I find my honourable Friend Mr. Shankar Rao Deo laughing in his seat. He is welcome to smile or laugh but I may tell him that he laughs best who laughs last. He has tabled an amendment here. I do not know whether he is serious about it. In the end I will only say that if we of the Congress party who are in a majority desire to prove true to our past, if we have the desire in us to implement all the resolutions that we have adopted in the past, if we do not want to live with the lie in our soul, I appeal to the House to accept this amendment and put an end to one of the most disgraceful phases of our ignominious past of over a hundred years.

Mr. Vice-President: May I ask whether the first part of amendment No. 443 is going to be pressed?

Shri Shankarrao Deo (Bombay: General): No, Sir.

Maulana Hasrat Mohani (United Provinces: Muslim): Sir, I want to give my wholehearted support to the motion of my honourable Friend who has just moved his amendment......

Mr. Vice-President: May I suggest that instead of starting the general discussion we postpone it till all the amendments have been moved. We shall try our best to give the Maulana Sahib an opportunity to speak. Will he kindly resume his seat? (Laughter)

Order, order. The Maulana Sahib is perfectly within his rights if he wants to speak. I am sorry, Maulana Sahib, to ask you to go back to your seat. It is regrettable to greet an old Member of this House in this fashion.

Mr. Mohammed Ismail Sahib (Madras: Muslim): Sir, I move:

"That after sub-clause (g) of clause (1) of article 13, the following new sub-clause be added:--

(h) to follow the personal law of the group or community to which he belongs or professes to belong.

(i) to personal liberty and to be tried by a competent court of law in case such liberty is curtailed'."

Shri C. Subramaniam (Madras: General): On a point of order, Sir, the House has already passed an article in the Part on directive principles that there should be a uniform civil code. Here the Honourable Member wants to move that everybody should have the liberty to follow the personal law of the group or community to which he belongs or professes to belong. This is going contrary to the article which has already been passed. We have already decided that as far as possible personal law should come under a uniform civil code and this amendment is against the principle of that article.

As regards the other part of the amendment, it should be discussed when we take up article 15.

Mr. Vice-President: It is no point of order. Mr. Mohammed Ismail Sahib may continue his speech.

Mr. Mohammed Ismail Sahib : It is really true that I made a similar proposal when the directive principles were under discussion. I made it clear that this question of personal law ought really to come under the chapter Fundamental Rights and I also said that I shall, when the opportunity came, move this amendment at the proper time.

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Person law is part of the religion of a community or section of people which professes this law. Anything which interferes with personal law will be taken by that community and also by the general public, who will judge this question with some commonsense, as a matter of interference with religion. Mr. Munshi while speaking on the subject previously said that this had nothing to do with religion and he asked what this had to do with religion. He as an illustrious and eminent lawyer ought to know that this question of personal law is entirely based upon religion. It is nothing if it is not religious. But if he says that a religion should not deal with such things, then that is another matter. It is a question of difference of opinion as to what a religion should do or should not. People differ and people holding different views on this matter must tolerate the other view. There are religions which omit altogether to deal with the question of personal law and there are other religions like Hinduism and Islam which deal with personal law. Therefore I say that people ought to be given liberty of following their personal law.

It was also stated by Dr. Ambedkar on the floor of this House that the question of following personal law was not immutable. There were, as a matter of fact, sections of Muslims who do not follow the personal law prescribed by Islam, but that is a different matter. It is not reasonable to say that simply because a section of people do not want to follow a certain law of a certain religion or a certain part of that religion that other people also should not follow the law and that sections of people should be compelled not to follow that part of the religion which certain other sections of the same community are not following.

That is not really reasonable, Sir, and it is really immutable to the people who follow this law and this religion, because people, as they understand it, have not got the right to change their religion as they please. There may be people who contravene their own religion, but that is a different matter and we cannot compel others also to contravene their religion. Here the question of personal law affects only the people who follow this law. There is no compulsion exercised thereby on the general community or the general public. This House will remember that on another question, which is really a religious question--I mean the question of cow-slaughter--an obligation has been placed upon other communities than the one which considers the prohibition of cow-slaughter as a religious matter. But then, Sir, respecting the views and feelings of our friends, the minority communities who have got the right and privilege of slaughtering and eating the flesh of cows have agreed to the proposal put before the House, though that is going beyond affecting one particular community alone. Here, Sir, observance of personal law is confined only to the particular communities which are following these personal laws. There is no question of compelling any other community at all.

Pandit Thakur Dass Bhargava (East Punjab: General): Is the honourable Member aware of the restrictions of cow-slaughter in Pakistan?

Mr. Vice-President: Will the honourable Member kindly address the Chair.?

Mr. Mohammed Ismail Sahib: I cannot hear him properly. I do not know what my friend is trying to say.

Mr. Vice-President: Do not pay any attention to that. Will the Honourable Member continue?

Pandit Thakur Dass Bhargava: I was enquiring of the honourable Gentleman if he knows that there is a restriction on cow-slaughter in Pakistan, in Afghanistan and in many Muhammadan countries. In India also the Muhammadan kings placed such a restriction.

Mr. Mohammed Ismail Sahib: They might have or not have made a provision of that sort. My point is that this is a question which affects a particular community, but because that community wanted to prevent that slaughter the other community, which need not prohibit that slaughter has agreed to that proposal. But with regard to personal law, it concerns a particular community which is following a particular set of personal laws and there is no question of compelling other people to follow that law and it is the question of the freedom of the minority or the majority people to follow their own personal law. As a matter of fact, I know there are an innumerable number of Hindus who think that interference with the personal law is interference with their religion. I know, Sir, that they have submitted a monster petition to the authorities or to the people who can have any say in the matter. Therefore it is not only Muslims but also Hindus who think

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that this is a religious question and that it should not be interfered with. The personal law of one community does not affect the other communities. Therefore, Sir, what I urge is that the freedom of following the personal law ought to be given to each community and it will not interfere with the rights of any other community.

Again, Mr. Munshi stated that Muslim countries like Egypt or Turkey have not any provision of this sort. Sir, I want to remind him that Turkey is under a treaty obligation. Under that treaty it is guaranteed that the non-Muslim minorities are entitled to have questions of family law and personal status regulated in accordance with their usage. That is the obligation under which Turkey has been placed and that is obtaining in Turkey now.

Then again with regard to Egypt, no such question of personal law arose in that country. But what is to be noted is that whatever the minorities in that country wanted has been granted to them: in fact more than what they wanted has been granted. And if personal law had also been a matter in which they wanted certain privileges, that would also have been granted.

Then there are other countries. Yugoslavia has agreed to give this privilege to the Muslims in following their family law and personal law.

Therefore, what I am asking for is not a matter which is peculiar to myself or to the minority community in this country. It is a thing, Sir, well understood in other parts of the world also.

Sir, I also move:

"That after clause (6) of article 13, the following new clauses be added:

` '(7) Nothing in the clauses (2) to (6) of this article shall affect the right guaranteed under sub-clause (h) of clause (1) of this article'." This is consequential. The personal law is presumed to be guaranteed by the previous amendment, that is the new sub-clause (h) to clause (1) of article 13, and this clause(7) seeks to preclude any interference with the question of personal law as a result of clauses (2) to (6). Then coming to the new clause (i), it reads thus:

"to personal liberty and to be tried by a competent court of law in case such liberty is curtailed."

This has nothing to do with the minority or the majority. It concerns itself with the right of every citizen. Personal liberty is the core of the whole freedom. It is the basis upon which the freedom of the land must be built. But here, Sir, in this bulky Constitution this question of personal liberty is left almost as an orphan. Only one mention is made of personal liberty, i.e., in article 15 and it is left there, it is left to be taken care of by `procedure established by law'. I do not here enter into the controversy whether it should be "by due process of law', or "by procedure established by law". But what I want to say is that only a mention has been made in the Constitution with regard to personal liberty. But personal liberty is the most fundamental of the fundamental rights and it ought not to be dealt with in such a cursory manner, as it has been done in the Constitution. I request your permission to read a quotation to illustrate how the Constitutions of other countries have dealt with this all-important question of personal liberty.

Much smaller countries than India have taken a more serious and, if I may say so, a sacred view of this question. The Polish Constitution says, among other things: 'If in any case the judicial order cannot be produced immediately'--(it is only on a judicial order that a man's liberty can be curtailed)--`it must be transmitted within 48 hours of the arrest stating the reasons for the arrest. Persons who have been arrested and to whom the reasons for the arrest have not been communicated within 48 hours, in writing over the signature of judicial authorities, shall be immediately restored to liberty.'

'The laws prescribe the means of compulsion which maybe employed by the administrative authority to secure the carrying out of their order.' Then again, the same Constitution says; "No law may deprive a citizen, who is the victim of injustice or wrong, of judicial means of redress."

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Sir, another State, viz., Yugoslavia, in regard to this matter goes even further. It has provided: "A man after he is informed of the reasons for the arrest or detention has got the right...... "

Shri C. Subramaniam: Questions of personal liberty come only under article 15. They are irrelevant under this article. It is article 15 that deals with personal liberty thus: "No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India." Therefore what is the use of discussing the question of personal liberty under article 13?

Mr. Mohammed Ismail Sahib: I have already referred to this point. Of course it is mentioned there. But to say that because it is mentioned there it is necessary that the matter should be discussed only there is not correct. I am of the view that this subject is more appropriately brought under article 13 which speaks of the various freedoms of the citizen. Of these freedoms, this is the most important. Therefore there is nothing wrong in my saying that this all-important question must be brought under article 13. With that view I have tabled this amendment and I am speaking on this amendment.

Sir, my amendment, which I have moved with your permission, says that the citizen shall be guaranteed his personal liberty. As I was saying, the Constitution of Yugoslavia has provided: "No person may be placed under arrest for any crime or offence whatever save by order of a competent authority given in writing stating the charge. This order must be communicated to the person arrested at the time of arrest or within 24 hours of the arrest. An appeal against the order for arrest may be lodged in the Competent Court within three days. If no appeal has been lodged.--(this is important)--`within this period, the police authorities must as a matter of course communicate the order to the competent court within 24 hours following. The court shall be bound to confirm or annul the arrest within 2 days of the communication of the order and its decision shall be given effect forthwith. Public officials who infringe this provision shall be punished for illegal deprivation of liberty.' " Sir, ours is a bulky Constitution. Our friends congratulated themselves in having produced the bulkiest Constitution in the world. And this Constitution from which I read out an extract just now contains only 12 articles. It is a much smaller Constitution than ours and yet in the matter of personal liberty it has made such an elaborate provision as that I mentioned. This bulky Constitution of ours does not find more than a few words where this all important question of personal liberty is concerned. Now, Sir, there are various Public Safety Acts enacted and enforced in the various provinces of the country. Here, personal liberty as it stands is almost a mockery of personal liberty. A man is being arrested at the will and pleasure of the executive. He is put in prison and he does not even know for what he has been imprisoned or for what charge he has been detained. Even where the law puts the obligation on the Government to reveal to him the reasons for which he has been detained, the executive takes its own time to do so. There are cases in which the persons concerned were not informed of the charge for weeks and months and when the charges were communicated, many of them were found to be of such a nature that they could not stand before a court of law for a minute. No right has been given to a detenu or a person arrested or detained to test the validity of the order before a court of law. This kind of administration of law was not known even under foreign rule, that is, under British rule. Now, Sir, another contention is being indulged in, and that is that it was different when the Britisher, the foreigner was in the country and that now its is our own rule. True, but that does not mean that we can deal with liberty of the citizens as we please. Bureaucracy is bureaucracy, whether it is under foreign rule or self-rule. Power corrupts people not only under foreign rule, but also under self-government. Therefore, Sir, the citizen must be protected against the vagaries of the executive in a very careful manner as other self- governing countries have done. In almost every country in the world, they have made elaborate provision for protecting the personal liberty of the citizen. Why should India alone be an exception, I do not understand. Therefore, the framers of the Constitution, I hope, will reconsider this question and make suitable provisions for the protection of the liberty of the person.

Sir, in this amendment of mine I have not gone elaborately into the question of personal liberty. I only want the citizen concerned to be given the right of going to, and

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being tried by, a court of law, if his personal liberty is curtailed. That one precious right I want to be given to every citizen of India. May I also, Sir, move the other consequential amendments included in amendment No 502. I have moved only the one on page 53 of the List of Amendments, namely new sub- clause (7). That relates to personal law. May I move now the other portion of the amendment relating to new clauses(8) and (9) on page 54 of the List?

Mr. Vice-President: The Honourable Member may do so, but without making a speech. Mr. Mohammed Ismail Sahib: Sir, I move that the following new clauses be added:

"(8) Nothing in clauses (2) to (6) shall affect the right guaranteed under sub-clause (i) of clause (1) of this article.

(9) No existing law shall operate after the commencement of this Constitution so far as the same affects adversely the right guaranteed under sub-clause (i) of clause (1) of this article and no law shall be passed by the Parliament or any State which may adversely affect the right guaranteed under sub-clause (i) of clause (1) of this article." These are only consequential amendments. Mr. Vice-President: We shall now go on to amendments Nos. 442, 499, the second part of 443, 468 and 501. These are all of similar import. I hold that the only two amendments which can be moved under the new regulations are amendments Nos. 442 and 499. The others will be voted on.

Shri M. Ananthasayanam Ayyangar (Madras: General): All these relate to free choice in the election of representatives. In a sense this is a new subject and may on that account be held over for consideration. Mr. Vice-President: What about 499?

Pandit Thakur Dass Bhargava: That also relates to the same subject. Mr. Vice-President: The whole group will be held over for consideration.

(Amendment No. 444 was not moved.) Mr. Vice-President: Amendment No. 445. Prof. K. T. Shah : Mr. Vice-President, Sir, I beg to move:

"That the following new clause be added after clause(1) of article 13:

'Liberty of the person is guaranteed. No person shall be deprived of his life, nor be arrested or detained in custody, or imprisoned, except according to due process of law, nor shall any person be denied equality before the law or equal protection of the laws within the territory of India.'" Sir, this again is of the same species of amendments which I am trying my best to place before the House, that is to say, the enunciation and incorporation of those elementary principles of modern liberal constitutions in which it is a pity our Constitution seems deliberately to be lacking. The liberty of the person, ever since the consciousness of civil liberties, has come upon the people, has been the main battleground of the autocrats and those fighting against them. In no single instance other than this has the power of autocracy wanted to assert itself against the just claims of the individual to be respected in regard to his personal freedom. The liberty of the person to fight against any arbitrary arrest or detention, without due process of law, has been the basis of English constitutional growth, and also of the French Constitution that was born after the Revolution. The autocrat, the despot, has always wished, whenever he was bankrupt of any other argument, just to shut up those who did not agree with him. It was, therefore, that any time the slightest difference of opinion was expressed, the slightest inconvenience or embarrassment was likely to be caused by any individual, the only course open to those who wanted to exercise autocratic power was to imprison or arrest or detain such a person without charge or trial. It has been in fact in many modern constitutions among the most cardinal articles that the liberty of the person shall be sacred, shall be guaranteed by the Constitution. We are covering new ground and should not omit to incorporate in our Constitution those items which in my opinion ought to be sacrosanct, which would never lose anything by repetition, and which would also add to our moral stature. This Constitution, Sir, was drafted at a time when people were going through extraordinary stress and strain. The tragic happenings of some twelve or fourteen months

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ago were no doubt responsible for influencing those who drafted this Constitution to feel that in the then prevailing goods it was necessary to restrict somehow the freedom of the individual. Therefore it is that the freedom of the individual, the sacredness and sanctity of personal liberty has been soft-pedalled in this Constitution. But now after an interval of fourteen months. I would suggest to this House that these sad memories should be left to the limbo where they deserve to remain. We have had no doubt the unfortunate experiences in which individuals moved by whatever sentiments had tried to exert violence and do injury to their fellows which no civilised State can put up with. It was therefore at the time necessary that such individuals should be apprehended immediately. In emergencies like this, in cases like this, if you wait for performing the due processes of law, if you wait for reference to a magistrate for the issue of a proper warrant, or compliance with all the other formalities of legal procedure to be fulfilled, it is possible that the ends of justice may not be served, it is possible that the maintenance of law and justice may be endangered. But, Sir, I venture to submit to this House that was an extraordinarily abnormal situation which we hope will not recur. Constitution should be framed, not for these abnormal situations, but normal situations and for reasonable people who it must be presumed will be normally law-abiding and not throw themselves entirely to the mercy of these goondas. We are making a constitution, Sir, for such types of people and not for those exceptions, the few who might have temporarily lost the possession of their senses, and who therefore maybe dealt with by extraordinary procedure. We have in this Constitution as we have in many other Constitutions provisions relating to a state of emergency where the normal Constitution is suspended. I am not at all enamoured of these extraordinary exceptions to the working of constitutions; but even I might conceive that in moments of emergency it may be necessary, however regrettable it maybe, to suspend constitutional liberties for the time being. But we must not, when framing a constitution, always assume that this is a state of emergency, and therefore omit to mention such fundamental things as civil liberties. I, therefore, want to mention categorically in this Constitution that the liberty of the person shall be respected, shall be guaranteed by law, and that no person shall be arrested, detained or imprisoned without due process of law. That process it is for you to provide. That process it is for laws made under this Constitution to lay down. And if and in so far as that process is fulfilled, there is no reason to fear that any abuse of such individual liberty will take place. Why then deny it, why then omit the mention of personal liberty that has all along been the mark of civilised democratic constitutions against the autocratic might of unreasoning despots? I am afraid, looking at the fate of most of my amendments, that I may perhaps be hurling myself against a blank wall. But I will not prejudice my hearers and certainly not the draftsmen by assuming that they are unreasoning until they prove that they are guilty of utterly unreasoning opposition.

Mr. Vice-President: Amendments Nos. 446, 447 and 448.These are all of similar import. Amendment No. 448 may be moved. It stands in the joint names of Shrimati Renuka Ray, Dr. Keskar, Shri Satish Chandra and Shri Mohanlal Gautam. (Amendments Nos. 448 and 446 were not moved.)

Mahboob Ali Baig Sahib Bahadur: (Madras: Muslim): Sir, there is another amendment in my name, amendment No. 451: that is for the deletion of clauses (2), (3), (4), (5), and (6). Mr. Vice-President: That comes under another group which will be dealt with hereafter.

Mahboob Ali Baig Sahib Bahadur : Then, alternatively, I shall move amendment No. 447. Sir, I move:

"That clauses (2) to (6) of article 13 be deleted and the following proviso be added to clause (1):

'Provided, however that no citizen in the exercise of the said right, shall endanger the security of the State, promote ill-will between the communities or do anything to disturb peace and tranquillity in the country'." Mr. Vice-President, Sir, to me it looks as if the fundamental rights are listed in clause (1) only to be deprived of under clauses (2) to (6), for in the first place, these fundamental rights are subject to the existing laws. If in the past the laws in force, the law-less laws as I would call them, the repressive laws, laws which were enacted for depriving the citizens of their human rights, if they have deprived the citizens of these rights under the provisions under clauses (2) to (6), they will continue to do so. The laws that I might refer to as such are the Criminal Law Amendment Acts, the Press Acts and

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the several Security Acts that have been enacted in the Provinces. And these clauses (2) to (6) further say that if the existing laws are not rigorous, repressive and wide enough to annihilate these rights, the States as defined in article 7 which covers not only legislatures, executive Governments and also the local bodies, nay, even the local authorities can complete the havoc. I am not indulging in hyperbole or exaggeration. I shall presently show that there is not aniota of sentiment or exaggeration in making this criticism. Fundamental rights are fundamental, permanent, sacred and ought to be guaranteed against coercive powers of a State by excluding the jurisdiction of the executive and the legislature. If the jurisdiction of the executive and the legislature is not excluded, these fundamental rights will be reduced to ordinary rights and cease to be fundamental. That is the import, the significance of fundamental rights. Then, Sir, it is said by Dr. Ambedkar in his introductory speech that fundamental rights are not absolute. Of course, they are not; they are always subject to the interests of the general public and the safety of the State, but the question is when a certain citizen oversteps the limits so as to endanger the safety of the State, who is to judge? According to me, Sir, and according to well recognised canons, it is not the executive or the legislature, but it is the independent judiciary of the State that has to judge whether a certain citizen has overstepped the limits so as to endanger the safety of the State. This distinction was recognised by the framers of the American Constitution in that famous Fourteenth Amendment which clearly laid down that no Congress can make any law to prejudice the freedom of speech, the freedom of association and the freedom of the press. This was in 1791, and if the American citizen transgressed the limits and endangered the State, the judiciary would judge him and not the legislature or the executive.

Even in the case of Britain where there is no written constitution two prominent and effective safeguards were there. They were governed by the law of the land. The law of the land is the law which gave them freedom of thought, freedom of expression and they cannot be proceeded against without due process of law. These were the two safeguards. It is only in the German Constitution that we find restrictions such as those in clauses (2) to (6). It is only in the German Constitution that the fundamental rights were subject to the provisions of the law that may be made by the legislature. That means that the citizens could enjoy only those rights which the legislature would give them, would permit them to enjoy from time to time. That cuts at the very root of fundamental rights and the fundamental rights cease to be fundamental. I dare say, Sir, you know what was the result. Hitler could make his legislature pass any law, put Germans in concentration camps without trial under the provisions of law made by the legislature of Germany. We know what the result was. It was regimentation, that every German should think alike and anybody who differed was sent to concentration camps. Totalitarianism, fascism was the result. (Mr. Vice-President rang the time bell.)

I would request you to give me some time more. I am just developing the point. Mr. Vice-President: Sorry, you cannot have time without my permission. At the proper time, I would request you to finish and take your seat. I hope you will respect my wishes.

Mahboob Ali Baig Sahib Bahadur: Sir, it is these wide considerations that were responsible for the deletion of such clauses by this august Assembly on the 30th April,1947, when Sardar Patel who was the Chairman of the Committee to report on Fundamental Rights, presented these Fundamental Rights. He moved for the deletion of all these provisos and in the discussion on the 30th of April 1947, many prominent men including Pandit Jawaharlal Nehru took part, and all these provisos were deleted. The proceedings can be found on pages 445 to 447. Here, the Prime Minister of India says:

"A fundamental right should be looked upon, not from the point of view of any particular difficulty of the moment, but as something that you want to make permanent in the Constitution." Therefore, Sir, in this august Assembly on the 30th of April 1947, after discussion in which prominent men including Mr. Munshi took part, these provisos were deleted. This departure now to re-introduce these provisions, I submit, with great respect, is a departure which is retrograde and I submit, Sir, that we ought not to allow it. My submission is that the existence of these three provisos is the very negation of the Fundamental Rights. I would request you to consider this question from three or four points of view.

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(Mr. Vice-President again rang the time bell.)

With your permission, Sir,...... Mr. Vice-President: No; there are many more speakers. I must now insist upon your obeying my orders.

Mahboob Ali Baig Sahib Bahadur: A few more minutes, Sir. Mr. Vice-President: I have given you enough time. There are other speakers. I have an obligation towards them also. Now, we shall go to the next two amendments. One is amendment No. 449 and the other is amendment No. 453. Of these two, I think amendment No. 453 is more comprehensive and may be moved. It stands in the joint names of Dr. Pattabhi Sitaramayya and others. There is also an amendment to that amendment. Shri M. Ananthasayanam Ayyangar: Sir, I submit that this amendment No. 453** which stands in our joint names maybe taken as formally moved. I find in the order sheet, in list No. IV a further amendment to this amendment. I accept that amendment, Sir. If you kindly give permission to move that amendment, I shall accept it and it is not necessary to move this amendment. Mr. Vice-President: Mr. Munshi. Shri H. V. Kamath: On a point of order, Sir, unless this amendment is moved, no amendment can be moved to this. This cannot be taken as moved.

Mr. Vice-President: Do you want that he should read over the amendment? I overlooked it. Mr. Munshi.

** That for clause (2) of article 13, the following be substituted:--

"Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law relating to libel, slander, defamation, offences against decency or morality or sedition or other matters which undermine the security of the State." Shri K. M. Munshi : (Bombay: General): Mr. Vice-President, Sir, I beg to move amendment No. 86 in the additional list which runs as follows: That for amendment No. 453 of the list of Amendments, the following be substituted:

"That for clause (2) of article 13, the following be substituted:--

'(2) Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law relating to libel, slander, defamation, or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.' " Sir, before I go to the merits of the amendment, I should like to point out a verbal error which I am sure my honourable Friend Dr. Ambedkar will permit me to correct. After the words, "shall affect the operation of any existing law", I propose that the words "in so far as it relates to" should be added; because, that connects this clause with "to libel, etc." This would make the meaning clear and I am sure my Honourable Friend will accept it.

As regards the merits, the changes sought to be made are two. In the original clause, the word ‘seidtion’ occurs. The original clause reads as follows: "relating to libel, slander, defamation, sedition or any other matter". The amendment seeks to omit the word ‘sedition’. Further the amendment seeks to substitute the words "undermines the authority or foundation of the State" by the words…..

Mr. Naziruddin Ahmad: On appoint of order, Sir, we have not got this amendment at all. In list IV the number does not tally at all. I believe, Sir, it was circulated today and it can not be taken up. We should be given some breathing time in order to understand what is going on.

Mr. Vice-President: I think amendments to amendments can be permitted up to the time when the amendment is moved. I understand that this was placed on the table before each member.

Shri K. M. Munshi: Really speaking, the original amendments numbers 458 and 461 have been brought under a single amendment. There is nothing new in this amendment, Sir.

Mr. Vice-President: Go on, Mr. Munshi.

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Pandit Hirday Nath Kunzru: (United Provinces: General): Sir, may I request Mr. Munshi to read out his amendment, once again? What is it an amendment to?

Shri K. M. Munshi: This is amendment to amendment No. 453, on page 29. In effect, it combines two amendments which are already on the list. This is how it reads:

"That for clause (2) of article 13, the following be substituted:-

'(2) Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law relating to libel, slander, defamation’."

Then comes another change.

or any matter which offends against decency or morality."

Then comes another change.

"of which undermines the security of, or tends to overthrow the State."

That is exactly the wording of amendment No. 461. The object of…

Shri Mahavir Tyagi (United Provinces: General): May I take it that the word ‘morality’ has been taken out?

Shri K. M. Munshi: I read the word ‘morality’.

Mr. Vice-President: You need be under no sort of apprehension so far as that is concerned.

Shri K. M. Munshi: The House will not permit me to do anything of the sort. Sir, the importance of this amendment is that it seeks to delete the word ‘sedition’ and uses a much better phraseology, viz. "which undermines the security of, or tends to overthrow, the State." The object is to remove the word ‘sedition’ which is of doubtful and varying import and to introduce words which are now considered to be the gist of an offence against the State.

Shri Amiyo Kumar Ghosh (Bihar: General): On a point of information, I want to know whether without moving the original amendment, as amendment, to it can be moved?

Mr. Vice-President: The amendment was moved formally.

Shri K. M. Munshi: I was pointing out that the word ‘sedition’ has been a word of varying import and has created considerable doubt in the minds of not only the members of this House but of Courts of Law all over the world. Its definition has been very simple and given so far back in 1868. It says "sedition embraces all those practices whether by word or deed or writing which are calculated to disturb the tranquility of the State and lead ignorant persons to subvert the Government". But in practice it has had a curious fortune. A hundred and fifty years ago in England, in holding a meeting or conducting a procession was considered sedition. Even holding an opinion against, which will bring ill- will towards Government, was considered sedition once. Our notorious Section 124-A of Penal Code was sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged to be covered by Section 124-A. But the public opinion has changed considerably since and now that we have a democratic Government a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State. Therefore the word ‘sedition’ has been omitted. As a matter of fact the essence of democracy is Criticism of Government. The party system which necessarily involves an advocacy of the replacement of one Government by another is its only bulwark; the advocacy of a different system of Government should be welcome because that gives vitality to a democracy. The object therefore of this amendment is to make a distinction between the two positions. Our Federal Court also in the case of Niharendu Dutt Majumdar Vs King, in III and IV Federal Court Reports, has made a distinction between what ‘Sedition’ meant when the Indian Penal Code was enacted and ‘Sedition’ as understood in 1942. A passage from the judgement of the Chief Justice of India would make the position, as to what is an offence against the State at present, clear. It says at page 50:

"This (sedition) is not made an offence in order to minister to the wounded vanity of Governments but because where Government and the law ceases to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder is thus the gist of the offence.

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The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency."

This amendment therefore seeks to use words which properly answer to the implication of the word ‘Sedition’ as understood by the present generation in a democracy and therefore there is no substantial change; the equivocal word ‘sedition’ only is sought to be deleted from the article. Otherwise an erroneous impression would be created that we want to perpetuate 124-A of the I. P.C. or its meaning which was considered good law in earlier days. Sir, with these words, I move this amendment.

Shri H. V. Kamath: On a point of clarification, may I ask my learned friend Mr. Munshi to examine whether the deletion of the word ‘other’ from the phrase ‘any other matter’ will not create some doubt or difficulty about the meaning of this amendment? Because if he will look up article 13 in the Draft Constitution, he will find that the phrase used is "any other matter". Here the word ‘other’ is deleted which will mean that so far as slander, defamation and libel are concerned, they can not offend against decency or morality, but only some other matter can. Is it the contention of Mr. Munshi that neither defamation, slander nor libel offends against decency and morality?

Shri K. M. Munshi: In the original clause of this article as drafted the words were —"libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the authority or foundations of the State." Here we have omitted the word ‘sedition’. Slander and defamation need not be necessarily connected with a violation of decency or morality nor do they undermine the authority of the State: the words "any matter" indicate as independent category. One category is libel, slander and defamation. The other category is any matter which offends against the State. The word ‘other’ therefore would be in appropriate. Shri H. V. Kamath: In the draft article the antecedents of the words 'other' matter were libel, slander, defamation and sedition, all of them.

Shri K. M. Munshi: I cannot agree with my honourable friend. Mr. Vice-President: Do you press amendment 449? Mr. Naziruddin Ahmad: Yes.

Mr. Vice-President: It will be put to vote. We next come to 450, 451, 452, 453, 465 and 478--all are of similar import and should be considered together. Amendment 450 is allowed. Sardar Hukum Singh (East Punjab: Sikh): Mr. Vice-President, Sir, I beg to move:

"That clause (2), (3), (4), (5) and (6) of article 13 be deleted." Sir, in article 13 (1), sub-clauses (a), (b) and (c), they give constitutional protection to the individual against the coercive power of the State, if they stood by themselves. But sub-clause (2) to (6) of article 13 would appear to take away the very soul out of these protective clauses. These lay down that nothing in sub-clauses (a), (b), (c) of article 13 shall effect the operation of any of the existing laws, that is, the various laws that abrogate the rights envisaged in sub-clause (1) which were enacted for the suppression of human liberties, for instance, the Criminal Law Amendment Act, the Press Act, and other various security Acts. If they are to continue in the same way as before, then where is the change ushered in and so loudly talked of? The main purpose of declaring the rights as fundamental is to safeguard the freedom of the citizen against any interference by the ordinary legislature and the executive of the day. The rights detailed in article 13(1) are such that they cannot be alienated by any individual, even voluntarily. The Government of the day is particularly precluded from infringing them, except under very special circumstances. But here the freedom of assembling, freedom of the press and other freedoms have been made so precarious and entirely left at the mercy of the legislature that the whole beauty and the charm has been taken away. It is not only the existing laws that have been subjected to this clause, but the State has been further armed with extraordinary powers to make any law relating to libel, slander etc. It may be said that every State should have the power and jurisdiction to make laws with regard to such matters as sedition, slander and libel. But in other countries like America it is for the Supreme Court to judge the matter, keeping in view all the circumstances and the environments, and to say whether individual liberty has been sufficiently safeguarded or whether the legislature has transgressed into the freedom of the citizen. The balance is kept in the hands of the judiciary which in the case of all civilized countries has always weighed honestly and consequently protected the citizen from unfair encroachment by

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legislatures. But a curious method is being adopted under our Constitution by adding these sub-clauses (2) to (6). The Honourable Mover defended these sub-clauses by remarking that he could quote at least one precedent for each of these restrictions. But it is here that the difference has, that whereas in those countries it is the judiciary which regulates the spheres of these freedoms and the extent of the restrictions to be imposed, under article 13, it is the legislature that is being empowered with these powers by sub- clauses (2) to (6). The right to freedom of speech is given in article 13(1)(a), but it has been restricted by allowing the legislature to enact any measure under 13(2), relating to matters which undermine the authority or foundation of the State; the right to assembly seems guaranteed under 13(1)(b), but it has been made subject to the qualification that legislation may be adopted in the interest of public order--13(3). Further under 13(4) to 13(6), any legislation restricting these liberties can be enacted "in the interest of the general public". Now who is to judge whether any measure adopted or legislation enacted is "in the interest of the general public" or "in the interest of public order", or whether it relates to "any matter which undermines the authority or foundation of the State"? The sphere of the Supreme Court will be very limited. The only question before it would be whether the legislation concerned is "in the interest of the public order". Only the bona- fides of the legislature will be the main point for decision by the Court and when once it is found by the court that the Government honestly believed that the legislation was needed "in the interest of the public order", there would be nothing left for its interference. The proviso in article 13(3) has been so worded as to remove from the Supreme Court its competence to consider and determine whether in fact there were circumstances justifying such legislation. The actual provisions and the extent of the restrictions imposed would be out of the scope of judicial determination.

For further illustration we may take the law of sedition enacted under 13(2). All that the Supreme Court shall have to adjudicate upon would be whether the law enacted relates to "sedition" and if it does, the judiciary would be bound to come to a finding that it is valid. It would not be for the Judge to probe into the matter whether the actual provisions are oppressive and unjust. If the restriction is allowed to remain as it is contemplated in 13(2), then the citizens will have no chance of getting any law relating to sedition declared invalid, howsoever oppressive it might be in restricting and negativing the freedom promised in 13(1)(a). The "court" would be bound to limit its enquiry within this field that the Parliament is permitted under the Constitution to make any laws pertaining to sedition and so it has done that. The constitution is not infringed anywhere, and rather, the draft is declaring valid in advance any law that might be enacted by the Parliament--only if it related to sedition. Similar is the case of other freedom posed in article 13(1) but eclipsed and negatived in clauses (2) to (6). It may be argued that under a national government, the legislature, representative of the people and elected on adult franchise, can and should be trusted for the safe custody of citizens' rights. But as has been aptly remarked, "If the danger of executive aggression has disappeared, that from legislative interference has greatly increased, and it is largely against this danger that the modern declarations of fundamental rights are directed, as formerly they were directed against the tyranny of autocratic kings." The very object of a Bill of Rights is to place these rights out of the influence of the ordinary legislature, and if, as under clauses (2) to (6) of article 13, we leave it to this very body, which in a democracy, is nothing beyond one political party, to finally judge when these rights, so sacred on paper and glorified as Fundamentals, are to be extinguished, we are certainly making these freedoms illusory.

If the other countries like the U.S.A. have placed full confidence in their Judiciary and by their long experience it has been found that the confidence was not misplaced, why should we not depend upon similar guardians to protect the individual liberties and the State interests, instead of hedging round freedom by so many exceptions under these sub-clauses?

Sir, I commend this amendment to the House. Mr. Vice-President: The next amendment on the list is the alternative amendment No. 451, in the same of Mr. Mahboob Ali Baig. Mahboob Ali Baig Sahib Bahadur : Sir, I move:

"That the following words be inserted at the beginning of clauses (2), (3), (4), (5) and (6) of article 13:--

'Without prejudice and subject to the provisions of article 8."

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My purpose in moving this amendment is two old. Firstly, I want to know the mind of Dr. Ambedkar and the Drafting Committee how article 8 stands in relation to these provisos. It may be asked whether these clauses (2) to (6)are governed by article 8 or not. If these clauses are governed by article 8, may I refer to article 8 itself. It says:

"All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with the provisions of this Part." The words "inconsistent with the provisions of this part" do not affect the existing laws relating to libel, the existing laws relating to restrictions on the exercise of the rights with regard to association or assembly. That means that the existing laws mentioned in clauses (2) to (6) are not all rendered void under Article 8. The intention is clear from the footnote that is appended to article 15, where the reason for the inclusion of the word "personal" is given There it is said:

"The Committee is of opinion that the word 'liberty' should be qualified by the insertion of the word 'personal' before it, for otherwise it might be construed very widely so as to include even the freedom already dealt with in article 13." Thus it is very clear that if the existing law relates to libel, if it relates to meetings or associations, or freedom of speech or expression, then that existing law stands in spite of the fact that article 8 says that any law in force which is inconsistent with the fundamental rights is void. So we come to this position. In the past the existing laws, for instance, the Criminal Law Amendment Acts, the Press Acts or the Security Acts laid down restrictions which are inconsistent with the liberties mentioned in clause (1).They shall be in operation and they are not rendered void. That seems to be the meaning that can naturally be attached to this. The second point which I wish to submit is this. By the Constitution certain powers are given to the legislature or the executive. Whether a court can question the validity or otherwise of such action, order or law is another question. My opinion is that where there is a provision in the Constitution itself giving power to the legislature or in this case the State covering the legislature, executive, local bodies and such other institutions, the jurisdiction of the court is ousted, for the court would say that in the constitution itself power is granted to the legislature to deprive, restrict or limit the rights of the citizen and so they cannot go into the validity or otherwise of the law or order, unless as it is said there is mala fides. It is for the authorities to judge whether certain circumstances have arisen for which an order or law can be passed. Anyhow I pose this question to the Chairman of the Drafting Committee whether in these circumstances, viz., where there is in existence a provision in the constitution itself empowering the legislature or the executive to pass an order or law abridging the rights mentioned in clause (1), the court can go into the merits or demerits of the order or law and declare a certain law invalid or a certain Act as not justified. In my view the court's jurisdiction is ousted by clearly mentioning in the constitution itself that the State shall have the power to make laws relating to libel, association or assembly in the interest of public order, restrictions on the exercise of.... The Honourable Dr. B. R. Ambedkar (Bombay: General): Sir, if I might interrupt my honourable friend, I have understood his point and I appreciate it and I undertake to reply and satisfy him as to what it means. It is therefore unnecessary for him to dilate further on the point.

Mahboob Ali Baig Sahib Bahadur: The third point which I would submit is this. The new set up would be what is called parliamentary democracy or rule by a certain political party, by the party executive or party government and we can well imagine what would be the measure of fundamental rights that the people would enjoy under parliamentary democracy or rule by a party. In these circumstances is it not wise or necessary in the interest of the general public that the future legislatures ruled by a party or the executive ruled by a party are not given powers by this very constitution itself? For as has been said 'power corrupteth' and if absolute power is placed in the hands of party government by virtue of the terms of this constitution itself, such legislature or executive will become absolutely corrupt. Therefore, I move that if at all these provisos are necessary, they must be subject to the provision that no law can be passed, no law would be applicable which is inconsistent with the freedoms mentioned in sub-clause (1). Sir, I move.

Mr. Vice-President: The next group consists of amendments Nos. 454, 455, 469, 475, 481, and the first part of 485. They are of similar import and I allow amendment No.454 to be moved. There are certain amendments to the amendment also. Pandit Thakur Dass Bhargava : Sir, I move:

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"That in clauses (2), (3), (4), (5) and (6) of article 13 the words "affect the operation of any existing law, or" be deleted." To this clause an amendment has been given by the Honourable Dr. Ambedkar.

Mr. Vice-President: May I suggest that when you move amendment No. 454 you move it along with your new amendment?

Pandit Thakur Dass Bhargava: I have moved No. 454, to which an amendment, stands in the name of the Honourable Dr. Ambedkar. To this latter I have given an amendment which is No. 3 in today's list. I have also given two other amendments to amendment No. 454. So I shall, with your permission, move them in one bloc. Sir, I move:

"That with reference to amendment No. 49 of list 1 of the Amendment to Amendments--

(i) in clause (2) of article 13 for the word 'any' where it occurs for the second time the word 'reasonable' be substituted and the word 'sedition' in the said clause be omitted.

(ii) that in clauses (3), (4), (5) and (6) of article 13 before the word 'restrictions' the word 'reasonable' be inserted." The net result of these amendments is the following: I want that the words 'affect the operation of any existing law or" be deleted and also that before the word "restrictions" in clauses (3), (4), (5) and (6) the word "reasonable" be placed. I also want that in clause (2) for the word 'any' where it occurs for the second time, the word 'reasonable' be substituted.

If my suggestion is accepted by the House then clause (3) would read:

"Nothing in sub-clause (b) of the said clause shall prevent the State from making anything, imposing in the interests of public order reasonable restrictions on the exercise of the right conferred by the said sub-clause." As regards the effect of amendment No. 454, if the following words are taken away--

"Affect the operation of any existing law, or"

the result will be that, not that all the present laws which are in force today will be taken away, but only such laws or portions of such laws as are inconsistent with the fundamental rights according to article 13, will be taken away, and article 8 will be in force. Now I will deal with these amendments separately. I want to deal with 454 first.

You will be pleased to observe that so far as article 8 is concerned, it really keeps alive all the laws which are in force today, except such portions of them as are inconsistent with the fundamental rights conferred by Part III. These words--"affect the operation of any existing law, or"......

Mr. Vice-President: How can you deal with a thing unless it is moved by Dr. Ambedkar?

Pandit Thakur Dass Bhargava: In the first instance, a resolution has been passed by this House that all amendments shall be taken as moved without being formally moved. Secondly, if you allow me another chance to speak on the amendment when moved by Dr. Ambedkar, I will be content to move my amendment then. Only with a view to save time, I have taken this course and, I had asked for your permission, though it was unnecessary to do so.

Mr. Vice-President: All right. Pandit Thakur Dass Bhargava: Thank you. I was speaking of the effect of the words--"affect the operation of any existing law, or" and I submitted to the House that so far as the words of article 8 go, even if these words are not there, all the present laws shall be alive. They shall not be dead by the fact that article 8 exists in Part III. The article reads thus:

"All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void." So that the real effect which this Constitution wants to give is that so far as those laws are inconsistent, they should be made inoperative, The rest will continue. So If these words are not there--"affect the operation of any existing law, or"--that would make no

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difference. If you examine the amendment to be moved by Dr. Ambedkar, the result is the same because in his amendment the words "in so far as it imposes" appear. Thus article 8 governs article 13 according to my amendment as well as his. The amendment of Dr. Ambedkar is unnecessary if the House accepts my amendment No. 454. Mr. Vice-President: It seems to me that if Dr. Ambedkar moves his amendment, then your amendment will not be necessary at all.

Pandit Thakur Dass Bhargava: My amendment will still be necessary as it deals with other matters also.

Mr. Vice-President: I do not wish to discuss the matter with you. Pandit Thakur Dass Bhargava: There are several clauses in this Constitution in which an attempt has been made to keep the present laws alive as much as possible. Article 8 is the first attempt. According to article 8 only to the extent of inconsistency such laws will become inoperative. Therefore, any further attempt was unnecessary. In article 27 an attempt has again been made to keep alive certain of the laws that come within the purview of article 27 in the proviso. Then again not being content with this, another section is there in the Constitution, namely, article 307, which reads:

"Subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority." The laws in force are defined in Explanation No. 1 and there is clause (2) which deals with certain aspects of the question. Even if these sections were not there, even then the general principle is that the law would continue in force unless repealed by any enactment or declared illegal by any Court. Therefore, so far as the continuance of the present law is concerned, the words "affect the operation of any existing law, or" are surplus, unnecessary and futile. But I would not have submitted this amendment before the House if these words were only surplus. They have another tendency and that has been emphasized by the previous speaker. There are good many amendments in the list of amendments to the same effect. I have received representations from various bodies and persons who have said in their telegrams and letters that these words should be removed, because the apprehension is that as article 8 is part of the Constitution, so is article 13 part of the Constitution. In sequence article 13 comes later and numerically it is of greater import. If article 8 is good law, so is article 13. As a matter of fact article 13 is sufficient by itself, and all the present laws, it may and can be argued, must be continued in spite of article 8. This is the general apprehension in the public mind and it is therefore that Dr. Ambedkar has also been forced to table an amendment No. 49 to my amendment No. 454.

This interpretation and argument may be wrong; this may be unjustifiable; but such an argument is possible. In my opinion the law must be simple and not vague and ununderstandable. Therefore these mischievous and misleading words should be taken away. As they have further the effect of misleading the public I hold that these words, unless taken away, shall not allay public fear.

When I read these different sections from 9 to 13 and up to 26, and when I read of these Fundamental Rights, to be frank I missed the most fundamental right which any national in any country must have viz., the right to vote.

Mr. Vice-President: That is not the subject matter of the present discussion. The honourable Member should confine his remarks to his amendment. Pandit Thakur Dass Bhargava: In considering article 15also the House will come to the conclusion that the most important of the Fundamental Right of personal liberty and life has not been made justiciable nor mentioned in article 13. If the House has in its mind the present position in the country, it will come to the conclusion that the present state of things is anything but satisfactory. Freedom of speech and expression have been restricted by sub-clause (2). Fortunately the honourable Member Mr. Munshi has spoken before you about deletion of the word sedition. If these words 'affect the operation of existing laws' are not removed the effect would be that sedition would continue to mean what it has been meaning in spite of the contrary ruling of the Privy Council given in 1945. If the present laws are allowed to operate without being controlled or governed by article 8 the position will be irretrievably intolerable. Thus my submission is that in regard to freedom of speech and expression if you allow the present law to be continued without

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testing it in a court of law, a situation would arise which would not be regarded as satisfactory by the citizens of India.

Similarly, at present you have the right to assemble peaceably and without arms and you have in 1947 passed a law under which even peaceable assemblage could be bombed without warning from the sky. We have today many provisions which are against this peaceable assembling. Similarly in regard to ban on association or unions.

The Honourable Dr. B. R. Ambedkar: Is it open to my honourable Friend to speak generally on the clauses?

Mr. Vice-President: That is what I am trying to draw his attention to. The Honourable Dr. B. R. Ambedkar: This is an abuse of the procedure of the House. I cannot help saying that. When a member speaks on an amendment, he must confine himself to that amendment. He cannot avail himself of this opportunity of rambling over the entire field.

Pandit Thakur Dass Bhargava: I am speaking on the amendment; but the manner in which Dr. Ambedkar speaks and expresses himself is extremely objectionable. Why should he get up and speak in a threatening mood or domineering tone?

Mr. Vice-President: Everybody seems to have lost his temper except the Chair. (Laughter). I had given a warning to Mr. Bhargava and, just now, was about to repeat it when Dr. Ambedkar stood up. I am perfectly certain that he was carried away by his feeling. I do not see any reason why there should be so much feeling aroused. He has been under a strain for days together. I can well understand his position and I hope that the House will allow the matter to rest there.

Now, I hope Mr. Bhargava realises the position.

Pandit Thakur Dass Bhargava: I will speak only on the amendment. But when a Member speaks on an amendment, it is not for other members to decide what is relevant and what is not. Mr. Vice-President: I was about to say so, but I was interrupted.

