MEDIA LAW AND THE COVERAGE OF RELIGIOUS

ISSUES IN INDIAN MEDIA

Dissertation submitted in partial fulfilment of the requirements for the award of the
degree of

Bachelor of Laws (BA LLB)

SUBMITTED TO:

DR HARDIK PARIKH
GUJARAT NATIONAL LAW UNIVERSITY

SUBMITTED BY:
IQRA KHAN
15A061

Gujarat National Law University

Attalika Avenue, Knowledge Corridor
Koba, Gandhinagar, Gujarat–382426
2019

1
 DECLARATION

DECLARATION

I hereby declare that the research paper titled “Media Law and the Coverage of
Religious Issues in Indian Media” is an original work of mine and no part of the
research paper has been submitted for award of any degree or for any publication.

Signature

Iqra Khan

Date: 05.10.2019

2
 The Supervisors' Certificate

Dr. Hardik Parikh

Assistant Professor of Law
Gujarat National Law University

CERTIFICATE

This is to certify that Ms. Iqra Khan has pursued and prepared the research paper titled
“Media Law and the Coverage of Religious Issues in Indian Media” in partial
fulfillment of the requirements for the award of the degree of Bachelor of Laws (BA
LLB) for the Seminar Paper (Media Law) under my supervision. To the best of my
knowledge, the research paper is the outcome of his/her own research.

Signature

(Dr. Hardik Parikh)

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 ACKNOWLEDGEMENTS

I would like to express my deep gratitude towards my research supervisor Dr

Hardik Parikh for his patient guidance, enthusiastic encouragement and invaluable
critiques of the research work. I would also like to thank Gujarat National Law
University for providing me with the infrastructure required to conduct my research
and complete this paper.

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 TABLE OF CONTENTS

I. Introduction
II. Freedom of Expression in Media Law
i. Constitutional Provisions and Judicial Pronouncements
ii. Statutory Provisions and Judicial Pronouncements
III. Religious Issues in Foreign Media Law Regimes
IV. Effect of Restrictions on Reform
V. Recommendations and Conclusions

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 LIST OF ABBREVIATIONS

& And
AIR All India Reporter
AP Andhra Pradesh
BBC British Broadcasting Corporation
ECHR European Convention on Human Rights
Etc. Et cetera
Hon. Honourable
Ibid. Ibidium
Id. Ibidium
J Justice
P. Page
OfCom Office of Communications
S. Section
SC Supreme Court
US United States of America
UK United Kingdom
UP Uttar Pradesh
V Versus
Vol. Volume

6
 LIST OF CASES

1. Bennett Coleman v. Union of India, AIR 1973 SC 106.

2. O. K. Ghosh v. E. Joseph, AIR 1963 SC 812.
3. Virendra v. State of Punjab, AIR 1957 SC 896.
4. State of Madras v. V.G. Row, [1952] S.C.R. 597, 607.
5. Ramji Lal Modi v. State of U.P., AIR 1957 SC 620.
6. Babu Rao Patel v. State (Delhi Administration), AIR 1980 SC 763.
7. Ramesh v. Union of India, AIR 1988 SC 775.
8. Baba Khalil Ahmad v. State, AIR 1960 All 715.
9. Sony Pictures v. State of Tamil Nadu, (2006) 3 MLJ 289.
10. Madhu Limaye v. Sub Divisional Magistrate, AIR 1971 SC 2486.
11. Parameswaram v. District Collector, Ernakulam, AIR 1988 Ker 175.
12. Lakshmi Ganesh Films v. State of A.P., 2006 (4) ALD 374.
13. Chaplinsky v State of New Hampshire, 315 U.S. 568.
14. Jacobellis v State of Ohio, 378 U.S. 184.
15. New York Times Co. v. U.S., 403 U.S. 713.
16. Near v. State of Minnesota ex rel. Olson, 283 U.S. 697.
17. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367.
18. Bridges v State of California, 314 U.S. 252.
19. Centro Europa 7 S.R.L. and Di Stefano v Italy, (Application No 38433/09),
[2012] ECHR 974 (ECtHR).

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 CHAPTER I: INTRODUCTION
1. INTRODUCTION

Media law in India is premised on the idea of freedom of speech and expression, as laid
down in the Constitution of India. This freedom of expression is subject to certain
reasonable restrictions under Article 19(2) of the Constitution. This freedom is only
curbed in the interest of the integrity, sovereignty and security of India, friendly
relations with foreign states, public order, decency or morality, contempt of court,
defamation or incitement of an offence.

Media law in India a collection of statutes, regulations, codes and judicial precedents.
The most significant source of media law are judicial pronouncements.

Unlike the Constitution of the United States of America, the Indian Constitution does
not contain a separate provision for freedom of the press as it is implied that the freedom
of expression includes freedom of the press.

India is a diverse nation comprised of several linguistic, cultural and religious groups.
It is therefore a challenge for the legislature to ensure harmony between these groups
and protect the civil rights as well as the sentiments of these groups against offensive
speech or expression.

In order to achieve this there are various provisions laid down in the various statutes
governing media law and several pronouncements of the courts to curb the freedom of
expression if it tends to hurt religious beliefs.