Pandit Thakur Dass Bhargava: Sir, I repeat that unless and until these offending words are removed and if the present law is allowed to continue without the validity of the present laws being tested in any court, the situation in the country will be most unsatisfactory. I am adverting to the present law in order to point out that it is objectionable and if it continues to have the force of law, there will be no use in granting Fundamental Rights. Therefore I am entitled to speak of the Fundamental Rights. I will certainly not speak if you do not allow me, but I maintain that whatever I was and am saying is perfectly relevant. (Hon. Members: 'Go on'). Sir, if I do not refer to the situation in the country and to the fact that this law does not allow the present state of tension in the country to be moved, what is the use of the Fundamental Rights. I ask.

Mr. Vice-President: Kindly remember one thing which is that you may refer to it in a general manner and not make that the principal point of your speech on this occasion. You may refer to all that in such a way as to adopt a via media where your purpose will be served without taking up more time than is actually necessary.

Pandit Thakur Dass Bhargava: I am alive to the fact that it is a sin to take up the time of the House unnecessarily. I have been exercising as much restraint as possible. I thank you for the advice given by you. I will not refer to the present situation also if you do not like it.

But a few days ago the Honourable Sardar Patel, in a Convocation Address delivered by him, told the whole country that the labourer in the field and the ordinary man in the street has not felt the glow of India's freedom. Nobody feels that glow today, though India is free. Why? If the Fundamental Rights are there and if they are enjoyed by the people, why is there not this glow of freedom? The reason is that these offending words seem to nullify what article 8 seems to grant in respect of the present laws and people do not take us seriously. That is the cause of the general apathy of the people. If I referred in connection with this matter to the present situation , my object was only to emphasise that the present situation is very unsatisfactory. I will leave the matter at that.

As regards the amendment for the addition of the word 'reasonable' I will beg the House kindly to consider it calmly and dispassionately. We have heard the speeches of Sardar Hukam Singh and Mr. Mahboob Ali Baig. Both of them asked what would happen to

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the Fundamental Rights if the legislature has the right to substantially restrict the Fundamental Rights? That is quite true. Are the destinies of the people of this country and the nationals of this country and their rights to be regulated by the executive and by the legislature or by the courts? This is the question of questions. The question has been asked, if the Legislature enacts a particular Act, is that the final word? If you consider clauses (3) to (6) you will come to the conclusion that, as soon as you find that in the Statement of Objects and Reasons an enactment says that its object is to serve the interests of the public or to protect public order, then the courts would be helpless to come to the rescue of the nationals of this country in respect of the restrictions. Similarly, if in the operative part of any of the sections of any law it is so stated in the Act, I beg to ask what court will be able to say that, as matter of fact the legislature was not authorised to enact a particular law. My submission is that the Supreme Court should ultimately be the arbiter and should have the final say in regard to the destinies of our nationals. Therefore, if you put the word 'reasonable' here, the question will be solved and all the doubts will be resolved. Sir, one speaker was asking where the soul in the lifeless article 13 was? I am putting the soul there. If you put the word 'reasonable' there, the court will have to see whether a particular Act is in the interests of the public and secondly whether the restrictions imposed by the legislatures are reasonable, proper and necessary in the circumstances of the case. The courts shall have to go into the question and it will not be the legislature and the executive who could play with the fundamental rights of the people. It is the courts which will have the final say. Therefore my submission is that we must put in these words "reasonable" or "proper" or "necessary" or whatever good word the House likes. I understand that Dr. Ambedkar is agreeable to the word "reasonable". I have therefore put in the word "reasonable" to become reasonable. Otherwise if words like "necessary" or "proper" had been accepted, I do not think they would have taken away from but would have materially added to the liberties of the country. Therefore I respectfully request that the amendment I have tabled maybe accepted so that article 13 may be made justiciable. Otherwise article 13 is a nullity. It is not fully justiciable now and the courts will not be able to say whether the restrictions are necessary or reasonable. If any cases are referred to the courts, they will have to decide whether restriction is in the interests of the public or not but that must already have been decided by the words of the enactment. Therefore the courts will not be able to say whether a fundamental right has been infringed or not. Therefore my submission is that, if you put in the word "reasonable", you will be giving the courts the final authority to say whether the restrictions put are reasonable or reasonably necessary or not. With the words, I commend this amendment to the House.

The Honourable Dr. B. R. Ambedkar : Sir, I move:

"that with reference to amendment No. 454...... " Shri H. V. Kamath: On a point of order, Sir, has amendment No. 454 been moved?

Mr. Vice-President: Please continue.

The Honourable Dr. B. R. Ambedkar:

"with reference to amendment No. 454 of the List of amendments--

(i) in clauses (3), (4), (5) and (6) of article 13, after the words 'any existing law' the words 'in so far as it imposes' be inserted, and

(ii) in clause (6) of article 13, after the words 'in particular' the words 'nothing in the said clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law' be inserted." Syed Abdur Rouf (Assam: Muslim): On a point of order, Sir, I think that Dr. Ambedkar's amendment cannot be an amendment to amendment No. 454. Amendment No. 454 seeks to delete clauses (2), (3), (4), (5) and (6), whereas Dr. Ambedkar's amendment seeks to insert some words in those clauses and cannot therefore be moved as an amendment to an amendment.

Mr. Vice-President: It seems to me that what Dr. Ambedkar really seeks to do is to retain the original clauses with certain qualifications. Therefore I rule that he is in order.

Shri H. V. Kamath: This will have the effect of negativing the original amendment.

Mr. Vice-President: Kindly take your seat.

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The Honourable Dr. B. R. Ambedkar: From the speeches which have been made on article 13 and article 8 and the words "existing law" which occur in some of the provisos to article 13, it seems to me that there is a good deal of misunderstanding about what is exactly intended to be done with regard to existing law. Now the fundamental article is article 8 which specifically, without any kind of reservation, says that any existing law which is inconsistent with the Fundamental Rights as enacted in this part of the Constitution is void. That is a fundamental proposition and I have no doubt about it that any trained lawyer, if he was asked to interpret the words "existing law" occurring in the sub-clauses to article 13, would read "existing law" in so far as it is not inconsistent with the fundamental rights. There is no doubt that is the way in which the phrase "existing law" in the sub-clauses would be interpreted. It is unnecessary to repeat the proposition stated in article 8 every time the phrase "existing law" occurs, because it is a rule of interpretation that for interpreting any law, all relevant sections shall be taken into account and read in such a way that one section is reconciled with another. Therefore the Drafting Committee felt that they have laid down in article 8 the full and complete proposition that any existing law, in so far as it is inconsistent with the Fundamental Rights, will stand abrogated. The Drafting Committee did not feel it necessary to incorporate some such qualification in using the phrase "existing law" in the various clauses where these words occur. As I see, many people have not been able to read the clause in that way. In reading "existing law", they seem to forget what has already been stated in article 8. In order to remove the misunderstanding that is likely to be caused in a layman's mind, I have brought forward this amendment to sub-clauses (3), (4), (5) and (6). I will read for illustration sub-clause (3) with my amendment.

"Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law, imposing in the interests of public order." I am accepting Mr. Bhargava's amendment and so I will add the word "reasonable" also.

"imposing in the interests of public order reasonable restrictions on the exercise of the right conferred by the said sub-clause." Now, the words "in so far as it imposes" to my mind make the idea complete and free from any doubt that the existing law is saved only in so far as it imposes reasonable restrictions. I think with that amendment there ought to be no difficulty in understanding that the existing law is saved only to a limited extent, it is saved only fit is not in conflict with the Fundamental Rights.

Sub-clause (6) has been differently worded, because the word there is different from what occurs in sub-clauses (3), (4) and (5). Honourable Members will be able to read for themselves in order to make out what it exactly means.

Now, my friend, Pandit Thakur Dass Bhargava entered into a great tirade against the Drafting Committee, accusing them of having gone out of their way to preserve existing laws. I do not know what he wants the Drafting Committee to do. Does he want us to say straightaway that all existing laws shall stand abrogated on the day on which the Constitution comes into existence?

Pandit Thakur Dass Bhargava: Not exactly.

The Honourable Dr. B. R. Ambedkar: What we have said is that the existing law shall stand abrogated in so far as they are inconsistent with the provisions of this Constitution. Surely the administration of this country is dependent upon the continued existence of the laws which are in force today. It would bring down the whole administration to pieces if the existing laws were completely and wholly abrogated. Now I take article 307. He said that we have made provisions that the existing laws should be continued unless amended. Now, I should have thought that a man who understands law ought to be able to realize this fact that after the Constitution comes into existence, the exclusive power of making law in this country belongs to Parliament or to the several local legislatures in their respective spheres. Obviously, if you enunciate the proposition that hereafter no law shall be in operation or shall have any force or sanction, unless it has been enacted by Parliament, what would be the position? The position would be that all the laws which have been made by the earlier legislature, by the Central Legislative Assembly or the Provincial Legislative Assembly would absolutely fall to pieces, because they would cease to have any sanction, not having been made by the Parliament or by the local legislatures, which under this Constitution are the only body which are entitled to make law. It is, therefore, necessary that a provision should exist in the

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Constitution that any laws which have been already made shall not stand abrogated for the mere reason that they have not been made by Parliament. That is the reason why article 307 has been introduced into this Constitution. I, therefore, submit, Sir, that my amendment which particularizes the portion of the existing law which shall continue in operation so far as the Fundamental Rights are concerned, meets the difficulty, which several honourable Members have felt by reason of the fact that they find it difficult to read article 13 in conjunction with article 8. I therefore, think that this amendment of mine clarifies the position and hope the House will not find it difficult to accept it.

(Amendment No. 50 to amendment No. 454 was not moved.) (Amendments Nos. 455, 469, 475 and 481 were not moved.)

Mr. Vice-President: Then we shall take up amendment No.485, first part. The House can well realize that I am going through a painful process in order to shorten the time spent on putting the different amendments to the vote.

Syed Abdur Rouf: I want the first part of the amendment to be put to the vote.

Mr. Vice-President: Then we come to another group, 456,472, 484 and 495. (Amendments Nos. 456, 472, 484 and 495 were not moved.)

Mr. Vice-President: The next group consists of amendments Nos. 457, 466, 473 and 494.

(Amendments Nos. 457, 466, 473 and 494 were not moved.) Mr. Vice-President: Then amendment No. 458 standing in the name of Mr. Mohd. Tahir and Saiyid Jafar Imam.

Shri M. Ananthasayanam Ayyangar: That has already been covered by Mr. Mahboob Ali Baig's amendment.

Mr. Vice-President: Still, it would depend upon the Mover.

Mr. Mohd. Tahir (Bihar: Muslim): Sir, I beg to move:

"That in clause (2) of article 13, after the word 'sedition' the words 'communal passion' be inserted."

Now, Sir, we find that under this clause we are giving powers to the State to make laws as against certain offences such as libel, slander, defamation, sedition and similar offences against the State. Now I want that these words "communal passion" be also added after the word "sedition"--which means, agitating or exciting the minds of one community as against the other.

These words, Sir, libel, slander, defamation, sedition, are the common words found in the Indian Penal Code and fortunately or unfortunately, we find that this word does not find a place in the Indian Penal Code. The reason is very simple, because, the Indian Penal Code and the old laws were framed by a Government which was foreign to us. Now, this is the time when we must realise our merits and demerits. We know that the agitation and the excitement of communities against communities have done a great loss and disservice to our country as a whole. Therefore, Sir, I think that the addition of this word is necessary. To tell the truth, I would say that if in our country which is now an independent country, we are really sincere to ourselves, this word also must find a place in the Constitution. I would request and appeal to Dr. Ambedkar and the House as a whole to give sound reasoning and due consideration for the addition of this word.

At the end, Sir, I may submit that an amendment has been moved by Mr. Munshi and I do not know whether it is going to be accepted or not. In case that amendment is going to be accepted by the House. I would appeal that this word may be given a place in that amendment or wherever it is found suitable. With these words. Sir, I move.

Mr. Vice-President: We come next to amendment No. 459. It is in the name of Mr. Thomas. It is verbal and therefore disallowed.

Next we take up amendments nos. 460, 461 and the second part of 462. I would allow amendment No. 461 to be moved because that I regard as most comprehensive of the three. That is covered by Mr. Munshi's amendment. Is amendment No.460 moved? Pandit Thakur Dass Bhargava: I do not want to move it.

Mr. Vice-President: Amendment No. 462; Mr. Kamath.

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Shri H. V. Kamath: It is covered by amendment No. 461.

Mr. Vice-President: Amendment No. 462, first part. I was dealing with the second part just now. The first part is more or less a verbal amendment and is disallowed.

Then, amendments Nos. 463 and 464 coming from two different quarters are of similar import. Amendment No. 464, standing in the name of Shri Vishwambhar Dayal Tripathi may be moved.

(Amendment No. 464 was not moved.) Mr. Vice-President: What about amendment No. 463, in the name of Giani Gurmukh Singh Musafir?

Giani Gurmukh Singh Musafir: Not moving, Sir.

Mr. Vice-President: Then, we take up amendments Nos. 467 and 474. Amendment No. 467 may be moved. It stands in the name of Mr. Syamanandan Sahaya.

Shri Syamanandan Sahaya (Bihar: General): Sir, I beg to move:

"That in clause (3) of article 13, the word 'restrictions' the words 'for a defined period' be added."

Sir, in moving this amendment before the House, what was uppermost in my mind was to see whether actually even in the matter of the three freedoms so much spoken of, namely, the freedom of speech, freedom of association and freedom of movement, we had really gone to the extent that every one desired we should. I must admit that I did not feel happy over the phraseology of the clauses so far as this general desire in the mind of every body, not only in this House, but outside, obtained. I will, Sir, refer to the wording of sub-cause (b) of clause (1) of article 13. This sub-clause lays down that all citizens shall have the right to assemble peaceably and without arms. This is the Fundamental Right which we are granting to the people under the Constitution. Let us see how this fits in with clause (3) of article 13which is the restricting clause. Clause (3) lays down that nothing in sub-clause (b) of the said clause (1) shall affect the operation of any existing law, or prevent the State from making any law, imposing in the interests of public order restrictions on the exercise of the right conferred by the said sub-clause, Sir, the only right which we are giving by sub-clause (b) is the right to assemble peaceably and without arms. This right to assemble is not a general right of assembly under all conditions. To assemble peaceably is the first condition precedent and there is also a second condition. That condition is that the assembly should be without arms. On the top of these conditions we are laving down in sub-clause (3) that there shall be a further restricting power in the hands of the State. I would much rather that clauses (3) and (4) did not form part of our Constitution. But, if the Drafting Committee and the other people who have considered the matter carefully think that it is necessary to lay down restrictions even in the matter of assembling peaceably and without arms, I might respectfully submit that it would be necessary to further restrict this restricting power by saying that any law restricting this power must be for a specified period only. I do not think the House will agree that any State should place on the statute book a permanent law restricting this Fundamental Right of peaceful assembly.

The most that the Constitution could accommodate a particular Government at a particular time under a particular circumstance was to give it the power to restrict this right under these conditions but for a specified and defined period only and that I submit, Sir, is the purpose of my amendment. The best interpretation that one could put on this clause is that the Drafting Committee has erred too much on the cautions side in this matter and they have probably kept the Government too much and the citizens too little, in view. I will submit that both in sub-clauses (3) and (4) the words 'for a defined period' should be added in order that if a State at any time has to pass legislation to restrict these rights, they may do so only for a period. It does not mean that once a State has passed such a legislation it is debarred from following it up by a second legislation in time if necessary but we must lay down in the Constitution that we shall permit of no such restrictive law to be a permanent feature of the law of the land. A State should not be empowered to pass a legislation restricting permanently peaceful assembly and assembly without arms. I think such a general power in the armoury of any State, however popular or democratic, would not be desirable. In the larger interests of the country, and particularly at the formative stage of the country, to give such wide powers in the hands of the State and with regard to such Fundamental rights as, freedom of speech, freedom of assembly and freedom of movement would, I believe, be harmful and result in the

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creation of a suffocating and stuffy atmosphere as opposed to the free air of a truly free country. Sir, I move the amendment and commend it to the acceptance of the House.

(Amendment No. 470 was not moved.)

Mr. Vice-President : 471 is disallowed as verbal. Nos.476 and 477 are of similar import. I allow 476. The Honourable Dr. B. R. Ambedkar : Sir I move--

"That in clause (4) of article 13, for the words 'the general public' the words 'public order or morality' be substituted." These words are inappropriate in that clause. Mr. Vice-President: 477 is identical, 479, 480 and 486are of similar import

(Amendments Nos. 479, 480, and 486 were not moved.)

Mr. Vice-President: 482 and 483. (Amendment No. 482 was not moved.)

Mr. Vice-President: 483--Sardar Hukam Singh.

Sardar Hukam Singh : Sir, I beg to move:

"That in clause (5) of article 13, after the words 'existing law' the word 'which is not repugnant to the spirit of the provisions of article 8' be inserted." The Honourable Dr. Ambedkar has rightly appreciated our fears and we feel that is the object of most of the amendments that have been moved Certainly there are fears in our minds that if these articles stand independently--articles 8 and 13,--then there is a danger of different constructions being put on them. Dr. Ambedkar has emphasised that if relevant articles of the Constitution are in question, all those articles that relate to one subject shall be taken into consideration when some construction is going to be put by any Court and then article 8 would govern because it says that "All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with the provisions of this Part, shall to the extent of such inconsistency, be void". That we have adopted, and this is what we feel that it should be made clear that certainly those parts which are inconsistent would be void to that extent. If that is the object as Dr. Ambedkar has explained, then why not make it clear in this section as well. Where is the harm? I do not see that we would lose anything or that it would change the beauty of the phraseology even if we make it clear that these provisions are subject to article 8. This is to be admitted that there are certain laws in force just at present that restrict the liberty of the people. For instance I can quote the Land Alienation Act in Punjab. That allows only certain castes to purchase land of their own caste and precludes other castes to purchase that land. If this distinction were based on some economic ground, if it were to be enacted that all small tillers' rights would be safeguarded and their small lands would not be alienable, we could understand that alright and such a provision would be welcome. But when the discrimination is there, we too feel that such a law should stand abrogated so far as it is inconsistent with the provision in clause (5) or article 13. Because that gives freedom to acquire hold and dispose of property and if that law remains--Land Alienation Act, as it is and definition is not changed of the "agriculturist", there would be a conflict and there might be certain constructions by Court which would be unfair. So if that is the object as Dr. Ambedkar has explained that article 8 would govern, then we should make it clear and that is why I have suggested that after the words 'existing law' the words 'which is not repugnant to the spirit of the provisions of article 8' be inserted. That is my object and it should be made clear beyond any doubt.

Mr. Vice-President: Then we come to amendment No. 485, second part, standing in the name of Syed Abdur Rouf, and the first part of amendment No. 488 standing in the joint names of Dr. Pattabhi Sitaramayya and others. The latter seems to be the more comprehensive of the two and may be moved.

(Amendment No. 488 was not moved.)

Mr. Vice-President: Then in that case, the second part of amendment No. 485, standing in the name of Syed Abdur Rouf may be moved. Syed Abdur Rouf : Sir, I beg to move:

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"That in clause (5) of article 13, for the word 'State', the word 'Parliament' be substituted."

Sir, in sub-clauses (d), (e) and (f), we have got the most valuable of our Fundamental Rights. But clause (5) seems to take away most of our rights, because States have been given power to restrict, to abridge and even to takeaway the rights if and when they like. We remember the word 'State' has been defined as to include even local authorities etc. within the territory of India or under the control of the Government of India. Even village panchayats, small town committees, municipalities, local boards all these, to a certain extent become States, and it has been left to these States to deal with these valuable Fundamental rights. Sir, I will bring one instance before you. Suppose, due to political views, a particular village or panchayat area is divided between the majority and the minority. Now, if the majority of the Panchayat by a resolution asks the minority not to move freely in the area or to reside there, or to dispose of their property, which law will prevent the majority from doing so, and which law is there to safeguard the interests of the minority? As these; are most valuable rights, the State should not be trusted with making laws regarding these rights. In my opinion, Sir, it is only the Parliament which can to the satisfaction of the people, deal with these questions. As it is very dangerous to leave this power in the hands of the small States, which will comprise even village panchayats, we must be very careful and, therefore, I suggest that in place of 'State', the word 'Parliament' should be substituted.

Mr. Vice-President: Then amendments Nos. 487, 489 and 490 are of similar import. No. 487 may be moved.

(Amendment No. 487 was not moved.)

Mr. Vice-President: Amendment No. 489 standing in the joint names of Mr. Mohd. Tahir and Saiyid Jafar Imam. Mr. Mohd. Tahir : Sir, I beg to move:

"That in clause (5) of article 13, the word 'either' and the words 'or for the protection of the interests of any aboriginal tribe' be omitted." Sir, I am not going to make any speech in this connection, but want only to submit that the removal of these words would make the clause of a general character, which certainly includes the safeguards of the interests of the aboriginal tribes as well. I understand the Drafting Committee was also of this opinion, but I do not know why this clause was worded in this manner. Anyhow, I think it better to delete the words in the manner I have suggested. Mr. Vice-President: Amendment No. 490 is the same as the one now moved, and it need not be moved. Amendment No. 488, second part, and No. 491 are of similar import. Amendment No. 491, standing in the name of Dr. Ambedkar may be moved. The Honourable Dr. B. R. Ambedkar : Mr. Vice-President, Sir, I move:

"That in clause (5) of article 13, for the word 'aboriginal', the word 'scheduled' be substituted."

When the Drafting Committee was dealing with the question of Fundamental Rights, the Committee appointed for the Tribal Areas had not made its Report, and consequently we had to use the word 'aboriginal', at the time when the Draft was made. Subsequently, we found that the Committee on Tribal Areas had used the phrase "Scheduled Tribes" and we have used the words "scheduled tribes" in the schedules which accompany this Constitution. In order to keep the language uniform, it is necessary to substitute the word "Scheduled" for the word "aboriginal". Mr. Vice-President: There is, I understand, an amendment to this amendment, and that is amendment No. 56 of List I, standing in the name of Shri Phool Singh. (Amendment No. 56 of list I was not moved.) Mr. Vice-President: That means this amendment No. 491 stands as it is.

Then we come to amendment No. 488.

(Amendment No. 488 was not moved.) The Honourable Dr. B. R. Ambedkar : Sir, I move:

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"That in clause (6) of article 13, for the words 'public order, morality or health', the words 'the general public' be substituted." The words 'public order, morality or health' are quite inappropriate in the particular clause.

Mr. Mohd. Tahir : *[Mr. President, my amendment No. 500 is as follows:

"That after clause (6) of article 13, the following new clause be added.

'(7) The occupation of beggary in any form or shape of person having sound physique and perfect health whether major or minor is totally banned and any such practice shall be punishable in accordance with law.'" Sir, I have moved this amendment for this reason that, if the House agrees with this amendment surely it will result in solving to a great extent the difficulties of labour which exist in our country. Our industries, which are very vital and in many places have failed due to lack of labour, can flourish to a great extent. Besides, I would like to state that in our country thousands, lakhs nay crores of human beings will imbibe the spirit of self- reliance and self-respect. We see that in our country many able-bodied persons who can work and can earn their livelihood, are to be found begging on road sides. If you tell them that they can work, that they can maintain themselves by earning their livelihood and can do good to their country by their labour, they would say in reply "Sir, this is our ancestral profession and we are forced to do it". I would like to say that there are so many countries on this earth: but if you look around, you will find this ugly spot only on the face of our country. Therefore, I want that there should be some such provision in our Constitution as would be beneficial to our country. Obviously, those that are helpless, for instance many of our unfortunate countrymen, who are blind lame and cannot use their hands and feet, really deserve some consideration. In such cases begging on these and other similar grounds may be justified. But even in this matter, I would submit that the State should be responsible and some such institution or home be founded in some places where they might be brought up, while those that are able-bodied and healthy should be forced to work. By doing so, our labour problem will be solved to a great extent and crores of human beings, who have taken to begging as profession, would be prevented from doing so. This will create in them the spirit of self-respect and self-reliance. Therefore, I hope that Dr. Ambedkar will accept this amendment of mine and the House will also help me by accepting it. With these words, I submit this amendment for the consideration of the House.]*

The Assembly then adjourned till Half Past Nine of the Clock on Thursday, the 2nd December 1948. ------

*[Translation of Hindustani speech.]*

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4

CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUME VII

Thursday, the 2nd December 1948

The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Half Past Nine of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee), in the Chair.

DRAFT CONSTITUTION-(Contd.)

Article 13-Contd.

Mr. Vice-President (Dr. H. C. Mookherjee): We shall resume discussion of Article 13.

I should like to know the views of the House as to the way we should deal with the following amendments--we postponed consideration of these amendments yesterday:

Amendments No. 442, No. 499, second part of No. 443,No. 468 and No. 501.

Shri M. Ananthasayanam Ayyangar (Madras: General): May I suggest that in as much as these relate to the free choice of vote and some other matters which are not already prescribed in article 13, these may stand over and be allowed to be moved as a separate clause later on in the Fundamental Rights, and that we need not delay the passing of article 13, amendments with respect to which have already been moved, and the discussion may start?

Mr. Vice-President: Is that the view of the House?

Honourable Members: Yes, yes.

Mr. Vice-President: Then we shall proceed with the general discussion of the article. A large number of honourable Members desire to speak on this article. Therefore, with the permission of the House, I would like to limit the duration of the speeches to ten minutes each ordinarily. I shall extend the time wherever I consider necessary. Have I the permission of the House to fix this time-limit?

Honourable Members: Yes.

Shri H. V. Kamath (C. P. and Berar: General): On a point of order, Sir, Two amendments have been held over. Unless they are moved, how can general discussion on the article as a whole go on?

Mr. Vice-President: What are those amendments please?

Shri H. V. Kamath: No. 499 and No. 442.

Mr. Vice-President: They will form part of a new clause.

Sardar Bhopinder Singh Man (East Punjab: Sikh): *[Mr. Vice-President, I regard freedom of speech and expression as the very life of civil liberty, and I regard it as fundamental. For the public in general, and for the minorities in particular, I attach great importance to association and to free speech. It is through them that we can make our voice felt by the Government, and can stop the injustice that might be done to us. For attaining these rights the country had to make so many struggles, and after a grim battle succeeded in getting these rights recognised. But now, when the time for their enforcement has come, the Government feels hesitant; what was deemed as undersirable then is now being paraded as desirable. What is being given by one hand is being taken away by the other. Every clause is being hemmed in by so many provisos.

To apply the existing law in spite of change conditions really amounts to trifling with the freedom of speech and expression. From the very beginning we have stood against

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the existing laws, but now you are imposing them on us. You want to continue the old order so that there should be no opportunity of a trial, of putting up defence and of an appeal. If a meeting is held, then for breaking it up lathis may be used, and people may be put into jail without trial; their organisations may be banned and declared illegal. We do not like this shape of things. If you want to perpetuate all that, then I would like to say that by imposing all these restrictions you are doing a great injustice. There are a few rights to which I attach very great importance. You have included them in the articles relating to directive principles of State policy, and so we cannot go to a Court of law for their enforcement. You are diluting these rights with the result that nothing solid remains.

Mr. Vice-President, I want that these rights should not be restricted so much, and all opposition that is peaceful and not seditious should get full opportunity, because opposition is a vital part of every democratic Government. To my mind, suppression of lawful and peaceful opposition means heading towards fascism.]*

Seth Govind Das (C. P. and Berar: General): *[Mr. Vice-President, article 13 is the most important of all the articles concerning Fundamental Rights. The rights that have been granted to us by these articles are all very important. Yesterday Shri Damodar Swarup Seth and Shri K. T. Shah moved their amendments in this House. The purport of the amendments is that the rights which have been given to us with one hand are being taken away by the other hand. This may be true to some extent but if we consider the present national and international situation as also the fact that we have achieved freedom only recently and our government is in its infancy, we shall have to admit that it was necessary for the government to retain the rights it has done after granting these fundamental rights. We should see what is happening in our neighbouring country, Burma. We should also keep in view what is happening in another great country of Asia--I mean war-torn China. In view of what is happening in our neighbouring countries and of the situation in our own country, we should consider how necessary it is that the Government should continue to have these powers.

I would have myself preferred that these rights were granted to our people without the restrictions that have been imposed. But the conditions in our country do not permit this being done. I deem it necessary to submit my views in respect to some of the rights. I find that the first sub-clause refers to freedom of speech and expression. The restriction imposed later on in respect of the extent of this right, contains the word 'sedition'. An amendment has been moved here in regard to that. It is a matter of great pleasure that it seeks the deletion of the word 'sedition'. I would like to recall to the mind of honourable Members of the first occasion when section 124 A was included in the Indian Penal Code. I believe they remember that this section was specially framed for securing the conviction of Lokamanya Bal Gangadhar Tilak. Since then, many of us have been convicted under this section. In this connection many things that happened to me come to my mind. I belong to a family which was renowned in the Central Provinces for its loyalty. We had a tradition of being granted titles. My grandfather held the title of Raja and my uncle that of Diwan Bahadur and my father too that of Diwan Bahadur. I am very glad that titles will no more be granted in this country. In spite of belonging to such a family I was prosecuted under section 124 A and that also for an interesting thing. My great grandfather had been awarded a gold waist-band inlaid with diamonds. The British Government awarded it to him for helping it in 1857 and the words "In recognition of his services during the Mutiny in 1857" were engraved on it. In the course of my speech during the Satyagraha movement of 1930, I said that my great-grandfather got this waist-band for helping the alien government and that he had committed a sin by doing so and that I wanted to have engraved on it that the sin committed by my great-grandfather in helping to keep such a government in existence had been expiated by the great-grandson by seeking to uproot it. For this I was prosecuted under section 124 A and sentenced to two years' rigorous imprisonment. I mean to say that there must be many Members of this House who must have been sentenced under this article to undergo long periods of imprisonment. It is a matter of pleasure that we will now have freedom of speech and expression under this sub-clause and the word 'sedition' is also going to disappear.

The next matter to which I would like to draw your attention is sub-clause (b) of this article. The expression "to assemble peacefully without arms", occurs in it. I want to draw your attention to the words "without arms" in particular. I agree that we should have the right of assembling in this way without arms only. We had accepted the creed of non- violence and through it we have achieved freedom. It is true that in the present world situation we are compelled to maintain armies. But I hold that the welfare of humanity

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can be secured by means of non-violence alone. We should have a right of assembling but assembling without arms.

I would also like to draw your attention to the two following sub-clauses and these are sub-clauses (f) and (g) which run as follows:

"to acquire, hold and dispose of property;" and

"to practise any profession or to carry on any occupation, trade or business."

Speaking for myself I may say that just as I hold that humanity cannot achieve its welfare except through non-violence so also I do believe that there cannot be stable peace, unless and until private property is abolished. I am not a socialist or a communist but at the same time I hold that what the big capitalists, traders, zamindars, talluqdars have to do to protect their property does not allow of their enjoying true happiness. It is not true to say that people lacking wealth alone are unhappy. They are no doubt unhappy but in the present economy the moneyed are more unhappy than the moneyless, and this band of gold is today crushing the richman's neck. This wealth has been in their possession for long and that is why they are anxious to retain it. It is not for pleasure that they want to keep it. If they are forcibly deprived of their wealth, socialism or communism would not be established. The example of Russia bears testimony to it. Individual property was expropriated there by force and the result has been that it could not be destroyed. On the other hand it is increasing. But if we make an effort to change values in this country and the world and bring about such a psychological atmosphere as makes people eager to rid themselves of the burden of property, we would have reached the desired goal and there would then be the possibility of the establishment of a true socialistic state. There has been change in values in the world from time to time. It is a historical fact that at one time man devoured man. At that time the man who had the capacity of devouring the greatest number of men, must have been worshipped by the society, because he must have been recognised as the bravest among them. Times changed to usher in the epoch of slave-trade. Respectability was judged by the number of slaves one had. Those conditions changed. Today the capitalists are characterised by our society as plunderers and dacoits. They no doubt make such remarks about capitalists, but I may be excused for saying that the majority of the socialists are such that if they were to get hold of this property, they would forsake socialism. The necessity is for a change in outlook. If there is a change in values by the propagation of these ideas in society and if the capitalists are looked down upon as thieves and pilferers by everyone they would not like to keep their wealth. Such a change of mind and heart can be brought about only through non-violence. I hope that in time to come the articles concerning property will not find a place in the Constitution.

I heartily support the whole of the article 13 on the Fundamental Rights.]*

Shri Jaipal Singh (Bihar: General): Mr. Vice-President, Sir. So far as I am concerned, this particular article in no way frightens me, although the various fundamental rights have been hedged in by so many exceptions. To me it is obvious that whatever we put into the Constitution, its value, its use to us will depend upon the way we work all these things. But there are one or two things on which I would like Dr. Ambedkar to enlighten me. The first point on which I would like his clarification is in regard to the amendment which he has moved, amendment No. 491, where in he seeks to substitute the word "aboriginal" by the word "scheduled". Sir, I am always at a disadvantage whenever anything affecting aboriginals has to be discussed at this stage for the obvious reason that the two reports of the Tribal sub-committees have not been fully discussed on the floor of this House, with the result that the House has not been able to obtain its collective view point or arrive at a collective decision as has been the case with all the other articles, that is to say, articles which affect the non-tribals of our country.

Take the question of this word 'tribal'. As far as I know neither of the sub-committees had gone into the work of scheduling. I know it for a fact that the sub-committee of which I was a member did nothing of the sort and, in fact, bodily the Drafting Committee has just put into the Draft Constitution whatever obtained in the Government of India Act. Now, look at the list.

My second point that I want to have clarified is whether the advisory councils or the regional councils, which are envisaged in the recommendations of the two sub-

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committees, will operate outside the so-called scheduled areas. If they do not, then I want to know from Dr. Ambedkar what is going to happen to the Adibasis, who are in millions, outside those scheduled areas. As far as I can understand the language of the Constitution, the regional councils and the advisory councils are to advise the Governor to participate as it were in the legislation of the State only in regard to the scheduled areas. Well, once it is accepted that the regional councils and the advisory councils may operate also outside the scheduled areas then my point is met.

Take the case of West Bengal. In West Bengal, according to what is proposed, there shall be no scheduled areas; in West Bengal there are 16 lakhs of Adibasis. I want to know what is going to happen to them. There is no regional council; there will be no advisory council there. Who is going to advise the Governor in regard to their welfare, in regard to whatever should be done or should not be done, what act may operate for them or against them? I think that is a point that has to be clarified.

Sir, the Tribes inventory that is in this Draft Constitution is most unsatisfactory. I will exemplify one or two cases. Sir, you yourself come from West Bengal. Bengal has been carved into three provinces, Bengal united, now West Bengal, Bihar and then Orissa. The British had their own arguments for their territorial boundaries. At the present moment, you know it only too well that none of these three provinces seems to be satisfied with the boundary alignment. West Bengal wants something of Bihar; Bihar also wants something of West Bengal. Orissa also is clamouring for some more territory from Bihar. That is the present political situation, but, how does it affect the Adibasis? Now the Tribal Sub-Committee in a way has been outmoded to this extent that lakhs and lakhs of States people have been integrated into provinces. Take the question of Orissa. When the Tribal Sub-Committee went to Orissa it had to deal only with those areas that were excluded or partially excluded. The present position is that about 24 States have been integrated into Orissa and several others into the Central Provinces. Most of these States are overwhelmingly populated by Adibasis. What happens in regard to them? Whatever scheduled areas the Sub-Committee has recommended is really insignificant. It does not cover the whole Adibasis population, particularly of the two provinces of the Central Provinces and Orissa.

I would like Dr. Ambedkar, therefore, to tell me quite clearly that whatever provisions, whatever little concessions that he desires this Constitution should have, will apply also to those areas that are not particularly specified within the scheduled areas.

Then I come to article 13 (1) (b), namely, to "assemble peaceably and without arms". I have to point out that this matter of the Arms Act has been very mischievously applied against the Adibasis. Certain political parties have gone to extremes to point out that because Adibasis carry bows and arrows, lathis or axes, which they do daily as a normal part of their life, which they have done for generations and generations, and what they are doing today they have done before, that they are preparing for trouble.

Let me give you the instance of the Oraons. We have in this Assembly only one Oraon member. Now the Oraon group of Adibasis constitutes the fourth largest block of Adibasis in India. Just about now, they have what we call Jatras or Melas. These are annual occasions for their cultural activities. They have a certain ceremony in which the head of the Oraon village will carry the flag and the rest of them carry lathis with them and proceed into the various akhadas or villages. It is a festival for the people; they have done it in a harmless way for generations and generations and, now we have been told last year and the year before last that we should not carry weapons. I do not mind pointing out there are several Members here from Bihar who will never be able to get back to their homes unless they are escorted with people and with arms. In my own part, we live in the jungles and every one, even women, may I point out, carry what might be designated arms, but they are not arms in that sense. Whenever we have to hold meetings, if people come with their own usual things, I want to know whether it is going to be interpreted that we are assembling unpeaceably and carrying arms for an unlawful purpose. These are the only points, Sir, that I want to have clarified.

I will give one more instance. Every seven years, it is the custom in Chota Nagpur to have what they call. Era Sendra, Janishikar. Every seven years, the women dress as men and hunt in the jungles--dressed as men, mind you. That is the occasion when naturally women like to show masculine prowess. They arm themselves like men with bows and arrows, lathis, belas and so forth. Now, Sir, according to this particular article in the

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Constitution, the Government might interpret that women every seven years were getting together for a dangerous purpose. I urge the House to do nothing that is going to upset the simple folk. They have been among the most peaceful citizens in our country and we should be very very cautious in doing anything which might be misunderstood by them and lead to trouble.

Sir, I have, as I have said, no difficulty in accepting this particular article, but I thought I should seek clarification from Dr. Ambedkar on these two particular points.

Mr. Vice-President: Mr. Hanumanthaiya.

Kazi Syed Karimuddin: (C. P. & Berar: Muslim): I have not caught your eye, Sir.

Mr. Vice-President: Unfortunately, I have only two eyes. They will be turned to your side the next time.

An Honourable Member: Why do you not have a third eye, Sir?

Mr. Vice-President: Why can you not come to the front Bench? I say it is the fault of the House that they unanimously chose an old man as the Vice-President. His eye-sight is not as good as that of younger men. Mr. Hanumanthaiya.

Shri K. Hanumanthaiya (Mysore): Mr. Vice-President, Sir, this article incorporates some of the most cherished rights of us all. For the last sixty and odd years during which the freedom movement was taking shape, we made innumerable speeches and sacrifices in order to win the fundamental rights that are incorporated in this article. But, the point of view of many members here as well as the opinion of some people outside is that these fundamental rights have been so much curtailed that their original flavour is lost. Sir, every law, whether it is in the form of a right or a duty, takes shape according to the condition of the society then prevailing. We went through a course of suffering and sacrifice which were imposed upon us by the repressive laws of British imperialism; this naturally made us votaries of unadulterated fundamental rights and that was our hope. But, ultimately when we emerged out of those innumerable difficulties, we are faced, within our own society, with elements who want to take advantage of those rights in order to do violence to men, society and laws. Hence it is that the Drafting Committee as well as the Governments in the various provinces and the Centre, are hard put to safeguard these rights in their pristine purity. No man who believes in violence and who wants to upset the State and society by violent methods should be allowed to have his way under the colour of these rights. It is for that purpose that the Drafting Committee has thought it fit to limit the operation of these fundamental rights.

The question next arises whether this limiting authority should be the legislature or the court. That is a very much debated question. Very many people, very conscientiously too, think that the legislature or the executive should not have anything to do with laying down the limitations for the operation of these fundamental rights, and that it must be entrusted to courts which are free from political influences, which are independent and which can take an impartial view. That is the view taken by a good number of people and thinkers. Sir, I for one, though I appreciate the sincerity with which this argument is advanced, fail to see how it can work in actual practice. Courts can, after all, interpret the law as it is. Law once made may not hold good in its true character for all time to come. Society changes; Governments change; the temper and psychology of the people change from decade to decade if not from year to year. The law must be such as to automatically adjust itself to the changing conditions. Courts cannot, in the very nature of things, do legislative work; they can only interpret. Therefore, in order to see that the law automatically adjusts to the conditions that come into being in times to come, this power of limiting the operation of the fundamental rights is given to the legislature. After all, the legislature does not consist of people who come without the sufferance of the people. The legislature consists of real representatives of the people as laid down in this Constitution. If, at a particular time, the legislature thinks that these rights ought to be regulated in a certain manner and in a particular method, there is nothing wrong in it, nothing despotic about it, nothing derogatory to these fundamental rights. I am indeed glad that this right of regulating the exercise of fundamental rights is given to the legislature instead of to the courts.

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Then, Sir, here in article 13, about seven fundamental rights are incorporated. I wholeheartedly feel the Drafting Committee has done well in incorporating the first four freedoms, freedom of speech and expression, freedom to assemble peaceably and form associations, and to move freely throughout the territory of India. The next three clauses, to reside and settle in any part of the country, to acquire, hold and dispose of property, and to practise any profession, or to carry on any occupation, trade or business, Sir, in my opinion do not take the character of fundamental rights. They are not really fundamental rights. They are matters incidental to legislation, that can be passed either by the Parliament or the legislatures of the Units. I find these three rights which are incorporated as fundamental rights in this article 13 are not so treated by any other country except, perhaps, Ireland and Switzerland. In America, we do not find these three rights incorporated as fundamental rights. To acquire property, to settle down in a particular town, to practise any trade or profession in any part of the country he likes, are not really fundamental rights. I may be pardoned if I say this that the men who did the work of shaping these constitutional proposals, a majority of them, have come from the uppermost strata of society. After all, they can think of what suits their psychology and their class or their strata of society. It is from that point of view they have framed these three rights. Really speaking, whether these three rights are fundamental or not, we ought to judge from the point of view of the people of the villages and people of the Units. I for one feel that these are rather not rights, but liabilities that are sought to be imposed upon the people of the villages and of the Units. I very much wish that the Drafting Committee and this Assembly could now delete these three rights and relegate them to the discretion of the legislature of the Units but now it is too late and we have to accept them somehow or anyhow. Here arises a conflict in the future that the Units in order to safeguard the rights and interests of the people within their respective areas, may try to circumvent these three rights that are conferred by this Constitution. It will happen. I have no doubt whatsoever in my mind, that here arises a plentiful source of litigation. Yesterday I happened to read Sir Ivory Jennings' opinion about our Fundamental Rights. He says, the rights conferred in this Chapter and especially in this section are so complicated, are worded in such a verbose manner, that it will be a fruitful source of income to constitutional lawyers. There is a good deal of truth in it. The enunciation of the Fundamental Rights and the exceptions added on by provisos are so worded--and they had to be like that because it is impossible to foresee all exigencies, and make provision for them now alone--that there will be litigation on a scale which none of us have ever seen or contemplated. Every man who feels aggrieved can go to any Court of Law and the Supreme Court will be full of cases between individuals and individuals, between individuals and State, between State and State, between the Central Government and State Governments. This litigation--I do not suppose--will be helpful to the interest of the country. Litigation--I need not argue about it--litigation surely ruins both the Parties to it. There is a Kannada proverb the meaning of which is "a successful party in a case is as good as defeated and a defeated party in a case is as good as dead". And whenever there arises litigation in interpreting these clauses, political controversies also arise conferring fundamental rights in this manner--especially the last three clauses-- will continuously raise political storms in the shape of litigation in regard to interpretation of these Fundamental Rights.

Kazi Syed Karimuddin : Mr. Vice-President, Sir, there is no denying the fact that this article is the very life of the Draft Constitution. Without this article the Constitution will be a dead letter. It must also be understood that the Rights contemplated under article 13 are admittedly inalienable rights and the point involved is whether these rights can be delegated to the Governments or we are going to lay down principles which cannot be subject matter of legislation or the vagaries of the legislatures. My submission is that these are Fundamental Rights regarding individuals a contemplated under article 13 which cannot be made subject matter of the vagaries of the Legislatures. Clauses (2) to (6) of this article rob the people of the only guarantee which will make them secure and my submission is that clauses (2) to (6) are very dangerous clauses. Suppose, in a State there is a political party, which is hostile to the Central Government and they frame laws to the great detriment of the political minority or the religious minorities. What can be done? People have to suffer and there would be untold miseries. Particularly the wording 'subject to operation of existing laws' is very unjust. What is the situation today in India? Practically there is a state of siege. There are Goonda Public Safety Act, etc. in all the provinces in which there is neither appeal, nor any warrant is necessary for arrest, and searches can be made without justification. In spite of this, the article lays down that the existing laws will be recognized. These unjust laws which do not provide appeals and which do not provide any proper representation will be recognized under article 13. There

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is no doubt that we are living in an emergency period but that does not mean that article 13 should be inconsonance with emergencies. Another part of the article is the right to assemble peacefully and without arms. What greater restriction could have been laid down by the framers of the Constitution than this and in spite of that the legislatures of the States are empowered to have more restrictions as embodied in clauses (3) and (4). Now the point is whether a particular legislation is in the interest of the people, or whether that can be delegated to the judiciary or to the States' Legislatures. My submission is that you must realise that we cannot entrust the interpretation of these clauses in the Fundamental Rights to the vagaries of legislatures. In the State Legislatures the majority is capable of practically oppressing the minorities, political or communal. The very purpose of this Fundamental Right is being defeated. The Fundamental Rights are being enacted only with a view to placing restriction son the legislation. By these clauses (2) to (6) we are enlarging the scope of this article 13 and we are enlarging the scope of the powers of the Provincial Legislatures or States. This is entirely to the detriment of the political or religious minorities. If this article as it stands is passed, my submission is that it will be taking away those rights which are given in article 8 of the Constitution. There is no parallel to these restrictions in any Constitution of the world. In the American Constitution all these rights have been entrusted to the judiciary simply because the political parties who are elected from time to time cannot be entrusted with the interpretation of laws. The main principle should have been whatever is not forbidden should have been allowed. Apart from that, two amendments have been moved, one by Mr. Mohamed Ismail and the other by Mr. Tahir. My submission is that both these amendments are very innocent and both these are very necessary for the protection of the minorities. Mr. Ismail's amendment advocates that personal law should be respected and this should be embodied in this Constitution. The people outside and the Members of the Constituent Assembly must realize that a Muslim regards the personal law as part of the religion and I really assure you that there is not a single Muslim in the country--at least I have not seen one--who wants a change in the mandatory provision of religious rights and personal laws and if there is any one who wants a change in the mandatory principle, or religion as a matter of personal law, then he can not be a Muslim. Therefore if you really want to protect the minorities--because this is a secular State it does not mean that people should have no religion--if this is the view of the minority Muslims or any other minority that they want to abide by personal law, those laws have to be protected. The amendment of Mr. Tahir is very important and I feel that every Member of the Constituent Assembly must realize that it is important because we have seen after 15th August, whether Muslims are responsible or the Hindus are responsible for communal passion, it has eaten away everything that is good in society. It was really a canker that was destroying the society and would have done so but for the Central Government. Then communal passion should be made an offence. In my opinion this is a very vital amendment that has been moved and it should be accepted by Dr. Ambedkar; Sir, as I have said even Dr. Ambedkar in his book 'States and Minorities' has said--

"No law shall be made abridging the freedom of the press, of association and of assembly except for consideration of public order and morality."

In 1947 he was agreeable that only the first part of article 13 should be enacted in our Constitution and within a year he is so changed that he has placed so many restrictions that take away what has been given under article 8.

Mr. Vice-President: You seem to make the mistake that Dr. Ambedkar is responsible for everything connected with this Draft Constitution. There was the whole Drafting Committee.

Kazi Syed Karimuddin: My submission is that if you take the opinion of the minorities in this House--a Sikh representative has spoken, and I am speaking now--and if you take votes, you will find that the minorities in the country will say that article 13 is not sufficient protection for them. Therefore, I earnestly plead for deletion of clauses (2) to (6). I strongly support the other two amendments to which I have referred. If article 13 is passed as it stands, it is not acceptable to the minorities. It is no freedom of speech that you are guaranteeing It is no freedom of the press that you are giving. You are giving by one hand and taking it away by the other.

Chaudhari Ranbir Singh (East Punjab: General): Mr. Vice-President, Sir, I am not in agreement with those who are for abolition of these provisions from the text during the

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transitional period. This is why I gave notice of two more provisions to article 13. They are as under:

"That the following new clauses (7) and (8) be added to article 13:

'(7) Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law or prevent the State from making any law imposing restrictions on non-agriculturists to acquire and hold agricultural land, for the protection of the interests of the tillers of the soil or the peasantry.

(8) Nothing in sub-clauses (d), (e) and (f) of the said clause shall prevent the State from making laws to declare the minimum of economic holdings of land inalienable'."

Sir, after further consideration, I changed my mind and did not move these amendments, because I think in sub-clause (5) of the article, the words "in the interests of the general public" denote, mean and cover my point that whenever the imposition of restrictions is found to be necessary for the protection of the interests of the tillers of the soil and labourers, the governments will have the right to impose the necessary restrictions on any section of the society, or may allow to continue such laws as are already in existence, which the Governments think are necessary for the protection of the interests of the peasantry or labourers.

I come from East Punjab, and there is a law which is known as the Land Alienation Act, according to which certain classes are debarred from acquiring land, by law. I agree with my Friends, specially Harijans who advocate that the Harijans and other persons who are actually the tillers of the soil should have the right to acquire land. But I fail to understand the argument that each and every person whether he is a tiller of the soil or not, should be put on a par with the tillers of the soil, and should have the liberty to acquire agricultural land. If that is to be the case, then we will be creating a new problem- -the problem of zamindaries,--the same problem of zamindaries which we are abolishing or have promised to abolish from our country. In several provinces, laws for the abolition of the zamindari system have already been enacted. As regards the Punjab, I am of the view, that it cannot be denied that the absence of zamindari system in the Punjab in its acute form as it exists in other provinces is the result of the Land Alienation Act, and this is the real reason why the agriculturists are in a more advanced position in the Punjab than in other provinces. I therefore, feel very strongly and rightly that the legislatures of the State and the various governments should have the full liberty to impose restrictions on the non-tillers of the soil on acquiring or holding agricultural lands, and to declare a minimum economic holding of land inalienable, for the protection of the interests of the tillers of the soil or the peasantry.

Moreover, the overwhelming majority of the population of our country depends on agriculture and they are the tillers of the soil. So the words "general public interests" can mean only the interests of the peasantry and the labourers, and not only the interests of the vocal middle intelligentia and vested people.

Mr. Vice-President: Maulana Hasrat Mohani (Cheers) I am glad the House recognises the excellent services rendered by Maulana Hasrat Mohani to this country. He was the first to stand for total independence of our Mother-Land.

Maulana Hasrat Mohani (United Provinces: Muslim): *[Mr. Vice-President, when I rose to speak, my first impulse was to support whole-heartedly the amendment moved by Mr. Kamath and even now I have come here with that idea. In the later speeches and amendments, one amendment has been moved by Mr. Muhammad Ismail of Madras and I give my full support to it. Besides, I also support the amendment of Mr. K. T. Shah. Mr. Muhammad Ismail in the second part of his amendment has made mention of personal liberty. Mr. K. T. Shah's amendment is also of similar nature. I shall speak at the end about his amendment. First of all, I would like to give full support to Mr. Kamath's amendment. Mr. Kamath has said that everyone should have the right to bear arms. This is a test amendment. If Dr. Ambedkar and his committee are honest, then surely they ought to accept this section and include it in the article at once. If he wavers or raises any objection as I know he is capable of doing, as Dr. Ambedkar's legal abilities are established, and if he wishes, he can turn night into day and day into night and can prove it conclusively,--then I would like to tell him that this is a test amendment and, if you do not include it, it would mean that your tendency is the same as that of the British Government. You know what the Britishers had done. They had promulgated the Arms Act in India. The result was that all the inhabitants of Hindustan were kept as imbeciles. If

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you also have the same design, then it is a different matter. But if there is any national Government and an Indian Government, then there is no reason why you should deprive anybody of this right. If you too will forge an Arms Act and will deprive the people of this right, then I would say that your attitude and way of doing things is much worse than that of the Britishers. It will be much worse. The Arms Act, enforced by the British Government, was applicable to one and all with the exception of the ruling class. We were under the impression that under our own Government this restriction will be removed. Unfortunately at present here we have a party Government and they want to retain it, so that the Act may be applied against their political opponents and may not be enforced against their own party men.

On the basis of my own experience, I would like to say something about U. P. In particular I would tell you about Kanpur city which I represent. The U. P. Government there have singled out the Socialists, the Communists, Independent-Socialists,--including Muslims--Forward Blockists and even those who were suspected of standing against them as rival candidates in the elections and put restrictions on them, and on one plea or the other they were brought under the provision of the Defence of India Act. Some were branded as Goondas, others were stamped as Communists, there were others who were told that they were supporting Hyderabad and collecting funds. There were yet others who were told that they were connected with those members of the Communist Party who are working under ground and they were sent to jails. In short, they applied this Act against all rival parties, and such was the ill treatment against the Muslims that every Muslim of position at Kanpur was house-searched and even if a kitchen-knife was found in his house, the Arms Act was applied and he was sent to jail. Some of them have been released and some are still in jails. Therefore, I would like to submit that for you, who are a party Government, this is a test amendment. You ought to accept Mr. Kamath's amendment and give the right of bearing arms to everybody. If you are not prepared to do this, then you will be setting an Indian bureaucracy in place of the English bureaucracy.

Another point which I should like to submit is that the amendments of both Mr. Ismail and Prof. Shah are of similar nature. As regards personal rights and liberty I would like to say that so long as you do not prove anything openly against anybody in a court of law, it should not be lawful to detain anybody under Defence of India Rules, be he your rival party man or any other. If you send somebody to jail under Defence of India Act or under some other ordinance, then what would happen to the right of Habeas Corpus, and who would give that right, since the High Court will have no jurisdiction over it? And even if High Court interferes in one or two cases, it does not mean that it will be possible in all cases. Therefore, I submit that this should not be included and that everybody should have personal liberty.

I would like to submit my third point in few words, namely, regarding Mr. Is mail's amendment which has been supported by several members. I would like to say that any party, political or communal, has no right to interfere in the personal law of any group. More particularly I say this regarding Muslims. There are three fundamentals in their personal law, namely, religion, language, and culture which have not been ordained by human agency. Their personal law regarding divorce, marriage and inheritance has been derived from the Qoran and its interpretation is recorded therein. If there is any one, who thinks that he can interfere in the personal law of the Muslims, then I would say to him that the result will be very harmful.]*

I say from the floor of this House that they will come to grief. Mussalmans will not submit to any interference in their personal law, and if anybody has got the courage to say so then I declare.....

Mr. Vice-President: Order, order.

Maulana Hasrat Mohani: He should remain convinced--and I declare in the House-- that Mussalmans will never submit to any interference in their personal law, and they will have to face an iron wall of Muslim determination to oppose them in every way.

(Interruption)

Shri Vishwambhar Dayal Tripathi (United Provinces: General): Will you give the right of human sacrifice to those who believe in it and may claim it under the pretext of

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their personal law?

(More interruptions)

Mr. Vice-President: Will honourable Members please take their seats?

Shri Brajeshwar Prasad (Bihar: General): I rise to support article 13 with all its reservations and safeguards. These restrictions are necessary in our national interest. Let me adduce the reasons for saying so.

An Honourable Member: Is the honourable Member reading his speech?

Mr. Vice-President: He is reading his speech and I have given him permission to do so.

Shri Brajeshwar Prasad: Personal freedom has to be curtailed if the menace of capitalism is to be met. Nation-states of the nineteenth century were not confronted with even a small part of the dangers that confront a modern state. Political conspiracies of international dimensions were unknown. The political criminal in the pursuit of his nefarious designs resorted to methods and anties very well known to the administrators of old. The laws and judicial institutions were strong enough to grapple with these problems. The technique and methods widely employed by modern law-breakers cannot effectively be checked by judicial institutions and ordinary laws of the nineteenth century. The state must be vested with wide discretionary powers and the freedom of the individual must be seriously curtailed if the parasitical class that thrives on profit and exploitation is to be liquidated and the communists are to be checked from endangering the safety and existence of all the institutions of our modern life.

Shri Rohini Kumar Chaudhari (Assam: General): The honourable Member is reading his speech so swiftly that we cannot follow him. May I suggest that his speech should be taken as read?

Mr. Vice-President: Do you agree, Mr. Brajeshwar Prasad, that it should be taken as read? (After a pause) Mr. Brajeshwar Prasad does not agree to the suggestion made by the Honourable Member Shri Rohini Kumar Chaudhari.

Shri Brajeshwar Prasad: It is wrong to regard the State with suspicion. Today it is in the hands of those who are utterly incapable of doing any wrong to the people. It is not likely to pass into the hands of the enemies of the masses. And constitutional guarantees of individual freedom will not for long remain sacrosanct if the machinery of the State passes into the hands of the reactionaries. If you want to prevent the political reactionaries from gaining political power and ascendancy, the rulers of the land must be vested with large discretionary powers.

In a modern progressive State there is not much conflict between the individual and the State. For the State is composed of individuals. It is we ourselves purged and purified of our selfishness. The individual has no power of his own, separate and distinct from the State. The State and the individual are the two sides of the same coin.

In the nineteenth century the executive authority had not developed the technique and mechanism of the modern State. It had very little part to play in the life of its citizens. The executive authority in the modern State has a dominant part to play. It is not handicapped by any lack of technique. The needs of modern life, of socialism and collectivism cannot be fulfilled if the State is not vested with ample powers. The trend of modern politics is towards regimentation of ideas and conduct. The doctrines of Mill and Spencer have become thoroughly unrelated to the needs and demands of the age. It is the society and not the individual which has become the object of primary concern and loyalty both of political theorists and actual administrators. The objective conditions of our modern life have relegated the individual from the Olympian heights of honour and glorification accorded by the individualist school to a position of utter insignificance and neglect.

Individual freedom is risky in a community where more than 80 per cent of the people are sunk in the lowest depths of poverty, illiteracy, communalism and provincialism.

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It is sheer illusion to think that the personal rights of the individual can be firmly secured if these are laid down in the Constitution in clear language without any reservations and safeguards. The enjoyment of these rights is dependent upon the fulfilment of certain social conditions outside the scope of any constitution. Man can never enjoy the blessings of personal freedom as long as society remains organized on the basis of capitalism, as long as the menace of war and foreign intervention looms large on the horizon, as long as poverty, illiteracy, communalism and provincialism remain in our midst. It is only with the decline of the forces of organized religions and the establishment of a World State based on the ideals of economic equality and political liberty that man will be able to achieve the content of personal freedom.

It is not entirely due to the wickedness or ignorance of constitution makers that there are restrictions on individual rights. The legacy of centuries of backwardness and foreign misrule cannot be wiped out by one stroke of the pen. The concomitants of the age cannot be brushed aside by any constitutional guarantees. Constitutional guarantees merely facilitate the achievement of personal rights, which are essentially of an inward character, to be secured by the exercise of reason and proper conduct. We must think, speak and act properly if we are to obtain and enjoy the rights of personal freedom. It is only with the growth and development of education to communal dimensions that the foundations of personal liberty can be securely laid.

Shri H. V. Kamath: Sir, may I request my Friend to have a few full-stops if not other punctuation marks?

Mr. Vice-President: The Honourable Member's time is up. But what Mr. Kamath said has certainly not added to the dignity of the House.

Prof. Yashwant Rai (East Punjab: General): *[Mr. Vice-President, Sir, the Harijans of the Punjab are very much indebted to the Chairman of the Drafting Committee for having included article 13 in the Constitution. At present it is the custom in the Punjab that only one particular community can purchase land and take to agriculture. But the Harijans, 90 per cent of whom are cultivators, are not permitted to purchase land to cultivate, or to build houses. When this article receives the assent of the House, they will have the facility of purchasing land for building their houses, as also land for agricultural purposes if they have the capacity to do so. I hope that the many handicaps from which the Harijans suffer in Punjab, causing the clashes that are taking place in almost every village between them and the landlords, as a result of which they are kept confined to their houses in some villages, as also their other difficulties will not have to be faced by them in future. They find themselves in their present plight though they thought that the Congress Government would be a national Government and on coming to power it would permit them to purchase land and would remove all their difficulties. Our Indian National Congress was wedded to the creed that on establishing its Government every one will get house-building and agricultural facilities and no one will have any difficulty on these accounts. People are also realising that now the Congress is in power all these facilities will have to be afforded to the Harijans.

Therefore clause (f) of article 13 is very necessary because it provides the facilities we wanted. I think that the difficulties with which we are faced today will soon disappear. I therefore support this article.]*

Shri Rohini Kumar Chaudhari : Mr. Vice-President, Sir, I must congratulate the House for having decided to drop the word "sedition" from our new Constitution. That unhappy word "sedition" has been responsible for a lot of misery in this country and had delayed for a considerable time the achievement of our independence.

While on this article, I should also like to draw the attention of the House to the unhappy condition which had prevailed so far as the relations between us and the people of the tribal areas were concerned. The British Government wanted to keep these regions as their own preserve, not having imagined for a moment that they will have at any time to quit this country. They wanted to keep the tribal people completely under them for all ages to come and they wanted to have the hills as their own place of preserve and therefore they had introduced rules which prevented the ordinary people of the plains from mixing with their brethren in the hills. I am glad, Sir, that in this article we have laid down that all people will be able to travel freely throughout the territory of India. But it is most unfortunate that we cannot do away with the proviso to say that a particular State

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may lay down a law by which this freedom of movement can be restricted. Sir, I can only draw the attention of the House to a very unfortunate incident which took place even after the achievement of independence. A few months ago some Members of the Central Legislature headed by our friend the Honorable Mr. Santhanam had occasion to pay a visit to the Manipuri State. Although the officers of the Provincial Government had allowed us to go there freely, we were held up there for more than an hour by the orders of the Manipur State. I believe that after the passing of this Constitution such a state of things will never occur and that immediately after the passing of this Constitution steps will be taken to allow us free ingress and egress to those parts of the States which are now inhabited by the scheduled tribes. There should be greater friendliness between the scheduled tribes and the people of the plains and all steps should be taken to remove the barriers to our movement in those places.

Then, Sir, I am glad to find in this article that people will be free to carry on their profession in any part of India. That is quite good in so far as it stands on paper, but many times the British Government said they would never allow a lawyer to practise in any of these hills. I believe, Sir, after the passing of this article of the Constitution, steps will be taken to remove any restriction on any professional man practising in any part of India.

It is now my misfortune to have to say a few words about Professor Shah's amendment No. 416. It is very easy, I should say much easier, to deal with one who writes out his amendments and thinks over them. But it is very difficult and dangerous to deal with one who carries all his amendments, thousand and one of them, in his brain and then directly pours them out from his brain on the floor of this House. Sir, amendment No. 416 introduces certain words about things being subject to the provisions of this Constitution, and all those things. On the one hand we find that the House has practically agreed to remove these words "Subject to the provisions of this Constitution". But we find the Professor Sahib has put that jumble of words in that amendment. Does he want to use these words to rhyme in the Constitution? Poets are fond of using several words just for the sake of rhyming. If it is intended for the sake of rhyming to use all those words, I can understand it, but otherwise I think they are meaningless. I would also warn my friends against the use of the word `guaranteed'. We have seen, Sir, advertisements of all and sundry articles promising guarantee. I have myself been a victim of such an advertisement. A big full-page advertisement of a certain medicine guaranteed that if you use that medicine for seven days you will benefit your health and become strong like Sandow. The word `guarantee' was actually there. But what I found after using that medicine for seven or fourteen days was that the medicine had no effect. It did not bring about any improvement in my health. Also in the case of a lot of jewellery in the market, though they were all chemical jewels, the merchants offer guarantee to the effect that the jewellery will retain its brightness and quality. But after a fortnight the brightness disappears and the thing becomes black in colour. So, the use of the word 'guarantee' is very perilous. It is not necessary to use that word in this country. We in India are so much used to this word that when we see it used we begin to suspect it. When we see anything guaranteed, we understand that it is not guaranteed and is not genuine. Therefore it is better to leave the Constitution as it is without the word `guarantee'. Without that word we can understand it better. Then we shall know that there is no attempt to cover-up anything not wanted. The clause, as it is without the word `guarantee' is quite all right.

Sir, this article with the amendments which have been accepted has my whole-hearted acceptance.

Prof. Shibban Lal Saksena (United Provinces: General): Mr. Vice-President, this article may be truly stated to be the charter of our liberties and this is probably the most important article in the whole Draft Constitution. In the original form in which it was presented to this House, it was open to many criticisms and they were justified. Now I think it has been materially altered. The promise made by Dr. Ambedkar to accept the amendment of Mr. Bhargava and others gives me hope that this article in its final form will be a real charter of our liberty.

Sir, let us analyse the criticisms made in some of the amendments moved by my friends. First of all, the criticism is that all the provisos were meant to nullify the liberties given in the first clause. But if we carefully examine each of the sub-clauses, we will find that this criticism is not justified. In clause (2), the word 'sedition' has been taken away, and the word 'authority' has been dropped. So that, what remain in clause (2) are the

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exemptions of laws relating to libel, slander, defamation, or any matter which offends against decency or morality or undermines the foundation of the State. These alone will remain on the Statute Book.

As was pointed out yesterday, even in America where the courts are given absolute power, the Supreme Court has been obliged to limit it. What we are doing is that instead of the Supreme Court we ourselves are limiting this thing. This limitation in the present form is less wide than it originally was. I think this should satisfy the House.

In this connection I only want to say one word more. Clause (1) (a) says that every citizen shall have the right to freedom of speech and expression. As proposed in one of my amendments we should bring in here the freedom of the Press. I hope Dr. Ambedkar would bring in some amendment to include freedom of the press in this sub-clause.

As regards clause (3), I am glad that after the addition of the word 'reasonable' it has become a much wider charter of liberty. It now reads:

"Nothing in sub-clause (b) of the said clause shall affect the operation of any law, or prevent the State from making any law, imposing in the interests of public order 'reasonable' restrictions on the exercise of the `right conferred by the said sub-clause'."

Under this, the existing laws, in so far as they impose restrictions which are not in the interests of public order or morality, are nullified. Everybody will admit that public order has to be provided for. The sub-clause as amended is much better than what it was. The Supreme Court could now lay down what offends against public order and what does not.

Coming to clause (4), I must say that labour will now feel that today they have got their charter of liberty. They can now form unions subject to reasonable restrictions in the interests of public order or morality. So, labour today will thank Dr. Ambedkar for accepting amendments which modified the original clause. In the original form you could not hold a meeting because it would be against the wishes of the general public. Now you will have to prove that the decision to ban a meeting is in the public interest or morality. This is the great charter of liberty for labour.

Then I come to clause (5). This qualifies sub-clauses (d), (e) and (f). It says: "Nothing in sub-clauses (d), (e) and (f), shall affect the operations etc. etc." "or for the protection of the interests of the Scheduled Castes". We have added the word 'reasonable' therein. It is very important. The rights such as freedom to move about throughout the country are very important. Some friends pointed out that there are many laws at present in existence in the East Punjab, for instance, which are really very bad and that this clause will not nullify many of them.

And then there is clause (6) which relates to carrying on of professions. After the amendments that have been accepted this clause also has become much better.

One thing more I want to say. Mr. Kamath in his amendment wants the right to bear arms. In most Constitutions throughout the world this right has been recognised. We ourselves throughout recent history have asked that this should be our right. In fact I remember, when Mahatma Gandhi wrote to Lord Irwin in 1930 about the Eight Points, which he wanted to be accepted, one was about this right to bear arms. The question of this right to bear arms dates back to 1878 when, after the mutiny, the British Government disarmed the Nation. I think that after freedom we should at least allow this thing, as only an armed people can support the Government. I hope Dr. Ambedkar will do something about it.

Then as regards sedition, our great leaders like Lokmanya Tilak and others were the victims of section 124-A. I congratulate Dr. Ambedkar for having put in the clause a sit has emerged.

Shri H. J. Khandekar (C. P. and Berar: General): *[Mr. Vice-President, I rise to submit to the House my views on article 13. I believe that if the man-in-the-street were to read this article up to sub-clause (g) he would most likely begin to believe that this country has secured its freedom and that every individual within it has also been granted the right of freedom. But if the same person were to proceed further in his study of this article and goes through the sub-clauses (2), (3), (4), (5) and (6) he would revise his opinion and become fully convinced that our country has not as yet attained Swaraj in its

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correct sense. It would mean that what had been granted by the right hand has been taken away by the left, in the succeeding sub-clauses. I believe that a majority of the Members of this House hold the same view in this respect as I do.

If we confine ourselves to an examination of clause(1), we find, Sir, that the rights granted to the citizens of India under this article are many. Sub-clause (a) specifically grants freedom of speech and expression--for securing which, as you and the majority of the Members of this House are aware, we resorted to individual Satyagraha under the leadership of Mahatma Gandhi in the year 1941, and as a consequence thousands, nay, hundreds of thousands of people of this country had to rot in the prisons. At that time all of us believed that when Swaraj is established every citizen of this country would also secure for himself the right of freedom of speech and expression. We, no doubt, find that article 13 grants this freedom of speech and expression. But all this has been taken away indirectly by clause (2).

I may point out that the Provincial Governments have recently enacted many repressive laws. I am afraid that article 13 will allow these laws to remain in force even in the future. What is worse, this article leaves scope for the enactment of further repressive laws in future. In several provinces such laws as the Goonda Act, Essential Services Act, and Public Safety Act have been passed. It may come as a surprise if I inform the House that, since the advent of the Popular Ministries, Section 144 has been constantly reigning in the big cities of this country. Consequently there cannot be a public gathering of even five or seven persons in cities, nay, not even for carrying on conversation among themselves or giving vent to their ideas and feelings. If this situation continues also in the future, I am afraid that the freedom which he had been wishing to establish in this country, the freedom that has been granted in Clause (1) (a) of article 13, will be entirely lost under clause (2) of that article.

I feel, Sir, that I should discuss before you each of these sub-clauses, one by one, so that I may be in a position to request you in the end that this article should be sent back to the Drafting Committee with a request that, after having carefully reconsidered it and having put in it what is really required in the circumstances of the country, it should resubmit it to the House. I believe that the House would then pass it with pleasure. But I am afraid that all would be lost if the article is passed as it is today.

Again sub-clause (b) of clause (1) grants, Sir, the right "to assemble peacefully and without arms." But clause (3) of the article takes away the entire significance of this sub- clause. Similarly sub-clause (c) grants the right 'to form associations or unions'. Thus we are given the impression that we would have the right to form associations or unions and thus to carry on organised agitation. For instance, we are given to believe that we could carry on organised agitation for the welfare of Lab our, that we can make, in an organised fashion, a demand for the grant of bonus, and if necessary can assemble in public meetings to back up this demand. The truth is that the law restricting the right of holding public meetings would be enforced. Consequently in view of such a law or laws of this kind to be passed in future it may not be possible to hold any public meeting. Thus it is clear that the Government would be in a position to prevent if it so desires, any agitation by Lab our for demanding bonus, since all these restrictive laws would be applicable to the workers also. I, therefore, fail to see the significance of the right of forming associations when I find that its substance is taken away by clause (4). I submit that this article is neither for the good of labour nor of the general community.

Further we read of the right to 'move freely throughout the territory of India'. This is sub-clause (d). Under it every citizen of India would have the right to move freely into any province or any village of India. But the substance of this right is taken away by clause (5). I would make this clear by an illustration. It is a matter of great amazement that in this country there is a law known as the Criminal Tribes Act under which a persons is considered a criminal from the moment of his birth. There'are also some unfortunate communities in this country whose members would not have the right to move freely in the territory of India granted under this sub-clause to every citizen of India. I believe, Sir, that you are aware that under the Criminal Tribes Act the people following pastoral occupations cannot go to any particular part of India they would like to go. Now they do not have that freedom. We have in our province a tribe known as Mang Garodi. If it has to go from the village of Khape to the village of Janwanver it is followed by the Police who sees to it that it goes only to the latter village and nowhere else. Similarly if it goes from Janwanver to Katol the Police of the former place would go up to Katol to entrust the

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Police of the latter place to keep watch over it. Thus they have no freedom of movement, whatever freedom of movement is now given under sub-clause (d) is taken away by clause (5) of the same article. If the intention is not to give to the criminal tribes, who are also citizens of India, the freedom which they are entitled to, it is something extremely unjust.

Similarly further on we find the right `to acquire, hold and dispose of property'. My friend Prof. Yashwant Rai has said with reference to this freedom that there is an unfortunate section--the scheduled castes--in the Punjab who cannot purchase land on account of the provisions of the Land Alienation Act. Moreover the right that you have granted by this sub-clause to every citizen has been taken away by the clause which permits the Land Alienation Act to remain in force even in future. Thus the right which the Harijans should also, like other citizens, get under this Constitution would not be available to the Harijans of the Punjab on account of the Land Alienation Act of the Punjab.

Pandit Thakur Dass Bhargava (East Punjab: General):*[This article would most certainly confer this right.]*

Shri H. J. Khandekar: By what article please?

Pandit Thakur Dass Bhargava: It will be conferred by this very article 13.

Shri H. J. Khandekar: I do not find this specified here. If this article is passed as it is, the rights that the Harijans of the Punjab should get will not be available to them.

Mr. Vice-President: May I point out to you that it would be better if you address the Chair and not carry on conversation among yourselves?

Shri H. J. Khandekar: Very well, Sir, Sub-clause (g) grants the right to practise profession or to carry on any business etc. But all these rights are taken away by clause (6). I would like to place before you, Sir, the difficulty we would be placed in by these provisions. The most unfortunate people in this country, in my opinion, are the sweepers. Whatever we may talk about the grant of rights to these unfortunate sweepers the fact remains that these unfortunate people have never been given any rights by any person in India nor have they ever enjoyed any right said to have been granted to them. To talk of their "freedom to practise any profession or trade" is a mockery to them. I do not know of the conditions prevailing in other provinces but I know what happens in my province. If a sweeper working under a Municipal Committee desires to give up his work, in my province, he would have to give a notice in writing addressed to the District Magistrate of his intention to do so and can leave his service only if that officer agrees to release him. I am of the view that even the very name of sweeper is a matter of contempt by people. I have consequently held the opinion and have repeatedly said to the sweepers, and I would like again to communicate this opinion through your, Sir, to the sweepers of this country, to give up their present occupation which makes them looked down upon as untouchable by the people of the country, because their work is considered to be so dirty and polluting. I advise them to take to such occupations as are followed by other people. If the sweepers of the whole country were to leave, on my advice, their present occupation, and which they could in exercise of the freedom granted by the clause (8), I am sure that they would invite against them the objection of clause (6) which refers to service in public interest. The fact is that if all the sweepers of Delhi, or Bombay or Calcutta were to stop cleaning latrines, sweeping the streets, they would be said to be acting against public interest; and under this law and under the Essential Services Act they would be compelled to do this work. Then how can you say that all human beings shall have equal rights under this sub-clause? The handicaps from which we suffer, from which the peasant suffers, from which the workers suffer, from which the sweepers suffer would continue to remain even under this article, if it remains as it is. It is, therefore, my submission, and I believe that the House after having heard what I have already said, would consider it proper, that this article should be referred back to the Drafting Committee for being amended. It may then be placed before the House for adoption. This is my proposal, With these words I resume my seat.]*

Shri Algu Rai Shastri (United Provinces: General): *[Mr. Vice-President, all the important aspects of fundamental freedom have been dealt with in article 13. From this point of view this article is very important. It is going to be accepted with some minor amendments. Many friends have attacked its provisions on the grounds that the

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fundamental rights conferred by this article have been taken away by the limitations imposed therein. I feel that along with freedom responsibility is essential. The friends who urge that the rights given in this article have been taken away under the sub-clauses (2), (3), (4), (5) and (6), have not taken have not taken into consideration the people who will elect members to the legislatures which have been authorised under these provisions to apply these restrictions, and the people who would compose these legislatures. I submit that those who would sit in the legislatures would be representatives of the people and they will impose only those restrictions which they consider proper. Such restrictions would be in the interest of the people. Only those restrictions will be imposed which would be necessary in the interest of public health, unavoidably necessary for the maintenance of public peace and desirable from the viewpoint of public safety. No restriction will be imposed merely to destroy the liberties of the people.

Freedom is a great art--even greater than the art of music and dancing. One who is adept in music or dancing keeps his voice under control and maintains restraint and control over his bodily movement, and on the movement of his feet. He has to move in accordance with certain recognised rules of music and dancing. He cannot sing and dance out of tune and time, in an unrestrained manner. He remains fully bound to the rules. Full freedom is being conferred upon us but it can never mean that we should not be under any restrictions whatsoever. Freedom of speech does not mean that we can give expression to whatever comes to our mind without observing any limitation or rule in this respect. In legislatures we have to follow certain rules and regulations. We are here as the representatives of the sovereign people but even then there are hundreds of restrictions upon us. Freedom by its nature implies limitations and restrictions.

'Kavihin Arth Akhar Bal Sancha, Kartal Tal Gatihin Nat Nacha'

The dancer dances to the measure of clapping. The poet is bound by the significance of words. A dancer dances according to certain fixed timings and never makes a false movement. His movements are in harmony with the tal. When a nation or a community attains freedom, it begins to bear a great responsibility on its shoulders. We cannot therefore say that the restrictions that have been imposed will retard our progress.

One of my friends made a reference to the Bhangi community. I have been working amongst them since 1924. I have thus a personal experience extending over a period of twenty four years. There can be no doubt about the indescribable wretchedness of the Bhangis and of our other so called untouchable brethren. It is indeed very deplorable. But the restrictions provided for in article 13 do not imply that Bhangis will continue to remain bound to their present occupation. Under this article there would be no compulsion for any person to follow any particular occupation. This article as a matter of fact, instead of prescribing the compulsory pursuit of any occupation, provides for unrestricted freedom to every individual to follow any vocation he pleases. I think that the freedoms granted under sub-clauses (f) and (g) need clarification. In sub-clause (f) is specified the right of a person to acquire, hold and dispose of property; while in sub-clause (g). It is stated that there is freedom of a person to practise any profession or to carry on any occupation, trade or business or other means of livelihood of one's choice. It is true that the State has been authorised to restrict this freedom in sub-clauses (5) and (6). But a little reflection would show that it was necessary to limit the freedom so widely provided for in sub- clauses (f) and (g) of clause (1) of article 13. Such unrestricted freedom as is provided in these two sub-clauses could not be free from grave danger. For instance, we have in our society the practice of prostitution. Is this to continue in future also as it has done till now? It should not in any circumstances be permitted to continue. Evidently there must be some provision whereby its practice may disappear by providing for a profession worthy of being adopted. Evidently restrictions have to be imposed on it.

Again, there is freedom in our society to earn one's livelihood by selling intoxicants. In the Directive Principles we have now included a provision for the introduction of Prohibition but in the Fundamental Rights we have given every one the unrestricted rights to earn his livelihood. Both the provisions appear to be contradictory to each other. Thus it is necessary to provide that no one shall be permitted to earn a living by selling intoxicants except for medicinal purposes.

Again begging is a common profession in our society today. Should it be permitted to continue as it is? I submit that there should be a good arrangement for bringing it to an end.

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We have now attained freedom. We should do nothing which may endanger it. It is our duty to be good citizens. We have also to see that freedom is not misused. Up till now we were under foreign rule. Indian subjects received step-motherly treatment from the rulers. In England no intoxicant can be mixed with any medicine other than in the prescribed proportion but here bottles of country wine are being sold openly in the market. Our `Freedom'--our own mother--can never permit us--her children--to have this because she cannot permit her children to go astray.

Good citizenship implies restrictions:

"SATYAM BRUYAT PRIYAM BRUYAT NA BRUYAT SATYAMAPRIYAM"

Be truthful and sweet in speech, but do not speak out the unpleasant truth. Anyone has the freedom to state the truth, but not the freedom to speak out the unpleasant truth. This is a restriction and good citizens have to accept this restriction. I beg, therefore, to express my appreciation of article 13 read with the amendment moved by Dr. Ambedkar and which already been referred to.

I would like to make another observation. I feel that the rights guaranteed in sub- clauses (f) and (g) are rather too wide. I have already said something about freedom of making a living.

I shall resume my seat after saying a few words about the right to acquire property. The type of freedom being guaranteed implies that the capitalists and feudal aristocrats would have full rights to acquire and dispose of property. But the mode in which property is being acquired and held is such as permits the property owners to have all the benefits while workers who create this property have all the toil as their share. `The ox produces and the horse consumes'--this saying is being fulfilled. Of course, this should not be so. I submit that this right of property should be so interpreted in future as to permit the transformation of individualistic capitalism into State capitalism. All the means of production and the distribution of the commodity should be owned and controlled by the State and not by the individual. "Unless the individual ownership yields place to collective ownership--social ownership--there cannot be real Swaraj."

To reach this goal it is necessary that these restrictive provisions should be interpreted in this way. With these words I express my support for this article.]*

Shri Amiyo Kumar Ghosh (Bihar: General): Mr. Vice-President, Sir, we are dealing today with one of the most important clauses of this Constitution. We are dealing with the freedom of citizens. That is to say what rights the Indian people have under this Constitution. On reading the entire clause, I feel that the rights which have been recognised under sub-clause (1) of this article have been to a great extent abrogated by the subsequent provisos. In a Constitution, there are two important points, namely what are our rights and what form of Government we are going to have. These are the two important subjects in a Constitution and others flow from them and therefore one expects that so far as the rights of the people are concerned, they should be expressed in clear, simple and straight language, so that a common man when he reads the Constitution can understand exactly and precisely what are his rights and what are the checks to his rights. I do not propose to say that at times of emergencies or grave needs, freedom does not require to be checked to a certain extent. I believe in checks and balances, but at the same time, I must say that those checks should be very precise, and clear and should not be couched in ambiguous language and left to courts for decisions.

Now you will find, Sir, that in all these sub-clauses (2), (3), (4), (5) and (6) we have used the words "interest of general public", `general public interest' `public order' and `property' without defining them and I think it will take centuries for the Supreme Court to exactly say what really these words mean. By incorporating such words in the sub- clauses, wide powers have been given to the Central and the Provincial Legislatures to frame laws by which they can restrict the freedom which has been given to the people under sub clause (1) of this article. I do not like to enter into any criticism of this article, but the only thing I want to say is that the entire clause is very disappointing.

Specially, I will draw the attention of the Honourable Dr. B. R. Ambedkar to sub clause (5). Now, Sir, in this sub-clause (5) the rights which have been recognised in sub-clauses (1) (d), (e) and (f) above have been practically negatived and have given rise to grave

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anxiety in the minds of many regarding the exact position in matters of residence, acquisition and disposition of properties. The exact significance of clause (5) in respect of (e) and (f) requires further clarification. Next I cannot understand why in this clause, the words, "for the protection of the interests of any aboriginal tribe" have been incorporated. What it exactly means I fail to understand. Does it mean the 'tribal area' or does it mean that wherever any aboriginal tribe lives, irrespective of their numbers the legislatures can frame laws safeguarding their interest as, for instance, if there be 15 aboriginals living in Delhi, can the Central Legislature frame a law by which they can restrict the rights of other people in the interests of these fifteen or sixteen aboriginals? I could understand that wherever there may be some aboriginals the legislature can make a law, by which they can restrict the rights of all others for the protection of those few.

Sir, I feel the position is ambiguous and clumsy and should be made clear. I fail to understand why clause (d) has been tacked with sub-clause (5). Free movement has been restricted by that sub-clause. My own personal view is that there should not have been any restriction regarding movement. The citizens should have been given a free right to move. Only on administrative or political grounds the Central or provincial legislatures could be empowered to frame laws judiciously by which they can restrict the movement of the people and this power should be worked sparingly and in very emergent circumstances. In every matter of freedom, restrictions have been imposed in the interest of general public. What this interest is, we do not know and has not been stated anywhere. Such words can be interpreted differently in different States and the Centre and may give rise to separate and conflicting laws. Sir, this would create great confusion. Therefore, I submit, if this article is read and viewed, it only gives rise to disappointment, and with a little more effort and with as light inclination this article could have been framed in such a language that it would have been a model article in the whole of the Constitution.

Mr. Vice-President: Mr. T. T. Krishnamachari.

Shri Mahavir Tyagi: May I know, Sir, is it by reference to the slips that you are calling the speakers?

Mr. Vice-President: I am not prepared to give you information as to how I conduct my work.

Shri Gopal Narain (United Provinces: General): So that we need not stand every time. Have we to stand every time or send slips, Sir?

Mr. Vice-President: The remedy lies in your hands; you can do both, you can send a slip and stand, or you can don either.

Shri T. T. Krishnamachari (Madras: General): Sir, as the speaker that spoke before me said, this is perhaps the most important article in this Part and one which enumerates the rights for the attainment of which we in India have undergone all the troubles to obtain our freedom. Actually, Sir, it is in the manner in which the State is going to allow the people to use the rights enumerated in this particular article that the people can feel that all that they have done in the past and the sacrifices that they have made in the past to obtain freedom was worth while.

Sir, I do not say that this article is perfectly worded; nor can I maintain that the exceptions to parts of this article provided by clauses (2), (3), (4), (5) and (6) do not curtail the liberty and the right conceded to individual citizens in clause (1). But, as a student of politics, I have to realise that there can be no absolute right and every right has got to be abridged in some manner or other under certain circumstances, as it is possible that no right could be used absolutely and to the fullest extent that the words conveying that right indicate. It is merely a matter of compromise between two extreme views. Having got our freedom only recently, it is possible that we want all the rights that are possible for the individual to exercise, unfettered. That is one point of view. The other view is that having got our freedom, the State that has been brought into existence is an infant State which has to pass through various kinds of travail, and what we could do to ensure that the State continues to function un-impaired should be assured even if it entails an abridgment of the rights conferred by this article. I have no doubt in my mind that, though I have had to say something perhaps harsh on certain occasions in regard to what the Drafting Committee has done generally, in this article, the Drafting Committee

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has chosen the golden mean of providing a proper enumeration of those rights that are considered essential for the individual, and at the same time, putting such checks on them as will ensure that the State and the Constitution which we are trying to bring into being today will continue unhampered and flourish.

Sir, language is always rather a difficult affair. What language conveys to me it may not convey to another person, and as my honourable Friend Dr. Ambedkar put it, we are legislating in a language which is foreign to us, the exact import of which we do not understand. Should we do it in one of our own languages? The difficulty would be all the greater for the reason that the language of one set of people is not the language of another set of people. Besides, precise thinking in our own language so that we could adopt it for constitutional purposes has not yet developed. Actually we have to depend for the interpretation of the particular restrictions that are enumerated herein on the Supreme Court or some other authority that would come into being in the future, to ensure that the peoples' rights are not abridged.

Speaking today in the context of the situation in which we are placed, we cannot but envisage that those rights will be abridged in order to maintain the stability of the State. This State that has now been brought into being has been put to a lot of travail in the first eighteen months of its existence and every Member of this House knows it. Special powers are needed by the Government to meet not merely with the refugee problem, not merely with the fact that there are various forces in this country which do not like this State to grow in the present form, but also with the various economic troubles that now face this country. Are we to build up our Constitution, putting in these restrictions which are necessary today in the light of things that stand as they stand today, or are we to visualise a time when things will be normal and when it will not be necessary for the State to use these powers, is the problem. Again, I think, the Drafting Committee and my honourable Friend Dr. Ambedkar have chosen the golden mean in this particular matter.

There is one other matter on which I would like to lay stress before I sit down. We in this House, though the bulk of us belong to one party, have got different ideas on economic matters. We were all together in one particular fact that the British should go; we are all united in the desire that we should have a stable constitution which will ensure to the common man what he needs most, what he did not obtain in the former regime. But, in the achievement of that goal in the methodology to be adopted for the achievement of that goal our ideas vary considerably, and vary from one end to the other. I am happy to see that the Drafting Committee has chosen to avoid importing into this particular article the economic implications in the enumeration of fundamental rights that obtain in other constitutions. I think it has been a very wise thing. I know a friend of mine in this House has objected to one particular sub-clause (f) of article 13, namely, to acquire, hold and dispose of property. I would like to assure him and those who hold the opinion that he holds that this does not really mean that there is any particular right in regard to private property as such, no more than what any person even in absolutely socialistic regime will desire, that what he possesses, what are absolutely necessary for his life, the house in which he lives, the movables that he has to possess, the things which he has to buy, should be secured to him, which I think any socialistic regime, unless it be communistic, will concede, is a right that is due to an individual.

Actually the economic significance that attaches to any enumeration of Fundamental Rights, such as the rights conceded in the Bill of Rights in the American Constitution and the addition to these in the Fourteenth Amendment, finds no place so far as this particular Constitution is concerned, and I am able to say that that is one of the bull features of this Draft Constitution. We have chosen to avoid as far as possible, in spite of the fact that the vested interests are still with us and they have a certain amount of influence--we have chosen to avoid as far as possible laying that stress on the importance of the economic surroundings which is a significant feature of the American Constitution, and I do hope that my honourable Friend, who objected to a particular sub-clause in this article namely clause (f), will now realise that it has no meaning so far as property rights are concerned except in something that is dear to an individual and which is very necessary to concede in an enumeration of rights of this nature.

Sir, the future, what it is going to be none of us really know, but we almost of us-- envisage that the future will be one which will be bright, the future will be one where the State is going to be progressive, where the State is going to interfere more and more in the economic life of the people not for the purpose of abridgment of rights of individuals,

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but for the purpose of bettering the lot of individuals. That is the State that I envisage, a State which will not be inactive, but will be active and interfere for the purpose of bettering the lot of the individual in this country; and I do feel, Sir, that as it is a well known canon that in any Constitution that is forged there should be a reconciliation of past political thought which will at once pave the way for a new level of thinking, a new level of progressive and critical thinking. I think those conditions are at any rate possible in an enumeration of the Rights such as is found in article 13. Sir, there is no use our comparing this particular article which happens to be the crux of the Fundamental Rights with either what obtains in the commentaries of the English Constitution or what obtains in the text of the American Constitution or any other Constitution, for the reason that the setting is totally different. There is no use anybody saying that a particular feature is not found in the English Constitution. English jurisprudence is something totally different for the reason that English Parliament does not provide for the enumeration of all these rights which is absolutely based on custom on which you cannot depend for ever because Parliament there is supreme and can make laws contravening every recognised custom. They do not have to have a Constitutional amendment for that purpose. Parliament can formulate new laws which might cut right across the conventions, and the usages of the Constitution established over centuries. But so far as the American example is concerned- -and certainly there are other examples which are modeled on the American example-- there is one distinction between our own way of thinking and what the Founding Fathers in America thought and what was sustained in America until recently, viz., the economic basis of the American Constitution is something totally different from what we envisage to be the economic basis of our Constitution. So any analogy is only applicable up to a point, and therefore any of our friends who seek to import particular provisions of the American Constitution or particular words either in this particular article or in later articles, have to recognize that the bulk of the opinion of this House is something totally different from the economic bias that more or less determined the American Constitution, right at the inception and later on as well, on which bias legal literature has built up several conventions attached to that Constitution.

Sir, I would like to say this that the amendments proposed by my honourable Friend Dr. Ambedkar particularly to clauses (4), (5) and (6) are a great improvement on the original draft and my own view is that they do take away the lacunae that existed in the original draft. But I should like to lay emphasis on one particular amendment moved by my Friend Mr. Munshi who is not here. The value of that amendment happens to be only, to a very large extent, sentimental. The word `sedition' does not appear therein. Sir, in this country we resent even the mention of the word sedition' because all through the long period of our political agitation that word `sedition' has been used against our leaders, and in the abhorrence of that word we are not by any means unique. Students of Constitutional law would recollect that there was a provision in the American Statute Book towards the end of the 18th Century providing for a particules law to deal with sedition which was intended only for a period of years and became more or less defunct in 1802. That kind of abhorrence to this word seems to have been more or less universal even from people who did not have to suffer as much from the import and content of that word as we did. But all the same the amendment of my honourable Friend Mr. Munshi ensures a very necessary thing so far as this State is concerned. It is quite possible that ten years hence the necessity for providing in the Fundamental Rights an exclusion of absolute power in the matter of freedom of speech and probably freedom to assemble, will not be necessary. But in the present state of our country I think it is very necessary that there should be some express prohibition of application of these rights to their logical end. The State here as it means in the amendment moved by my honourable Friend Mr. Munshi as I understand it, means the Constitution and I think it is very necessary that when we are enacting a Constitution which in our opinion is a compromise between two possible extreme views and is one suited to the genius of our people, we must take all precautions possible for the maintenance and sustenance of that Constitution and therefore I think the amendment moved by my honourable Friend Mr. Munshi is a happy mean and one that is capable of such interpretation in times of necessity, should such time unfortunately come into being so as to provide the State adequate protection against the forces of disorder.