2. SIGNIFICANCE

In the 21st Century, India continues to suffer from the anachronisms that inevitably
persist in religious practices. Media such as print, broadcasting, cable and the Internet
play an important role in propagating a narrative of reform as they have the reach
required to bring about significant changes in perception. It is therefore essential that
in the name of protecting religious sentiments, we must not censor criticism of social
evils.
3. OBJECTIVE

This paper aims to look at the various alternatives to the course adopted by the courts
to curb of freedom of expression under media law. The paper will examine the statutory

8
provisions governing the portrayal of religious issues in the media, and compare them
to similar provisions in foreign regimes.

4. HYPOTHESIS

The study is based on the hypothesis that the regulations and restrictions on the media
imposed under Article 19(2) of the Constitution must be minimal and not abused in
order to censor content made in good faith for the sake of criticism and reform.
5. RESEARCH QUESTIONS
a. What are the Constitutional provisions regulating religious content in media
law?
b. What statutory provisions under the media law framework to regulate the
coverage of religious issues in the media?
c. Impact of restrictions on efforts of social reform.
d. What is the approach adopted by foreign media law regimes such as the United
States of America in order to protect religious sentiments?
6. SCOPE OF THE STUDY

The current study is restricted to the critical analysis of the provisions of media law
statutes that pertain to protection of religious sentiments and not an exhaustive study of
the same. It does not deal with censorship of content for other purposes such as sedition,
defamation etc.
7. RESEARCH METHODOLOGY

The research methodology adopted in preparing this dissertation would primarily be

doctrinal in nature.

8. SCHEME OF CHAPTERIZATION

For the convenience of the reader, this dissertation has been divided into the following
chapters:

I. Introduction
II. Freedom of Expression in Media Law
i. Constitutional Provisions and Judicial Pronouncements
ii. Statutory Provisions and Judicial Pronouncements
III. Religious Issues in Foreign Media Law Regimes

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IV. Effect of Restrictions on Reform
V. Recommendations and Conclusions

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 CHAPTER II: FREEDOM OF EXPRESSION IN MEDIA LAW

i. Constitutional Provisions and Judicial Pronouncements

Throughout India, religious expression and blasphemy alone can not be subject to legal
restrictions. This is because the inherent right to freedom of speech and expression,
embedded in the Constitution, can not be limited except as provided for by India's
Constitution itself. The various laws referred to here that put limits on religious
expression are grounded in the constitutional authorization to enforce such restrictions
on freedom of speech, as provided for in Article 19(2).
Article 19(1)(a) of the Indian Constitution guarantees rise to a very essential media
freedom. The clause guarantees freedom of speech and expression to people.
Previously, the opinion seemed to be that as only people could enjoy the freedoms
granted in Article 19, the said rights could not be exercised by businesses. Nevertheless,
this has been slowly weakened with decisions enabling corporate investors to defend
their liberties in Article 19. 1 Generally, the stance on the fundamental right given in
Article 19(1)(a) is that people have the constitutional right to free speech and opinion
and that investors may impose the right on their behalf as far as companies are
concerned.
Nevertheless, the freedom given pursuant to Article 19(1)(a) is not unconditional. There
are constraints over this freedom, and Article 19(2) specifies the appropriate
constraints. A law may impose reasonable limits in the interests of India's sovereignty
and integrity, state security, peaceful relations with foreign nations, law and order,
decency or morals, or in the interests of libel, contempt of the Court or incitement to
commit an offence. Nevertheless, the reasons for imposing limits are the ones listed and
limits can not be imposed for a different reason. 2
It may be noted that religion, or even damage to other people's religious beliefs, is not
included on the grounds that limitations on freedom of speech are enforced, and
therefore religion can not be a legitimate basis for curbing freedom of speech. In such
a scenario, what would warrant the various provincial and national government
directives, consistently placing a prohibition on different types of expression in various
formats, on the pretext that they are "harmful to other people's religious feelings?" This