Sir, one other matter which I would like to mention before I sit down is this. Sub- clause (c) of art. 13 (1) is very important. I do not know if people really realise as they would know in other countries and particularly in U.S. ,labour has had to undergo an enormous amount of trouble to obtain elementary rights on matters of the recognition of their rights, in the matter of the right to assemble together as a Union. I do not think that in my view clause (4) of this particular article unnecessarily abridges the rights conferred

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by sub-clause (c) of clause (1). My own feeling is that we have more or less sought to cut across the difficulties which the other countries have faced in this particular matter and we have ensured for labour the very legitimate right to come together, to agitate and to obtain for themselves and for the members of their Union the rights that are justly theirs. That I think is more or less a charter for workers in this country and I am happy to see that the vested interests have not tried in any way to abridge this particular right. On the whole, Sir, this particular article with the amendments proposed by my honourable Friend Mr. Munshi and the three amendments proposed for clauses (4),(5) and (6) by Dr. Ambedkar and also the addition of the word `reasonable' which has been brought in by my honourable Friend Mr. Thakur Dass Bhargava, represents in my opinion a fairly reasonable enumeration of our rights and a fairly conservative abridgment of those rights. The working of these particular rights depends upon the genius of our people, upon how we develop ideas of liberty which are still today in a very undeveloped state. It is no doubt true that our leaders are sometimes hasty, they want more powers, when they are faced with difficult situations and they think the only way in which they could deal with them is to have more powers. They do not recognize that they are leaders of the people the chosen leaders of this country each one with a personality of his own and the aggregate effect of their personality and their influence can cut right across the necessity for any drastic powers. That kind of confidence will come only later on--at the moment they merely want to follow in the footsteps of people who preceded us in the government of this country, who had no touch or contact with the people, who could never get on to a platform and persuade the people to do any particular thing, who only wanted powers which could be exercised through the medium of the bureaucracy. That mentality will change, and will surely change, because our leaders are very eminent people. Surely, the House will realise that the Prime Minister and the Deputy Prime Minister, if they get upon a platform can sway millions of people if they could only get their voices to reach them. It only depends upon the type of leaders that we get for the abridgment of these rights which are enumerated here to become a dead letter, and that is in the lap of the gods. For the time being we have done the very best possible which human ingenuity can devise.

Sir, I support the article before us.

Shri Lakshmi Narayan Sahu (Orissa: General): *[Mr. Vice President, I would like to make an observation with regard to article 13 which is now under discussion. The article confers certain rights on the citizens, but the words 'subject to the other provisions of this article' occurring in the very beginning of the article, serve as a warning to us that the article confers freedom, no doubt, but that it is only within a limited sphere. Moreover the sub-clauses (2), (3), (4), (5) and (6) that follow, re-emphasise that unless the freedom granted is enjoyed within the prescribed limits, people would get into great difficulty. I feel, however, that both the words `subject to other provisions of this article' and the sub- clauses (2), (3), (4), (5) and (6) should be deleted from the article. We shall be able to visualize the true picture of our freedom only when this has been done. So long as the sub-clauses remain, we can not have a correct picture of our freedom. Moreover I feel that liberty has been considerably narrowed during the drafting process. It is just like the narrowing of the size of a temple as a consequence of its main entrance being made too large during the process of constructing the temple. It is of no use whatever. There is an Oriya proverb which is meant for such a situation. It is-

Ghare na pasuna chal vaguchi Devalku Mukhashala Bil Gala.

It means that it is no use making a house with so small an entrance that one's entry into the house is rendered difficult without striking his head against the door-frame. Though there has been considerable discussion on the article, we wish that we discuss it more thoroughly and that the Drafting Committee gives more consideration to it. Thus, whatever drawback we find in the article should be removed. In my opinion sub-clauses (2), (3), (4), (5) and (6), must be deleted. Unless this is done we shall not have the taste of freedom and shall continue to remain in a condition of fear. Those who till recently were seeking to organise disobedience of laws are, being today, in the seat of power, apprehensive of the violation of laws by other people, and under this apprehension, are seeking to make the law so comprehensive and rigid as to prevent any one outside the ruling group from going beyond its control. I would like to say that article 13 which is now under discussion betrays an un understandable apprehension on the part of authority. The fact is that there are many provisions in this Draft Constitution which would prevent the citizens from committing any disorder. Thus article 25 provides that "The right to move Supreme Court by appropriate proceedings for the enforcement of the rights conferred by

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this part is guaranteed". I submit, therefore, that all the restrictive provisions contained in article 13 should be deleted. My belief is that article 25 will be as helpful to the government as to good citizens. Unless the restrictive provisions of this article are deleted, we cannot properly enjoy our National Freedom. Moreover it had always been our loud assertion that self-government is better than good government. Now we have grown indifferent to self-government and are raising the slogan of good government. With so many rigid provisions what good government can you have and for whom?

Those who are in power at present are apprehensive that the people and political parties other than those of the ruling group would practise disobedience of laws. That is why so many restrictive provisos have been included in the Draft Constitution. It is precisely why I insist that the Fundamental Rights should be treated as fundamental and inviolable. It is not proper therefore to delimit them by so many restrictive clauses and sub-clauses.

There is one observation I would like to make about the Adibasis. I agree to a certain extent with what Shri Jaipal Singh has said. Adibasis move about with arms. This article lays down that all citizens shall have the right "to assemble peaceably and without arms". We should therefore consider whether or not this clause takes away from the Adibasis their customary right to bear arms. In view of the provisions contained elsewhere in the constitution. I think, this will not affect the right of Adibasis to bear arms. If this view be correct Adibasis need not fear the loss of their right. Though I have no objection to the words "assemble peaceably and without arms" being put in here, yet I feel that nowhere in the Draft Constitution can be found any provision regarding the repeal of the Arms Act and the grant of the right to the people to bear arms--a right which is essential to make our people fearless. Therefore, I would like that a provision for the repeal of the Arms Act and making it permissible to the people to bear arms be include din the Draft. I would not like to say anything more about this matter.

We often talk of minorities today but we should stop this kind of talk now. What is a minority? When we are going to make one and the same provision for all, I fail to see who remains to constitute the minority. It may be said against this view that the Depressed Classes are a minority, the aboriginals are in a minority and the Muslims are in a minority. But once it is conceded that a particular group is a minority there is the danger that many other groups would begin to clam our for being considered as minorities. Formerly in the political sphere the Muslims were considered a minority. But then the Depressed Classes got themselves included in this category. I am afraid that among the Depressed Classes themselves new groups would begin demanding the status of a new minority. The same is, in my opinion, the case of the aboriginals. I would, therefore, like that the word `minority' wherever it occurs in the Draft Constitution should be deleted and the article 13 should be so drafted that all may feel that they have got real Swaraj and that they have no cause for apprehension and that they have as unrestricted a freedom as any one else.]*

Shri Deshbandhu Gupta (Delhi): *[Mr. Vice-President, I have had an opportunity once before of representing my views on the recommendations of the Drafting Committee. I was not at that time in a position to congratulate my Friend, Dr. Ambedkar and the Drafting Committee, on certain of there commendations, which related to the Chief Commissioners' Provinces. But today. I feel that on article 13, which relates to our Fundamental Rights, and particularly after this amendment as it stands, the Drafting Committee deserves our hearty congratulations.

Some of my friends here have objected saying that what has been given by one hand has been taken away by the other. But if you ponder a little, you will find that it is not so. If some one is given a freedom by which the freedom of the other is curtailed, then I would say, that such a demand is not for the right type of freedom. For example, it has been stated that restrictions have been imposed on the movement of people belonging to the criminal tribes. I would like to ask, why should not restrictions be imposed on the movement of the criminal-tribe people, when they are a source of danger to other law- abiding citizens? Could anyone be serious in saying that restrictions and conditions imposed on the criminal tribes should not have been imposed at all? Or that the presence of those restrictions and conditions has in any way curtailed our freedom? Similarly in respect of land, it has been stated that henceforth our Harijan brethren would not be able to purchase any land for themselves and the Land Alienation Act would continue to stand as it is. It is perfectly correct to say that the most objectionable feature of the Land

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Alienation Act was that certain castes had been mentioned therein. For example, a Bania or a Brahmin or a Harijan could not purchase land. It was wrong. But in fact, that restriction is being swept aside today by the conferment of the Fundamental Right that all citizens shall have the right to acquire property. From now on, if any restriction is imposed, it would have to be proved whether it is proper or improper. That question would be decided, under the provisions of this section, by the Supreme Court. It is a big gain. Formerly, the phraseology of the article was defective, but that defect has been removed by the acceptance of the amendment of my Friend, Pandit Thakur Dass Bhargava, which seeks to add the word 'reasonable'. Now, there is nothing to warrant the imposition of any undue restriction. If there would be any, then against that an appeal could be preferred, and that would be decided by our Supreme Court which would be composed of great experts in India. That is why I feel that we should welcome this article and that it would be wrong to give an impression that it curtails our freedom in any sense. We should realise that our country is now a free country. I agree with my Friend, Shri Algu Rai Shastri that, along with rights, certain obligations and responsibilities have also come upon us. If we do not stand by those obligations then our freedom would be the freedom of the jungle. That freedom, I think, would not be such as to merit a welcome from us. Therefore, I think, this article as amended, should be accepted by us. We should realise that it forms the basis of our constitution, and it is a thing of which we can rightly feel proud and which will raise us in the estimation of the whole world.]*

Shri M. Ananthasayanam Ayyangar (Madras: General): Sir, I consider article 13 as the most important article, as it deals with some of the fundamental rights which are common to all free countries and all free citizens in the world. A number of amendments have been moved to this article which can all be classified under three heads. Some want to remove all restrictions on the rights that have been set out in clause (1). The fundamental rights guaranteed in clause (1) of article 13 are freedom of speech and expression, assembly and association, right to move freely inside the territory, right to practise any profession, right to reside--these are the fundamental rights that have been guaranteed. There are exceptions to these fundamental rights that have been setout in this clause and they are to be found in the subsequent clauses (2), (3), (4), (5) and (6). Some of the amendments are for the deletion of the clauses; and some to make improvements so that these provisos may not take away the rights that have been guaranteed under clause (1).

Pandit Thakur Dass Bhargava has moved an amendment saying that if any restrictions have to be imposed upon these rights that have been guaranteed in clause (1), they must all be reasonable. I believe that that amendment would sufficiently meet the situation.

Regarding freedom of speech we have improved upon the restriction that has been imposed in clause (2). The word 'sedition' has been removed. If we find that the government for the time being has a knack of entrenching itself, however had its administration might be it must be the fundamental right of every citizen in the country to overthrow that government without violence, by persuading the people, by exposing its faults in the administration, its method of working and so on. The word 'sedition' has become obnoxious in the previous regime. We had therefore approved of the amendment that the word 'sedition' ought to be removed, except in cases where the entire state itself is sought to be overthrown or undermined by force or otherwise, leading to public disorder; but any attack on the government itself ought not to be made an offence under the law. We have gained that freedom and we have ensured that no government could possibly entrench itself, unless the speeches lead to an overthrow of the State altogether.

Then there are certain amendments which have been given for adding to the fundamental rights that have been set out. They require some detailed consideration. The foremost of those amendments relates to guaranteeing that every citizen shall have the right to exercise his personal law. Let us see what this means. We have already discussed personal law at some length in the Directive clause where a direction has been given that a uniform code of civil law must be evolved early or late. Amendments have been moved that unless a provision is made in the Fundamental Rights there is no safety and that the majority community may introduce its own personal law or flagrantly violate the personal law of any community. Let us take the communities. There are three main religions. Let us take Muhammadanism. There is absolutely no provision in the Fundamental Rights that you ought to ride rough-shod over their personal law. The law of the land as it exists today gives sufficient guarantee so far as that is concerned. But our friends who moved the amendments wanted a double guarantee that their personal law ought not to be

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interfered with. My submission is that it is impracticable, for, in an advanced society, even the members who belong to a particular community may desire their personal law to be changed. Let us take the Muhammad an law. I would only refer to two or three amendments that have been made to that law as set out in the Shariat. As recently as in 1939 the Central Legislature passed a law for enabling the dissolution of Muslim marriages under certain circumstances. You will be pleased to note that under the Muslim Law, a man has got the unilateral right to declare a marriage void by pronouncing the word talak and there is another form of divorce called kulamp. Woman normally has no right to dissolve a marriage. She has to go to a court of law and various matters have to be set out such as impotency and soon. All that has been made easy now. Another consideration is that a woman who cannot lead a family life with the husband in the same household is entitled under certain conditions to separation. These have hitherto not been envisaged nor provided for in the Dissolution of Muslim Marriages Act. As a member of the Assembly I was a member of one of the committees that considered this question. We left the question entirely for the Muslims Members concerned to settle. The Shariat Law was introduced in the Assembly and an Act was passed bringing into line with the Shariat Law the different pieces of legislation in the provinces of India. This was done four years ago. The Wakf Validation Act was passed in 1930. A time may come when members belonging to the particular community may feel that in the interests of the community progressive legislation has to be enacted. But if we make a provision here that the personal law shall not be interfered with, there will not be any right to the members of that community itself to modify that law. Therefore it is not necessary that we should introduce it as a fundamental right. There is absolutely nothing in this Constitution which allows the majority to override the minority. This is only an enabling provision. Without the consent of the minority that is affected, no such law willed framed. I therefore feel it is unnecessary to include it in the Fundamental Rights.

Then my friend, Mr. Kamath wanted that we should have the right to bear arms and that this right should be put in the Fundamental Rights. It is true that for a long time the Congress has been from year to year passing resolutions that we must have the right to bear arms. The situation has changed now. We were then slaves and wanted to equip ourselves sufficiently so that in case of need we can use the arms for getting out of the foreign yoke. But, today in the civilised world I should like to ask my honourable Friend if he feels that everybody should be allowed to fight even to defend himself. Except in extreme circumstances no force should be used. Even when force has to be used, it must be concentrated in the State. The State it is that must stand between man and man and citizen and citizen when they want to fight. No individual citizen ought to be allowed to attack another. Very often the right to bear arms is abused.

Shri H. V. Kamath: Not even in self-defence?

Shri M. Ananthasayanam Ayyangar: Very often defence is offence in the hands of strong young men whose blood is very warm like that of my friend. Mr. Kamath's defence very often means offence.

Shri H. V. Kamath: I strongly protest against that remark, Sir.

Shri M. Ananthasayanam Ayyangar: I am sorry, Sir.

Mr. Vice-President: He has expressed his regret.

Shri M. Ananthasayanam Ayyangar: I have the greatest regard for my young friend and his youthful enthusiasm.

So far as the communal point is concerned, there is an amendment here which requires it to be included as a fundamental right. I am afraid it is not possible to do so. There is provision made in the Penal Code under sections 153 and 155-A for the purpose. That is ample.

As regards freedom of thought, I am surprised to see an amendment moved saying that freedom of thought ought to be allowed. Nobody can prevent freedom of thought. It is a fundamental right. It is only freedom of expression that has to be allowed. Now, freedom of press means freedom of expression. As regards the secrecy of telegraphic and telephonic communications, it is a debatable point and we ought not to allow any change in the existing provision.

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Now, therefore, except the amendments which are acceptable to Dr. Ambedkar, the others should not be accepted. They are objectionable and ought not to find a place in the Constitution.

Shri Satyanarayan Sinha (Bihar: General): I move that the question be now put.

Mr. Vice-President : An enquiry was made of me as to how I have tried to conduct the proceedings of this House. I refused to supply the information at that time, because I thought it might be left to my discretion to explain how I conduct the proceedings. I see that I have not been able to satisfy all the members who desire to speak. At the present moment I have here 25 notes from 25 different gentlemen all anxious to speak. There is no doubt that each one of them will be able to contribute something to the discussion. But the discussion cannot be prolonged indefinitely. This does not take into account those other gentlemen equally competent to give their opinion who stand up and who have denied to themselves the opportunity of sending me notes. I have tried to get the views of the House as a whole. If Honourable Members will kindly go through the list of speakers who have already addressed the House they will find that every province has been represented and every so-called minority from every province has been represented. In my view, in spite of what Pandit L. K. Maitra says, Bengalees are a majority. In my view therefore the question has been fully discussed. But, as always, I would like to know whether it is the wish of the House that we should close this discussion.

Honourable Members: Yes, yes:

Mr. Vice-President: Then I call upon Dr. Ambedkar to reply.

The Honourable Dr. B. R. Ambedkar (Bombay: General): Mr. Vice-President, Sir, among the many amendments that have been moved to this article 13, I propose to accept amendment No. 415, No. 453 as amended by amendment No. 86 of Mr. Munshi, and amendment No. 49 in list I as modified by Mr. Thakur Dass Bhargava's amendment to add the word 'reasonable'.

Mr. Vice-President: Will you kindly tell us how you propose to accept amendment No. 415.

The Honourable Dr. B. R. Ambedkar: The amendment which seeks to remove the words 'subject to the other provisions of this article'.

Mr. Vice-President: And then?

The Honourable Dr. B. R. Ambedkar: Then I accept No.453 as modified by amendment No. 86, and amendment No. 49 in List I as modified by the amendment of Pandit Thakur Dass Bhargava which introduces the word 'reasonable'.

Now, Sir, coming to the other amendments and the point raised by the speakers in their speeches in moving those amendments, I find that there are just a few points which call for a reply.

With regard to the general attack on article 13 which has cent red on the sub-clauses to clause (1), I think I may say that the House now will be in a position to feel that the article with the amendments introduced therein has emerged in a form which is generally satisfactory. My explanation as to the importance of article8, my amendment to the phrase "existing laws" and the introduction of the word "reasonable" remove, in my judgment, the faults which were pointed out by honourable members when they spoke on this article, and I think the speeches made by my friends, Professor Shibban Lal Saksena and Mr. T. T. Krishnamachari and Mr. Algu Rai Shastri, will convince the House that the article as it now stands with the amendments should find no difficulty in being accepted and therefore I do not want to add anything to what my friends have said in support of this article. In fact I find considerable difficulty to improve upon the arguments used in their speeches in support of this article.

I will therefore take up the other points. Most of them have also been dealt with by my friend, Mr. Ananthasayanam Ayyangar and if, Sir, you had not called upon me, I would have said that his speech may be taken as my speech, because he has dealt with all the points which I have noted down.

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Now, the only point which I had noted down to which I had thought of making some reference in the course of my reply was the point made by my friend, Professor K. T. Shah, that the fundamental rights do not speak of the freedom of the press. The reply given by my friend, Mr. Ananthasayanam Ayyangar, in my judgment is a complete reply. The press is merely another way of stating an individual or a citizen. The press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity. The editor of a press or the manager are all citizens and therefore when they choose to write in newspapers, they are merely exercising their right of expression, and in my judgment therefore no special mention is necessary of the freedom of the press at all.

Now, with regard to the question of bearing arms about which my friend Mr. Kamath was so terribly excited, I think the position that we have taken is very clear. It is quite true and everyone knows that the Congress Party had been agitating that there should be right to bear arms. Nobody can deny that. That is history. At the same time I think the House should not forget the fact that the circumstances when such resolutions were passed by the Congress no longer exist.

Shri H. V. Kamath: A very handy argument.

The Honourable Dr. B. R. Ambedkar: It is because the British Government had refused to allow Indians to bear arms, not on the ground of peace and order, but on the ground that a subject people should not have the right to bear arms against an alien government so that they could organise themselves to overthrow the Government, and consequently the basic considerations on which these resolutions were passed in my judgment have vanished. Under the present circumstances, I personally myself cannot conceive how it would be possible for the State to carry on its administration if every individual had the right to go into the market and purchase all sorts of instruments of attack without any let or hindrance from the State.

Shri H. V. Kamath: On a point of clarification, Sir, the proviso is there restricting that right.

The Honourable Dr. B. R. Ambedkar: The proviso does what? What does the proviso say? What the proviso can do is to regulate, and the term `regulation' has been judicially interpreted as prescribing the conditions, but the conditions can never be such as to completely abrogate the right of the citizen to bear arms. Therefore regulation by itself will not prevent a citizen who wants to have the right to bear arms from having them. I question very much the policy of giving all citizens indiscriminately any such fundamental right. For instance, if Mr. Kamath's proposition was accepted, that every citizen should have the fundamental right to bear arms, it would be open for thousands and thousands of citizens who are today described as criminal tribes to bear arms. It would be open to all sorts of people who are habitual criminals to claim the right to possess arms. You cannot say that under the proviso a man shall not be entitled to bear arms because he belongs to a particular class.

Shri H. V. Kamath: If Dr. Ambedkar understands the proviso fully and clearly, he will see that such will not be the effect of my amendment.

The Honourable Dr. B. R. Ambedkar: I cannot yield now. I have not got much time left. I am explaining the position that has been taken by the Drafting Committee. The point is that it is not possible to allow this indiscriminate right. On the other hand my submission is that so far as bearing of arms is concerned, what we ought to insist upon is not the right of an individual to bear arms but his duty to bear arms. (An Honourable Member: Hear, hear.) In fact, what we ought to secure is that when an emergency arises, when there is a war, when there is insurrection, when the stability and security of the State is endangered, the State shall be entitled to call upon every citizen to bear arms in defence of the State. That is the proposition that we ought to initiate and that position we have completely safeguarded by the proviso to article 17.

Shri H. V. Kamath: (rose to interrupt).

Mr. Vice-President: You do not interrupt, Mr. Kamath. You cannot say that I have not given you sufficient latitude.

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The Honourable Dr. B. R. Ambedkar: Coming to the question of saving personal law, I think this matter was very completely and very sufficiently discussed and debated at the time when we discussed one of the Directive Principles of this Constitution which enjoins the State to seek or to strive to bring about a uniform civil code and I do not think it is necessary to make any further reference to it, but I should like to say this that, if such a saving clause was introduced into the Constitution, it would disable the legislatures in India from enacting any social measure whatsoever. The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.` It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion. In Europe there is Christianity, but Chistianity does not mean that the Christians all over the world or in any part of Europe where they live, shall have a uniform system of law of inheritance. No such thing exists. I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights. It is, therefore, quite impossible for anybody to conceive that the personal law shall be excluded from the jurisdiction of the State. Having said that, I should also like to point out that all that the State is claiming in this matter is a power to legislate. There is no obligation upon the State to do away with personal laws. It is only giving a power. Therefore, no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other community in India.

We must all remember--including Members of the Muslim community who have spoken on this subject, though one can appreciate their feelings very well--that sovereignty is always limited, no matter even if you assert that it is unlimited, because sovereignty in the exercise of that power must reconcile itself to the sentiments of different communities. No Government can exercise its power in such a manner as to provoke the Muslim community to rise in rebellion. I think it would be a mad Government if it did so. But that is a matter which relates to the exercise of the power and not to the power itself.

Now, Sir, my friend, Mr. Jaipal Singh asked me certain questions about the Adibasis. I thought that was a question which could have been very properly raised when we were discussing the Fifth and the Sixth Schedules, but as he has raised them and as he has asked me particularly to give him some explanation of the difficulties that he had found, I am dealing with the matter at this stage. The House will realize what is the position we have laid down in the Draft Constitution with regard to the Adibasis. We have two categories of areas,--scheduled areas and tribal areas. The tribal areas are areas which relate only to the province of Assam, while the scheduled areas are areas which are scattered in provinces other than Assam. They are really a different name for what we used in the Government of India Act as 'partially excluded areas'. There is nothing beyond that. Now the scheduled tribes live in both, that is, in the scheduled areas as well as in the tribal areas and the difference between the position of the scheduled tribes in scheduled areas and scheduled tribes in tribal areas is this: In the case of the scheduled tribes in the scheduled areas, they are governed by the provisions contained in paragraph V of the Fifth Schedule. According to that Schedule, the ordinary law passed by Parliament or by the local Legislature applies automatically unless the Governor declares that that law or part of that law shall not apply. In the case of the scheduled tribes in tribal areas, the position is a little different. There the law made by Parliament or the law made by the local legislature of Assam shall not apply unless the Governor extends that law to the tribal area. In the one case it applies unless excluded and in the other case, it does not apply unless extended. That is the position.

Now, coming to the question of the scheduled tribes and as to why I substituted the word "scheduled" for the word "aboriginal" the explanation is this. As I said, the word "scheduled tribe" has a fixed meaning, because it enumerates the tribes, as you will see

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in the two Schedules. Well, the word "Adibasi" is really a general term which has no specific legal de jure connotation, something like the Untouchables. It is a general term. Anybody may include anybody in the term 'untouchable'. It has no definite legal connotation. That is why in the Government of India Act of 1935, it was felt necessary to give the word `untouchable' some legal connotation and the only way it was found feasible to do it was to enumerate the communities which indifferent parts and in different parts and in different areas were regarded by the local people as satisfying the test of untouchability. The same question may arise with regard to Adibasis. Who are the Adibasis? And the question will be relevant, because by this Constitution, we are conferring certain privileges, certain rights on these Adibasis. In order that, if the matter was taken to a court of law there should be a precise definition as to who are these Adibasis, it was decided to invent, so to say, another category or another term to be called 'Scheduled tribes' and to enumerate the Adibasis under that head. Now I think my friend, Mr. Jaipal singh, if he were to take the several communities which are now generally described as Adibasis and compare the communities which are listed under the head of scheduled tribes, he will find that there is hardly a case where a community which is generally recognised as Adibasis is not included in the Schedule. I think, here and there, a mistake might have occurred and a community which is not an Adibasi community may have been included. It may be that a community which is really an Adibasi community has not been included, but if there is a case where a community which has hitherto been treated as an Adibasi Community is not included in the list of scheduled tribes, we have added, as may be seen in the draft Constitution, an amendment whereby it will be permissible for the local government by notification to add any particular community to the list of scheduled tribes which have not been so far included. I think that ought to satisfy my friend, Mr. Jaipal Singh.

He asked me another question and it was this. Supposing a member of a scheduled tribe living in a scheduled area or a member of a scheduled tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local government, within whose jurisdiction he may be residing, the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But, so far as the present Constitution stands, a member of a scheduled tribe going outside the scheduled area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practically impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them.

Sir, I hope I have met all the points that were raised by the various speakers when they spoke upon the amendments to this clause, and I believe that my explanation will give them satisfaction that all their points have been met. I hope that the article as amended will be accepted by the House.

Mr. Vice-President : I shall now put the amendments which have been moved, which number thirty, to the vote one by one. Amendment No. 412. The question is:

"That for article 13, the following be substituted:--

"12. Subject to public order or morality the citizens are guaranteed--

(a) freedom of speech and expression;

(b) freedom of the press;

(c) freedom to form association or unions;

(d) freedom to assemble peaceably and without arms;

(e) secrecy of postal, telegraphic and telephonic communications.

13-A. All citizens of the Republic shall enjoy freedom of movement throughout the whole of the Republic. Every citizen shall have the right to sojourn and settle in anyplace he pleases. Restrictions may, however, be imposed by or under a Federal law for the protection of aboriginal tribes and backward classes and the preservation of public safety and peace."

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The amendment was negatived.

Mr. Vice-President: Amendment No. 415. I understand it has been accepted by Dr. Ambedkar.

The question is:

"That in clause (1) of article 13, the words "Subject to the other provisions of this article" be deleted".

The amendment was adopted.

Mr. Vice-President: Second part of amendment No. 416.The first part of the amendment has been already blocked as amendment No. 415 has been accepted.

The question is:

"That in clause (1) of article 13, after the words "all citizens shall have" the words "and are guaranteed" be added."

The amendment was negatived.

Mr. Vice-President: Amendment No. 420.

The question is:

"That before sub-clause (a) of clause (1) of article 13, the following new sub-clause be inserted:--

"(a-1) to freedom of thought;"

The amendment was negatived.

Mr. Vice-President: Amendment No. 421.

The question is:

"That in sub-clause (a) of clause (1) of article 13, after the word "expression", the words "of thought and worship; of press and publication;" be added."

The amendment was negatived.

Mr. Vice-President: Amendment No. 422.

The question is:

"That at the end of sub-clause (a) of clause (1) of article 13 the words "both in the Press and the Platform" be inserted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 428.

The question is:

"That at the end of sub-clause (c) of clause (1) of article 13, the words "for any lawful purpose" be inserted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 429.

The question is:

"That in sub-clause (d) of clause (1) of article 13, after the words "move freely" the words "in a lawful manner" be inserted."

The amendment was negatived.

Mr.Vice-President: Amendment No. 430.

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The question is:

"That in sub-clause (e) of clause (1) of article 13, after the words "and settle" the words "in a lawful manner" be inserted.'

The amendment was negatived.

Mr. Vice-President: Amendment No. 482.

The question is:

"That in sub-clause (g) of clause (1) of article 13, after the words "or business" the words "in a lawful manner" be inserted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 438 as modified by amendment No. 79 of List II.

The question is:

"That for amendment No. 438* of the List of amendments, the following be substituted :--

"That after sub-clause (g) of clause (1) of article 13, the following new sub-clause be added:-

"(h) to keep and bear arms;"

and the following new clause be added after clause (6):--

"(7) Nothing in sub-clause (h) of the said clause shall affect the operation of any existing law, or prevent the State from making any law, imposing, in the interests of public order, peace and tranquility, restrictions on the exercise of the right conferred by the said sub-clause."

The amendment was negatived.

------

*"That after sub-clause (g) of clause (1) of article13, the following new sub-clause be added:--

(h) to keep and bear arms in accordance with regulations or reservations made by or under Union Law."

------

Mr. Vice-President: Amendment No. 440.

The question is:

"That after sub-clause (g) of clause (1) of article 13, the following new sub-clause be added:--

(h) to follow the personal law of the group or community to which he belongs or professes to belong.

(i) to personal liberty and to be tried by a competent court of law in case such liberty is curtailed."

The amendment was negatived.

Mr. Vice-President: Amendment No. 502.

The question is:

"That after clause (6) of article 13, the following new clauses be added:-

"(7) Nothing in clauses (2) to (6) of this article shall affect the right guaranteed under sub-clause (h) of clause (1) of this article.

"(8) Nothing in the clauses (2) to (6) shall affect the right guaranteed under sub-clause (i) of clause (1) of this article.

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"(9) No existing law shall operate after the commencement of the Constitution so far as the same affects adversely the right guaranteed under sub-clause (i) of clause (1) of this article and no law shall be passed by the Parliament or any State which may adversely affect the right guaranteed under sub-clause (i) of clause (1) of this article ."

The amendment was negatived.

Mr. Vice-President: Amendment No. 445. I shall explain one thing. Honourable Members will note that I am calling out the amendments in the order in which they were moved. That is why the numbers are not consecutive. Amendment No.445.

The question is:

"That the following new clause be added after clause (1) of article 13:--

"Liberty of the person is guaranteed. No person shall be deprived of his life, nor be arrested or detained in custody, or imprisoned, except according to due process of law, nor shall any person be denied equality before the law or equal protection of the laws within the territory of India."

The amendment was negatived.

Mr. Vice-President: Amendment No. 447.

The question is:

"That clauses (2) to (6) of article 13 be deleted and the following proviso be added to clause (1):--

"Provided, however, that no citizens in the exercise of the said right, shall endanger the security of the State, promote ill-will between the communities or do anything to disturb peace and tranquility in the country."

The amendment was negatived.

Mr. Vice-President: Amendment No. 453 as modified by amendmeant No. 86 of List IV. I understand it has been accepted by Dr. Ambedkar.

The question is:

"That for clause (2) of article 13, the following be substituted:--

"(2) Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating or libel, slander, defamation or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State."

The motion was adopted.

Mr. Vice-President: Amendment No. 449.

The question is:

"That after clause (1) of article 13, the following new clause be inserted:--

"(1-A) Nothing in sub-clause (a) shall affect the operation of any existing law or prevent any State from making any law relating to sedition or conspiracy.

The amendment was negatived.

Mr. Vice-President: Amendment No. 450.

The question is:

"That clauses (2), (3), (4), (5) and (6) of article 13 be deleted."

The amendment was negatived.

Mr. Vice-President: The second alternative in amendment No. 451.

The question is:

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"That the following words be inserted at the beginning of clauses (2), (3), (4), (5) and (6) of article 13:--

"Without prejudice and subject to the provisions of article 8."

The amendment was negatived.

Mr. Vice-President: Amendment No. 452.

The question is:

"That clauses (2), (3), (4), (5) and (6) of article 13 be deleted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 458.

The question is:

"That in clause (2) of article 13, after the word "sedition" the words "communal passion" be inserted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 465.

The question is:

"That clauses (3) and (4) of article 13 be deleted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 478.

The question is:

"That clauses (5) of article 13 be deleted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 454 as modified by amendment No. 89 of List I. I understand it has been accepted by Dr. Ambedkar.

The question is:

"That with reference to amendment No.*454 of the List of amendments-

(i) in clauses (3), (4), (5) and (6) of article 13, after the words "any existing law" the words "in so far it imposes" be inserted, and

(ii) in clause (6) of article 13, after the words "in particular" the words "nothing in the said clause shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law, be inserted."

The motion was adopted.

------

* "That in clauses (2), (3), (4), (5) and (6) of article 13, the words "affect the operation of any existing law, or" be deleted."

------

Mr. Vice-President: The question is:

"That in clauses (3), (4), (5) and (6) of article 13, before the word "restrictions" the word "reasonable" be inserted."

The amendment was adopted.

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Mr. Vice-President: Amendment No. 485.

The question is:

"That in clause (5) of article 13, the word "affect the operation of any existing law, or" be deleted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 467.

The question is:

"(1) That in clause (3) of article 13, after the word "restrictions" the words "for a defined period" be added."

I think the 'Ayes' have it.

But before I declare the result finally I must point out that there is some kind of misunderstanding. Let me read the amendment. It was moved by Mr. Syamanandan Sahaya:

"That in clause (3) of article 13, after the word "restrictions" the words "for a defined period" be added."

I definitely remember that several people spoke against it. I am going to put the amendment once again. Amendment No.467.

The question is:

"(1) That in clause (3) of article 13, after the word "restrictions" the words "for a defined period" be added."

The amendment was negatived.

Mr. Vice-President: I trust that in future, honourable Members will take more care before they give their verdict.

Mr. Vice-President: I put amendment No. 474 to vote.

The question is:

"That in clauses (4) of article 13 after the word" restrictions" the words "for a defined period" be added."

The amendment was negatived.

Mr. Vice-President: Amendment No. 476.

The question is:

"That in clause (4) of article 13, for the words "the general public" the words "public order or morality" be substituted.'

The amend meant was adopted.

Mr. Vice-President: Amendment No. 483.

The question is;

"That in clause (5) of article 13, after the words "existing law" the word "which is not repugnant to the spirit of the provisions of article 8" be inserted."

The amendment was negatived.

Mr. Vice-President: I put No. 485 (second part), to vote.

The question is:

"That in clause (5) of article 13, for the word "State" the word "Parliament" be substituted."

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The amendment was negatived.

Mr. Vice-President: Amendment No. 489.

The question is:

"That in clause (5) of article 13, the word `either' and the words 'or for the protection of the interests of any aboriginal tribe' be omitted."

The amendment was negatived.

Mr. Vice-President: Amendment No. 491.

The question is:

"That in clause (5) of article 13, for the word "aboriginal" the word "Scheduled" be substituted."

The amendment was adopted.

Mr. Vice-President: Amendment No. 497.

The question is:

"That in clause (6) of article 13, for the words "morality or health" the words "the general public" be substituted."

The amendment was adopted.

Mr. Vice-President: I put amendment No. 500 to vote.

The question is:

"That after clause (6) of article 13, the following new clause be added:

'(7) The occupation of beggary in any form or shape for person having sound physique and perfect health whether major or minor is totally banned and any such practice shall be punishable in accordance with law.'"

The amendment was negatived.

Mr. Vice-President: The question is:

"That article 13 in the form in which it emerges after the different amendments which have been passed here stand part of the Constitution."

Article 13, as amended, was adopted.

Article 13, as amended, was added to the Constitution.

Article 14

Mr. Vice-President : We come to new article 14.

(Amendment No. 504 was not moved.)

Shri H. V. Kamath: What about 13-A? That is, amendments 89, 90 and 92 of List V.

Mr. Vice-President: That has been held over. I was referring to No. 504.

Now the motion is:

"That article 14 form part of the Constitution."

Honourable Members have been supplied with a list which indicates the manner in which I propose to conduct the proceedings of the House. No. 505 has been disallowed as being verbal. 506 may be moved.

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Pandit Thakur Dass Bhargava: May I take the liberty of pointing out that my amendment (No. 505) is not mercy verbal? It is an amendment of substance also.

Mr. Vice-President: Then I will give my ruling later on. Mr. Naziruddin Ahmad will carry on his work.

Mr. Naziruddin Ahmad (West Bengal: Muslim): Mr. Vice-President, I beg to move:

"That in clause (1) of article 14, after the words "greater than", the words "or of a kind other than" be inserted."

Sir, clause (1) provides--I am reading only the material part--

"No person shall be subjected to a penalty greater than that which might have been inflicted under the law at the time of the commission of the offence."

It guards against any punishment `greater than' is provide to be inflicted upon a person. I have attempted to insert after the words `greater than' the words `or other than' that which might have been inflicted. There are many cases where a punishment of fine only is provided. Suppose a man is fined one lakh of rupees. An Appellate Court may turn it to an imprisonment during the sitting of the Court. That will violate the provision that where fine alone is provided for, an imprisonment may be substituted on the ground that it is not 'greater than' that. My amendment seeks to limit the powers of Courts to inflict punishment not only as to the extent but also to the kind. There are different kinds of punishments--fine, imprisonment, whipping, forfeiture and hanging and the like where only a particular kind of punishment is specifically provided, you should not award any punishment other than that. That is in short the effect of this amendment. Where whipping alone is provided, You cannot award a fine. Where fine alone is provided, you cannot award imprisonment or whipping or forfeiture. Where forfeiture of movables only a provided, you cannot forfeit immovables. Where forfeiture of articles relating to which crime has been committed is provided, you cannot forfeit other kinds of things. So if we leave the powers of the courts as in the clause it gives the Court the power to give any punishment not sanctioned by law. If clause (1) is to be retained, the Court should also be limited to the class of punishment provided. To me it seems that there is here a lacuna- rather oversight which should be corrected.

Mr. Vice-President: As regards amendment No. 505, I can allow the Member to move the second part of it. Pandit Thakur Dass Bhargava.

Pandit Thakur Das Bhargava : Sir, I beg to move.

"That in clause (1) of article 14, for the words `under the law at the time of the commission' the words `under the law in force at the time of the commission' be substituted."

Sir, if you kindly examine the definition of the expression 'law in force' as given in the explanation under article 307, it would appear that the words `the law' and the words 'the law in force' have different meanings. Moreover as the words in the previous part of the article also appear as 'law in force', it is very necessary and proper in this juxtaposition that the amendment that I have suggested should be accepted. That is all I have to submit.

Mr. Vice-President: Amendment Nos. 507, 508 and 511 are of the same import. The most comprehensive one, i. e, No.507, may be moved.

(Amendments Nos. 507, 508 and 511 were not moved.)

Amendments Nos. 509 and 510 are of similar import and may be moved together. They are in the name of Mr. Naziruddin Ahmad.

Mr. Naziruddin Ahmad : Sir, I beg to move:

"That at the end of clause (2) of article 14, the words "otherwise than as permitted by the Code of Criminal Procedure, 1898" be added."

Sir, I am moving these amendments with considerbale anxiety in my mind. The first anxiety is that I may perhaps over step my time limit; they second anxiety is that there are a large number of observant and powerful eyes directed against me and I am afraid

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that a point of order may be taken at any time; and the third anxiety is the huge 'No' against me will be echoed by honourable Members and this will reverberate as thunder clap under which my feeble 'Aye' will be lost.

Then the other difficulty is that I have to crave the indulgent attention of the Honourable the Chairman of the Drafting Committee to the point I am raising. I shall restrict my point strictly to the limits of relevancy.

Sir, the words which I seek to insert deals with an important principle of criminal procedure. Clause (2) which I seek to amend runs as follows:

"(2) No person shall be punished for the same offence more than once."

A very sacred sentiment has prompted the introduction of this clause; but considered from the point of view of criminal law, it has its loop-holes.

Clause (2) seems to be rather sweeping. There are cases where a man may be legally punished twice for the same offence, and I shall submit the circumstances, with the relevant laws. Sir, the principal which deals with this subject finds a place in section 403, sub-section (1) of the Code of Criminal Procedure. The point of this. The law of punishment twice has been enacted.

Shri T. T. Krishnamachari: Sir, on a point of order. Can any Member of this House move an amendment referring to an enactmente itself is out of order.

Mr. Naziruddin Ahmad: Anything else may be out of order, but not the amendment. We have already referred to and saved `existing laws'--enactments of subordinate legislatures in article 9 and in other places. I was only referring for handy consideration to the Criminal Procedure Code. I cannot pretend to submit that Section 403, or any principle embodied in it, or any sound principle even is binding upon this House, not even the soundest of propositions, because this is a sovereign House.

I was submitting for consideration certain principles of the Criminal Procedure, not that I suggested at all that they will be binding on this House, but only that they worthy of consideration.

Sir, it often happens--I shall submit examples from general principles because I think they would be more acceptable to Mr. Krishnamachari--it often happens that a man is punished by a Court which has no jurisdiction; It is a very ordinary experience in criminal Courts that the Judge on appeal or the High Court or the Privy Council--and now the Federal Court and later on the future Supreme Court--may and does find that the conviction is without jurisdiction. Meantime, the man has been convicted. If you say that he cannot be convicted twice, then orders of re-trial by appellate and revisional Courts would be absolutely out of the question. If a man is tried by a Magistrate or a Court having no jurisdiction, and if he is punished, that is the first punishment.

And then if it is found that the Court had no jurisdiction to try the case, what is often done is that there is a re-trial. But if you enact the principle of clause (2) that a man shall not be punished for the same offence more than once, the effect would be that if a man is punished by a Court of competent jurisdiction but there is a lacuna in the trial, or by a Court of competent jurisdiction the result will be to shut out any further trial at all. Are- trial after a conviction is an ordinary incident of daily experience in criminal Courts.

Sometimes, Sir,......

(After a pause)

Sir, I desire to monopolise the attention of the Honourable Member the Chairman of the Drafting Committee; otherwise it will be useless to argue. If he says "No", the whole House will echo him.

Mr. Vice-President: Dr. Ambedkar, Mr. Naziruddin demands your wholehearted attention. He says that if you say "No", the House will say "No". (Laughter).

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Mr. Naziruddin Ahmad: The point which I was submitting is a point of general importance. The point is that if a man is convicted by a court of law--that is the first conviction--it may be that there is some lacuna in the trial. The accused appeals to the Court of Sessions. The Court finds that there was a lacuna in the trial or that the Court had no jurisdiction. But it may order a re-trial. Clause (2) which would effectively prevent further trial because it may involve a second conviction. There may be a first conviction of an offender in the hands of a Court, and this clause will effectively prevent a re-trial order by a superior court. This is one of the simplest examples. The principle should be not merely convicted, but the principle should be that a man cannot be tried again, tried twice, if he is acquitted or convicted by a Court of competent jurisdiction, while the conviction or acquittal stands effective. In fact, it is not the first conviction that is important; it is the ultimate legality and finality of the conviction that has to be respected; the finality should attach not only to conviction but also to acquittal. What are you going to do with regard to a person who is finally acquitted after a fair trial, and when the acquittal is not set aside and is therefore final and binding? You say nothing about that. You simply say that a man should not be convicted twice for the same offence. A man acquitted shall also not be liable to be tried again. You say nothing about that but confine you attention to the bogey of double punishment. I submit that the so-called theory of double punishment is not all and does not give a complete picture. Take for example, a man fined Rs. 50 for an offence by a Magistrate having no jurisdiction; then he appeals to an appellate Court. The appellate Court will, by virtue of clause (2) be precluded from sending it for re-trial on any technical ground, even on the ground that the Court had no jurisdiction.

The relevant section which caused some amount of suspicion in the mind of a distinguished Member of the House, Mr. T. T. Krishnamachari, I shall with his permission and with your permission, Sir, and with the permission of the House, read. Not that it is binding, but it is a crystallised wisdom which has been handed down to us from generation to generation. Sub-section (1) of section 403 says:

"A person who has been once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence, shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence".

I think, Sir, this is the proper form. It may be argued that the Criminal Procedure Code is a sufficient safeguard against injustice, but if you introduce it here it is a justiciable right, and we have already provided that any violation of any fundamental right is justiciable and would nullify all existing laws contrary, and therefore it will have the effect of abolishing or rather nullifying the wholesome law as laid down in sub-section (1) of section 403. I submit that the clause has got to be very carefully considered and, if necessary, should be re-drafted.

I submit that double punishment for the same offence in such cases does not in fact work injustice. What happens in such cases is that the punishment already suffered or inflicted is taken into account or adjusted in giving the final punishment in a re-trial. That is the effect of this amendment.

Mr. Vice-President: Do you intend to move amendment No.509?

Mr. Naziruddin Ahmad: No, Sir. It deals with the same principle and I do not wish to move it.

Mr. Vice-President: I have found from the last two days' experience that 9.30 a.m. is too early an hour for many Members of the House. They seem to think that others will come at the proper time and they need not come, with the result that there is difficulty in starting our work at the proper time. I have therefore decided that from tomorrow we shall start at 10 a.m. and break up at 1.30 p.m.

The Assembly then adjourned till Ten of the Clock on Friday the 3rd December, 1948.

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*[Translation of Hindustani speech.]*

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THE CABLE TELEVISION NETWORKS RULES, 1994 (29th September, 1994) (as amended upto 27.02.2009)

G.S.R. 729 (E) – In exercise of the powers conferred by sub-section (1) of section 22 of the Cable Television Networks (Regulation) Ordinance, 1994 (Ordinance No.9 of 1994) the Central Government makes the following Rules namely:

1. Short title and commencement .- (1) These rules may be called the Cable Television Networks Rules, 1994. (2) They shall come into force on the date of their publication in the Official Gazette.

2. Definitions – In these rules unless the context otherwise requires:-

(a) “Authority” means the Telecom Regulatory Authority of India established under sub-section (1) of section 3 of the Telecom Regulatory Authority of India Act;

(aa) “Broadcaster” means any person including an individual, group of persons, public or body corporate, firm or any organization or body who/which is providing programming services and includes his/her authorized distribution agencies;

(aaa) “Cable Operator” means any person who provides cable service through a cable television network or otherwise controls or is responsible for the management and operation of a cable television networks;”

(b) “cable service” means the transmission by cables of programmes including re- transmission by cables of any broadcast television signals;

(c) “cable television network” means any system consisting of a set of closed transmission paths and associated signals generation, control and distribution equipment, designed to provide cable service for reception by multiple subscribers; (d) “company” means a company defined in section 3 of the Companies Act, 1956;

(e) “form” means form appended to these rules;

(ee) “Multi-System Operator (MSO)” means a cable operator who receives a programming service from a broadcaster and/or his authorized agencies and re-transmits the same or transmits his own programming service for simultaneous reception either by multiple subscribers directly or through one or more local cable operators (LCOs), and includes his authorized distribution agencies by whatever name called;

(eee) “Notified area” means any area notified by the Central Government under section 4 (A) of the Act;”

(f) “person “ means –

(i) an individual who is a citizen of India; 181

(ii) an association of individuals or body of individuals, whether incorporated or not, whose members are citizens of India; (iii) a company in which not less fifty-one percent of the paid-up share capital is held by the citizens of India : (g) “programme” means any television broadcast and includes;

(i) exhibition of films, features, dramas, advertisements and serials through video cassette recorders or video cassette players; (ii) any audio or visual or audio-visual live performance or presentation; and the expression “programming service” shall be construed accordingly; (h) “registering authority” means the registering authority notified under clause (h) of section 2 of the Cable Television Networks (Regulation) Ordinance 1994; (i) “subscriber” means a person who receives the signal of cable television network at a place indicated by him to the cable operator, without further transmitting it to any other person.

3. Application for registration as a cable television network in India. - (1) Every application for registration as a cable television network in India shall be made in writing in Form I and shall be renewable after every twelve months. (2) The application shall be addressed to the Registering Authority and delivered to his office in Form 1.

(3) (a) Every application for registration or renewal of registration shall be accompanied by – (i) a fee of rupees five hundred only; and (ii) the requisite documents mentioned in Form 1 and Form 2.

(b) Every application for issue of duplicate certificate of registration shall be accompanied by – (i) a fee of rupees two hundred and fifty only; and (ii) the requisite documents mentioned in Form 1. (4) The amount of fee shall be deposited in the Head Post Office where the application for registration or renewal of registration or issue of duplicate certificate of registration is being made. (5) The amount of the fees shall be deposited under the Head ‘Un-Classified Receipts (U.C.R.)’.

4. Examination of Applications: (1) On receipt of an application under rule 3, the registering authority shall examine the application having regard to the provisions of section 4 of the Ordinance.

5. Registration:- (1) On being satisfied that the applicant fulfills the provisions of the Ordinance, the registering authority shall issue a registration certificate in Form 3. Provided that where the registering authority is satisfied that the registration cannot be granted to the applicant, he shall inform the applicant in Form 4.

182

(2) On receipt of an application under clause (b) of sub-rule (3) of rule 3 for issue of duplicate certificate the Registering Authority shall examine the application having regard to the provisions of rule 3 and shall issue a duplicate Registration Certificate in Form 3 A.

6. Programme Code. – (1) No programme should be carried in the cable service which:-

(a) Offends against good taste or decency: (b) Contains criticism of friendly countries; (c) Contains attack on religions or communities or visuals or words contemptuous of religious groups or which promote communal attitudes; (d) Contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths; (e) Is likely to encourage or incite violence or contains anything against maintenance of law and order or which promote-anti-national attitudes; (f) Contains anything amounting to contempt of court; (g) Contains aspersions against the integrity of the President and Judiciary; (h) Contains anything affecting the integrity of the Nation; (i) Criticises, maligns or slanders any individual in person or certain groups, segments of social, public and moral life of the country ; (j) Encourages superstition or blind belief; (k) Denigrates women through the depiction in any manner of the figure of a women, her form or body or any part thereof in such a way as to have the effect of being indecent, or derogatory to women, or is likely to deprave, corrupt or injure the public morality or morals; (l) Denigrates children; (m) Contains visuals or words which reflect a slandering, ironical and snobbish attitude in the portrayal of certain ethnic, linguistic and regional groups (n) Contravenes the provisions of the Cinematograph Act, 1952. (o) is not suitable for unrestricted public exhibition Provided that no film or film song or film promo or film trailer or music video or music albums or their promos, whether produced in India or abroad, shall be carried through cable service unless it has been certified by the Central Board of Film Cetification (CBFC)) as suitable for unrestricted public exhibition in India.

Explanation – For the purpose of this clause, the expression “unrestricted public exhibition” shall have the same meaning as assigned to it in the Cinematograph Act, 1952 (37 of 1952);

(2) The cable operator should strive to carry programmes in his cable service which project women in a positive, leadership role of sobriety, moral and character building qualities. (3) No cable operator shall carry or include in his cable service any programme in respect of which copyright subsists under the Copyright Act, 1972 (14 of 1972) unless he has 183 been granted a licence by owners of copyright under the Act in respect of such programme. (4) Care should be taken to ensure that programmes meant for children do not contain any bad language or explicit scenes of violence. (5) Programmes unsuitable for children must not be carried in the cable service at times when the largest numbers of children are viewing. (6) No cable operator shall carry or include in his cable service any television broadcast or channel, which has not been registered by the Central Government for being viewed within the territory of India

PROVIDED that a cable operator may continue to carry or include in his cable service any Television broadcast or channel, whose application for registration to the Central Government was made on or before 11th May, 2006 and is under consideration, for a period upto [31st May, 2008]1 or till such registration has been granted or refused, whichever is earlier

PROVIDED further that channels uplinking from India, in accordance permission for uplinking granted before 2nd December, 2005, shall be treated as registered television channels and can be carried or included in the cable service.

7. Advertising Code. - (1) Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers.

(2) No advertisement shall be permitted which- (i) derides any race, caste, colour, creed and nationality; (ii) is against any provision of the Constitution of India. (iii) tends to incite people to crime, cause disorder or violence, or breach of law or glorifies violence or obscenity in any way ; (iv) presents criminality as desirable; (v) exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a State dignitary; (vi) in its depiction of women violates the constitutional guarantees to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that emphasises passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. The cable operator shall ensure that the portrayal of the female form, in the programmes carried in his cable service, is tasteful and aesthetic, and is within the well established norms of good taste and decency; (vii) exploits social evils like dowry, child marriage. (viii) promotes directly or indirectly production, sale or consumption of- (A) cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants; […..]2

1 Amended vide GSR 413(E) dated 29th May, 2008 2 Deleted vide GSR 104 (E) dated 25th February, 2008 184

[Provided that a product that uses a brand name or logo, which is also used for cigarettes, tobacco products, wine, alcohol, liquor, or other intoxicants, may be advertised on cable services subject to the following conditions that- (i) the story board or visual of the advertisement must depict only the product being advertised and not the prohibited products in any form or manner; (ii) the advertisement must not make any direct or indirect reference to prohibited products; (iii) the advertisement must not contain any nuances or phrases promoting prohibited products; (iv) the advertisement must not use particular colours and layout or presentations associated with prohibited products; (v) the advertisement must not use situations typical for promotion of prohibited products when advertising the other products:

Provided further that –

(i) the advertiser shall submit an application with a copy of the proposed advertisement along with a certificate by a registered Chartered Accountant that the product carrying the same name as cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants is distributed in reasonable quantity and is available in a substantial number of outlets where other products of the same category are available and the proposed expenditure on such advertising thereon shall not be disproportionate to the actual sales turnover of the product: (ii) all such advertisements found to be genuine brand extensions by the Ministry of Information and Broadcasting shall be previewed and certified by the Central Board of Film Certification as suitable for unrestricted public exhibition and are in accordance with the provisions contained in sub-clause (i) to (v) of the first proviso, prior to their telecast or transmission or retransmission.]3

(B) infant milk substitutes, feeding bottle or infant food. (3) No advertisement shall be permitted, the objects whereof, are wholly or mainly of a religious or political nature; advertisements must not be directed towards any religious or political end. (3A) No advertisement shall contain references which hurt religious sentiments. (4) The goods or services advertised shall not suffer from any defect or deficiency as mentioned in Consumer Protection Act, 1986.

(5) No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or super-natural property or quality, which is difficult of being proved.

3 Inserted vide GSR 138(E) dated 27th February, 2009 185

(6) The picture and the audible matter of the advertisement shall not be excessively ‘loud; (7) No advertisement which endangers the safety of children or creates in them any interest in unhealthy practices or shows them begging or in an undignified or indecent manner shall not be carried in the cable service. (8) Indecent, vulgar, suggestive, repulsive or offensive themes or treatment shall be avoided in all advertisements. (9) No advertisement which violates the Code for self regulation in advertising, as adopted by the Advertising Standards Council of India (ASCI), Mumbai for public exhibition in India, from time to time shall be carried in the cable service. (10) All advertisement should be clearly distinguishable from the programme and should not in any manner interfere with the programme viz., use of lower part of screen to carry captions, static or moving alongside the programme. (11) No programme shall carry advertisements exceeding 12 minutes per hour, which may include up to 10 minutes per hour of commercial advertisements, and up to 2 minutes per hour of a channel’s self-promotional programmes.

8. Register.- Each cable operator shall maintain a register in Form 5 for each month of the year for which the registration is granted.

9. Standard interconnection agreements, tariffs and quality of service standards for the service providers in the areas notified under Section 4A of the Act: The Authority may, on issue of any notification under section 4 A of the Act by the Central Government, take appropriate decisions on the following and duly notify the same:

(a) standard interconnection agreement to be used for entering into commercial agreements for distribution in the notified areas, of pay or free-to-air channels among (i) Broadcasters and multi-system operators; and (ii) multi- system operators and local cable operators; (b) the maximum limits of security deposit and monthly rental for supply, maintenance and servicing of set top boxes of prescribed specifications to the subscribers on rental basis by multi-system operators in the notified areas; (c) tariff for the basic service tier along with the minimum number of free-to-air channels to be provided by the multi-system operators / multi-system operators to the subscribers in the notified areas; (d) regulations for quality of service to be provided by the multi- system operators or local cable operators to the subscribers in the notified areas;

10. Nature and prices of channels: (1) Every broadcaster shall declare the nature of each of its channels as ‘pay’ or ‘free-to-air’ as well as the maximum retail price of each of its ‘pay’ channels to be charged by the multi-system operators or local cable operators from the subscribers in each of the notified areas.

(2) Every broadcaster shall file his declaration of the nature and prices of channels under sub-rule (1) before the Authority and the Central Government within fifteen days of the date of notification by the Central Government under section 4 A of the Act. 186

(3) If in the opinion of the Authority, the price declared by the broadcaster in respect of any of its pay channels is too high, the Authority may, under section 11 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997), fix and declare the maximum retail price of such a pay channel or fix a general maximum retail price for all pay channels within which the broadcasters may declare their individual prices for each pay channel, to be paid by the subscribers in any of the notified areas, and such an order of the Authority shall be binding on the broadcasters and the multi-system operators and local cable operators.

(4) Every broadcaster shall enter into interconnection agreements with multi-system operators in the notified areas as per the standard interconnection agreement, or with any mutually agreed modifications on a non-discriminatory basis, as per the regulations or directions or orders of the Authority.

(5) If a broadcaster fails to declare the price of any of its pay channels within the prescribed time limit under sub-rule (2) or refuses or fails to comply with the direction under sub-rule (3) or refuses or fails to enter into an interconnect agreement with a multi- system operator permitted by the Central Government under sub-rule (3) of rule 11 within the time limit as prescribed by the Authority, then the Authority may, so as to protect the interests of the subscribers, take interim measures to ensure supply of signals.

(6) In the event of non-compliance by the broadcaster of the directions issued by the Authority under sub-rule (5), the Central Government may, on the recommendations of the Authority, suspend the permission granted to the broadcaster under uplinking or downlinking guidelines as the case may be, to broadcast that channel in the country or any part thereof.

(7) Every declaration filed by the broadcaster under sub-rule (1) or maximum retail price fixed by the Authority under sub-rule (3) above shall normally remain valid for a period of one year from the date of such declaration or fixation, as the case may be, subject to the condition that every broadcaster will be free to revise the price of any channel or convert a pay channel to free-to-air or a free-to-air channel to a pay channel by giving one month’s notice to the multi-system operator and subscribers:

Provided that no increase in price beyond the individual limit, if any, specified by the Authority, shall be valid without prior approval of the Authority:

Provided further that no such price increase shall be valid beyond the general maximum retail price for all channels fixed by the Authority.

11. Grant of permission to multi-system operators to provide cable services with addressable systems in the notified areas.- (1) No multi-system operator shall provide cable television network services with addressable systems in any one or more notified areas without a valid permission from the Central Government under sub-rule 3 of rule 11. 187

(2) Every multi-system operator who desires to provide cable television network services with addressable systems in any of the notified areas, shall, within thirty days of the issue of the notifications under section 4 A of the Act by the Central Government, apply for permission to the Ministry of Information & Broadcasting in Form 6 annexed to these Rules, along with processing fee of rupees ten thousand.

(3) The Ministry of Information & Broadcasting in the Government of India shall, within thirty days of the receipt of the application, grant, or refuse, permission to the applicant to provide addressable systems in the notified areas after considering its suitability or otherwise on the basis of information given in respect of its existing operational area, actual number of subscribers and addresses of its local cable operators in each of the notified areas, commercial arrangements with the broadcasters and local cable operators, if any, financial strength, management capability, security clearance and preparedness to supply and maintain adequate number of set top boxes for its subscribers, installation of its subscriber management system and compliance with all other quality of service standards as may be specified by the Authority.

(4) The Central Government may lay down such terms and conditions of permission under sub-rule (3) as may be deemed necessary and desirable to ensure compliance with the provisions of this Act as well as the regulations, directions and orders made by the Authority.

(5) No multi-system operator shall continue to provide any cable television network services in the notified areas after the date notified therein, without obtaining prior permission from the Central Government.

(6) In the event of a multi-system operator who fails or refuses to enter into an interconnection agreement with a broadcaster of a pay channel or an adequate number of local cable operators in the notified areas or who violate of the terms and conditions of the permission granted to it under sub-rule (3), within the time limit as prescribed by the Authority, the Authority may, so as to protect the interests of the subscribers, take interim measures to ensure supply of signals.

(7) In the event of a violation by a multi-system operator of one or more of the terms and conditions of the permission granted under sub-rule (3), the Central Government may suspend or revoke such permission for such period and for such notified areas as deems fit: Provided that no such order of suspension or revocation shall be made without giving a reasonable opportunity to the multi-system operator to explain its position.

12. Public awareness campaign about Conditional Access System scheme: (1) Every multi-system operator granted permission under sub-rule (3) of Rule 11 shall create public awareness among the subscribers in the notified areas for a period of thirty days from the date to be specified by the Authority, either through advertisements in the print and electronic media or through other means (e.g. leaflets, printing on the reverse of the receipts, personal visits, group meetings with subscribers or consumer groups etc.) the salient features of the Conditional Access System scheme as approved by the Authority 188

for implementation by the multi-system operator, in the notified areas, and in particular the following:-

(a) A-la-carte subscription rates and the periodic intervals at which such subscriptions are payable for receiving the various pay channels; (b) The refundable security deposit and the daily or monthly rental payable for the set-top box and its detailed specifications such as make, model, technical specifications, user manuals and maintenance centers etc.; (c) The number and names of free-to-air channels that the multi- system operator will provide to the subscribers and specific placement of each channel in the prime or non-prime bands; (d) The prescribed monthly service charge to be paid by each subscriber for receiving the basic service tier fixed by the Authority and the number of additional free-to-air channels, if any, offered by the Multi-System Operator. (e) The Quality of Service Standards specified by the Authority and the arrangements made by the Multi-System Operator to comply with these standards; (f) The Subscriber Management System established by the multi- system operator to demonstrate the functioning of the Set Top Boxes and interact with the subscribers to explain the various financial, logistic and technical aspects of the system for its smooth implementation; (g) The subsisting arrangements for resolution of disputes between the multi-system operator and local cable operators and the subscribers in respect of the quality of service standards, payments and refunds etc.

(2) The Authority may also arrange public awareness activities in the notified areas either directly or through authorized officers or consumer organizations etc.

13. Supply and installation of Set Top Boxes.- (1) Every subscriber in the notified areas who is desirous of receiving one or more pay channels shall, during the public awareness campaign under Rule 12 or within fifteen days after its expiry, apply to any one of the multi-system operators granted permission under sub-rule (3) of rule 11 either directly or through any of his linked local cable operators, to supply and install one or more set top boxes in his premises as per the scheme approved by the Authority and deliver the requisite channels through the same;

Provided that every subscriber shall be free to buy a Set Top Box of approved quality from the open market, if available and technically compatible with the multi- system operator’s system, and no multi-system operator or Cable Operator shall force any subscriber to buy or to take on rent the set top box from him only.

(2) Every subscriber in the notified areas who desires to receive one or more pay channels, and who failed to apply within the period prescribed under sub-rule (1) may at any time either buy a set top box of approved quality from the open market, if available and technically compatible with the multi-system operator’s system, or apply to any one 189 of the multi-system operators granted permission under sub-rule (3) of rule 11 either directly or through any of his linked local cable operators, to supply and install one or more set top boxes in his premises as per the scheme approved by the Authority and deliver the requisite channels through the same or through the set top box of approved quality acquired by the applicant on his own, as the case may be.

(3) Every multi-system operator shall procure; supply and install the required number of set top boxes of approved quality in the premises of every applicant under sub-rule (1) or sub-rule (2) within a period as may be determined by regulation or order by the Authority from the date of receipt of such application, and transmit the requisite pay channels through the same or through the set top box of approved quality acquired by the applicant on his own, as the case may be.

(4) Every multi-system operator shall set up and operationalise its subscriber management system within a time frame as may be determined by regulation or order by the Authority, for ensuring efficient and error-free service to the subscribers by recording and providing individualized preferences for pay channels, billing cycles, refunds etc.

(5) In the event of the failure of any multi-system operator to supply and install a set top box each in the premises of one or more applicants under sub-rule (1) or to operationalise subscriber management system within the time limit as determined by regulation or order by the Authority, then the Authority may, so as to protect the interests of the subscribers, take interim measures to ensure supply of signals.

14. Dispute Resolution Mechanism.- Every multi-system operator shall be obliged to maintain the quality of service as per the standards, including the arrangements for handling complaints and redressal of grievances of the subscribers, as may be determined by regulation or order by the Authority. The Authority may look into the efficacy of such arrangements and issue necessary directions to the concerned parties for compliance.

15. Transition to addressable systems.- (1) Immediately on operationalisation of the subscriber management system and the installation of the set top boxes under rule 13, every multi-system operator shall start transmitting the pay channels in encrypted as well as unencrypted form for a period of not less than fifteen days to test out the quality of service, remove any technical or operational snags and enable the subscribers to become familiar with the operation of addressable systems at their end.

(2) Before the start of the transition period under sub-rule (1), the Authority may call for progress or compliance reports from the service providers in the Forms appended to these rules, and at intervals, as may be specified by it to satisfy itself that all the multi-system operators permitted under sub-rule 3 of rule 11 have completed all the necessary arrangements to switch over to transmission of pay channels through addressable systems in the whole of the notified area by the date notified by the Central Government under section 4A of the Act. 190

(3) In the event of satisfactory completion of all arrangements, every multi-system operator in the notified area shall start transmitting pay channels only through addressable systems from the date notified by the Central Government under section 4A of the Act.

(4) In the event of the Authority coming to a conclusion that the arrangements made by the multi-system operators are not adequate and the switch over to transmission of pay channels through addressable systems is likely to be against the interests of a substantial portion of the subscribers in any notified area, the Authority may recommend to the Central Government an extension of the notified date by such period as in its opinion is the minimum required for the satisfactory completion of the necessary arrangements by the multi-system operators.

(5) On receipt of a recommendation from the Authority under sub-rule (4), and before the expiry of the notified date, the Central Government may, if it is satisfied that it is not in public interest to switch over to addressable systems on the notified date and that circumstances so warrant to extend the notified date to protect the interests of a substantial portion of subscribers in the notified area, issue another notification indicating the revised date under section 4 A of the Act

Provided that the power to issue notification in respect of the areas already notified by the Government of India in the Ministry of Information and Broadcasting under section 4 A of the Act vide S. O. No. 792 (E) dated 10th July 2003 shall be subject to the orders and final outcome of the LPA No 985/2006 & CMs 6660/2006 and 6658/2006 pending in the High Court of Delhi.

(6) Every multi-system operator shall complete the remaining arrangements within such extended period and start transmitting the pay channels only through addressable systems from such revised date as notified under sub-rule (5).

FORM 1 (See rule 3 (1)) 191

(To be submitted in duplicate)

Form of application for *registration/renewal of registration/issue of duplicate certificate of registration as a cable operator.

To The Head Postmaster Head Post Office ------Application for *registration/renewal of registration/issue of duplicate certificate of registration as a cable operator.

1. (a) Name of Applicant (individual/firm/company/association of persons/body of individuals)* (b)*Age/Date of establishment/Date of incorporation. 2. (a) Address (office) (b) Telephone number (if any) 3. (a) Nationality (for individual applicants/body of individuals) (b) By birth/domicile. 4 (a) Amount of fee paid for *registration/renewal/issue of duplicate certificate Rs………. (b) Name of Head Post Office…………….. (Attach copy of challan vide which the fees have been deposited) 5. Area in which cable television network is working/proposed to be set up……. 6. Date from which the cable television network is operating/proposed to be set up……. 7. Number of channels being provided/ proposed to be provided (with names)………….. 8. (a) Whether using Television Receive Only(TVRO) Yes/No (b) If yes, number and size of TVRO…….. (c) Location……… 9. Names of Doordarshan satellite channels included in cable service………. 10. Copy of earlier registration certificate enclosed. Yes/No (To be filled in only for renewal of registration). 11. (a) State reasons for issue of duplicate certificate of registration….. (attach mutilated or defaced original certificate of registration/copy of report made to the police in case of theft or loss of the original certificate) (b) Period of validity of the original Registration Certificate for which the duplicate Registration Certificate is being sought………. (To be filled in only for issue of duplicate Registration Certificate) 12. Declaration in Form 2 enclosed. Yes/No (To be filled in for *registration/renewal of registration only)

192

I/We ------the applicant(s) *(Individual/firm/company/association of persons/body of individuals) do hereby declare that the above facts are correct in all respects.

Signature of Applicant *(Individual/firm/company/association of persons/body of individuals )

Place: Name ------

Date: Address ------

Score out the word or words which are not applicable.

FORM 2 ( see rule 3(1-3))

I/We ------the applicant(s) *(individual/firm/company/association of person/body of individuals) for registration as a cable operator/renewal of registration as a cable operator do hereby declare that:- (i) I/We shall ensure that my / our television network shall be run in accordance with the provisions of the Cable Television Networks (Regulation) Ordinance 1994 at all times. (ii) I/We shall not permit/associate any person who is not eligible to run a cable television network under the Cable Television Networks (Regulation) Ordinance 1994 to run/with the running of my/our cable television network. (iii) I/We shall strive to the best of my / our ability to provide cable service to the satisfaction of the subscriber (s) of my/our cable television network. (iv) I/We shall strive to the best of my / our ability to ensure that my / our cable television network is not used for any unlawful purpose. (v) I/We shall obtain the necessary approval/clearance from the relevant authority for the running of my / our cable television network. (vi) I/We shall abide by any direction issued by the Central Government in respect of the running of a cable television network within India.

Signature of Applicant * (Individual/firm/company/association of persons / body of individuals)

Place: Name ------Date: Address ------

* Score out the word or words which are not applicable

FORM 3 193

(See rule 5) Government of India Head Post Office REGISTRATION CERTIFICATE NUMBER

1. Shri/Shrimati/M/s ------resident of ------is registered as a cable operator (individual, firm,.*Company, association of persons or body of individuals) for running a cable television network at the following address ------in the city/town of ------for a period of twelve months with effect from ------His Registration Number is ------2. This Certificate is only valid for the premises stated above. 3. This Registration Certificate is not transferable. 4. The Certificate shall remain valid for the period indicated above or till the holder carries on the cable service or where the surrender of the certificate is accepted by the competent authority.

Head Post Master Head Post Office

Place : ------(town/city)

Date:

TO BE DISPLAYED PROMINENTLY ON THE PREMISES OF THE CABLE OPERATOR.

* Tick whichever is appropriate.

FORM 3A 194

(See Rule 5(2))

Government of India Head Post Office

DUPLICATE REGISTERATION CERTIFICATE 1. Shri/Shrimati/M/s……….resident of …………………is registered as a cable operator *(individual/firm/company/association of persons or body of individuals) for running a cable television network at the following address ………..in the city/town of ………for a period of twelve months with effect from…………(date from which the original Registration Certificate was valid). His Registration number is …………… 2. This Certificate is valid only for the premises stated above. 3. This Registration Certificate is not transferable. 4. The Certificate shall remain valid for the period indicated above or till the holder carries on the cable service or where the surrender of the certificate is accepted by the competent authority.

Head Post Master Head Post Office …..(town/city) Place: Date:

TO BE DISPLAYED PROMINENTLY ON THE PREMISES OF THE CABLE OPERATOR

*Tick whichever is appropriate

FORM 4 (See proviso to rule 5 (1)) 195

To

------

Sir, Reference your application dated ------for registration as a cable operator. The necessary registration cannot be granted to you for the following reason (s): - (i) Application is incomplete. (ii) Registration fee has not been tendered. (iii) Applicant is not a citizen of India. (iv) Less than fifty one percent of the paid-up share capital of the applicant company is held by citizens of India.

Head Post Master Head Post Office

Place:------Date:------

FORM 5 (See rule 8)

Form of register to be maintained by each cable operator.

SI. Encrypted Duration Date Month Year No channel/programme From To 1 2 3 4 5 6 7

Signature of cable operator

FORM 6 196

[See Rule 11 (2)]

(To be submitted in duplicate) To

The Secretary Ministry of Information & Broadcasting, ‘A’ Wing, Shastri Bhawan, New Delhi – 110001.

Subject : Application for grant of permission to multi system operators to provide cable television network services with addressable system in any or more notified areas. Sir, I hereby submit the following details for grant of permission. 1.(a) Name of the Applicant (individual/firm/company/association of persons/body of individuals) ** (b) Age/Date of establishment/Date of Incorporation 2.(a) Nationality (for individual applicants/body of individuals) (b) By birth/domicile 3. Details of payment of Processing Fee 4. Details of Registration as a Cable Operator (a) Name of the Post Office with which registered (b) Registration No./Validity up to (c) Copy of the Registration Certificate (enclose) 5. Complete Postal Address with Telephone/Fax No./E-mail ID (a) Corporate Office/Head Office (b) Registered Office (c) Regional Offices (d) Address of Correspondence 6. Name of authorized contact person, his designation and telephone/fax No./E-mail ID 7. *Registration detail under Companies Act, 1956: Incorporation No. and Date (Attach a copy of Certificate of Incorporation and Memorandum and Article of Associations) 8. *Board of Directors (Attach list of Directors along with bio-data of each Director giving date of birth, place of birth, parentage, nationality, permanent address, residential address, official address, passport No. (if any), qualification, experience, etc. 9. *Attach list of key executives including CEO/MD along with details as in 8 above. 197

10. *(i) Authorized Share Capital, (ii) Paid-up Share Capital, (iii) Net worth (enclose a copy of the audited Balance Sheet and Profit & Loss Account for the immediate preceding year and certificate of Net Worth on the basis of these documents by a Chartered Accountant). 11. Details of availability/arrangement of funds (sufficient proof to be enclosed). 12. (i) Present Area of Operation (if in more than one city, city-wise details to be given). (ii) CAS notified Area or Areas proposed to be covered by the applicant (if in more than one city, then city-wise details should be given) 13. No. of channels being provided in unencrypted form (own/broadcasters’) (give names separately for own channels and broadcasters’ channels). 14. Other value added services being provided (details along with their copies of licenses). 15. Total no. of each of local cable operators and subscribers covered (attach list of local cable operators with their telephone nos./fax nos./E-mail IDs and the number of subscribers each of the cable operators has with him.) 16. Details of past experience/field of activity. 17. Preparedness to supply and maintain adequate number of Set Top Boxes for the subscribers and installation of subscriber management system (give details to substantiate your claim including no. of Set Top Boxes already available/orders placed/network of authorized persons/agents to supply and provide after sales service). 18. Number of Agreements signed with broadcasters to supply their channels under CAS scheme (Give names of broadcasters and their channels for which agreements signed along with copies of agreements to substantiate your claim) 19. What arrangements have been made/proposed to be made to give wide publicity to CAS scheme in each of the notified areas, as approved by the Authority. (Give full details) I/We ………………………………….., the applicant(s) **(individual/firm/ company/association of persons/body of individuals) do hereby declare that the above facts are correct in all respects. I/We hereby undertake to abide by all the conditions/directions/orders that the Central Government or the Authority may lay down/issue for the smooth implementation and operation of CAS scheme in the notified areas.

Signature of Applicant/Authorized person **(individual/firm/company/association of persons/body of individuals)

198

Place …………………. Name ………………. Date ………………….. Address ……………

* To be given in case applicant is a Company/Firm ** Score out the word or words which are not applicable.

SCC Online Web Edition, Copyright © 2020 Page 1 Monday, September 21, 2020 Printed For: 199 SCC Online Web Edition: http://www.scconline.com

------

The Cable Television Networks (Regulation) Act, 19951 (Cable Television Networks (Regulation) Act, 1995)

[Act 7 of 1995] [March 25, 1995]

CONTENTS

CHAPTER I

PRELIMINARY

1. Short title, extent and commencement

2. Definitions

Registering Authority

Ministry of Information and Broadcasting, Noti. No. S.O. 718(E), dated September 29, 1994, published in the Gazette of India, Extra., Part II, Section 3(ii), dated 29th September, 1994, p. 2 F.No. 9/7/93-PBC Vol. II]

CHAPTER II

REGULATION OF CABLE TELEVISION NETWORK

3. Cable television network not to be operated except after registration

4. Registration as cable operator

4-A. Transmission of programmes through digital addressable systems, etc

4-B. Right of way for cable operators and permission by public authority

5. Programme code

6. Advertisement code

7. Maintenance of register

8. Compulsory transmission of certain channels

9. Use of standard equipment in cable television network

10. Cable television network not to interfere with any telecommunication system

10-A. Inspection of cable network and services

CHAPTER III SCC Online Web Edition, Copyright © 2020 Page 2 Monday, September 21, 2020 Printed For: 200 SCC Online Web Edition: http://www.scconline.com

------SEIZURE AND CONFISCATION OF CERTAIN EQUIPMENT

11. Power to seize equipment used for operating cable television network

12. Confiscation

13. Seizure or confiscation of equipment not to interfere with other punishment

14. Giving of opportunity to the cable operator of seized equipment

15. Appeal

CHAPTER IV

OFFENCES AND PENALTIES

16. Punishment for contravention of provisions of this Act

17. Offences by companies

18. Cognizance of offences

CHAPTER V

MISCELLANEOUS

19. Power to prohibit transmission of certain programmes in public interest

20. Power to prohibit operation of cable television network in public interest

21. Application of other laws not barred

22. Power to make rules

23. Repeal and savings

———

Cable Television Networks (Regulation) Act, 19951 [Act 7 of 1995] [March 25, 1995] An Act to regulate the operation of cable television networks in the country and for matters connected therewith or incidental thereto Be it enacted by Parliament in the Forty-sixth Year of the Republic of India as follows:— Prefatory Note—Statement of Object and Reasons.—There has been a haphazard mushrooming of cable television networks all over the country during the last few years as a result of the availability of signals of foreign television networks via satellites. This has been perceived as a “cultural invasion” in many quarters since the programmes available on these satellite channels are predominantly western and totally alien to our culture and way of life. Since there is no regulation of these cable television networks, lot of undesirable programmes and advertisements are becoming available to the viewers without any kind of censorship. SCC Online Web Edition, Copyright © 2020 Page 3 Monday, September 21, 2020 Printed For: 201 SCC Online Web Edition: http://www.scconline.com

------2. It is also felt that the subscribers of these cable television networks, the programmers and the cable operators themselves are not aware of their rights, responsibilities and obligations in respect of the quality of service, technical as well as content-wise, use of material protected by copyright, exhibition of uncertified films, protection of subscribers from anti-national broadcasts from sources inimical to our national interest, responsiveness to the genuine grievances of the subscribers and a perceived willingness to operate within the broad framework of the laws of the land, e.g., the Cinematograph Act, 1952, the Copyright Act, 1957, Indecent Representation of Women (Prohibition) Act, 1986. 3. It is therefore, considered necessary to regulate the operation of cable television networks in the entire country so as to bring about uniformity in their operation. It will thus enable the optimal exploitation of this technology which has the potential of making available to the subscribers a vast pool of information and entertainment. 4. The Bill seeks to achieve the above objects. Chapter I PRELIMINARY 1. Short title, extent and commencement.—(1) This Act may be called Cable Television Networks (Regulation) Act, 1995. (2) It extends to the whole of India. (3) It shall be deemed to have come into force on the 29th day of September, 1994. 2. Definitions.—In this Act, unless the context otherwise requires,— 2[(a) “authorised officer” means, within his local limits of jurisdiction,— (i) a District Magistrate, or (ii) a Sub-divisional Magistrate, or (iii) a Commissioner of Police, and includes any other officer notified in the Official Gazette, by the Central Government or the State Government, to be an authorised officer for such local limits of jurisdiction as may be determined by that Government;] 3[(a-i) “Authority” means the Telecom Regulatory Authority of India established under sub-section (1) of Section 3 of the Telecom Regulatory Authority of India Act, 1997 (24 of 1997); (a-ii) “Broadcaster” means a person or a group of persons, or body corporate, or any organisation or body providing programming services and includes his or its authorised distribution agencies; (a-iii) “cable operator” means any person who provides cable service through a cable television network or otherwise controls or is responsible for the management and operation of a cable television network and fulfils the prescribed eligibility criteria and conditions;] (b) “cable service” means the transmission by cables of programmes including re -transmission by cables of any broadcast television signals; (c) “cable television network” means any system consisting of a set of closed transmission paths and associated signal generation, control and distribution equipment, designed to provide cable service for reception by multiple subscribers; (d) “company” means a company as defined in Section 3 of the Companies Act, 1956 (1 of 1956); (e) “person” means— (i) an individual who is a citizen of India; (ii) an association of individuals or body of individuals, whether incorporated SCC Online Web Edition, Copyright © 2020 Page 4 Monday, September 21, 2020 Printed For: 202 SCC Online Web Edition: http://www.scconline.com

------or not, whose members are citizens of India; 4[(iii) a company as defined in Section 3 of the Companies Act, 1956 (1 of 1956);] 5[(e-i) “post” means a post and includes a pole, tower, standard, stay, strut, cabinet, pillar or any above ground contrivance for carrying, suspending or supporting any network infrastructure facility;] (f) “prescribed” means prescribed by rules made under this Act; (g) “programme” means any television broadcast and includes— (i) exhibition of films, features, dramas, advertisements and serials 6[* * *]; (ii) any audio or visual or audio-visual live performance or presentation; and the expression “programming service” shall be construed accordingly; 7[(g-i) “public authority” means any authority, body or institution of local self- government constituted or established by or under— (i) the Constitution of India; (ii) any law made by Parliament; (iii) any law made by a State Legislature; (iv) any notification issued or order made by the appropriate Government, and includes any— (v) body owned, controlled or substantially financed; or (vi) non-governmental organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;] (h) “registering authority” means such authority as the Central Government may, by notification in the Official Gazette, specify to perform the functions of the registering authority under this Act 8[within such local limits of jurisdiction as may be determined by that Government]; (i) “subscriber” means 9[any individual, or association of individuals, or a company, or any other organisation or body] who receives the signals of cable television network at a place 10[indicated by him or it] to the cable operator, without further transmitting it to any other person. Registering Authority Ministry of Information and Broadcasting, Noti. No. S.O. 718(E), dated September 29, 1994, published in the Gazette of India, Extra., Part II, Section 3(ii), dated 29th September, 1994, p. 2 [F.No. 9/7/93-PBC Vol. II] In exercise of the powers conferred by clause (h) of Section 2 of the Cable Television Networks (Regulation) Ordinance, 1994, the Central Government hereby notifies the Head Post Master of a Head Post Office, of the area within whose territorial jurisdiction the office of the Cable Operator is situated, as the Registering Authority for registering cable television networks in the said area for the purposes of the said Ordinance. Chapter II REGULATION OF CABLE TELEVISION NETWORK 3. Cable television network not to be operated except after registration.—No person shall operate a cable television network unless he is registered as a cable operator under this Act: 11[* * *]. 12[4. Registration as cable operator.—(1) Any person who is desirous of operating or is operating a cable television network may apply for registration or renewal of registration, as a cable operator to the registering authority. (2) The cable operator shall fulfil such eligibility criteria and conditions as may be SCC Online Web Edition, Copyright © 2020 Page 5 Monday, September 21, 2020 Printed For: 203 SCC Online Web Edition: http://www.scconline.com

------prescribed and different eligibility criteria may be prescribed for different categories of cable operators. (3) On and from the date of issue of notification under Section 4-A, no new registration in a State, city, town or area notified under that section shall be granted to any cable operator who does not undertake to transmit or re-transmit channels in an encrypted form through a digital addressable system. (4) An application under sub-section (1) shall be made in such form and be accompanied by such documents and fees as may be prescribed. (5) On receipt of the application, the registering authority shall satisfy itself that the applicant has furnished all the required information prescribed under sub-section (4) and on being so satisfied, register the applicant as a cable operator and grant him a certificate of registration or renew its registration, as the case may be, subject to such terms and conditions as may be prescribed under sub-section (6): Provided that the registering authority may, if it is satisfied that the applicant does not fulfil the eligibility criteria and conditions prescribed under sub-section (2) or the application is not accompanied by necessary documents or fees as prescribed under sub-section (4), and for reasons to be recorded in writing, by order, refuse to grant its registration or renewal, as the case may be, and communicate the same to the applicant: Provided further that the applicant may prefer an appeal against the order of the registering authority refusing grant or renewal of registration to the Central Government. (6) Without prejudice to the compliance of eligibility criteria for registration of cable operators, the Central Government may prescribe, having regard to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, foreign relation or contempt of court, defamation or incitement to an offence, such terms and conditions of registration including additional criteria or conditions to be fulfilled by the cable operator. (7) The Central Government may suspend or revoke the registration granted under sub-section (5) if the cable operator violates one or more of the terms and conditions of such registration: Provided that no such order of suspension or revocation shall be made without giving a reasonable opportunity of being heard to the cable operator.] 13[4-A. Transmission of programmes through digital addressable systems, etc.—(1) Where the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, make it obligatory for every cable operator to transmit or re-transmit programmes of any channel in an encrypted form through a digital addressable system with effect from such date as may be specified in the notification and different dates may be specified for different States, cities, towns or areas, as the case may be: Provided that the date specified in the notification shall not be earlier than six months from the date of issue of such notification to enable the cable operators in different States, cities, towns or areas to install the equipment required for the purposes of this sub-section. (2) The Central Government may prescribe appropriate measures and take such steps as it may consider necessary for implementation of the notification issued under sub-section (1). (3) If the Central Government is satisfied that it is necessary in the public interest so to do, and if not otherwise specified by the Authority, it may direct the Authority to specify, by notification in the Official Gazette, one or more free-to-air channels to be included in the package of channels forming basic service tier and any one or more SCC Online Web Edition, Copyright © 2020 Page 6 Monday, September 21, 2020 Printed For: 204 SCC Online Web Edition: http://www.scconline.com

------such channels may be specified, in the notification, genre-wise for providing a programme mix of entertainment, information, education and such other programmes and fix the tariff for basic service tier which shall be offered by the cable operators to the consumers and the consumer shall have the option to subscribe to any such tier: Provided that the cable operator shall also offer the channels in the basic service tier on a la carte basis to the subscriber at a tariff specified under this sub-section. (4) The Central Government or the Authority may specify in the notification referred to in sub-section (3), the number of free-to-air channels to be included in the package of channels forming basic service tier for the purposes of that sub-section and different numbers may be specified for different States, cities, towns or areas, as the case may be. (5) It shall be obligatory for every cable operator to publicise the prescribed information including but not limited to subscription rates, standards of quality of service and mechanism for redressal of subscribers' grievances in such manner and at such periodic intervals as may be specified by the Central Government or the Authority for the benefit of the subscriber. (6) The cable operator shall not require any subscriber to have a receiver set of a particular type to receive signals of cable television network: Provided that the subscriber shall use a digital addressable system to be attached to his receiver set for receiving programmes transmitted on any channel. (7) Every cable operator shall provide such information relating to its cable services and networks in such format and at such periodic intervals to the Central Government or the State Governments or the Authority or their authorised representatives, as may be specified by them from time to time. (8) All actions taken by the Central Government or the Authority in pursuance of the provisions of this section as they stood immediately before the 25th day of October, 2011 shall continue to remain in force till such actions are modified as per the provisions of this Act. Explanation.—For the purposes of this section— (a) “addressable system” means an electronic device (which includes hardware and its associated software) or more than one electronic device put in an integrated system through which signals of cable television network can be sent in encrypted form, which can be decoded by the device or devices, having an activated Conditional Access System at the premises of the subscriber within the limits of authorisation made, through the Conditional Access System and the subscriber management system, on the explicit choice and request of such subscriber, by the cable operator to the subscriber; (b) “basic service tier” means a package of free-to-air channels to be offered by a cable operator to a subscriber with an option to subscribe, for a single price to subscribers of the area in which his cable television network is providing service; (c) “encrypted”, in respect of a signal of cable television network, means the changing of such signal in a systematic way so that the signal would be unintelligible without use of an addressable system and the expression “unencrypted” shall be construed accordingly; (d) “free-to-air channel”, in respect of a cable television network, means a channel for which no subscription fee is to be paid by the cable operator to the broadcaster for its re-transmission on cable; (e) “pay channel”, in respect of a cable television network, means a channel for which subscription fees is to be paid to the broadcaster by the cable SCC Online Web Edition, Copyright © 2020 Page 7 Monday, September 21, 2020 Printed For: 205 SCC Online Web Edition: http://www.scconline.com

------operator and due authorisation needs to be taken from the broadcaster for its re-transmission on cable; (f) “subscriber management system” means a system or device which stores the subscriber records and details with respect to name, address and other information regarding the hardware being utilised by the subscriber, channels or bouquets of channels subscribed to by the subscriber, price of such channels or bouquets of channels as defined in the system, the activation or deactivation dates and time for any channel or bouquets of channels, a log of all actions performed on a subscriber's record, invoices raised on each subscriber and the amounts paid or discount allowed to the subscriber for each billing period.] 14[4-B. Right of way for cable operators and permission by public authority.—(1) Subject to the provisions of this Act, any cable operator entitled for providing cable services may, from time to time, lay and establish cables and erect posts under, over, along, across, in or upon any immovable property vested in or under the control or management of a public authority. (2) Any public authority under whose control or management any immovable property is vested may, on receipt of a request from a cable operator permit the cable operator to do all or any of the following acts, namely— (a) to place and maintain underground cables or posts; and (b) to enter on the property, from time to time, in order to place, examine, repair, alter or remove such cables or posts. (3) The facility of right of way under this section for laying underground cables, and erecting posts, shall be available to all cable operators subject to the obligation of reinstatement or restoration of the property or payment of reinstatement or restoration charges in respect thereof at the option of the public authority. (4) When a public authority in public interest considers it necessary and expedient that the underground cable or post placed by any cable operator under the provisions of this section should be removed or shifted or its position altered, it may require the cable operator to remove it or shift it or alter its position, as the case may be, at its own cost in the time frame indicated by the public authority. (5) The Central Government may lay down appropriate guidelines to enable the State Government to put in place an appropriate mechanism for speedy clearance of requests from cable operators for laying cables or erecting posts on any property vested in, or under the control or management of, any public authority and for settlement of disputes, including refusal of permission by the public authority. (6) Any permission granted by a public authority under this section may be given subject to such reasonable conditions as that public authority thinks fit to impose as to the payment of any expenses, or time or mode of execution of any work, or as to any other matter connected with or related to any work undertaken by the cable operator in exercise of those rights. (7) Nothing in this section shall confer any right upon any cable operator other than that of user for the purpose only of laying underground cable or erecting posts or maintaining them.] 5. Programme code.—No person shall transmit or re-transmit through a cable service any programme unless such programme is in conformity with the prescribed programme code: 15[* * *] 6. Advertisement code.—No person shall transmit or re-transmit through a cable service any advertisement unless such advertisement is in conformity with the prescribed advertisement code: SCC Online Web Edition, Copyright © 2020 Page 8 Monday, September 21, 2020 Printed For: 206 SCC Online Web Edition: http://www.scconline.com

------16[* * *] 7. Maintenance of register.—Every cable operator shall maintain a register in the prescribed form indicating therein in brief the programmes transmitted or re- transmitted through the cable service during a month and such register shall be maintained by the cable operator for a period of one year after the actual transmission or re-transmission of the said programmes. 17[8. Compulsory transmission of certain channels.—(1) The Central Government may, by notification in the Official Gazette, specify the names of Doordarshan channels or the channels operated by or on behalf of Parliament, to be mandatorily carried by the cable operators in their cable service and the manner of reception and re- transmission of such channels: Provided that in areas where digital addressable system has not been introduced in accordance with the provisions of sub-section (1) of Section 4-A, the notification as regards the prime band is concerned shall be limited to the carriage of two Doordarshan terrestrial channels and one regional language channel of the State in which the network of the cable operator is located. (2) The channels referred to in sub-section (1) shall be re-transmitted without any deletion or alteration of any programme transmitted on such channels. (3) Notwithstanding the provisions of sub-section (1), any notification issued by the Central Government or the Prasar Bharti (Broadcasting Corporation of India) in pursuance of the provisions of sub-section (1), prior to the 25th day of October, 2011 shall continue to remain in force till such notifications are rescinded or amended, as the case may be.] 9. Use of standard equipment in cable television network.—No cable operator shall, on and from the date of the expiry of a period of three years from the date of the establishment and publication of the Indian Standard by the Bureau of Indian Standards in accordance with the provisions of the Bureau of Indian Standards Act, 1986 (63 of 1986), use any 18[equipment or digital addressable system] in his cable television network unless such 18[equipment or digital addressable system] conforms to the said Indian Standard: 19[* * *] 10. Cable television network not to interfere with any telecommunication system.— Every cable operator shall ensure that the cable television network being operated by him does not interfere, in any way, with the functioning of the authorised telecommunication systems 20[and is in conformity with such standards relating to interference as may be prescribed by the Central Government]. 21[10-A. Inspection of cable network and services.—(1) Without prejudice to the provisions contained in the Indian Telegraph Act, 1885 (13 of 1885) or any other law for the time being in force, the Central Government or its officers authorised by it or authorised agency shall have the right to inspect the cable network and services. (2) No prior permission or intimation shall be required to exercise the right of the Central Government or its authorised representatives to carry out such inspection. (3) The inspection shall ordinarily be carried out after giving reasonable notice except in circumstances where giving of such a notice shall defeat the purpose of the inspection. (4) On being so directed by the Central Government or its authorised officers or agency so authorised by it, the cable operator shall provide the necessary equipment, services and facilities at designated place or places for lawful interception or continuous monitoring of the cable service at its own cost by or under the supervisions of the Central Government or its officers or agency so authorised by it.] Chapter III SCC Online Web Edition, Copyright © 2020 Page 9 Monday, September 21, 2020 Printed For: 207 SCC Online Web Edition: http://www.scconline.com

------SEIZURE AND CONFISCATION OF CERTAIN EQUIPMENT 22[11. Power to seize equipment used for operating cable television network.—If any authorised officer has reason to believe that the provisions of Section 3, Section 4-A, Section 5, Section 6, Section 8, Section 9 or Section 10 have been or are being contravened by any cable operator, he may seize the equipment being used by such cable operator for operating the cable television network: Provided that the seizure of equipment in case of contravention of Sections 5 and 6 shall be limited to the programming service provided on the channel generated at the level of the cable operator.] 12. Confiscation.—The equipment seized under sub-section (1) of Section 11 shall be liable to confiscation unless the cable operator from whom the equipment has been seized registers himself as a cable operator under Section 4 within a period of thirty days from the date of seizure of the said equipment. 13. Seizure or confiscation of equipment not to interfere with other punishment.— No seizure or confiscation of equipment referred to in Section 11 or Section 12 shall prevent the infliction of any punishment to which the person affected thereby is liable under the provisions of this Act. 14. Giving of opportunity to the cable operator of seized equipment.—(1) No order adjudicating confiscation of the equipment referred to in Section 12 shall be made unless the cable operator has been given a notice in writing informating him of the grounds on which it is proposed to confiscate such equipment and giving him a reasonable opportunity of making a representation in writing, within such reasonable time as may be specified in the notice against the confiscation and if he so desires of being heard in the matter: Provided that where no such notice is given within a period of ten days from the date of the seizure of the equipment, such equipment shall he returned after the expiry of that period to the cable operator from whose possession it was seized. (2) Save as otherwise provided in sub-section (1), the provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, so far as may be, apply to every proceeding referred to in sub-section (1). 15. Appeal.—(1) Any person aggrieved by any decision of the court adjudicating a confiscation of the equipment may prefer an appeal to the court to which an appeal lies from the decision of such court. (2) The appellate court may, after giving the appellant an opportunity of being heard, pass such order as it thinks fit confirming, modifying or revising the decision appealed against or may send back the case with such directions as it may think fit for a fresh decision or adjudication, as the case may be, after taking additional evidence if necessary. (3) No further appeal shall lie against the order of the court made under sub- section (2). Chapter IV OFFENCES AND PENALTIES 16. Punishment for contravention of provisions of this Act.— 23[(1)]Whoever contravenes any of the provisions of this Act shall be punishable,— (a) for the first offence, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both; (b) for every subsequent offence, with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees. 24[(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the contravention of section 4-A shall be a cognizable offence under this section.] SCC Online Web Edition, Copyright © 2020 Page 10 Monday, September 21, 2020 Printed For: 208 SCC Online Web Edition: http://www.scconline.com

------17. Offences by companies.—(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligence on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.—For the purposes of this section,— (a) “company” means any body corporate and includes a firm or other association of individuals; and (b) “director” in relation to a firm means a partner in the firm. 18. Cognizance of offences.—No court shall take cognizance of any offence punishable under this Act except upon a complaint in writing made 25[by any authorised officer]. Chapter V MISCELLANEOUS 19. Power to prohibit transmission of certain programmes in public interest.—Where 26[any authorised officer] authorised, thinks it necessary or expedient so to do in the public interest, he may, by order, prohibit any cable operator from transmitting or re- transmitting 27[any programme or channel if, it is not in conformity with the prescribed programme code referred to in Section 5 and advertisement code referred to in Section 6 or if it is] likely to promote, on grounds of religion, race, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities or which is likely to disturb the public tranquillity. 20. Power to prohibit operation of cable television network in public interest.—[(1)] 28Where the Central Government thinks it necessary or expedient so to do in public interest, it may prohibit the operation of any cable television network in such areas as it may, by notification in the Official Gazette, specify in this behalf. 29[(2) Where the Central Government thinks it necessary or expedient so to do in the interest of the— (i) sovereignty or integrity of India; or (ii) security of India; or (iii) friendly relations of India with any foreign State; or (iv) public order, decency or morality, it may, by order, regulate or prohibit the transmission or re-transmission of any channel or programme. (3) Where the Central Government considers that any programme of any channel is not in conformity with the prescribed programme code referred to in Section 5 or the prescribed advertisement code referred to in Section 6, it may by order, regulate or prohibit the transmission or re-transmission of such programme.] 21. Application of other laws not barred.—The provisions of this Act shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940), SCC Online Web Edition, Copyright © 2020 Page 11 Monday, September 21, 2020 Printed For: 209 SCC Online Web Edition: http://www.scconline.com

------the Pharmacy Act, 1948 (8 of 1948), the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950), the Drugs (Control) Act, 1950 (26 of 1950), the Cinematograph Act, 1952 (37 of 1952), the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (21 of 1954), the Prevention of Food Adulteration Act, 1954 (37 of 1954), the Prize Competitions Act, 1955 (42 of 1955), the Copyright Act, 1957 (14 of 1957), the Trade and Merchandise Marks Act, 1958 (43 of 1958), the Indecent Representation of Women (Prohibition) Act, 1986 (60 of 1986) 30[the Consumer Protection Act, 1986 (68 of 1986) and the Telecom Regulatory Authority of India Act, 1997 (24 of 1997)]. 22. Power to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:— 31[(a) the eligibility criteria for different categories of cable operators under sub- section (2) of Section 4]; 32[(aa) the form of application, documents to be accompanied and the fees payable under sub-section (4) of Section 4]; 33[(aaa) the terms and conditions of registration under sub-section (6) of Section 4;] 34[(aaaa) the appropriate measures under sub-section (2) of Section 4-A for implementation of the notification under sub-section (1) of that section;] (b) the programme code under Section 5; (c) the advertisement code under Section 6; (d) the form of register to be maintained by a cable operator under Section 7; 35[(da) the specifications of interference standards for interfering with any telecommunication system under Section 10;] (e) any other matter which is required to be, or may be, prescribed. (3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. 23. Repeal and savings.—(1) The Cable Television Networks (Regulation) Ordinance, 1995 (3 of 1995) is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance, shall be deemed to have been done or taken under the corresponding provision of this Act. ——— 1. Received the assent of the President on March 25, 1995.

2. Original clause (a) re-lettered as clause (aa) and clause (a) inserted by Act 36 of 2000, S. 2 (w.e.f. 1-9- 2000).

3. Substituted by Act 21 of 2011, Section 2(A) (w.r.e.f. 25-10-2011).

4. Substituted by Act 21 of 2011, Section 2(B) (w.r.e.f. 25-10-2011).

5. Inserted by Act 21 of 2011, Section 2(C) (w.r.e.f. 25-10-2011).

6. Omitted by Act 21 of 2011, Section 2(D), (w.r.e.f. 25-10-2011). SCC Online Web Edition, Copyright © 2020 Page 12 Monday, September 21, 2020 Printed For: 210 SCC Online Web Edition: http://www.scconline.com

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7. Inserted by Act 21 of 2011, Section 2(E), (w.r.e.f. 25-10-2011).

8. Inserted by Act 21 of 2011, Section 2(F), (w.r.e.f. 25-10-2011).

9. Substituted for “a person” by Act 21 of 2011, Section 2(G)(a) (w.r.e.f. 25-10-2011).

10. Substituted for “indicated by him or it” by Act 21 of 2011, Section 2(G)(b) (w.e.f. 25-10-2011).

11. The Proviso omitted by Act 21 of 2011, Section 3 (w.r.e.f. 25-10-2011).

12. Substitution by Act 21 of 2011, Section 4 (w.r.e.f. 25-10-2011).

13. Substituted by Act 21 of 2011, Section 5 (w.r.e.f. 25-10-2011).

14. Inserted by Act 21 of 2011, Section 5 (w.r.e.f. 25-10-2011).

15. Proviso omitted by Act 36 of 2000, S. 3 (w.e.f. 1-9-2000).

16. Proviso omitted by Act 36 of 2000, S. 4 (w.e.f. 1-9-2000).

17. Substituted by Act 21 of 2011, Section 6 (w.r.e.f. 25-10-2011).

18. Substituted for “equipment” by Act 21 of 2011, Section 7(a) (w.r.e.f. 25-10-2011).

19. Omitted by Act 21 of 2011, Section 7(b) (w.r.e.f. 25-10-2011).

20. Inserted by Act 21 of 2011, Section 8 (w.r.e.f. 25-10-2011).

21. Inserted by Act 21 of 2011, Section 9 (w.r.e.f. 25-10-2011).

22. Substituted by Act 21 of 2011, Section 10 (w.r.e.f. 25-10-2011).

23. Section 16 renumbered as sub-section (1) by Act 2003, S. 5.

24. Ins. by Act 2 of 2003, S. 5.

25. Subs. by Act 36 of 2000, S. 7 (w.e.f. 1-9-2000).

26. Subs. by Act 36 of 2000, S. 8 (w.e.f. 1-9-2000).

27. Subs. by Act 36 of 2000, S. 8 (w.e.f. 1-9-2000).

28. Section 20 re-numbered as sub-section (1) and sub-section (2) and (3) inserted by Act 36 of 2000, S. 9 (w.e.f. 1-9-2000).

29. Section 20 re-numbered as sub-section (1) and sub-section (2) and (3) inserted by Act 36 of 2000, S. 9 (w.e.f. 1-9-2000).

30. Substituted by Act 21 of 2011, Section 11 (w.r.e.f. 25-10-2011).

31. Substituted by Act 21 of 2011, Section 11(i) (w.r.e.f. 25-10-2011).

32. Substituted by Act 21 of 2011, Section 11(ii) (w.r.e.f. 25-10-2011).

33. Substituted by Act 21 of 2011, Section 11(iii) (w.r.e.f. 25-10-2011).

34. Inserted by Act 21 of 2011, Section 11(iv) (w.r.e.f. 25-10-2011).

35. Inserted by Act 21 of 2011, Section 11(v) (w.r.e.f. 25-10-2011).

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Press Council of India

Report on Paid News Dated: 30/07/2010 The phenomenon of “paid news” has acquired serious dimensions. Today it goes beyond the corruption of individual journalists and media companies and has become pervasive, structured and highly organized. In the process, it is undermining democracy in India. This has anguished the leading sections of the society, including political leaders, thinkers, journalists and media owners. They all have expressed their unhappiness and concern about the pernicious influence of such malpractices. Several veteran journalists, including the late Shri Prabhash Joshi, Shri Ajit Bhattacharjea, Shri B.G. Verghese and Shri Kuldip Nayar, wanted the Press Council of India to apply its mind on the issue and come up with suggestions on how the phenomenon of “paid news” could be curbed. Various journalists’ associations, including the Andhra Pradesh Union of Working Journalists and the Delhi Union of Journalists have examined the phenomenon, conducted surveys and organized discussions on the topic. The Editors’ Guild of India also discussed the phenomenon and expressed concern at this growing tendency. On June 8, 2010, the Election Commission of India issued detailed guidelines to Chief Electoral Officers of all states and Union territories on measures to check “paid news” before elections, that is, advertising in the garb of news. The phenomenon of “political paid news” became particularly noticeable during the 2009 general elections and thereafter during the elections to the assemblies of various states. The phenomenon acquired a new and even more destructive dimension by redefining political “news” or “reporting” on candidates standing for election – many such “news reports” would be published or broadcast perhaps only after financial transactions had taken place, almost always in a clandestine manner. It is widely believed that many media companies, irrespective of the volume of their businesses and

1 212 their profitability, were “selling” news space after arriving at an “understanding” with politicians and representatives of corporate entities that were advertisers. Space in publications and airtime were occupied by advertisements that were disguised as “news”.

News is meant to be objective, fair and neutral – this is what sets apart such information and opinion from advertisements that are paid for by corporate entities, governments, organizations or individuals. What happens when the distinction between news and advertisements start blurring, when advertisements double up as news that have been paid for, or when “news” is published in favour of a particular politician by selling editorial spaces?

In such situations, a section of the reader or the viewer can hardly distinguish between news reports and advertisements/advertorials. Marketing executives use the services of journalists – willingly or otherwise – to gain access to political personalities. So-called “rate cards” or “packages” are distributed that often include “rates” for publication of “news” items that not merely praise particular candidates but also criticize their political opponents. Candidates who do not go along with such practices on the part of media organizations may be denied coverage. Sections of the media in India have willy-nilly become participants and players in such practices that contribute to the growing use of money power in politics which undermines democratic processes and norms – while hypocritically pretending to occupy a high moral ground. This has not merely undermined democracy in India but also tarnished the country’s reputation.

Identical articles with photographs and headlines have appeared in competing publications carrying by-lines of different authors around the same time. On the same page of specific newspapers, articles have been 2 213 printed praising competing candidates claiming that both are likely to win the same elections. Nowhere is there any indication that the publication of such “news” reports has entailed financial transactions or has been sponsored by certain individuals or political parties. When confronted with circumstantial evidence that substantiate allegations of “paid news”, the standard reaction of individuals accused of corrupt practices is to pretend that nothing untoward has happened since the evidence is circumstantial in nature. The typical response of representatives of political parties as well as media organizations, is to flatly deny these allegations. In private, however, these very same people acknowledge that the cancer of “paid news” has spread deep into the country’s body politic and needs to be removed.

Realising the dangers of “paid news” to democracy as well as the right to freedom of expression enshrined in Article 19 of the Constitution of India, on June 9, 2009, the Press Council of India appointed a Sub-Committee comprising Shri Paranjoy Guha Thakurta and Shri Kalimekolam Sreenivas Reddy “to examine the phenomenon of paid news observed during the last Lok Sabha elections…based on inputs received from the members and others.” The two members met a cross-section of society in New Delhi, Mumbai and Hyderabad and also went through many letters and representations that were sent to the Council. The report of the Sub-Committee was discussed in detail by the Press Council in its two meetings held in Indore and New Delhi on 31 March, 2010 and 26 April, 2010 respectively. Members gave a number of suggestions and thereafter, the Press Council of India Chairman appointed a Drafting Committee to prepare a final report for the consideration of the Council. The Chairman appointed a 12-member Committee consisting: S/Shri H N Cama, Lalit Mangotra, U C Sharma, Y C Halan, K. Sreenivas Reddy, Kalyan Barooah, S. N. Sinha, Anil Jugal Kishore Agarwal, Kundn R L Vyas, Paranjoy Guha Thakurta, P Javadekar, and Keshav Rao. 3

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The Drafting Committee considered the views expressed during various meetings of the Press Council and has drafted a report for the consideration of the Council.

Introduction

Paid News can be defined as “Any news or analysis appearing in any media (Print & Electronic) for a price in cash or kind as consideration”

Paid news is a complex phenomenon and has acquired different forms over the last six decades. It ranges from accepting gifts on various occasions, foreign and domestic junkets, various monetary and non-monetary benefits, besides direct payment of money. Another form of paid news that has been brought to the notice of the Press Council of India by the Securities and Exchange Board of India (SEBI is in the form of “private treaties” between media companies and corporate entities. Private treaty is a formal agreement between the media company and another non-media company in which the latter transfers certain shares of the company to the former in lieu of advertisement space and favourably coverage.

Since the phenomenon of paid news is old, complex and deep rooted in the system and seems to be spreading its cancerous roots rapidly as observed after the 2009 elections, the Drafting Committee feels that the Press Council of India should initially focus only on the paid news observed during the last Lok Sabha elections (2009). This decision stems from the decision of the Press Council as conveyed by the Secretary to the Council members.

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Election-time paid news

The election-time paid news phenomenon has three dimensions. One, the reader or the viewer does not get a correct picture of the personality or performance of the candidate in whose favour or against he decides to cast his vote. This destroys the very essence of the democracy. Two, contesting candidates perhaps do not show it in their election expense account thereby violating the Conduct of Election Rules, 1961 framed by the Election Commission of India under the Representation of the People Act, 1951. Third, those newspapers and television channels which received money in cash but did not disclose it in their official statements of accounts, have violated the Companies Act 1956 as well as the Income Tax Act 1961 besides other laws.

The payment and receipt of election-time paid news is a clandestine operation and has become widespread and organised as advertising agencies, public relations firms, politicians, journalists, managers and owners of some media companies are believed to be involved in it. It, therefore, is not easy to find clinching evidence that pins responsibility on individuals, parties and organisations. However, a number of persons including members of the Sub-Committee setup by the Council have collected a large volume of circumstantial evidence that is with the Press Council, which indicates that monetary consideration was exchanged for favourable coverage, reporting and telecasting.

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Separating Management from Editorial

Going through the observations of persons with whom the Sub-Committee interacted and the evidence provided by them and the discussions in the Press Council it is felt that election-time paid news deals are done between the candidates or political parties or their agents and media. It was felt that there should be a clear distinction drawn between the managements and editorial staff in media companies and that the independence of the editor should be maintained and safeguarded.

Role of Press Council

The Press Council of India was set up by Parliament as a statutory, quasi judicial body “for the purpose of preserving the freedom of the Press and of maintaining and improving the standards of newspapers and news agencies in India.” However, it has been entrusted with only limited powers to admonish, reprimand and pass strictures. It cannot penalise the errant or those found guilty of malpractices. Besides, the Council’s mandate does not extend beyond the print medium. A proposal to amend Section 15(4) of the Press Council Act, 1978, to make the directions of the Council binding has been pending for a long time. It should be taken up on a priority basis.

Representation of the People Act, 1951

The Union and state elections are regulated by the provisions of the Representation of the People Act, 1951. The main purpose of this Act is to ensure free and fair elections in the country. Therefore, since election-time “paid news” undermines free and fair elections, it is recommended that Section 123 of the Representation of the People Act, 1951, should be suitably amended so as to declare any payment for the publication of news 6

217 as a corrupt practice or an “electoral malpractice” and should be made a punishable offence.

Press Council of India

The Press Council of India should constitute a body of media professionals with wide representation at the national/state/district levels to investigate (either suo moto or on receipt of complaints of instances of “paid news” and the recommendations of such a body – after going through an appellate mechanism -- should be binding on the Election Commission of India and other government authorities.

The guidelines of the Press Council of India that news should be clearly demarcated from advertisements by printing disclaimers, should be strictly enforced by all publications. As far as news is concerned, it must always carry a credit line and should be set in a typeface that would distinguish it from advertisements. The guidelines of the Council, as decided in 1996, are reproduced hereunder and efforts should be made to ensure that these are followed by all media organizations. i) General Election is a very important feature of our democracy and it is imperative that the media transmits to the electorate fair and objective reports of the election campaign by the contesting parties. Freedom of the Press depends to a large measure on the Press itself behaving with a sense of responsibility. It is, therefore, necessary to ensure that the media adheres to this principle of fair and objective reporting of the election campaign.

The Press Council has, therefore, formulated the following guidelines to the media for observance during elections: 7

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1. It will be the duty of the Press to give objective reports about elections and the candidates. The newspapers are not expected to indulge in unhealthy election campaigns, exaggerated reports about any candidate/party or incident during the elections. In practice, two or three closely contesting candidates attract all the media attention. While reporting on the actual campaign, a newspaper may not leave out any important point raised by a candidate and make an attack on his or her opponent.

2. Election campaign along communal or caste lines is banned under the election rules. Hence, the Press should eschew reports which tend to promote feelings of enmity or hatred between people on the ground of religion, race, caste, community or language.

3. The Press should refrain from publishing false or critical statements in regard to the personal character and conduct of any candidate or in relation to the candidature or withdrawal of any candidate or his candidature, to prejudice the prospects of that candidate in the elections. The Press shall not publish unverified allegations against any candidate/party.

4. The Press shall not accept any kind of inducement, financial or otherwise, to project a candidate/party. It shall not accept hospitality or other facilities offered to them by or on behalf of any candidate/party.

5. The Press is not expected to indulge in canvassing of a particular candidate/party. If it does, it shall allow the right of reply to the other candidate/party.

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6. The Press shall not accept/publish any advertisement at the cost of public exchequer regarding achievements of a party/government in power.

7. The Press shall observe all the directions/orders/instructions of the Election Commission/Returning Officers or Chief Electoral Officer issued from time to time. ii) Guidelines on ‘Pre-poll’ and ‘Exit-polls’ Survey-1996

The Press Council of India having considered the question of desirability or otherwise of publication of findings of pre-poll surveys and the purpose served by them, is of the view that the newspapers should not allow their forum to be used for distortions and manipulations of the elections and should not allow themselves to be exploited by the interested parties.

1 The Press Council, therefore, advises that in view of the crucial position occupied by the electoral process in a representative democracy like ours, the media should be on guard against their precious forum being used for distortions and manipulations of the elections. This has become necessary to emphasize today since the print media is sought to be increasingly exploited by the interested individuals and groups to misguide and mislead the unwary voters by subtle and not so subtle propaganda on casteist, religious and ethnic basis as well as by the use of sophisticated means like the alleged pre-poll surveys. While the communal and seditious propaganda is not difficult to detect in many cases, the interested use of the pre-poll survey, sometimes deliberately planted is not so easy to uncover. The Press Council therefore, suggests that whenever the newspapers publish pre-poll surveys, they should take care to preface them conspicuously by indicating the institutions which 9

220 have carried such surveys, the individuals and organisations which have commissioned the surveys, the size and nature of sample selected, the method of selection of the sample for the findings and the possible margin of error in the findings.

2. Further in the event of staggered poll dates, the media is seen to carry exit-poll surveys of the polls already held. This is likely to influence the voters where the polling is yet to commence. With a view to ensure that the electoral process is kept pure and the voters’ minds are not influenced by any external factors, it is necessary that the media does not publish the exit-poll surveys till the last poll is held.

3. The Press Council, therefore, requests the Press to abide by the following guideline in respect of the exit polls:

Guideline: No newspaper shall publish exit-poll surveys, however, genuine they may be, till the last of the polls is over.

Election Commission of India

The Election Commission of India should set up a special cell to receive complaints about “paid news” in the run-up to the conduct of elections and initiate a process through which expeditious action could be taken on the basis of such complaints. The Election Commission of India should nominate independent journalists/citizens in consultation with the Press Council of India who would accompany the election observers deputed by the Election Commission of India to various states and districts. These nominated journalists/citizens could report on instances of “paid news” to the Press Council of India and the Election Commission of India.

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Self-regulation

Self-regulation is the best option to check the “paid news” phenomenon. However, self-regulation only offers partial solutions to the problem since there would always be offenders who would refuse to abide by voluntary codes of conduct and ethical norms that are not legally mandated.

There should be a debate among all concerned stakeholders on whether a directive of the Supreme Court of India that enjoins television channels to stop broadcasting campaign-related information on candidates and political parties 48 hours before elections take place can and should be extended to the print medium since such a restriction does not apply to this section of the media at present.

Education

The Council suggests that efforts should be made to educate the voters to differentiate between the doctored reporting and the balanced and just reporting. This can be done by the Ministry of Information and Broadcasting with the help of Press Council of India and various associations of journalists and newspaper owners. Local press clubs should also be associated with the conduct of seminars and workshops in different cities to educate readers and viewers. The Press Council of India, representative of political parties, associations of newspaper owners, television broadcasters and journalists unions and associations can provide resource-persons for such seminars and workshops. The process of educating voters and citizens should begin before elections take place, soon after the dates of elections are announced.

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I & B Ministry

The Union Information & Broadcasting Ministry should conduct national conferences, workshops, seminars and awareness-generating campaigns involving, among others, the Press Council of India, the Election Commission of India, representatives of editors, journalists associations and unions, political parties and media owners to deliberate on the issue and arrive at workable solutions to curb the “paid news” phenomenon in particular.

The Union I&B Minister should hold separate meetings with national associations of newspaper owners, editors and journalists to discuss the “paid news” phenomenon and how it should be curbed. A meeting of all political parties should also be organised to make them understand that if the phenomenon of “paid news” is not checked no political party would benefit. Similarly owners of media companies should be made to understand that money illegally obtained for “paid news” is not just myopic but would eventually lead to loss of credibility among readers and viewers and would, hence, be detrimental to the interests of the media.

Parliament A small committee of Members of Parliament from both Houses should hold a hearing for suggesting changes in Representation of the People Act, 1951, to prevent the practice of paying for news coverage in newspapers and television channels and declaring it as an “electoral malpractice” or an act of corruption and be made a punishable offence.

All these initiatives, if sincerely implemented, may not entirely stop such malpractices in the Indian media but could reduce their incidence to a considerable extent.

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Recommendations

It is recommended that recommendations as under should be implemented by the Government.

1) Representation of the People Act 1951 be amended to make incidence of paid news a punishable electoral malpractice,

2) The Press Council of India must be fully empowered to adjudicate the complaints of “paid news’ and give final judgement in the matter.

3) Press Council Act be amended to make its recommendations binding and electronic media be brought under its purview, and

4) Press Council of India should be reconstituted to include representatives from electronic and other media.

––?––

Footnote:- The Council decided that the report of the Sub-Committee may remain on record of the Council as reference document. It also decided that the issue of strengthening the Working Journalists Act be taken up separately.

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PRESS COUNCIL OF INDIA

Annual Report (April 1, 2010 - March 31, 2011)

New Delhi 225

CHAPTER – IV Report on Paid News Adopted by the Press Council of India on July 30, 2010

The phenomenon of “paid news” has acquired serious dimensions. Today it goes beyond the corruption of individual journalists and media companies and has become pervasive, structured and highly organized. In the process, it is undermining democracy in India. This has anguished the leading sections of the society, including political leaders, thinkers, journalists and media owners. They all have expressed their unhappiness and concern about the pernicious influence of such malpractices. Several veteran journalists, including late Shri Prabhash Joshi, Shri Ajit Bhattacharjea, Shri B.G. Verghese and Shri Kuldip Nayar, wanted the Press Council of India to apply its mind on the issue and come up with suggestions on how the phenomenon of “paid news” could be curbed. Various journalists’ associations, including the Andhra Pradesh Union of Working Journalists and the Delhi Union of Journalists have examined the phenomenon, conducted surveys and organized discussions on the topic. The Editors’ Guild of India also discussed the phenomenon and expressed concern at this growing tendency. On June 8, 2010, the Election Commission of India issued detailed guidelines to Chief Electoral Officers of all states and Union territories on measures to check “paid news” before elections, that is, advertising in the garb of news. The phenomenon of “political paid news” became particularly noticeable during the 2009 general elections and thereafter during the elections to the assemblies of various states. The phenomenon acquired a new and even more destructive dimension by redefining political “news” or “reporting” on candidates standing for election – many such “news reports” would be published or broadcast perhaps only after financial transactions had taken place, almost always in a clandestine manner. It is widely believed that many media companies, irrespective of the volume of their businesses and their profitability, were “selling” news space after arriving at an “understanding” with politicians and representatives of corporate entities that were advertisers. Space in publications and airtime were occupied by advertisements that were disguised as “news”. News is meant to be objective, fair and neutral – this is what sets apart such information and opinion from advertisements that are paid for by corporate

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entities, governments, organizations or individuals. What happens when the distinction between news and advertisements start blurring, when advertisements double up as news that have been paid for, or when “news” is published in favour of a particular politician by selling editorial spaces? In such situations, a section of the reader or the viewer can hardly distinguish between news reports and advertisements/advertorials. Marketing executives use the services of journalists – willingly or otherwise – to gain access to political personalities. So-called “rate cards” or “packages” are distributed that often include “rates” for publication of “news” items that not merely praise particular candidates but also criticize their political opponents. Candidates who do not go along with such practices on the part of media organizations may be denied coverage. Sections of the media in India have willy-nilly become participants and players in such practices that contribute to the growing use of money power in politics which undermines democratic processes and norms – while hypocritically pretending to occupy a high moral ground. This has not merely undermined democracy in India but also tarnished the country’s reputation. Identical articles with photographs and headlines have appeared in competing publications carrying by-lines of different authors around the same time. On the same page of specific newspapers, articles have been printed praising competing candidates claiming that both are likely to win the same elections. Nowhere is there any indication that the publication of such “news” reports has entailed financial transactions or has been sponsored by certain individuals or political parties. When confronted with circumstantial evidence that substantiate allegations of “paid news”, the standard reaction of individuals accused of corrupt practices is to pretend that nothing untoward has happened since the evidence is circumstantial in nature. The typical response of representatives of political parties as well as media organizations, is to flatly deny these allegations. In private, however, these very same people acknowledge that the cancer of “paid news” has spread deep into the country’s body politic and needs to be removed. Realizing the dangers of “paid news” to democracy as well as the right to freedom of expression enshrined in Article 19 of the Constitution of India, on June 9, 2009, the Press Council of India appointed a Sub-Committee comprising Shri Paranjoy Guha Thakurta and Shri Kalimekolam Sreenivas Reddy “to examine the phenomenon of paid news observed during the last Lok Sabha elections… based on inputs received from the members and others.” The two members met a cross-section of society in New Delhi, Mumbai and Hyderabad and also went through many letters and representations that were sent to the Council. The report of the Sub-Committee was discussed in detail by the Press

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Council in its two meetings held in Indore and New Delhi on 31st March, 2010 and 26 April, 2010 respectively. Members gave a number of suggestions and thereafter, the Press Council of India’s Chairman appointed a Drafting Committee to prepare a final report for the consideration of the Council. The Chairman appointed a 12-member Committee consisting: S/Shri H.N. Cama, Lalit Mangotra, U.C. Sharma, Y.C. Halan, K. Sreenivas Reddy, Kalyan Barooah, S.N. Sinha, Anil Jugal Kishore Agarwal, Kundan R.L. Vyas, Paranjoy Guha Thakurta, P. Javadekar, and Keshava Rao. The Drafting Committee considered the views expressed during various meetings of the Press Council and has drafted a report for the consideration of the Council.

Introduction Paid News can be defined as “Any news or analysis appearing in any media (Print & Electronic) for a price in cash or kind as consideration” Paid news is a complex phenomenon and has acquired different forms over the last six decades. It ranges from accepting gifts on various occasions, foreign and domestic junkets, various monetary and non-monetary benefits, besides direct payment of money. Another form of paid news that has been brought to the notice of the Press Council of India by the Securities and Exchange Board of India (SEBI) is in the form of “private treaties” between media companies and corporate entities. Private treaty is a formal agreement between the media company and another non-media company in which the latter transfers certain shares of the company to the former in lieu of advertisement space and favourable coverage. Since the phenomenon of paid news is old, complex and deep rooted in the system and seems to be spreading its cancerous roots rapidly as observed after the 2009 elections, the Drafting Committee feels that the Press Council of India should initially focus only on the paid news observed during the last Lok Sabha elections (2009). This decision stems from the decision of the Press Council as conveyed by the Secretary to the Council members.

Election-time paid news The election-time paid news phenomenon has three dimensions. One, the reader or the viewer does not get a correct picture of the personality or performance of the candidate in whose favour or against he decides to cast his vote. This destroys the very essence of the democracy. Two, contesting candidates perhaps do not show it in their election expense account thereby

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violating the Conduct of Election Rules, 1961 framed by the Election Commission of India under the Representation of the People Act, 1951. Third, those newspapers and television channels which received money in cash but did not disclose it in their official statements of accounts, have violated the Companies Act 1956 as well as the Income Tax Act 1961 besides other laws. The payment and receipt of election-time paid news is a clandestine operation and has become widespread and organised as advertising agencies, public relations firms, politicians, journalists, managers and owners of some media companies are believed to be involved in it. It, therefore, is not easy to find clinching evidence that pins responsibility on individuals, parties and organisations. However, a number of persons including members of the Sub- Committee setup by the Council have collected a large volume of circumstantial evidence that is with the Press Council, which indicates that monetary consideration was exchanged for favourable coverage, reporting and telecasting.

Separating Management from Editorial Going through the observations of persons with whom the Sub-Committee interacted and the evidence provided by them and the discussions in the Press Council it is felt that election-time paid news deals are done between the candidates or political parties or their agents and media. It was felt that there should be a clear distinction drawn between the managements and editorial staff in media companies and that the independence of the editor should be maintained and safeguarded.

Role of Press Council The Press Council of India was set up by Parliament as a statutory, quasi judicial body “for the purpose of preserving the freedom of the Press and of maintaining and improving the standards of newspapers and news agencies in India.” However, it has been entrusted with only limited powers to admonish, reprimand and pass strictures. It cannot penalise the errant or those found guilty of malpractices. Besides, the Council’s mandate does not extend beyond the print medium. A proposal to amend Section 15(4) of the Press Council Act, 1978, to make the directions of the Council binding has been pending for a long time. It should be taken up on a priority basis. Representation of the People Act, 1951 The Union and State elections are regulated by the provisions of the Representation of the People Act, 1951. The main purpose of this Act is to ensure free and fair elections in the country. Therefore, since election-time

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“paid news” undermines free and fair elections, it is recommended that Section 123 of the Representation of the People Act, 1951, should be suitably amended so as to declare any payment for the publication of news as a corrupt practice or an “electoral malpractice” and should be made a punishable offence.

Press Council of India The Press Council of India should constitute a body of media professionals with wide representation at the national/state/district levels to investigate either suo moto or on receipt of complaints of instances of “paid news” and the recommendations of such a body – after going through an appellate mechanism– should be binding on the Election Commission of India and other government authorities. The guidelines of the Press Council of India that news should be clearly demarcated from advertisements by printing disclaimers, should be strictly enforced by all publications. As far as news is concerned, it must always carry a credit line and should be set in a typeface that would distinguish it from advertisements. The guidelines of the Council, as decided in 1996, are reproduced hereunder and efforts should be made to ensure that these are followed by all media organizations. i) General Election is a very important feature of our democracy and it is imperative that the media transmits to the electorate fair and objective reports of the election campaign by the contesting parties. Freedom of the Press depends to a large measure on the Press itself behaving with a sense of responsibility. It is, therefore, necessary to ensure that the media adheres to this principle of fair and objective reporting of the election campaign. The Press Council has, therefore, formulated the following guidelines to the media for observance during elections: 1. It will be the duty of the Press to give objective reports about elections and the candidates. The newspapers are not expected to indulge in unhealthy election campaigns, exaggerated reports about any candidate/ party or incident during the elections. In practice, two or three closely contesting candidates attract all the media attention. While reporting on the actual campaign, a newspaper may not leave out any important point raised by a candidate and make an attack on his or her opponent. 2. Election campaign along communal or caste lines is banned under the election rules. Hence, the Press should eschew reports which tend to promote feelings of enmity or hatred between people on the ground of religion, race, caste, community or language.

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3. The Press should refrain from publishing false or critical statements in regard to the personal character and conduct of any candidate or in relation to the candidature or withdrawal of any candidate or his candidature, to prejudice the prospects of that candidate in the elections. The Press shall not publish unverified allegations against any candidate/ party. 4. The Press shall not accept any kind of inducement, financial or otherwise, to project a candidate/party. It shall not accept hospitality or other facilities offered to them by or on behalf of any candidate/party. 5. The Press is not expected to indulge in canvassing of a particular candidate/party. If it does, it shall allow the right of reply to the other candidate/party. 6. The Press shall not accept/publish any advertisement at the cost of public exchequer regarding achievements of a party/government in power. 7. The Press shall observe all the directions/orders/instructions of the Election Commission/Returning Officers or Chief Electoral Officer issued from time to time. ii) Guidelines on ‘Pre-poll’ and ‘Exit-polls’ Survey-1996 The Press Council of India having considered the question of desirability or otherwise of publication of findings of pre-poll surveys and the purpose served by them, is of the view that the newspapers should not allow their forum to be used for distortions and manipulations of the elections and should not allow themselves to be exploited by the interested parties. 1 The Press Council, therefore, advises that in view of the crucial position occupied by the electoral process in a representative democracy like ours, the media should be on guard against their precious forum being used for distortions and manipulations of the elections. This has become necessary to emphasize today since the print media is sought to be increasingly exploited by the interested individuals and groups to misguide and mislead the unwary voters by subtle and not so subtle propaganda on casteist, religious and ethnic basis as well as by the use of sophisticated means like the alleged pre-poll surveys. While the communal and seditious propaganda is not difficult to detect in many cases, the interested use of the pre-poll survey, sometimes deliberately planted is not so easy to uncover. The Press Council therefore, suggests that whenever the newspapers publish pre-poll surveys, they should take care to preface them conspicuously by indicating the institutions which have carried such surveys, the individuals

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and organisations which have commissioned the surveys, the size and nature of sample selected, the method of selection of the sample for the findings and the possible margin of error in the findings. 2. Further in the event of staggered poll dates, the media is seen to carry exit-poll surveys of the polls already held. This is likely to influence the voters where the polling is yet to commence. With a view to ensure that the electoral process is kept pure and the voters’ minds are not influenced by any external factors, it is necessary that the media does not publish the exit-poll surveys till the last poll is held. 3. The Press Council, therefore, requests the Press to abide by the following guideline in respect of the exit polls: Guideline: No newspaper shall publish exit-poll surveys, however, genuine they may be, till the last of the polls is over.

Election Commission of India The Election Commission of India should set up a special cell to receive complaints about “paid news” in the run-up to the conduct of elections and initiate a process through which expeditious action could be taken on the basis of such complaints. The Election Commission of India should nominate independent journalists/citizens in consultation with the Press Council of India who would accompany the election observers deputed by the Election Commission of India to various states and districts. These nominated journalists/citizens could report on instances of “paid news” to the Press Council of India and the Election Commission of India.

Self-regulation Self-regulation is the best option to check the “paid news” phenomenon. However, self-regulation only offers partial solutions to the problem since there would always be offenders who would refuse to abide by voluntary codes of conduct and ethical norms that are not legally mandated. There should be a debate among all concerned stakeholders on whether a directive of the Supreme Court of India that enjoins television channels to stop broadcasting campaign-related information on candidates and political parties 48 hours before elections take place can and should be extended to the print medium since such a restriction does not apply to this section of the media at present.

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Education The Council suggests that efforts should be made to educate the voters to differentiate between the doctored reporting and the balanced and just reporting. This can be done by the Ministry of Information and Broadcasting with the help of Press Council of India and various associations of journalists and newspaper owners. Local press clubs should also be associated with the conduct of seminars and workshops in different cities to educate readers and viewers. The Press Council of India, representative of political parties, associations of newspaper owners, television broadcasters and journalists unions and associations can provide resource-persons for such seminars and workshops. The process of educating voters and citizens should begin before elections take place, soon after the dates of elections are announced.

I & B Ministry The Union Information & Broadcasting Ministry should conduct national conferences, workshops, seminars and awareness-generating campaigns involving, among others, the Press Council of India, the Election Commission of India, representatives of editors, journalists associations and unions, political parties and media owners to deliberate on the issue and arrive at workable solutions to curb the “paid news” phenomenon in particular. The Union I&B Minister should hold separate meetings with national associations of newspaper owners, editors and journalists to discuss the “paid news” phenomenon and how it should be curbed. A meeting of all political parties should also be organised to make them understand that if the phenomenon of “paid news” is not checked no political party would benefit. Similarly owners of media companies should be made to understand that money illegally obtained for “paid news” is not just myopic but would eventually lead to loss of credibility among readers and viewers and would, hence, be detrimental to the interests of the media.

Parliament A small Committee of Members of Parliament from both Houses should hold a hearing for suggesting changes in Representation of the People Act, 1951, to prevent the practice of paying for news coverage in newspapers and television channels and declaring it as an “electoral malpractice” or an act of corruption and be made a punishable offence. All these initiatives, if sincerely implemented, may not entirely stop such malpractices in the Indian media but could reduce their incidence to a considerable extent.

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Recommendations It is recommended that recommendations as under should be implemented by the Government. 1) Representation of the People Act 1951 be amended to make incidence of paid news a punishable electoral malpractice 2) The Press Council of India must be fully empowered to adjudicate the complaints of “paid news’ and give final judgement in the matter 3) Press Council Act be amended to make its recommendations binding and electronic media be brought under its purview, and 4) Press Council of India should be reconstituted to include representatives from electronic and other media.

Footnote:-

The Council decided that the report of the Sub-Committee may remain on record of the Council as reference document.

It also decided that the issue of strengthening the Working Journalists Act be taken up separately.

q

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File No: 1501/34/2009-TV(I) Government of India Ministry of Information and Broadcasting Broadcasting Wing

New Delhi. Dated: 5th December, 2011

POLICY GUIDELINES FOR DOWNLIKING OF TELEVISION CHANNELS

Ministry of Information and Broadcasting, Government of India, has formulated policy guidelines for downlinking all satellite television channels downlinked / received / transmitted and re-transmitted in India for public viewing. Consequently, no person/entity shall downlink a channel, which has not been registered by the Ministry of Information and Broadcasting under these guidelines. These Guidelines envisage two kinds of permissions. The first kind of permission is required to be obtained by an Indian Company which wants to enter into the business of downlinking one or more foreign satellite Television Channels. The second kind of permission is for allowing the downlinking of the satellite Television Channel and registering it in the list of channels permitted for downlinking in India. A foreign Television Channel can thus seek permission for registration under Downlinking Guidelines for being viewed in India by entering into agreement with an Indian Company fulfilling the eligibility criteria prescribed hereunder. Companies which have been granted permission under the Uplinking Guidelines for uplinking Television Channels from India will automatically stand permitted for seeking permission for registration of channels for Downlinking in India. A channel which is permitted to uplink from India and caters to foreign audience only is not required to seek registration under the Downlinking Guidelines. Henceforth, all persons/ entities providing Television Satellite Broadcasting Services (Television Channels) uplinked from other countries to viewers in India as well as any entity desirous of providing such a Television Satellite Broadcasting Service (Television Channel), receivable in India for public viewership, shall be required to obtain permission from Ministry of Information and Broadcasting, in accordance with the terms and conditions prescribed under these guidelines.

The revised guidelines are as given below:

1. ELIGIBILITY CRITERIA FOR APPLICANT COMPANIES 1.1. The entity applying for permission for downlinking a channel, uplinked from abroad, (i.e. Applicant Company), must be a company registered in India under the Indian Companies Act, 1956, irrespective of its equity structure, foreign ownership or management control. 1.2. The applicant company must have a commercial presence in India with its principal place of business in India.

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1.3. The applicant company must either own the channel it wants downlinked for public viewing, or must enjoy, for the territory of India, exclusive marketing/ distribution rights for the same, inclusive of the rights to the advertising and subscription revenues for the channel and must submit adequate proof at the time of application.

1.4. In case the applicant company has exclusive marketing / distribution rights, it should also have the authority to conclude contracts on behalf of the channel for advertisements, subscription and programme content.

1.5. [The applicant company should have a minimum net worth as prescribed below:

Sl.No. Item Required Net Worth

For Downlinking of First (Non-News or Rs. 5.0 crore ]1 1. News & Current Affairs) Television Channel

For Downlinking Each Additional Rs. 2.50 crore 2. Television Channel

1.6. The applicant company must provide names and details of all the Directors of the Company and key executives such as Chairperson, MD, COO, CEO, CTO, CFO and Head of Marketing, etc. to get their national security clearance.

1.7. The applicant company shall furnish, technical details such as Nomenclature, Make, Model, Name and Address of the Manufacturers of the equipments/ instruments to be used for downlinking and distribution, the Block schematic diagram of the downlinking and distribution system and also demonstrate the facilities for monitoring and storing record for 90 days.

1.8. The Applicant Company should not have been disqualified from holding such permission under these guidelines.

1.9. [Notwithstanding the provisions contained in Para 1.5, the minimum net worth requirement for downlinking of additional Television Channels by a Company which held permission(s) for downlinking of a Television Channel as on the date of issuance of the amended Guidelines as on 05.12.2011, would be calculated by applying the net worth norms as they existed prior to the issuance of amended guidelines for the permissions already held on that date, and the revised norms as per Para 1.5 for the additional Television Channel(s).

1.10. At least one of the persons occupying a top management position in the applicant company should have a minimum 3 years of prior experience in a top management position in a media company (or media companies) operating News and Current Affairs / Non-News and Current Affairs Television Channels as the case may be. The term “top management position” in this context shall mean the Chairperson or Managing Director or Chief Executive Officer or Chief Operating Officer or Chief Technical Officer or Chief Financial Officer of the Company. The channels which were

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permitted but could not become operational by the date of issuance of the amended guidelines on 05.12.2011 will also be required to fulfill this criteria.]1

2. ELIGIBILITY CRITERIA FOR PERMISSION AND REGISTRATION AND OF CHANNELS FOR BEING DOWNLINKED

2.1. Only Companies permitted/eligible for permission to downlink, as per Clause 1 above, shall be eligible to apply for permission of channels.

2.2. The downlinked channel must be licensed or permitted for being broadcast by the regulatory or licensing authority of the country of transmission, proof of which would have to be submitted at the time of application.

2.3. The channel being registered should not have been de registered under these guidelines at the time of application.

2.4. No News and Current Affairs channel shall be permitted to be downlinked if it does not meet the following additional conditions:

2.4.1. That it does not carry any advertisements aimed at Indian viewers;

2.4.2. That it is not designed specifically for Indian audiences;

2.4.3. That it is a standard international channel;

2.4.4. That it has been permitted to be telecast in the country of its uplinking by the regulatory authority of that country;

Provided that the Government may waive/modify the condition under clause 2.4.1 on a case-by- case basis.

2.5. For the purposes of these guidelines any channel, which has any element of news or current affairs in its programme content, will be deemed to be a news and current affairs channel.

2.6. […Deleted…]3

3. [PERIOD OF REGISTRATION AND PERMISSION

3.1. The Permission granted to a company to downlink channels, uplinked from other countries, into India under these guidelines shall be valid for a period of 10 years from the date of issuance of permission. The Registration granted to such channels under these Guidelines shall also be valid for a period of ten years.

3.2. The Registration granted under these Guidelines to channels uplinked from India shall also be valid for a period of 10 years and shall be co-terminus with the uplinking permission of the channel.

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4. PERMISSION FEE

4.1. The Company seeking permission to downlink channels, uplinked from other countries, into India under these guidelines shall pay a permission fee of Rs 10 lakhs at the time of grant of permission.

4.2. The Company shall pay a Permission fee for Registration of channels under these guidelines as follows:-

4.2.1. Rs. 5 lakhs per channel per annum for Downlinking of Television Channel uplinked from India.

4.2.2. Rs. 15 lakhs per channel per annum for Downlinking of Television Channel uplinked from abroad.

4.2.3. After being held eligible, the applicant Company shall pay the permission fee for the first year before the issuance of permission. The succeeding year’s permission fee will have to be deposited 60 days before such fee becomes due. ]1

4.3. [….Deleted….]3

5. BASIC CONDITIONS/OBLIGATIONS

5.1. The Company permitted to downlink registered channels shall comply with the Programme and Advertising Code prescribed under the Cable Television Networks (Regulation) Act, 1995.

5.2. [The company shall ensure compliance of the provisions of Sports Broadcasting Signals (Mandatory sharing with Prasar Bharati) Act 11 of 2007 and the Rules, Guidelines, Notifications issued there under.]2

5.3. The applicant company shall adhere to any other Code/Standards guidelines/restrictions prescribed by Ministry of Information & Broadcasting, Government of India for regulation of content on TV channels from time to time.

5.4. The applicant company shall submit audited annual accounts of its commercial operations in India.

5.5. The applicant company shall obtain prior approval of the Ministry of Information and Broadcasting before undertaking any upgradation, expansion or any other changes in the downlinking and distribution system/network configuration.

5.6. The applicant company shall provide Satellite TV Channel signal reception decoders only to MSOs/Cable Operators registered under the Cable Television Networks (Regulation) Act 1995 or to a DTH operator registered under the DTH guidelines issued by Government of India or to an Internet Protocol Television (IPTV) Service Provider duly permitted under their existing Telecom License or authorized by Department of Telecommunications or to a HITS operator duly permitted under the policy guidelines for HITS operators issued by Ministry of Information and Broadcasting, Government of India to provide such service."

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5.7. The applicant company shall ensure that any of its channels, which is unregistered or prohibited from being telecast or transmitted or re-transmitted in India, under the Cable Television Networks (Regulation) Act 1995 or the DTH guidelines or any other law for the time being in force, cannot be received in India through encryption or any other means.

5.8. The Union Government shall have the right to suspend the permission of the company/registration of the channel for a specified period in public interest or in the interest of National security to prevent the misuse of the channel. The company shall immediately comply with any directives issued in this regard.

5.9. The applicant company seeking permission to downlink a channel shall operationalise the channels within one year from the date of the permission being granted by the Ministry of Information and Broadcasting failing which the permission will liable to be withdrawn without any notice in this regard. However, the company shall be afforded a reasonable opportunity of being heard before such a withdrawal.

5.10. The company/channel shall adhere to the norms, rules and regulations prescribed by any regulatory authority set up to regulate and monitor the Broadcast Services in the country.

5.11. The applicant company shall give intimation to Ministry of Information and Broadcasting regarding change in the directorship, key executives or foreign direct investment in the company, within 15 days of such a change taking place. It shall also obtain security clearance for such changes in its directors and key executives.

5.12. The applicant company shall keep a record of programmes downlinked for a period of 90 days and to produce the same before any agency of the Government as and when required.

5.13. The applicant company shall furnish such information as may be required by the Ministry of Information and Broadcasting from time to time.

5.14. The applicant company shall provide the necessary monitoring facility at its own cost for monitoring of programmes or content by the representative of the Ministry of Information and Broadcasting or any other Government agency as and when required.

5.15. The applicant company shall comply with the obligations and conditions prescribed in the downlinking guidelines issued by the Ministry of Information and Broadcasting, and the specific downlinking permission agreement and registration of each channel.

5.16. In the event of any war, calamity/national security concerns, the Government shall have the power to prohibit for a specified period the downlinking/ reception/ transmission and re- transmission of any or all channels. The Company shall immediately comply with any such directions issued in this regard.

6. OFFENCES AND PENALTIES

6.1. In the event of a channel found to have been/being used for transmitting any objectionable unauthorized content, messages, or communication inconsistent with public interest or national security or failing to comply with the directions as per Para 5.8 or Para 5.16, the permission granted shall be revoked and the company shall be disqualified to hold any such permission for a period of five years, apart from liability for punishment under other applicable laws. Further,

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the registration of the channel shall be revoked and the channel shall be disqualified from being considered for fresh registration for a period of five years.

6.2. Subject to the provisions contained in Para 6.1 of these guidelines, in the event of a permission holder and/ or channel violating any of the terms and conditions of permission, or any other provisions of the guidelines, the Ministry of Information and Broadcasting shall have the right to impose the following penalties: -

6.2.1. In the event of first violation, suspension of the permission of the company and/or registration of the channel and prohibition of broadcast up to a period of 30 days.

6.2.2. In the event of second violation, suspension of the permission of the company and/or registration of the channel and prohibition of broadcast up to a period of 90 days.

6.2.3. In the event of third violation, revocation of the permission of the company and/or registration of the channel and prohibition of broadcast up to the remaining period of permission.

6.2.4. In the event of failure of the permission holder to comply with the penalties imposed within the prescribed time, revocation of permission and /or registration and prohibition to broadcast for the remaining period of the permission and disqualification to hold any fresh permission and /or registration in future for a period of five years.

6.2.5. In the event of suspension of permission as mentioned in Para 5.8, 5.16 or 6.2, the permission holder will continue to discharge its obligations under the Grant of Permission Agreement including the payment of fee.

6.2.6. In the event of revocation of permission and /or registration the fees paid will be forfeited.

6.2.7. All the penalties mentioned above shall be imposed only after giving a written notice to the permission holder.

7. DISPUTE RESOLUTION

7.1. In the event of any question, dispute or difference arising under the Grant of Permission Agreement or in connection thereof, except as to the matter, the decision of which is specifically provided under the Grant of Permission Agreement, the same shall be referred to the sole arbitration of the Secretary, Department of Legal Affairs or his nominee.

7.2. There will be no objection to any such appointment that the Arbitrator is a Government servant. The award of the arbitrator shall be final and binding on the parties. In the event of such Arbitrator, to whom the matter is originally referred to, being transferred or vacating his office, or being unable to act for any reason whatsoever, Secretary, Department of Legal Affairs shall appoint another person to act as Arbitrator.

7.3. The Arbitration and Conciliation Act, 1996, the rules made there under and any modification thereof, for the time being in force, shall be deemed to apply to the arbitration proceedings as above. The venue of arbitration shall be New Delhi or such other place as the Arbitrator may

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decide. The arbitration proceedings shall be conducted in English language.

7.4. Upon any and every reference as aforesaid, the assessment of costs, interest and incidental expenses in the proceedings for the award shall be at the discretion of the Arbitrator.

8. PROCEDURE FOR GRANT OF PERMISSION OF CHANNELS

8.1. The applicant company shall apply to the Secretary, Ministry of Information and Broadcasting in the prescribed Performa along with full details and documentation relevant for evaluating its eligibility for grant of permission to downlink Television Channels in India. Each application form shall be accompanied by a demand draft of Rs. Ten Thousand towards non-refundable processing fee.

8.2. The applicant company shall also submit full details of each channel being/proposed to be downlinked along with all other documents as prescribed in the guidelines.

8.3. After scrutiny of the application if the applicant company is found eligible, the same will be sent for security clearance to the Ministry of Home Affairs. In the meanwhile, the Ministry of Information and Broadcasting will evaluate the suitability of the proposed channel for downlinking into India for public viewing.

8.4. In the event of the applicant company and the proposed channel being found suitable, the Ministry of Information and Broadcasting will register the channel and the applicant company to enter into a grant of permission agreement with the Ministry of Information and Broadcasting, Government of India.

8.5. On receipt of the signed agreement, the Ministry of Information and Broadcasting will issue a registration certificate for the concerned channels and grant permission to the applicant company to downlink the relevant channels in India for the prescribed period.

8.6. On receipt of the permission and upon registration of the channel, the applicant company will be entitled to approach the MSOs/Cable head end operators/DTH Operators for receiving/ downlinking its channel’s signal, for further transmission/ retransmission/ distribution.

9. [RENEWAL OF EXISTING PERMISSIONS / REGISTRATION

9.1. The existing permission holders as on the date of issuance of the amended Guidelines on 05.12.2011 will continue to be governed by the terms and conditions of permission as they existed prior to the issuance of amendments on 05.12.2011 till the expiry of such permission.

9.2. Renewal of permission/ registration will be considered for a period of 10 years at a time, subject to the condition that the company/ channel should not have been found guilty of violating the terms and conditions of permission including violations of the programme and advertisement code on five occasions or more. What would constitute a violation would be determined in consultation with the established self-regulating mechanisms.

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9.3. The renewal will also be subject to the permission/ registration holder’s acceptance of all of the terms and conditions of permission as the Government may prescribe by way of policy pronouncements from time to time.

9.4. At the time of considering the renewal of permission/ registration of the existing permission holders, the eligibility criteria of net worth of the company and experience of the top management will not apply. However, other terms and conditions would be applicable as per modified terms and conditions of the permission.

10. TRANSFER OF PERMISSION OF TELEVISION CHANNELS

10.1. The permission holder shall not transfer the permission without prior approval of the Ministry of Information and Broadcasting. 10.2. In case of transfer of permission of a Satellite Television Channel uplinked from India from one company to another as per the provisions of Uplinking Guidelines, the registration of the channel under the downlinking Guidelines shall also stand transferred to the new company. 10.3. In case of companies permitted to downlink channels from other countries, on a written request from the permission holder, the Ministry shall allow transfer of permission in case of merger/demerger/ amalgamation, or from one Group Company to another provided that such transfer is in accordance with the provisions of the Companies Act, and further subject to the fulfillment of following conditions:

(i) The new entities should be eligible as per the eligibility criteria including the net worth and should be security cleared.

(ii) The new entities should undertake to comply with all the terms and conditions of permission granted.]1

Note (Superscripts) :

1- Amended vide Order No. 1501/34/2009-TV(I), Dated 05.12.2011 of the Ministry of Information and Broadcasting

2- Amended in accordance with the provisions of the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007 and the rules and notifications there under

3- Deleted as not relevant as per current Approved Cabinet Note.

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242

Report of Sub-Committee on issues related to Paid News adopted by the Council on 15.11.13

The Council had received the reference received from the Ministry of Information & Broadcasting, forwarding the Forty-Seventh Report of the Standing Committee of Parliament on the "Issue related to Paid News." The Committee in its detailed had made the following recommendations for tackling the issue of Paid News.

(i) There should be statutory body viz., Media Council having eminent persons as its members to look into all media contents both from print media and electronic media (TV as well as Radio) with powers to take strong action against the defaulters. Under this process PCI shall be wound up.

OR ii) PCI should be revamped and cast with powers to take care of print media and a similar statutory body is set up for electronic media.

In both the above situation, the Committee recommend that the media owners/interested parties should not be a part of the proposed Media Council/body including revamped PCI. iii) Election laws/rules should be reviewed and strengthened to curb the paid news menace in election process. While reviewing the election laws/rules, the ECI should be empowered with not only dealing with the cases relating to suppression of expenditure in the election on account of paid news but for also taking action against the defaulting candidate as also the concerned Media entity found indulged in Paid News.

Further, Mr. Deepak Khosla had sent a mail to the Council seeking expansion of the definition of Paid News, made by the Council as "any news or analysis appearing in any media (print and electronic) for a price in cash or kind as consideration", and had said he is approaching the Delhi High Court to expand the definition of the term Paid News. Two members of the Council had opined that since Mr. Khosla had conveyed his intention to move the High Court, the Council could await any decision of the High Court, and if the Council was made a party to the proposed petition of Mr. Khosla before the High Court, the Full Council may deliberate and take appropriate stand.

The Council had referred the main recommendations on Paid News of the Standing Committee and also the email communication of Mr. Khosla to the Sub Committee on Media Policy Issues comprising of Messrs. K.S. Sachidananda Murthy, K Amarnath, V K Chopra and Gurinder Singh.

After detailed discussions on the Standing Committee Report and the communication of Mr. Khosla, the Sub Committee has made the following recommendations to the Council.

1. The Sub Committee rejects the suggestion made by the Committee that the Press Council of India should be wound up, with the purported purpose of formation of a statutory body called Media Council. The Sub Committee pointed out that the Press Council of India is a statutory body established under an Act of Parliament and has been performing its statutory duties as enumerated in the Press Council Act, with distinction, ever since the first Press Council was constituted. The Sub Committee is of the firm opinion that the Press Council of India has played a vital role in preserving freedom of the press, establishing and maintaining standards of journalism, defining and enforcing ethical standards in media, and has provided solutions to complaints both against and from the Press. It has defined journalistic practices and standards, and any violation of these practices attracts action from the Press Council, based on suo-motu action or on complaints. The Council has taken exemplary steps in defining Paid News not only during Elections, but also in other areas like Private Treaties. The Council has advised both the Election Commission of India and the Securities Exchange Board of India (SEBI) to initiate steps to tackle Paid News in 243

Elections and Private Treaties in Securities field, and it has sensitised the media on these matters. The Sub Committee strongly recommends the Press Council of India should continue its work, in a more robust and purposeful manner, as it is a unique mix of media representatives and representation from Parliament, Academia, Legal and Literary fields. It is headed by a former Judge of the Supreme Court, who is selected by a transparent process. The Council is autonomous as its representation mix is such that no single group dominates its proceedings or voting rights. In comparison, other bodies like Election Commission of India, and SEBI comprise of members nominated by the government of the day.

2. The Sub Committee notes that the Council has, after the advent of the private television channels and FM radio stations, has suggested expansion of the Council so that the unique self regulatory model of the Press Council of India is extended to the electronic media as well. The Council has made number of recommendations to the Ministry of Information and Broadcasting, as well as to the Parliamentary Standing Committee, which should be considered by the government.

3. The Standing Committee has suggested that a media body should look at all contents in print and electronic media. Such suo-motu monitoring is not required, as the Constitution gives the right of free and fair functioning to the media as part of the Right of Expression in the list of Fundamental Rights, which are subjected to reasonable restrictions enumerated in the Constitution. Hence the Press Council in its form or in its enlarged format should look at complaints of Paid News, and take decisions as per the definition of Paid News. Like everyone else, the Election Commission too shall have the right to complaint against any media entity regarding publication or broadcast of Paid News, and the Council, as per provisions of the Press Council Act, should take action.

4. The Standing Committee has suggested that media owners/interested parties should not be part of either the Press Council or a body which would replace Press Council. The Sub Committee says that even though newspaper owners are part of the Council, like other segments of media, and of Parliament & Civil Society, the Council has a healthy convention that the owner/editor/working journalist of any publication against whom a complaint is being heard, will recuse from the hearing and any decision to be taken on the complaint. The Sub Committee recommends that this healthy practice should continue, rather than shutting out all media representatives from the Press Council. If necessary, a specific provision may be made in the Rules of the Press Council of India.

5. The Sub Committee in agreement with the suggestion made by the Parliamentary Standing Committee for adequately strengthening the election laws in the country to curb indulgence in Paid News by political parties and candidates. However the Sub Committee is not in agreement with the recommendation that the Election Commission should be empowered to take against media entities found indulging in Paid News. Giving such powers to the Election Commission, which has no mandate to interfere with the freedom of the press, would go against Constitutional provisions. The power to take action against Media entities accused of indulging in Paid News should vest solely with the Press Council, with the Election Commission entitled to entitle to prefer complaints to the Press Council.

6. Regarding the communication from Mr. Khosla, the Sub Committee was of the view that the Council should await the developments regarding the proposed petition of Mr. Khosla in the High Court and then take appropriate decision. 244

Code of Ethics & Broadcasting Standards

News Broadcasters Association, New Delhi 245 246 247 248 249

News Broadcasting Standards Regulations

1. Definitions

For purposes of these Regulations, the following terms shall have the following meanings :

1.1 "Authority" means the News Broadcasting Standards Authority of the News Broadcasters Association (“NBA") ;

1.2 "Broadcast" means any program, film, feature, news-item, news-report or any other matter that is transmitted or retransmitted by a broadcaster for viewing, and includes a cartoon, picture, photograph, ticker or advertisement that is transmitted or retransmitted by a broadcaster ;

1.3 “Broadcaster” means any association of persons or organization or corporate entity, who or which, owns, manages and/or controls a satellite or cable television channel that comprises exclusively news and current affairs content or news or current affairs capsules as part of its programming, and this term shall be deemed to include the editor ;

Provided that an association of persons or organization or corporate entity shall be deemed not to be a broadcaster for purposes of these Regulations if he or it is not a Member or Associate Member of the NBA.

1.4 “Code of Conduct” shall mean the Code of Ethics & Broadcasting Standards in relation to broadcasters and television journalists as framed by the NBA ;

1.5 "Complainant" means a person or association of persons or organization or corporate entity, who or which, makes a complaint to the Authority regarding a broadcaster in relation to, in respect of and/or arising from any matter which the Authority has jurisdiction to entertain, examine and decide under these Regulations;

1.6 "NBA" means the News Broadcasters Association ;

1.7 “News Agency” shall mean any organization whether described as an agency or otherwise, that collects, collates and/or disseminates news and/or other information on current affairs to broadcasters.

1.8 “Television Journalist” shall mean and shall include an editor, producer, anchor and/or any other person by whatever name called who is responsible for approving the content of a broadcast and shall include a stringer or a casual contributor.

1.9 In these Regulations the use of the word “he”, “him” or “his” wherever appearing shall mean and include “she” or “her” as the case may be ; and the singular shall be deemed to mean and include the plural.

2. Composition of the News Broadcasting Standards Authority:

2.1 The Authority shall consist of a Chairperson being an eminent jurist and eight other Members nominated by the Board of NBA by a majority decision.

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2.2 Members of the Authority shall comprise 4(four) editors employed with a broadcaster, 4 (four) persons having special knowledge and/or practical experience in the field of law, education, medicine, science, literature, public administration, consumer affairs, environment, human psychology and/or culture.

Provided that no person being a Member of the Authority shall participate in any adjudication relating to a dispute in which such person shall have any direct involvement or commercial interest or in which such Member shall be interested as an agent or representative of any broadcaster.

3. Term of Office of Chairperson and Members

3.1 The Chairperson and other Members shall hold office for a period of 3 (three) years ;

Provided that the Chairperson shall continue to hold office until the Authority is reconstituted in accordance with the provisions of the NBA rules or for a period of 6 (six) months whichever is earlier.

Provided also that where a person nominated as a Member of the Authority has a charge framed against him in relation to a serious criminal offence or is otherwise found unfit to hold office as Member of the Authority, the NBA may, by a decision of its Board remove such person from being Member and thereupon, such Member shall forthwith cease to be a Member of the Authority.

3.2 A Member nominated in his capacity of an editor employed with a broadcaster shall cease to be a Member if he ceases to be editor employed with such broadcaster; and the concerned broadcaster shall have the option of nominating for the remaining period of the Member’s term an alternate editor to fill the vacancy caused, within 15 days thereof, failing which the vacancy shall be filled in the manner as prescribed in clause 3.5 below.

3.3 A Member shall be deemed to have vacated his seat if he is, in the opinion of the Chairperson, absent without sufficient cause, from three consecutive meetings of the Authority.

3.4 The Chairperson may resign his office by giving notice in writing to the NBA, and any other Member may resign his office by giving notice in writing to the Chairperson, and upon such resignation being accepted by the NBA or by the Chairperson as the case may be, the Chairperson or the Member shall be deemed to have vacated his office.

3.5 Any vacancy arising as above or otherwise shall be filled, as soon as may be, by nomination in the same manner in which the Member vacating office was nominated and the Member so nominated shall hold office for the remaining period in which the Member in whose place he is nominated would have held office.

3.6 A Member retiring or whose membership otherwise ceases as above (except by reason of a warning, admonition, censure, disapproval, sanction and/or fine having been issued against him by the Authority and/or having been removed by the Authority under these Regulations) shall be eligible for re-nomination for not more than one additional term.

4. Terms of Service of Chairperson and Members

4. The Chairperson shall be paid such honorarium, and other Members shall receive such allowances and/or fees for attending the meetings of the Authority, as the NBA may in its General Body Meeting decide from time-to-time .

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5. Meetings of the Authority

5.1 The Authority shall meet at least once in 2 (two) months, at such time/s and place/s in Delhi/New Delhi as the Chairperson may in writing notify the Members at least 7 (seven) days before any scheduled meeting ; and shall observe the rules of procedure at the meetings as the Authority may prescribe ;

5.2 Quorum of such meetings shall be at least 4 (four) members, including the Chairperson. But, if any meeting is to be adjourned for want of quorum, then at the adjourned meeting the Members present shall form the quorum and shall have the power to decide on all matters which could have been disposed off at the adjourned meeting.

5.3 No act or proceeding of the Authority shall be deemed to be invalid by reason merely of the existence of any vacancy in, or any defect in the constitution of the Authority or quorum of a meeting.

6. Objects and functions of the Authority

6.1 The objects of the Authority shall be to lay-down and foster high standards, ethics and practices in news broadcasting, including entertaining and deciding complaints against or in respect of broadcasters in so far as these relate to the content of any broadcast.

6.2 In discharging its functions as aforesaid the Authority shall act consistently with the following precepts :

6.2.1 Maintaining and improving the standards of broadcast, and maintaining the independence of broadcasters, television journalists and/or news agencies ;

6.2.2 Ensuring compliance by broadcasters, television journalists and news agencies with the Code of Conduct and adherence by the said persons to high professional standards;

6.2.3 Ensuring the maintenance of high standards of public taste and fostering a due sense of both the rights and responsibilities of citizens;

6.2.4 Fostering and encouraging the growth of a sense of responsibility and public service among all those engaged in and associated with the profession of television journalism and business of broadcasting ;

6.2.5 Keeping under review and scrutiny any developments likely to or having the tendency to restrict the gathering, supply and dissemination of news of public interest and importance;

6.2.6 Such other aspects as may be incidental, consequential, related and/or otherwise materially concerned with the above precepts.

6.3 The Authority shall perform its functions and exercise the powers vested in it under these Regulations in relation to, and upon, the Members and Associate Members of NBA or in relation to such other complaints or broadcasters and channels as may be referred to the Authority by the Ministry of Information & Broadcasting or other Ministry or other governmental body.

7. Powers of Authority

7.1 Where, on receipt of a complaint made to it or otherwise, the Authority has reason to believe that a broadcaster has violated or offended against the Code of Conduct, the Authority may, after giving the broadcaster concerned an opportunity of being heard, hold an inquiry in such manner as is provided by these Regulations and, if it is satisfied that it is necessary so to do, it

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may, for reasons to be recorded in writing, warn, admonish, censure, express disapproval against and/or impose a fine upon the broadcaster and or recommend to the concerned authority for suspension/revocation of license of such broadcaster;

Provided that the fine imposed by the Authority shall not exceed Rs. 1,00,000/- (Rupees One Lac Only) and such fine shall be recovered from the concerned broadcaster;

Provided also that the Authority may not take cognizance of a complaint if, in the opinion of the Chairperson, there is no sufficient ground for holding an inquiry.

7.2 If the Authority is of the opinion that it is necessary or expedient in the public interest so to do, it may direct any broadcaster to cause to be published through a press release in such newspaper or other periodical and/or on such website, information relating to any inquiry conducted against the broadcaster as the Authority decides including the warning, admonition, censure, disapproval issued and/or fine imposed and any other particulars relating to the proceedings as the Authority thinks fit ; and the broadcaster shall comply with directions ;

Provided also that the Authority shall publish a summary of every inquiry conducted by it on its website and in its Annual Report and newsletter published from time to time ;

Provided that nothing in these Regulations shall be deemed to empower the Authority to hold an inquiry into any matter in respect of which any proceeding is pending in a Court of law or other Tribunal or Statutory Authority.

7.3 For the purposes of adjudicating upon any complaint or holding any inquiry under these Regulations, the Authority shall have the power of :

7.3.1 summoning persons and examining them and requiring the production and inspection of documents;

7.3.2 receiving evidence ;

7.3.3 requisitioning any records or copies thereof from any broadcaster including in particular the footage (both edited and unedited) of any broadcast ;

Provided that nothing in these Regulations shall be deemed to empower the Authority to compel any broadcaster to disclose the source of any news or information broadcast or to be broadcast. 7.4 No suit or other legal proceeding shall lie against the Authority, the Chairperson or any Member/s thereof or any person acting under the direction of the Authority in respect of anything which is done or intended to done in good faith under these Regulations.

7.5 No suit or other legal proceeding shall lie against any broadcaster in respect of the broadcast of any matter under or in compliance of the orders/directions of the Authority.

8. Procedure for dealing with Complaints

These Regulations contemplate a “two-tier” procedure for redressing grievances, whereby any person aggrieved by the content of any broadcast is required to first make a complaint to the concerned broadcaster as provided hereinafter; and if such complaint is not addressed or the complainant is not satisfied by the redress offered by the concerned broadcaster, the complainant may then prefer a complaint before the Authority.

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Contents of Complaint

8.1 Any complaint made to the concerned broadcaster or to the Authority, as the case may be, in respect of or against any broadcast:

8.1.1 Shall be in writing by giving full name, complete address, mobile/land line No. and email ID, and may be sent by post, courier or electronic mail as convenient.

8.1.2 shall state the name and address of the broadcaster against which or against whom the complaint is preferred;

8.1.3 shall state the time of the broadcast alongwith the substance of the contents of the broadcast and/or the text of the broadcast complained of (if such text be available) and the details of the misconduct complained of ;

8.1.4 shall also include such other particulars as are relevant to the subject-matter of the complaint;

8.1.5 shall state in what manner the broadcast violates or offends against the Code of Conduct and/or is otherwise objectionable ;

8.1.6 shall (in case of a complaint made to the Authority) enclose a copy of the letter/ electronic mail sent by the complainant to the broadcaster drawing the attention of the broadcaster to the subject matter of the complaint stating the complainant’s grievances alongwith reasons therefor together with a copy of the reply, if any, received by the complainant thereto;

Provided that a complaint shall be made to a broadcaster by a person aggrieved within a reasonable time not exceeding 7 (seven) days from the date of first broadcast;

Provided that it shall be encumbent upon the broadcaster to respond to the complaint within 7 (seven) working days from the date of receipt thereof, failing which the Authority shall not entertain any complaint.

Provided also that any complaint made to a broadcaster under these Regulations shall be addressed to, and dealt with, by the designated compliance officer of the concerned broadcaster whose specific designation, address and other correspondence details shall be available on the websites of the NBA and of the concerned broadcaster.

8.1.7 A complaint may be made in English or Hindi in the form provided on the web site, which can be filed by electronic mail or otherwise in writing; and if any documents in support thereof are in the vernacular, true translations thereof in English or Hindi must be filed alongwith the complaint. Hard copy of the complaint and supporting documents are to be sent by any mode of recorded delivery.

Provided that the Authority shall not entertain any complaint unless before filing the complaint with the Authority, the complainant has made a complaint in writing to the concerned broadcaster as aforesaid; and the broadcaster has not responded or the complainant is not satisfied with or the complainant’s grievance is not redressed, by such response.

8.2 A complaint shall be filed before the Authority within 14 (fourteen) days from the date of receipt of a response from the broadcaster, or, if the broadcaster does not respond, within 14 Page 5 of 8 254

(fourteen) days from the date when the aforesaid period provided for the broadcaster to respond expires ;

Provided that if a complaint is presented after the expiration of the period provided therefor, the Authority may, if it is satisfied that the complainant has acted diligently and that the delay in filing the complaint within the prescribed period has been caused for reasons not of the complainant’s making and/or for other sufficient cause, condone the delay and entertain a complaint ;

Provided that notwithstanding anything contained elsewhere in these Regulations, the Authority shall in writing inform any broadcaster to retain and preserve records of any broadcast that may be subject matter of a complaint, within 90 (ninety) days of first broadcast, failing which a broadcaster shall be under no obligation to retain or preserve such records.

8.3 In every case the Complainant shall place all relevant and material facts before the Authority;

8.4 The complainant shall, at the foot of the complaint, make and subscribe a declaration to the effect:

8.4.1 that the facts stated in the complaint are true and correct to the best of the complainant’s knowledge and belief ;

8.4.2 that the complainant has placed all relevant facts before the Authority and has not concealed any material facts ;

8.4.3 that no proceedings are pending in any Court of law or other Tribunal or Statutory Authority in respect of the subject matter complained of before the Authority ; and

8.4.4 that the complainant shall inform the Authority forthwith if during the pendency of the inquiry before the Authority the matter alleged in the complaint becomes the subject- matter of any proceedings in a Court of law or other Tribunal or Statutory Authority.

8.5 Where a complainant does not comply with the requirements of these Regulations, the Chairperson may return the complaint by any mode of recorded delivery, asking the complainant to bring it in conformity with such requirements and re-present it within such time as the Authority may grant.

8.6 Where a complainant fails to comply with the requirements as aforesaid set-out by the Authority within the time so prescribed, the Chairperson may terminate proceedings in the matter ; and the Authority shall, at its next meeting, be apprised of such decision.

8.7 Not later than 14 (fourteen) days from the date of receipt of a complaint complete in all respects, under the directions of the Chairperson, a copy thereof shall be sent to the broadcaster against which the complaint has been made, along with a notice requiring the broadcaster to show cause why action should not be taken against it under these Regulations giving to the television channel a period of 14 (fourteen) days to respond to such show cause notice;

Provided that in appropriate cases the Chairperson shall have the discretion to extend time for the issuance of notice and/or for response as aforesaid ;

Provided further that the Chairperson may decide not to issue a notice to show cause to a broadcaster where, in his opinion, there is no sufficient ground for holding an inquiry ; and the Authority at its next meeting shall be apprised by the Chairperson of the reasons for his decision Page 6 of 8 255

not to issue notice and the Authority may then pass such orders as it deems fit upon such complaint.

8.8 The notice so issued alongwith a complete copy of the complaint and all documents relied upon by the complainant, shall be sent to the broadcaster by any mode of recorded delivery, at the address/es furnished in the complaint.

8.9 Notice of the time, date and place of hearing shall be served upon the complainant as well as on the broadcaster and shall be sent to them by any mode of recorded delivery.

8.10 The broadcaster against which the complaint is made may, within 14 (fourteen) days from the date of service of the notice alongwith a complete copy of the complaint and all documents relied upon by the complainant or within such further time as may be granted by the Chairperson upon application in this behalf, submit a written statement to the Authority in reply to the complaint and send a copy of such written statement to the complainant by any mode of recorded delivery.

Where the broadcaster produces (or where NBSA requires the broadcaster to produce) the transcript of any broadcast or other document, the broadcaster shall also produce an English translation thereof, if such transcript or document is in a language other than English or Hindi.

8.11 After receipt of the complaint or written statement, the Chairperson may, if he considers necessary, call for any further information either from the complainant or the respondent broadcaster in order to clarify matters appearing in or arising from the complaint or written statement and in doing so, the Chairperson may call for such additional statements and/or documents as the Chairperson may consider necessary ; and all the statements and documents called for shall form part of the record and shall be placed before the Authority at the time of the inquiry.

8.12 The Authority may, after considering the complaint and the written statement, if it so desires, call for such additional particulars or documents relevant to the subject-matter of the complaint as it may consider necessary from both the parties or from either of them.

8.13 Where at any time in the course of the inquiry into the complaint it appears to the Authority that the subject-matter of the complaint is substantially the same as, or has been covered by, any former complaint dealt with by the Authority under these regulations, the Authority shall hear the complainant, if he desires to be heard and also if the Authority considers it necessary, the broadcaster and pass such orders or directions as it may consider necessary and the same shall be duly communicated to the parties.

8.14 If during any inquiry being conducted by the Authority the complainant fails to appear at any hearing without sufficient cause, the Authority may dismiss the complaint ; and if the respondent broadcaster fails to appear at any hearing without sufficient cause, the Authority may proceed to decide the complaint ex parte as against the party so failing to appear, as the Authority may deem fit.

Provided however that if within 30 (thirty) days of dismissal of a complaint or the passing of any ex parte orders/directions, a party aggrieved thereby applies to the Authority to restore the complaint or set-aside the ex parte orders/directions so passed and shows sufficient cause for its previous non-appearance, the Authority may restore the complaint or set-aside the ex parte orders/directions and proceed further from that stage to decide the complaint.

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8.15 At the inquiry before the Authority parties shall be entitled to adduce relevant evidence, oral and documentary, and make submissions in support of their contentions.

8.16 At the close of an inquiry the Authority shall record its findings upon the allegations contained in the complaint together with its reasons therefor and pass such orders and directions as provided under these Regulations as it may deem fit.

8.17 Every case shall be determined as per the majority view of the Members and the Chairperson’s view shall have the same weightage as that of any Member.

Provided that no Member shall take part in the proceedings and/or decision of any complaint in which such Member has any direct involvement or commercial interest or in which such Member is interested as an agent or representative of any broadcaster and such Member shall opt-out of such proceedings.

Provided that if any Member or Members have to opt-out as aforesaid, the NBA shall recommend to the Chairperson 4 (four) names to fill-up such vacancy/ies and from the names so recommended, the Chairperson shall choose and nominate a substitute Member or Members to fill-up the vacancy/ies for a particular inquiry.

8.18 The orders / directions of the Authority shall be communicated in writing to the parties to the case and shall also be duly publicized as may be directed by the Authority, including on the NBA website, Annual Report and NBA newsletter.

8.19 In any inquiry under these Regulations a party to the proceedings may appear in person or be represented by Counsel or by a duly authorised representative.

8.20 The Authority shall have the power to regulate its own procedure in respect of any matter for which no provision or inadequate provision is made in these Regulations and shall also have the power in appropriate cases to hold inquiries in camera .

8.21 Notwithstanding anything contained elsewhere in these Regulations, any inquiry commenced under these Regulations shall be completed, as far as possible, within a period of 3 (three) months from the date of receipt of the complaint.

8.22 The Authority may suo motu initiate proceedings and issue notice or, as the case may be, take action in respect of any matter which falls within the mischief contemplated in these Regulations or relating to any matter falling within or arising from the Code of Conduct, and in such case all other procedures prescribed herein shall, mutatis mutandis, be followed as if such proceedings were a complaint.

8.23 All complaints decided by the Authority may be made publicly available by the Authority, including the name of the complainant. However, in the event a complainant has valid concerns relating to privacy issues in making a complaint, the Authority may in its absolute discretion, consider requests from the complainant for anonymity/confidentiality.

Original version: 1.4.2008 Amendments made on : 16.6.2008, 8.8.2008, 30.9.2008, 16.1.2009, 20.7.2010, 20.7.2011, 29.1.2014, 22.7.2015, 2.8.2017, 14.12.2017, 26.7.2019

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IN THE SUPREME COURT OF INDIA, NEW DELHI CIVIL/CRIMINAL/ORIGINAL/APPELLATE JURISDICTION WRIT PETITION (CIVIL) NO. ______2020

IN THE MATTER OF: SHRI. NILESH NAVALAKHA ....PETITIONER (S) -VERSUS-

UNION OF INDIA & ANR. ....RESPONDENTS

VAKALATNAMA I BELOW MENTIONED in the above W.P./Appeal/Petition Reference do hereby appoint and return Mr. PAI AMIT, Advocate, Supreme Court of India, to act and appear for me/us in the above W.P./Appeal/Petition/Reference and on my/our behalf to conduct and prosecute (or defend) the same and all proceedings that may be taken in respect of any application connected with the same or any decree or Order passed therein, including proceedings, taxation and application for review, to file and obtain return of documents and to deposit and receive money on my/our behalf in the W.P./Appeal/ Reference and in application for review to represent me/us and to take all necessary steps on my/our behalf in the above matter. I/we agree to ratify all acts done by the aforesaid Advocate in pursuance of the authority.

Dated this the 27th day of September, 2020 Accepted, Identified, verified, Certified and satisfied.

PAI AMIT Mr. NILESH NAVALAKHA ADVOCATE Petitioner(s) 258

MEMO OF APPEARANCE To The Registrar Supreme Court of India New Delhi Sir, Please enter my appearance on behalf of the Petitioner(s)/ Appellant(s)/Intervenors/Respondent(s) in the above matter. Dated : 27th September 2020

The address for service of the said Advocate is: PAI AMIT ADVOCATE ON RECORD, 223, M.C. Setalvad Chambers, New Lawyers Chambers, Bhagwan Das Road, The Supreme Court of India, New Delhi - 110001. Mobile – 09953557798 [email protected] Tele : Off: 259 260 261 Page 1 of 6

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ACCOUNT TYPE A/c BALANCE(I) FIXED DEPOSITS (LINKED) BAL.(II) TOTAL BALANCE(I+II) NOMINATION Savings A/c 033701504255 1,594.23 0.00 1,594.23 Registered TOTAL 1,594.23 0.00 1,594.23

Statement of Transactions in Savings Account Number: 033701504255 in INR for the period February 01, 2020 - June 01, 2020

DATE MODE** PARTICULARS DEPOSITS WITHDRAWALS BALANCE 01-02-2020 B/F 1,162.83 MMT/IMPS/003219063308/MB SENT TO Nil 01-02-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 10,000.00 11,162.83 01-02-2020 DEBIT CARD MPS/Sunny World/202002012050/063708/PUNE 1,141.00 10,021.83 01-02-2020 DEBIT CARD MPS/THE FML LOU/202002012244/149263/PUNE 1,881.00 8,140.83 03-02-2020 OTHER ATMS NFS/MN137501/CASH WDL/02-02-20 6,000.00 2,140.83 03-02-2020 DEBIT CARD IPS/Preeti Rest/202002032117/000000001959/PUNE 580.00 1,560.83 MMT/IMPS/003518622350/MB SENT TO Nil 04-02-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 5,000.00 6,560.83 04-02-2020 ICICI ATM ATM/S1CWI147/CASH WDL/04-02-20 3,000.00 3,560.83 04-02-2020 DEBIT CARD IPS/Preeti Rest/202002042309/000000009049/PUNE 580.00 2,980.83 05-02-2020 DEBIT CARD IPS/Preeti Rest/202002052111/000000009078/PUNE 580.00 2,400.83 06-02-2020 DEBIT CARD IPS/Preeti Rest/202002062139/000000009099/PUNE 580.00 1,820.83 IPS/ADHOC 06-02-2020 DEBIT CARD KANKA/202002062205/000000024112/PUNE 300.00 1,520.83 07-02-2020 Surcharge Dt:06/02/20 MCC 5541 1.42 1,519.41 MMT/IMPS/003821508294/MB SENT TO Nil 07-02-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 5,000.00 6,519.41 IPS/SRN 07-02-2020 DEBIT CARD HOSPITA/202002072242/000000001675/PUNE 2,609.00 3,910.41 10-02-2020 DEBIT CARD MPS/CITY PLAZA /202002082200/010167/PUNE 580.00 3,330.41 UPI/004021350875/UPI/raghunathshetty/Bank of 10-02-2020 India 580.00 2,750.41 10-02-2020 DEBIT CARD IPS/Preeti Rest/202002102153/000000002171/PUNE 900.00 1,850.41 11-02-2020 DEBIT CARD IPS/Preeti Rest/202002112106/000000002205/PUNE 580.00 1,270.41 12-02-2020 DEBIT CARD IPS/Preeti Rest/202002122055/000000002231/PUNE 580.00 690.41 13-02-2020 APBS/HP617423 190704 1102/1687631156 143.38 833.79 13-02-2020 DEBIT CARD IPS/Preeti Rest/202002132114/000000002255/PUNE 580.00 253.79 MMT/IMPS/004520734279/MB SENT TO Nil 14-02-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 4,000.00 4,253.79 14-02-2020 DEBIT CARD IPS/Preeti Rest/202002142032/000000002283/PUNE 580.00 3,673.79 MMT/IMPS/004616487334/MB SENT TO Nil 15-02-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 10,000.00 13,673.79 MMT/IMPS/004616452145/NA/Rajalokhan/KKBK000 15-02-2020 MOBILE BANKING 1986/chgRs5.00GSTRs0.90 10,005.90 3,667.89 15-02-2020 DEBIT CARD IPS/Preeti Rest/202002152230/000000009264/PUNE 1,570.00 2,097.89 17-02-2020 DEBIT CARD IPS/Preeti Rest/202002162054/000000002371/PUNE 580.00 1,517.89 262 Page 2 of 6

MR.NILESH MOHANDAS NAVLAKHA

DATE MODE** PARTICULARS DEPOSITS WITHDRAWALS BALANCE 17-02-2020 DEBIT CARD IPS/Preeti Rest/202002172117/000000002401/PUNE 580.00 937.89 MMT/IMPS/004917317834/MB SENT TO Nil 18-02-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 4,000.00 4,937.89 UPI/004917255920/You are 18-02-2020 paying/amazon@apl/Axis Bank Ltd./ 999.00 3,938.89 UPI/004917639114/Rewarded for pa/goog- 18-02-2020 payment@ok/Axis Bank Ltd. 10.00 3,948.89 UPI/004918926662/You are 18-02-2020 paying/amazon@apl/Axis Bank Ltd./ 325.00 3,623.89 18-02-2020 DEBIT CARD IPS/Preeti Rest/202002182103/000000002432/PUNE 580.00 3,043.89 UPI/005010200623/UPI/chanduktkr842@o/Bank of 19-02-2020 Maharas/ 900.00 2,143.89 19-02-2020 SMSChgsJan20-Mar20+GST 17.70 2,126.19 20-02-2020 DEBIT CARD IPS/Preeti Rest/202002202108/000000002486/PUNE 580.00 1,546.19 UPI/005209212275/UPI/paytmqr28100505/Paytm 21-02-2020 Payments/ 96.00 1,450.19 UPI/005220111576/You are 21-02-2020 paying/amazonpay@apl/Axis Bank Ltd./ 167.00 1,283.19 21-02-2020 DEBIT CARD IPS/Preeti Rest/202002212130/000000002513/PUNE 580.00 703.19 24-02-2020 NET BANKING MIN/GOOGLE Sto/202002220922/437422/ 299.00 404.19 24-02-2020 NET BANKING MIN/GOOGLE Sto/202002220941/680914/ 299.00 105.19 24-02-2020 BANK CHARGES POSDEC CHG/20-01-2020/2898+GST 29.50 75.69 24-02-2020 BANK CHARGES POSDEC CHG/20-01-2020/2898+GST 29.50 46.19 24-02-2020 BANK CHARGES POSDEC CHG/19-01-2020/2898+GST 29.50 16.69 24-02-2020 BANK CHARGES POSDEC CHG/19-01-2020/2898+GST 16.68 0.01 24-02-2020 BANK CHARGES POSDEC CHG/19-01-2020/2898+GST 0.01 0.00 MMT/IMPS/006010323342/MB SENT TO Nil 29-02-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 10,000.00 10,000.00 29-02-2020 BANK CHARGES POSDEC CHG/19-01-2020/2898+GST 29.50 9,970.50 29-02-2020 BANK CHARGES POSDEC CHG/15-01-2020/2898+GST 29.50 9,941.00 29-02-2020 BANK CHARGES POSDEC CHG/15-01-2020/2898+GST 29.50 9,911.50 29-02-2020 BANK CHARGES POSDEC CHG/16-01-2020/2898+GST 29.50 9,882.00 29-02-2020 BANK CHARGES POSDEC CHG/17-01-2020/2898+GST 29.50 9,852.50 29-02-2020 BANK CHARGES POSDEC CHG/17-01-2020/2898+GST 29.50 9,823.00 29-02-2020 BANK CHARGES POSDEC CHG/19-01-2020/2898+GST 29.50 9,793.50 29-02-2020 BANK CHARGES POSDEC CHG/19-01-2020/2898+GST 29.50 9,764.00 29-02-2020 DEBIT CARD MPS/ANUSHKA MRI/202002291200/051484/PUNE 8,500.00 1,264.00 29-02-2020 DEBIT CARD MPS/DIAMOND WIN/202002292115/375992/PUNE 780.00 484.00 02-03-2020 BANK CHARGES POSDEC CHG/19-01-2020/2898+GST 29.49 454.51 02-03-2020 BANK CHARGES POSDEC CHG/19-01-2020/2898+GST 12.82 441.69 MMT/IMPS/006218092329/MB SENT TO Nil 02-03-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 10,000.00 10,441.69 02-03-2020 OTHER ATMS NFS/CWCW3501/CASH WDL/02-03-20 2,500.00 7,941.69 02-03-2020 DEBIT CARD IPS/Preeti Rest/202003022138/000000002794/PUNE 800.00 7,141.69 03-03-2020 ACH/NHPC LIMITED/17436622 472.00 7,613.69 03-03-2020 DEBIT CARD IPS/Preeti Rest/202003032117/000000009651/PUNE 580.00 7,033.69 03-03-2020 DEBIT CARD MPS/JAYSHREE PA/202003032222/089730/PUNE 315.00 6,718.69 04-03-2020 OTHER ATMS NFS/CWRO3500/CASH WDL/04-03-20 2,000.00 4,718.69 04-03-2020 ICICI ATM ATM/SACWK915/CASH WDL/04-03-20 1,000.00 3,718.69 MMT/IMPS/006516177469/MB SENT TO Nil 05-03-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 20,000.00 23,718.69 05-03-2020 OTHER ATMS NFS/CPU8017/CASH WDL/05-03-20 10,000.00 13,718.69 05-03-2020 OTHER ATMS NFS/CPU8017/CASH WDL/05-03-20 6,000.00 7,718.69 05-03-2020 DEBIT CARD IPS/Preeti Rest/202003052221/000000002876/PUNE 860.00 6,858.69 06-03-2020 DEBIT CARD IPS/Preeti Rest/202003062046/000000002896/PUNE 580.00 6,278.69 06-03-2020 DEBIT CARD MPS/KEDARI SERV/202003062129/617204/PUNE 2,000.00 4,278.69 06-03-2020 DEBIT CARD MPS/Churro Mani/202003062211/004156/Pune 179.00 4,099.69 06-03-2020 DEBIT CARD MPS/Churro Mani/202003062231/004159/Pune 158.00 3,941.69 263 Page 3 of 6

MR.NILESH MOHANDAS NAVLAKHA

DATE MODE** PARTICULARS DEPOSITS WITHDRAWALS BALANCE 07-03-2020 OTHER ATMS NFS/S1ANMT26/CASH WDL/07-03-20 2,000.00 1,941.69 UPI/006736296909/Payment from 07-03-2020 Ph/9823191991@ybl/Paytm Payments/ 1.00 1,940.69 UPI/006742515598/On tapping 07-03-2020 Pay/KUNALWINES.4806/HDFC BANK LTD/ 570.00 1,370.69 MMT/IMPS/006821200928/MB SENT TO Nil 09-03-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 10,000.00 11,370.69 09-03-2020 DEBIT CARD IPS/Preeti Rest/202003082122/000000009755/PUNE 580.00 10,790.69 NFS/S1ANMT26/CASH WDL/08-03-20/Fee Rs20.00 09-03-2020 OTHER ATMS GST Rs3.60 6,023.60 4,767.09 09-03-2020 DEBIT CARD MPS/ASHOK RESTA/202003092121/265930/PUNE 526.00 4,241.09 NFS/MN137501/CASH WDL/11-03-20/Fee Rs20.00 11-03-2020 OTHER ATMS GST Rs3.60 2,523.60 1,717.49 UPI/007121247323/UPI/raghunathshetty/Bank of 11-03-2020 India 580.00 1,137.49 12-03-2020 ACH/VEDANTA LIMITED/10383867 187.20 1,324.69 MMT/IMPS/007214294771/MB SENT TO Nil 12-03-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 5,000.00 6,324.69 NFS/00454493/CASH WDL/12-03-20/Fee Rs20.00 12-03-2020 OTHER ATMS GST Rs3.60 3,023.60 3,301.09 12-03-2020 MCD REF KEDARI SER 200306 15.00 3,316.09 IPS/DESHMUKH 12-03-2020 DEBIT CARD PE/202003121605/000000001861/PUNE 300.00 3,016.09 12-03-2020 DEBIT CARD IPS/Preeti Rest/202003122130/000000009861/PUNE 580.00 2,436.09 13-03-2020 Surcharge Dt:12/03/20 MCC 5541 1.42 2,434.67 13-03-2020 DEBIT CARD IPS/Preeti Rest/202003132224/000000003051/PUNE 1,160.00 1,274.67 UPI/007413241899/UPI/paytmqr28100505/Paytm 16-03-2020 Payments/ 100.00 1,174.67 UPI/007413265733/UPI/paytmqr28100505/Paytm 16-03-2020 Payments/ 800.00 374.67 MMT/IMPS/007420107362/MB SENT TO Nil 16-03-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 3,000.00 3,374.67 UPI/007420022649/UPI/q18249106@ybl/Paytm 16-03-2020 Payments 545.00 2,829.67 UPI/007821171925/UPI/kunalwines.4806/HDFC 18-03-2020 BANK LTD 681.00 2,148.67 MMT/IMPS/007913130856/MB SENT TO Nil 19-03-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 3,000.00 5,148.67 UPI/007913034250/UPI/7666749446@okbi/Axis 19-03-2020 Bank Ltd./ 770.00 4,378.67 UPI/008120097488/UPI/q18249106@ybl/Paytm 21-03-2020 Payments 605.00 3,773.67 23-03-2020 NET BANKING MIN/GOOGLE Sto/202003220922/320452/ 299.00 3,474.67 23-03-2020 NET BANKING MIN/GOOGLE Sto/202003220942/319854/ 299.00 3,175.67 UPI/008521795385/Hotstar/hotstar.razorpa/HDFC 25-03-2020 BANK LTD/ 999.00 2,176.67 26-03-2020 APBS/HP617423 201643 2303/1729979889 221.00 2,397.67 UPI/008717106979/Meds/q18249106@ybl/Paytm 27-03-2020 Payments 420.00 1,977.67 30-03-2020 033701504255:Int.Pd:31-12-2019 to 29-03-2020 21.00 1,998.67 UPI/009211023933/UPI/q18249106@ybl/Paytm 02-04-2020 Payments 133.00 1,865.67 09-04-2020 NET BANKING MIN/GOOGLE z5p/202004092006/705339/ 99.00 1,766.67 UPI/010111418009/UPI/q18249106@ybl/Paytm 10-04-2020 Payments 300.00 1,466.67 13-04-2020 UPI/010214031862/Tp/navalakhamadhav/ICICI Bank 1.00 1,467.67 UPI/010814326963/UPI/billdeskbqr.tat/HDFC BANK 17-04-2020 LTD 700.00 767.67 UPI/010816277535/UPI/billdeskbqr.tat/HDFC BANK 17-04-2020 LTD 700.00 67.67 UPI/011012153748/Xbox/navalakhamadhav/ICICI 20-04-2020 Bank 16.00 83.67 UPI/011412873830/Approve - 23-04-2020 Naray/billdeskbqr.tat/HDFC BANK LTD 700.00 783.67 264 Page 4 of 6

MR.NILESH MOHANDAS NAVLAKHA

DATE MODE** PARTICULARS DEPOSITS WITHDRAWALS BALANCE MMT/IMPS/011413544168/MB SENT TO Nil 23-04-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 10,000.00 10,783.67 23-04-2020 OTHER ATMS NFS/MN137501/CASH WDL/23-04-20 10,000.00 783.67 23-04-2020 NET BANKING MIN/GOOGLE Sto/202004232122/623410/ 299.00 484.67 23-04-2020 NET BANKING MIN/GOOGLE Sto/202004232142/404287/ 299.00 185.67 MMT/IMPS/011809389800/MB SENT TO Nil 27-04-2020 MOBILE BANKING /NAVALAKHA /KOTAK MAHINDRA 10,000.00 10,185.67 27-04-2020 APBS/HP617423 209291 2104/1778000579 151.95 10,337.62 UPI/011911260797/UPI/navalakhamadhav/ICICI 28-04-2020 Bank 1.00 10,338.62 UPI/012110367026/UPI/archanadhnde16@/Vijaya 30-04-2020 Bank 1,500.00 8,838.62 30-04-2020 BANK CHARGES POSDEC CHG/23-04-2020/2898+GST 29.50 8,809.12 01-05-2020 BANK CHARGES POSDEC CHG/22-04-2020/2898+GST 29.50 8,779.62 01-05-2020 BANK CHARGES POSDEC CHG/22-04-2020/2898+GST 29.50 8,750.12 02-05-2020 BANK CHARGES POSDEC CHG/23-04-2020/2898+GST 29.50 8,720.62 02-05-2020 BANK CHARGES POSDEC CHG/22-04-2020/2898+GST 29.50 8,691.12 02-05-2020 BANK CHARGES POSDEC CHG/22-04-2020/2898+GST 29.50 8,661.62 02-05-2020 BANK CHARGES POSDEC CHG/23-04-2020/2898+GST 29.50 8,632.12 04-05-2020 BANK CHARGES POSDEC CHG/22-04-2020/2898+GST 29.50 8,602.62 04-05-2020 BANK CHARGES POSDEC CHG/22-04-2020/2898+GST 29.50 8,573.12 04-05-2020 BANK CHARGES POSDEC CHG/22-04-2020/2898+GST 29.50 8,543.62 UPI/012513340788/UPI/archanadhnde16@/Vijaya 04-05-2020 Bank 600.00 7,943.62 04-05-2020 BANK CHARGES POSDEC CHG/22-04-2020/2898+GST 29.50 7,914.12 06-05-2020 BANK CHARGES POSDEC CHG/23-04-2020/2898+GST 29.50 7,884.62 IPS/ADHOC 07-05-2020 DEBIT CARD KANKA/202005071141/000000006915/PUNE 300.00 7,584.62 IPS/EXCEL 08-05-2020 DEBIT CARD SERVI/202005081843/000000022457/PUNE 1,000.00 6,584.62 08-05-2020 NET BANKING MIN/GOOGLE z5p/202005082006/746159/ 99.00 6,485.62 UPI/013010191422/Oid750550267UPI/dominospizza 11-05-2020 onl/Paytm Payments/ 416.00 6,069.62 UPI/013020047408/Rewarded for pa/goog- 11-05-2020 payment@ok/Axis Bank Ltd. 7.00 6,076.62 UPI/013020050992/Rewarded for pa/goog- 11-05-2020 payment@ok/Axis Bank Ltd. 14.00 6,090.62 UPI/013020052211/Rewarded for pa/goog- 11-05-2020 payment@ok/Axis Bank Ltd. 5.00 6,095.62 UPI/013020057326/Rewarded for pa/goog- 11-05-2020 payment@ok/Axis Bank Ltd. 10.00 6,105.62 UPI/013020058097/Rewarded for pa/goog- 11-05-2020 payment@ok/Axis Bank Ltd. 7.00 6,112.62 UPI/013020059340/Rewarded for pa/goog- 11-05-2020 payment@ok/Axis Bank Ltd. 5.00 6,117.62 UPI/013020060487/Rewarded for pa/goog- 11-05-2020 payment@ok/Axis Bank Ltd. 6.00 6,123.62 UPI/013102182287/Rewarded for pa/goog- 11-05-2020 payment@ok/Axis Bank Ltd. 10.00 6,133.62 11-05-2020 OTHER ATMS NFS/MN137501/CASH WDL/10-05-20 5,000.00 1,133.62 IPS REF DT 10 05 2020 015691 HPCL 0 75 Cashless 11-05-2020 In 7.50 1,141.12 13-05-2020 Surcharge Dt:07/05/20 MCC 5541 1.42 1,139.70 MMT/IMPS/013612240831/MB SENT TO Nil 15-05-2020 MOBILE BANKING /NAVALAKHA /Kotak Mahindra 5,000.00 6,139.70 UPI/013612248239/UPI/advchhajed@okax/Axis 15-05-2020 Bank Ltd./ 2,400.00 3,739.70 UPI/013612215081/Rewarded for pa/goog- 15-05-2020 payment@ok/Axis Bank Ltd. 5.00 3,744.70 UPI/013713589352/You are 16-05-2020 paying/amazon@apl/Axis Bank Ltd./ 225.75 3,518.95 18-05-2020 UPI/013808348458/UPI/euronetgpay.pay/ICICI Bank 101.00 3,417.95 265 Page 5 of 6

MR.NILESH MOHANDAS NAVLAKHA

DATE MODE** PARTICULARS DEPOSITS WITHDRAWALS BALANCE UPI/013917506488/You are 18-05-2020 paying/amazon@apl/Axis Bank Ltd./ 399.00 3,018.95 UPI/013917590503/You are 18-05-2020 paying/amazon@apl/Axis Bank Ltd./ 399.00 2,619.95 UPI/014002202256/refund- 19-05-2020 request/euronetgpay@ici/ICICI Bank 101.00 2,720.95 UPI/014009209586/UPI/billdeskbqr.tat/HDFC BANK 19-05-2020 LTD 600.00 2,120.95 UPI/014117244934/Easy To File 20-05-2020 Co/razorpaypg@hdfc/HDFC BANK LTD/ 1,999.00 121.95 22-05-2020 SMSChgsApr20-Jun20+GST 17.70 104.25 MMT/IMPS/014512423189/MB SENT TO Nil 25-05-2020 MOBILE BANKING /NAVALAKHA /Kotak Mahindra 5,000.00 5,104.25 25-05-2020 UPI/014512424182/UPI/billdesk.idea-p/ICICI Bank 600.00 4,504.25 25-05-2020 NET BANKING MIN/GOOGLE Sto/202005242122/651258/ 299.00 4,205.25 25-05-2020 NET BANKING MIN/GOOGLE Sto/202005242143/490316/ 299.00 3,906.25 UPI/014620455185/UPI/archanadhnde16@/Vijaya 25-05-2020 Bank 1,750.00 2,156.25 UPI/014912894327/Upi 28-05-2020 Transaction/panind.payu@hdf/HDFC BANK LTD/ 107.00 2,049.25 MMT/IMPS/014917282682/Bank details va/Cashfree 28-05-2020 MOBILE BANKING P/Kotak Mahindra 1.00 2,050.25 UPI/014918078037/Zomato Online 28-05-2020 O/zomato@hdfcbank/HDFC BANK LTD/ 456.02 1,594.23 TOTAL 1,31,118.03 1,30,686.63 1,594.23

Account Related Other Information

ACCOUNT TYPE ACCOUNT NUMBER MICR CODE IFSC CODE NAME OF NOMINEE Savings 033701504255 411229010 ICIC0000337 -

Nominee name is displayed only on specific consent of customer. 266 Page 6 of 6

MR.NILESH MOHANDAS NAVLAKHA

For ICICI Bank Limited

Authorised Signatory

Legends for transactions in your account statement VAT/MAT/NFS - Cash Withdrawal at other bank's ATM INF - Internet funds transfer in Linked accounts EBA - Transaction at ICICIDirect BIL - Internet bill payment or Funds transfer to third party VPS/IPS - Debit card transaction TOP - Mobile Recharge RTGS - Real Time Gross Settlement (Instant Transfer of Rs 2 Lakh and up to Rs 10 Lakh) NEFT - National Electronic Fund Transfer (Up to Rs 10 Lakh) • **Mode is available only for transaction done after August 6, 2013.

• As per prevailing guidelines of the Income tax Act, 1961 if a valid PAN is not provided by the •In absence of valid PAN, Form 15G / 15H shall not be treated as valid and tax will be deducted. Customer then tax shall be deducted at the prevailing rate or 20%, whichever is higher. •In case your PAN is not updated in our record, please visit the nearest branch and provide a copy •As per guidelines issued by CBDT on May 13, 2011, Form 16A (TDS Certificates) will be generated of the PAN card along with the original PAN card for verification. through the Income tax website for which the PAN of the customer needs to be necessarily updated •The address of the customer in Form 16A will be the last updated address in the data base of the in Bank's record. Income tax department.

REGD ADDRESS: LANDMARK, RACE COURSE CIRCLE, VADODARA - 390 007, INDIA www.icicibank.com This is an authenticated intimation/statement. Category of service: Banking & Financial Services. Customers are requested to immediately notify the Bank of any discrepancy in the statement Registration No. MIV/ST/Bank & Finc/4. MHW1-WBG-M-05-Mar-12/148405000053 - 525322040/207/207 - Utility - 1 of 1 PAN Based STC No. AAACI1195HSST001. 267

Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

Date Description Amount Type 15-09-2020 UPI/025918202332/UPI/gauribhuru DR k@oki/Bank of India 830.00 15-09-2020 UPI/025909224954/UPI/billdeskbqr. DR tat/HDFC BANK LTD 640.00 15-09-2020 MMT/IMPS/025909430314/MB CR SENT TO Nil /NAVALAKHA /Kotak 2000.00 Mahindra 14-09-2020 UPI/025622057099/UPI/paytmqr28 DR 100505/Paytm Payments/ 273.00 14-09-2020 UPI/025621414408/Verified DR Mercha/bharatpe.904175/ICICI 189.00 Bank/ 11-09-2020 UPI/025521364428/UPI/raghunaths DR hetty/Vijaya Bank 580.00 09-09-2020 POSDEC CHG/24-08- DR 2020/2898+GST 29.50 09-09-2020 UPI/025313106744/UPI/yashpatil00 DR 752@/State Bank Of I/ 300.00 09-09-2020 UPI/025311049681/UPI/yashpatil00 DR 752@/State Bank Of I/ 300.00 08-09-2020 UPI/025221393799/UPI/raghunaths DR hetty/Vijaya Bank 910.00 08-09-2020 MIN/GOOGLE DR z5p/202009082006/380558/ 99.00 08-09-2020 NFS/SB041501/CASH WDL/08-09- DR 20 2500.00

This is a system-generated statement. Hence, it does not require any signature. Page 1 268

Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

08-09-2020 UPI/025218179400/UPI/yashpatil00 DR 752@/State Bank Of I/ 300.00 08-09-2020 MMT/IMPS/025210284203/MB CR SENT TO Nil /NAVALAKHA /Kotak 5000.00 Mahindra 07-09-2020 ATM/S1CNS654/CASH WDL/06- DR 09-20 6000.00 07-09-2020 MMT/IMPS/025011329823/MB CR SENT TO Nil /NAVALAKHA /Kotak 5000.00 Mahindra 05-09-2020 UPI/024921791391/Zomato Online DR O/zomato.order@ax/Axis Bank 241.00 Ltd./ 05-09-2020 NFS/SB041501/CASH WDL/05-09- DR 20 500.00 05-09-2020 UPI/024913165136/UPI/gauribhuru DR k@oki/Bank of India 3650.00 05-09-2020 MMT/IMPS/024913419036/MB CR SENT TO Nil /NAVALAKHA /Kotak 5000.00 Mahindra 03-09-2020 NFS/SB041501/CASH WDL/03-09- DR 20 1000.00 03-09-2020 SMSChgsJul20-Sep20+GST DR 17.70 02-09-2020 UPI/024619242096/UPI/paytmqr28 DR 100505/Paytm Payments/ 635.00 31-08-2020 UPI/024416026428/UPI/yashpatil00 DR 752@/State Bank Of I/ 500.00

This is a system-generated statement. Hence, it does not require any signature. Page 2 269

Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

31-08-2020 MMT/IMPS/024416713292/MB CR SENT TO Nil /NAVALAKHA /Kotak 3000.00 Mahindra 29-08-2020 UPI/024219483026/UPI/paytmqr28 DR 100505/Paytm Payments/ 739.00 27-08-2020 UPI/024018260109/UPI/gopinathm DR ene01@/TJSB Sahakari B/ 200.00 27-08-2020 UPI/024018248271/UPI/aniketk575 DR @okic/ICICI Bank 500.00 27-08-2020 UPI/024012462163/UPI/937241820 DR 5@okbi/Axis Bank Ltd./ 615.00 26-08-2020 POSDEC CHG/23-08- DR 2020/2898+GST 29.50 26-08-2020 UPI/023920090937/UPI/aniketk575 DR @okic/ICICI Bank 1000.00 26-08-2020 POSDEC CHG/23-08- DR 2020/2898+GST 29.50 25-08-2020 POSDEC CHG/22-08- DR 2020/2898+GST 29.50 25-08-2020 UPI/023818373007/UPI/gopinathm DR ene01@/TJSB Sahakari B/ 200.00 25-08-2020 POSDEC CHG/22-08- DR 2020/2898+GST 29.50 25-08-2020 UPI/023811248558/UPI/maheshma DR hindrag/Bank of Maharas/ 700.00 24-08-2020 MIN/GOOGLE DR Sto/202008242143/468063/ 299.00

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Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

24-08-2020 BIL/NEFT/002058527922/NA/Hem DR ani Chh/UTIB0000350 256.00 24-08-2020 UPI/023719158414/UPI/yashpatil00 DR 752@/State Bank Of I/ 300.00 24-08-2020 MMT/IMPS/023719481574/MB CR SENT TO Nil /NAVALAKHA /Kotak 5000.00 Mahindra 24-08-2020 MIN/GOOGLE DR Sto/202008220922/434788/ 299.00 19-08-2020 UPI/023221186931/UPI/raghunaths DR hetty/Vijaya Bank 580.00 19-08-2020 UPI/023219856653/Rewarded for CR pa/goog-payment@ok/Axis Bank 5.00 Ltd. 19-08-2020 UPI/023213481056/UPI/advvishnut DR upe@o/State Bank Of I/ 4000.00 19-08-2020 MMT/IMPS/023213369741/MB CR SENT TO Nil /NAVALAKHA /Kotak 5000.00 Mahindra 18-08-2020 UPI/023109315213/UPI/hasmukhli DR mbachi/Saraswat Bank 50.00 17-08-2020 MIN/PAYMNT RVSL/GOOGLE CR TEM/202008171751/756768/ 1.00 17-08-2020 MIN/GOOGLE DR TEM/202008171751/756768/ 1.00 17-08-2020 MIN/PAYMNT RVSL/GOOGLE CR TEM/202008171750/763480/ 1.00

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Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

17-08-2020 MIN/GOOGLE DR TEM/202008171750/763480/ 1.00 17-08-2020 UPI/022820327455/Swiggy Order DR Id/swiggyupi@axisb/Axis Bank Ltd./ 794.00 17-08-2020 UPI/022819461847/UPI/billdeskbqr. DR tat/HDFC BANK LTD 640.00 14-08-2020 POSDEC CHG/04-08- DR 2020/2898+GST 29.50 14-08-2020 POSDEC CHG/04-08- DR 2020/2898+GST 29.50 12-08-2020 UPI/022508482470/UPI/965738969 DR 8@okbi/Axis Bank Ltd./ 224.00 11-08-2020 UPI/022422026323/UPI/raghunaths DR hetty/Vijaya Bank 580.00 11-08-2020 UPI/022412464700/UPI/arvindkam DR ble437/Karnataka Bank/ 1000.00 11-08-2020 MMT/IMPS/022412004603/MB CR SENT TO Nil /NAVALAKHA /Kotak 3000.00 Mahindra 10-08-2020 UPI/022221173783/UPI/raghunaths DR hetty/Vijaya Bank 700.00 10-08-2020 MPS/BHARAT DR PETR/202008091500/848588/PUN 992.50 E 10-08-2020 UPI/022121168507/UPI/raghunaths DR hetty/Vijaya Bank 670.00 10-08-2020 MIN/GOOGLE DR z5p/202008082006/717799/ 99.00

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Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

07-08-2020 UPI/022021242210/UPI/raghunaths DR hetty/Vijaya Bank 580.00 07-08-2020 MMT/IMPS/022021402764/MB CR SENT TO Nil /NAVALAKHA /Kotak 3000.00 Mahindra 06-08-2020 UPI/021918430691/UPI/982212168 DR 6@okbi/Axis Bank Ltd./ 955.00 05-08-2020 UPI/021821417694/UPI/raghunaths DR hetty/Vijaya Bank 580.00 05-08-2020 UPI/021811376503/UPI/jitupadave DR 06@ok/Kotak Mahindra/ 1010.00 05-08-2020 UPI/021810034721/UPI/q24583445 DR @ybl/Vijaya Bank 190.00 04-08-2020 UPI/021721214328/UPI/paytmqr28 DR 100505/Paytm Payments/ 200.00 04-08-2020 NEFT-KKBKH20217744889- CR NAVALAKHA PROPERTIES- 3000.00 PAYMENT-7012774240- KKBK0000958 03-08-2020 NFS/S1ANMT26/CASH WDL/03- DR 08-20 10000.00 03-08-2020 MMT/IMPS/021608909383/MB CR SENT TO Nil /NAVALAKHA /Kotak 10000.00 Mahindra 03-08-2020 UPI/021521621067/Swiggy Order DR Id/swiggyupi@axisb/Axis Bank Ltd./ 264.00

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Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

01-08-2020 MPS/ANGOOR DR WINE/202008011814/017553/PUN 2870.00 E 01-08-2020 MMT/IMPS/021418707900/MB CR SENT TO Nil /NAVALAKHA /Kotak 3000.00 Mahindra 01-08-2020 UPI/021411243990/UPI/mangeshc DR handore/Bank of Maharas/ 2000.00 30-07-2020 UPI/021221419863/Rewarded for CR pa/goog-payment@ok/Axis Bank 5.00 Ltd. 30-07-2020 UPI/021221327797/UPI/raghunaths DR hetty/Vijaya Bank 580.00 30-07-2020 MMT/IMPS/021221493440/MB CR SENT TO Nil /NAVALAKHA /Kotak 3000.00 Mahindra 28-07-2020 UPI/021021193299/UPI/paytmqr28 DR 100505/Paytm Payments/ 90.00 28-07-2020 UPI/021016129831/UPI/q24583445 DR @ybl/Vijaya Bank 190.00 28-07-2020 UPI/021014037685/UPI/q19682934 DR @ybl/Yes Bank Ltd 315.00 28-07-2020 UPI/021010090866/UPI/ashokgadd DR igudum/TJSB Sahakari B/ 1400.00 27-07-2020 UPI/020916194495/UPI/q24583445 DR @ybl/Vijaya Bank 225.00 27-07-2020 UPI/020916495835/UPI/ranjeetmau DR rya32/Allahabad Bank/ 800.00

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Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

27-07-2020 UPI/020908484097/UPI/paytmqr28 DR 100505/Paytm Payments/ 167.00 27-07-2020 MPS/SUPREME DR WIN/202007261817/518104/PUNE 380.00 24-07-2020 NFS/CWRO3500/CASH WDL/24- DR 07-20 2000.00 24-07-2020 MMT/IMPS/020618996084/MB CR SENT TO Nil /NAVALAKHA /Kotak 5000.00 Mahindra 24-07-2020 MPS/NATRAJ DR BOOK/202007241603/034660/PUN 216.00 E 22-07-2020 MIN/GOOGLE DR Sto/202007220942/721107/ 299.00 22-07-2020 MIN/GOOGLE DR Sto/202007220922/629778/ 299.00 20-07-2020 UPI/020220061105/UPI/paytmqr28 DR 100505/Paytm Payments/ 720.00 20-07-2020 UPI/020111150503/UPI DR Transaction/printshoppy.pay/Axis 448.00 Bank Ltd./ 18-07-2020 UPI/020019092591/UPI/q18249106 DR @ybl/Paytm Payments 1080.00 17-07-2020 MCD REF DESHMUKH P DT CR 200707 7.80 16-07-2020 UPI/019817373814/UPI/billdeskbqr. DR tat/HDFC BANK LTD 640.00

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Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

16-07-2020 NFS/PUBD9562/CASH WDL/16- DR 07-20 10000.00 16-07-2020 MMT/IMPS/019811730731/MB CR SENT TO Nil /NAVALAKHA /Kotak 10000.00 Mahindra 13-07-2020 UPI/019519140258/UPI/divyanahat DR a027@/State Bank Of I/ 400.00 13-07-2020 UPI/019519454510/UPI/paytmqr28 DR 100505/Paytm Payments/ 484.00 13-07-2020 MPS/PUROHIT DR SWE/202007131855/520550/PUNE 296.00 13-07-2020 NFS/SB041501/CASH WDL/11-07- DR 20 5000.00 13-07-2020 MMT/IMPS/019316874756/MB CR SENT TO Nil /NAVALAKHA /Kotak 8000.00 Mahindra 08-07-2020 MIN/GOOGLE DR z5p/202007082006/444540/ 99.00 07-07-2020 MPS/DESHMUKH DR PE/202007071756/425523/PUNE 1040.00 07-07-2020 MMT/IMPS/018917086893/MB CR SENT TO Nil /NAVALAKHA /Kotak 2000.00 Mahindra 29-06-2020 033701504255:Int.Pd:30-03-2020 CR to 28-06-2020 22.00 29-06-2020 UPI/017921385224/UPI/dashrathka DR 1177-/Bank of India 1250.00

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Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

29-06-2020 UPI/017920108560/UPI/raghunaths DR hetty/Vijaya Bank 580.00 29-06-2020 UPI/017912477652/OidCBEY7334 DR 21@R/rummycircle-pay/ICICI Bank/ 2000.00 26-06-2020 MMT/IMPS/017821276598/CF/Nile CR shNava to NILESH MOH 4000.00 26-06-2020 UPI/017820479015/OidA3EY4LKA DR RC@R/rummycircle-pay/ICICI 2000.00 Bank/ 25-06-2020 MPS/SHAKUN DR WINE/202006251727/528445/PUN 2300.00 E 23-06-2020 UPI 017220696778 20 06 2020 CR AXB 126.00 23-06-2020 MMT/IMPS/017514820007/MB CR SENT TO Nil /NAVALAKHA /Kotak 5000.00 Mahindra 23-06-2020 UPI/017513266975/Zomato Online DR O/zomato@hdfcbank/HDFC BANK 271.00 LTD/ 22-06-2020 MIN/GOOGLE DR Sto/202006220942/471885/ 299.00 22-06-2020 MIN/GOOGLE DR Sto/202006220922/311424/ 299.00 20-06-2020 UPI/017220696778/Swiggy Order DR Id/swiggyupi@axisb/Axis Bank Ltd./ 714.00 20-06-2020 UPI/017218156462/OidA3EX4H3M DR L8@R/rummycircle-pay/ICICI Bank/ 10000.00

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Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

20-06-2020 MMT/IMPS/017218985242/MB CR SENT TO Nil /NAVALAKHA /Kotak 5000.00 Mahindra 19-06-2020 UPI/017118499085/YOUBROADB DR AND/billdesk@hdfcba/HDFC BANK 3432.00 LTD/ 19-06-2020 MMT/IMPS/017118260911/MB CR SENT TO Nil /NAVALAKHA /Kotak 10000.00 Mahindra 18-06-2020 POSDEC CHG/22-05- DR 2020/2898+GST 29.50 17-06-2020 UPI/016908337872/UPI/billdeskbqr. DR tat/HDFC BANK LTD 640.00 16-06-2020 POSDEC CHG/23-05- DR 2020/2898+GST 29.50 16-06-2020 POSDEC CHG/23-05- DR 2020/2898+GST 29.50 16-06-2020 POSDEC CHG/22-05- DR 2020/2898+GST 29.50 16-06-2020 POSDEC CHG/24-05- DR 2020/2898+GST 29.50 16-06-2020 POSDEC CHG/24-05- DR 2020/2898+GST 29.50 16-06-2020 POSDEC CHG/23-05- DR 2020/2898+GST 29.50 16-06-2020 POSDEC CHG/22-05- DR 2020/2898+GST 29.50

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Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

15-06-2020 UPI/016722337359/OidA3EXAY73 DR 7M@R/rummycircle-pay/ICICI 2500.00 Bank/ 15-06-2020 UPI/016721376261/Rewarded for CR pa/goog-payment@ok/Axis Bank 5.00 Ltd. 15-06-2020 UPI/016758264427/OidBLEXAM6Z DR 16@R/paytm-8727867@p/Paytm 5000.00 Payments/ 15-06-2020 MMT/IMPS/016720134262/MB CR SENT TO Nil /NAVALAKHA /Kotak 8000.00 Mahindra 15-06-2020 POSDEC CHG/23-05- DR 2020/2898+GST 29.50 15-06-2020 POSDEC CHG/22-05- DR 2020/2898+GST 29.50 15-06-2020 Surcharge Dt:14/06/20 MCC 5541 DR 4.72 15-06-2020 UPI/016623357290/OidA3EW5YBL DR FR@R/rummycircle-pay/ICICI 2000.00 Bank/ 15-06-2020 IPS/ADHOC DR KANKA/202006141055/000000000 1000.00 526/PUNE 15-06-2020 UPI/016608173489/OidA3EW2N8Y DR KA@R/rummycircle-pay/ICICI 1500.00 Bank/

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Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

15-06-2020 UPI/016518129363/Zomato Online DR O/zomato@hdfcbank/HDFC BANK 491.75 LTD/ 12-06-2020 MMT/IMPS/016421158434/CF/Nile CR shNava to NILESH MOH 3500.00 11-06-2020 MMT/IMPS/016300191198/MB CR SENT TO Nil /NAVALAKHA /Kotak 5000.00 Mahindra 11-06-2020 UPI/016308551170/OidA3EWG1G DR 8N9@R/paytm-8727867@p/Paytm 3000.00 Payments/ 10-06-2020 UPI/016205294594/OidA3EWFP96 DR L1@R/paytm-8727867@p/Paytm 1500.00 Payments/ 09-06-2020 UPI/016120264965/Zomato Online DR O/zomato@hdfcbank/HDFC BANK 687.00 LTD/ 09-06-2020 UPI/016111307402/You are DR paying/amazon@apl/Axis Bank 335.00 Ltd./ 08-06-2020 UPI/016022230852/Decathlon DR Sport/decathlon.rzp@h/HDFC 828.00 BANK LTD/ 08-06-2020 MIN/GOOGLE DR z5p/202006082006/326116/ 99.00 08-06-2020 UPI/016015206578/UPI/navalakha CR madhav/ICICI Bank 1.00

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Account Number: 033701504255

Transaction date : From 01/06/2020 To 20/09/2020

06-06-2020 UPI/015808341415/Rewarded for CR pa/goog-payment@ok/Axis Bank 10.00 Ltd. 06-06-2020 UPI/015858257678/OidA3EVSGPG DR 89@R/paytm-8727867@p/Paytm 1000.00 Payments/ 06-06-2020 MMT/IMPS/015808261048/MB CR SENT TO Nil /NAVALAKHA /Kotak 5000.00 Mahindra 06-06-2020 UPI/015800189809/OidA3EVPS16 DR 8A@R/rummycircle-pay/ICICI 500.00 Bank/ 05-06-2020 UPI/015713133103/OidA3EVMC1R DR PV@R/rummycircle-pay/ICICI 500.00 Bank/ 02-06-2020 UPI/015418893240/Rewarded for CR pa/goog-payment@ok/Axis Bank 7.00 Ltd. 02-06-2020 UPI/015412034306/Rewarded for CR pa/goog-payment@ok/Axis Bank 5.00 Ltd. 02-06-2020 UPI/015412029873/Rewarded for CR pa/goog-payment@ok/Axis Bank 5.00 Ltd. 02-06-2020 UPI/015412082569/Zomato Online DR O/zomatoindia@ici/ICICI Bank/ 482.50

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IN THE SUPREME COURT OF INDIA, NEW DELHI CIVIL/CRIMINAL/ORIGINAL/APPELLATE JURISDICTION WRIT PETITION (CIVIL) NO. ______2020

IN THE MATTER OF: SHRI. NILESH NAVALAKHA AND ANR ....PETITIONER (S) -VERSUS-

UNION OF INDIA & ANR. ....RESPONDENTS

VAKALATNAMA I BELOW MENTIONED in the above W.P./Appeal/Petition Reference do hereby appoint and return Mr. PAI AMIT, Advocate, Supreme Court of India, to act and appear for me/us in the above W.P./Appeal/Petition/Reference and on my/our behalf to conduct and prosecute (or defend) the same and all proceedings that may be taken in respect of any application connected with the same or any decree or Order passed therein, including proceedings, taxation and application for review, to file and obtain return of documents and to deposit and receive money on my/our behalf in the W.P./Appeal/ Reference and in application for review to represent me/us and to take all necessary steps on my/our behalf in the above matter. I/we agree to ratify all acts done by the aforesaid Advocate in pursuance of the authority.

Dated this the 27th day of September, 2020 Accepted, Identified, verified, Certified and satisfied.

PAI AMIT Mr. Nitin Memane ADVOCATE Petitioner(s) 282

MEMO OF APPEARANCE To The Registrar Supreme Court of India New Delhi Sir, Please enter my appearance on behalf of the Petitioner(s)/ Appellant(s)/Intervenors/Respondent(s) in the above matter. Dated : 27.09.2020

The address for service of the said Advocate is: PAI AMIT ADVOCATE ON RECORD, 223, M.C. Setalvad Chambers, New Lawyers Chambers, Bhagwan Das Road, The Supreme Court of India, New Delhi - 110001. Mobile – 09953557798 [email protected] Tele : Off: 283 284

285

Account Number: 007401002352

Transaction date : From 26/03/2020 To 26/09/2020

Date Description Amount Type 24-09-2020 M3338663044 CR 500.00 24-09-2020 MPS/UNBOX DR GADGE/202009241724/676177/PU 500.00 NE 23-09-2020 M3338663044 CR 5834.91 23-09-2020 MMT/IMPS/026716099467/SNM/S DR aroj Mema/SBIN0011699 4000.00 23-09-2020 BIL/ONL/002080853306/Vodafone DR M/202009231166570/vodafone 1834.91 22-09-2020 M3338663044 CR 2992.50 22-09-2020 IPS/SHRI DR VENKAT/202009221929/00000000 992.50 0944/PUNE 22-09-2020 MMT/IMPS/026609760730/MNM/M DR aulika Me/SRCB0000375 2000.00 19-09-2020 M3338663044 CR 2305.00 19-09-2020 MPS/WESTSIDE DR /202009191325/759037/PUNE 2305.00 18-09-2020 M3338663044 CR 5000.00 18-09-2020 BIL/PAVC/002077900777/Visa/icici DR emi 5000.00

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Account Number: 007401002352

Transaction date : From 26/03/2020 To 26/09/2020

15-09-2020 M3338663044 CR 884.00 15-09-2020 BIL/ONL/002075974427/TATA DR SKY/TATASKY_SICI922/Tatasky 884.00 11-09-2020 M3338663044 CR 399.00 11-09-2020 BIL/ONL/002072872124/hotstar.co/ DR wwwhotstarcom11/HotstarICICI 399.00 BANK NODA 10-09-2020 M3338663044 CR 55502.00 10-09-2020 MMT/IMPS/025417966798/Family/ DR Saroj Mema/SBIN0011699 5000.00 10-09-2020 ACH/KMBLDRAOPERATIONS/RC DR 022-40433168-PC021-2073638 50502.00 09-09-2020 M3338663044 CR 9.44 09-09-2020 Surcharge Dt:07/09/20 MCC 5541 DR 9.44 08-09-2020 M3338663044 CR 17727.70 08-09-2020 BIL/ONL/002070838283/State DR Bank/IISCB_SICI92012/Maulika 16677.70 fees 08-09-2020 BIL/ONL/002070780575/Ketto DR Onli/wwwkettoorg1106 ICICI 1050.00 BANK NODA

This is a system-generated statement. Hence, it does not require any signature. Page 2 287

Account Number: 007401002352

Transaction date : From 26/03/2020 To 26/09/2020

07-09-2020 M3338663044 CR 24000.00 07-09-2020 MMT/IMPS/025114328400/RBM/R DR upali Mem/HDFC0000148 22000.00 07-09-2020 IPS/KANKARIYA DR S/202009071143/000000004050/P 2000.00 UNE 02-09-2020 M3338663044 CR 1129.00 02-09-2020 CLG/RAJ DR 1129.00 31-08-2020 M3338663044 CR 4872.00 31-08-2020 MPS/MASTER DR CROP/202008311828/542303/PUN 240.00 E 31-08-2020 000505030605:Int.Coll:31-07-2020 DR to 30-08-2020 4632.00 27-08-2020 M3338663044 CR 2000.00 27-08-2020 MMT/IMPS/024014993279/PNM/Pr DR ithviraj/SRCB0000375 2000.00 26-08-2020 M3338663044 CR 2001.28 26-08-2020 BIL/ONL/002059506790/Vodafone DR M/202008261812900/vodafone 2001.28 25-08-2020 M3338663044 CR 10010.00

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Account Number: 007401002352

Transaction date : From 26/03/2020 To 26/09/2020

25-08-2020 MMT/IMPS/023809002123/Pintu/Vij DR ay Raj /BARB0PANCHM 10000.00 25-08-2020 MMT/IMPS/023809996160/Pintu/Vij DR ay Raj /BARB0PANCHM 10.00 24-08-2020 Sweep to OD A/c DR 145400.00 24-08-2020 UPI/023716375369/UPI/kgavraskar CR @okax/Saraswat Bank 49000.00 24-08-2020 MMT/IMPS/023713159242/SNM/S DR aroj Mema/SBIN0011699 3500.00 24-08-2020 MMT/IMPS/023708331274/Pintu DR Carpenter/Pintu P 100.00 Vi/CNRB0003893 24-08-2020 UPI/023508604347/UPI/kgavraskar CR @okax/Saraswat Bank 100000.00 21-08-2020 M3338663044 CR 15000.00 21-08-2020 BIL/PAVC/002056934233/Visa/ICI DR CIEMI card/iciciemi 10000.00 21-08-2020 MMT/IMPS/023409084748/SNM/S DR aroj Mema/SBIN0011699 5000.00 20-08-2020 Sweep to OD A/c DR 50498.00 20-08-2020 MMT/IMPS/023322445249/Home DR EMIE/NITIN BHUJ/KKBK0000631 50502.00 20-08-2020 UPI/023321666959/UPI/kgavraskar CR @okax/Saraswat Bank 100000.00

This is a system-generated statement. Hence, it does not require any signature. Page 4 289

Account Number: 007401002352

Transaction date : From 26/03/2020 To 26/09/2020

20-08-2020 MMT/IMPS/023312271334/Paymen CR t commiss/NAVIGATORL/Saraswat 1000.00 Co-Ope 18-08-2020 M3338663044 CR 590.00 18-08-2020 ECSRTNCHGS170820_SR693273 DR 807 590.00 12-08-2020 M3338663044 CR 590.00 12-08-2020 ECSRTNCHGS100820_SR692107 DR 769 590.00 10-08-2020 M3338663044 CR 1032.00 10-08-2020 BIL/ONL/002049827810/TATA DR SKY/TATASKY_SICI910 1032.00 06-08-2020 M3338663044 CR 12772.70 06-08-2020 MPS/A S DR ENTERPR/202008061743/508275/ 1500.00 PUNE 06-08-2020 BIL/ONL/002046508788/State DR Bank/IISCB_SICI90809 11272.70 31-07-2020 M3338663044 CR 9493.00 31-07-2020 000505030605:Int.Coll:27-05-2020 DR to 30-07-2020 9493.00 27-07-2020 Sweep to OD A/c DR 23750.00

This is a system-generated statement. Hence, it does not require any signature. Page 5 290

Account Number: 007401002352

Transaction date : From 26/03/2020 To 26/09/2020

27-07-2020 MPS/MSW NEW DR SHR/202007261742/410326/Pune 2750.00 27-07-2020 UPI/020714717487/UPI/kgavraskar CR @oksb/Saraswat Bank 26500.00 21-07-2020 M3338663044 CR 10000.00 21-07-2020 BIL/PAVC/002034490521/Visa/ICI DR CIEMI card/iciciemi 5000.00 21-07-2020 MMT/IMPS/020309033567/Family/ DR Saroj Mema/SBIN0011699 5000.00 20-07-2020 M3338663044 CR 3902.26 20-07-2020 BIL/ONL/002033735178/Vodafone DR M/202007201061061 3902.26 10-07-2020 M3338663044 CR 50502.00 10-07-2020 ACH/KMBLDRAOPERATIONS/RC DR 022-38656479-PC021-1940974 50502.00 09-07-2020 M3338663044 CR 1000.00 09-07-2020 BIL/ONL/002026558136/TATA DR SKY/TATASKY_SICI898/Tatasky 1000.00 03-07-2020 M3338663044 CR 5000.00 03-07-2020 MMT/IMPS/018509843979/Family/ DR Saroj Mema/SBIN0011699 5000.00 30-06-2020 M3338663044 CR 236.00

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Account Number: 007401002352

Transaction date : From 26/03/2020 To 26/09/2020

30-06-2020 Drcard Reissue Charges +GST DR 236.00 29-06-2020 Sweep to OD A/c DR 16702.00 29-06-2020 007401002352:Int.Pd:30-03-2020 CR to 28-06-2020 202.00 29-06-2020 UPI/018010395437/UPI/kgavraskar CR @oksb/Saraswat Bank 16500.00 26-06-2020 M3338663044 CR 405.00 26-06-2020 BIL/ONL/002015443754/Lexlife DR In/300088335274_LE/Mnm38 405.00 25-06-2020 M3338663044 CR 5419.00 25-06-2020 000505030605: Rev Sweep From CR 11581.00 25-06-2020 MMT/IMPS/017718048874/RBM/R DR upali Mem/HDFC0000148 17000.00 23-06-2020 M3338663044 CR 500.00 23-06-2020 NFS/TPCN1032/CASH WDL/23- DR 06-20 500.00 20-06-2020 M3338663044 CR 5000.00 20-06-2020 BIL/PAVC/002012063600/Visa/Icici DR Emi card/iciciemi 5000.00 18-06-2020 Sweep to OD A/c DR 25000.00

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Account Number: 007401002352

Transaction date : From 26/03/2020 To 26/09/2020

18-06-2020 UPI/017015009483/UPI/kgavraskar CR @oksb/Saraswat Bank 24900.00 18-06-2020 UPI/017012739997/UPI/kgavraskar CR @oksb/Saraswat Bank 100.00 10-06-2020 M3338663044 CR 52502.00 10-06-2020 MMT/IMPS/016219889395/Family/ DR Saroj Mema/SBIN0011699 2000.00 10-06-2020 ACH/KMBLDRAOPERATIONS/RC DR 022-37792855-PC021-1880605 50502.00 04-06-2020 M3338663044 CR 1032.00 04-06-2020 BIL/ONL/002001260771/TATA DR SKY/TATASKY_SICI886/Tatasky 1032.00 03-06-2020 Sweep to OD A/c DR 15.00 03-06-2020 IPS REF DT 02 06 2020 004080 CR HPCL 0 75 Cashless In 15.00 01-06-2020 M3338663044 CR 2000.00 01-06-2020 IPS/SHRI DR VENKAT/202006011052/00000003 2000.00 4071/PUNE 29-05-2020 M3338663044 CR 1801.86 29-05-2020 BIL/ONL/001996096276/One97 DR Comm/202005291683076/vodafon 1801.86 e

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Account Number: 007401002352

Transaction date : From 26/03/2020 To 26/09/2020

28-05-2020 M3338663044 CR 54558.00 28-05-2020 MMT/IMPS/014916657796/HomeL DR oan/NITIN BHUJ/KKBK0000631 49139.00 27-05-2020 000505030605: Rev Sweep From CR 335242.14 27-05-2020 000505023536:Int.Coll:28-03-2019 DR to 26-05-2020 20539.00 27-05-2020 TRFR TO:NITIN MEMANE DR 0.75 27-05-2020 TRFR TO:NITIN MEMANE DR 228739.00 27-05-2020 TRFR TO:NITIN MEMANE DR 144465.00 27-05-2020 MMT/IMPS/014809449614/SNM/S DR aroj Mema/SBIN0011699 2500.00 27-05-2020 MMT/IMPS/014809446903/SNM/S DR aroj Mema/SBIN0011699 500.00 26-05-2020 MSI/PAY DR NETFLIX/202005262305/700569/ 649.00 26-05-2020 MMT/IMPS/014715000197/Family/ CR Saroj Mema/SBIN0011699 100.00 26-05-2020 MMT/IMPS/014715000197/Family/ DR Saroj Mema/SBIN0011699 100.00 26-05-2020 MMT/IMPS/014715997256/SNM/S CR aroj Mema/SBIN0011699 500.00 26-05-2020 MMT/IMPS/014715997256/SNM/S DR aroj Mema/SBIN0011699 500.00

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Account Number: 007401002352

Transaction date : From 26/03/2020 To 26/09/2020

26-05-2020 MMT/IMPS/014715995499/SNM/S CR aroj Mema/SBIN0011699 100.00 26-05-2020 MMT/IMPS/014715995499/SNM/S DR aroj Mema/SBIN0011699 100.00 26-05-2020 MMT/IMPS/014715994233/SNM/S CR aroj Mema/SBIN0011699 100.00 26-05-2020 MMT/IMPS/014715994233/SNM/S DR aroj Mema/SBIN0011699 100.00 25-05-2020 BIL/PAVC/001992159302/Visa/ICI DR CI EMI/iciciemi 5500.00 14-05-2020 UPI/013508126813/UPI/kgavraskar CR @oksb/Saraswat Bank 26500.00 11-05-2020 UPI/013217731119/UPI/kgavraskar CR @oksb/Saraswat Bank 15000.00 11-05-2020 UPI/013010287250/UPI/kgavraskar CR @oksb/Saraswat Bank 25000.00 06-05-2020 MMT/IMPS/012713368003/KotakH DR omeLoan/NITIN 5000.00 BHUJ/KKBK0000631 04-05-2020 BIL/ONL/001980262005/TATA DR SKY/TATASKY_SICI876/Tatasky 889.00 02-05-2020 BIL/ONL/001978371088/Bajaj DR Alli/1096585055/2WInsurance 4114.00 30-04-2020 MMT/IMPS/012116035117/Homelo DR anAdhoc/NITIN 25000.00 BHUJ/KKBK0000631 27-04-2020 MSI/PAY DR NETFLIX/202004262231/497584/ 649.00

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Account Number: 007401002352

Transaction date : From 26/03/2020 To 26/09/2020

21-04-2020 BIL/PAVC/001971346188/Visa/Icici DR Emi/iciciemi 7000.00 21-04-2020 NEFT-N112201120093303-HDP CR INTERNATIONAL EXPRESS- 16000.00 RENT-50200010617295- HDFC0000001 17-04-2020 ECSRTNCHG130420_SR6771526 DR 38 590.00 16-04-2020 BIL/ONL/001968728373/One97 DR Comm/202004160917354 3721.72 14-04-2020 MMT/IMPS/010519537848/SNM/S DR aroj Mema/SBIN0011699 5000.00 14-04-2020 MMT/IMPS/010519536306/SNM/S DR aroj Mema/SBIN0011699 100.00 13-04-2020 MMT/IMPS/010413350459/PNM/Pr DR ithviraj/SRCB0000375 3000.00 09-04-2020 UPI/010018047533/UPI/yogeshpas CR alkar2/State Bank Of I 18000.00 09-04-2020 MIN/SWIGGY DR /202004091246/248151/ 591.00 04-04-2020 BIL/ONL/001960767785/TATA DR SKY/TATASKY_SICI868/Tatasky 896.00 30-03-2020 007401002352:Int.Pd:31-12-2019 CR to 29-03-2020 86.00 27-03-2020 IPS REF DT 21 03 2020 018086 CR HPCL 0 75 Cashless In 3.75 27-03-2020 MIN/NETFLIX DR COM/202003271835/016483/ 649.00

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