1
Bennett Coleman v. Union of India, AIR 1973 SC 106.
2
O. K. Ghosh v. E. Joseph, AIR 1963 SC 812.

11
is a rather pertinent issue because the restriction is ultra vires the law except if the
Government can defend the restriction for any of the reasons. Usually, any type of
measure undertaken in order to avoid a kind of expression which tends to harm the
faith or related feelings of a class, is presumed to be made in order to keep public
harmony. The point is that these words that damage a community's religious feelings
appear to provoke violence in that community, thereby disrupting law and order. The
above rationale is repeated constantly. Some lawsuits that discuss this argument are
studied later, a few that acknowledge it and others that deny it.
With respect to freedom of religion in the media, it is also protected as part of an
individual's religious liberty granted in accordance with Article 25. This ensures that
all individuals have the freedom to practice, preach and promote religion openly, on the
condition of maintaining law and order, moral values, health as well as other safeguards
in the Constitution. Nevertheless, the State may also place limits governing the un-
religious activities of cultural traditions, for public welfare and development, and for
giving to all groups of Hindus accessible religious organizations of a public nature.
What can be inferred from a combined reading of Article 19(1)(a) and Article 25 is that
an individual could use his freedom of speech and expression in preaching, exercising
or spreading a religion, except that something like that would be liable to some
reasonable restrictions which the Government may enforce.
There was an unrest in the State of Punjab in Virendra v. State of Punjab 3over the
division of the State based on the criteria of language and religioun. It was backed by
the Akali Group, but objected to by Hindus, who spoke Hindi. That violence started
when an unrest was initiated as a response to the Akalis, called the "Hindi Bachao"
mobilisation. Due to the tumultuous state circumstance, an act was passed that allowed
regulations to be imposed on news papers. Such limits were in the form of a cessation
of some forms of content or a publication itself, and could be enforced unless the
content or the newspaper endangered community peace on being published. Likewise,
regulations on taking any newspaper or news source into Punjab that sought to disrupt
the peace of the group could also be imposed. Under these rules, the newspapers of the
petitioners were subject to regulation and, therefore, they were targeted for being illegal
and violating Articles 19(1)(a) and 19(1)(g) without being protected by Article 19(2) or
19(6).

3
Virendra v. State of Punjab, AIR 1957 SC 896.

12
 The objections that were raised in opposition to the constraints were as follows:
 That the regulations were equivalent to an absolute, and the same was invalid
according to Articles 19(2) and 19(6);
 If one accepts that they are not absolute restrictions, they are still irrational and
absurd and therefore invalid as per Articles 19(2) and 19(6).
Objections were also voiced in opposition of the kind of power of discretion of courts
and the use of the said power. The court stated that the limitations that were to be placed
did not qualify as absolute restrictions in any way and that the rational nature of the
placed limitations should be construed in the light of the reasonableness criterion given
in the case of State of Maharashtra v V.G. Row.4
The decision in Ramji Lal Modi case was also cited in which article 19(2) was given a
broad interpretation.5
ii. Statutory Provisions and Judicial Pronouncements
Several sections of the Indian Penal Code include limitations on religious expression in
the media. Section 153A punishes the encouragement of animosity between the various
groups based on faih, gender, region, domicile, language etc. Section 295A punishes
intentional or sinister actions directed at offending the values or religious sentiments of
any group. Section 298 forbids any speech intentionally designed to harm any
individual's religious sentiments. Clearly, the purpose behind these clauses is to protect
the religious feelings of each religion from being harmed. Nevertheless, these laws,
though initially implemented in order to uphold the nation's constitutional structure and
maintain public order, could also be abused to regulate the freedom of speech in an
unfair and unjustified manner. Printed media repression for religious reasons usually
takes place by referencing such clauses in the IPC.
A wide range of case-laws on this subject exist that shed light on the root of the
matter in Babu Rao Patel v. State (Delhi administration) 6where the claimant was the
founder and the publisher of a magazine. He wrote two papers on the grounds of which
he was tried through section 153A, the first being a political theory, and the second
simply a complaint against the designation of streets of Delhi to commemorate the
Mughals, which was based on actual facts. The Court noted that even though the initial

4
State of Madras v. V.G. Row, [1952] S.C.R. 597, 607.
5
Ramji Lal Modi v. State of U.P., AIR 1957 SC 620.
6
Babu Rao Patel v. State (Delhi Administration), AIR 1980 SC 763.

13
paper started as a theoretical analysis, many uncaring charges were raised against the
Islamic community.
A lawyer in compliance with Article 32 of the Constitution, lodged a writ petition in
Ramesh v. Union of India7, in combination with an SLP lodged against the order of the
Bombay HC, vacating the stay given prohibiting the television show named "Tamas."
In the case of the petitioner, the show of the serial was against public policy and would
cause people to commit crimes, as well as violations of Section 25 of the Constitution,
and it was also probably, for purposes of faith or culture, to promote feelings of hatred,
anger, mal-will, etc. even subject to punishment under section 153A of the IPC. It was
reportedly in violation of Article 5B of the Cinematographic Code. The series depicted
the period immediately surrounding the division of India and highlighted the conflict
between Hindus and Muslims as well as Muslims and Sikhs. This explained how
radicals and religious fanatics generated communal conflicts, how these people
manipulated everyone else to accomplish their underlying political goals. The Judge
dismissed the arguments put forward by the plaintiffs due to two factors. Next, the
Court found that, in relation to the Cinematographic Act 's provides for the
implementation of the requirements laid down in Section 5B, the procedure is in effect
to screen the film before it is sent to the Censorship Board. The Court would therefore
refuse to undo the decision of a formally created entity. Furthermore, the Judges of the
High Court who watched the movie considered it to be a positive inspiration to the
people. They saw this from an ordinary person's point of view and realized that it's not
conducive to any violence or to breach of the peace. The apex Court acknowledged it.
The case of great importance was Ramji Lal Modi8, which concerned the Indian Penal
Code, Section 295A. The claimant was the producer, distributor and editor of a
publication dedicated to the welfare of cattle. According to Section 153A and Section
295A, he was convicted of writing in the magazine falsely hurting Muslim religious
beliefs and eventually convicting himself under Sections 295A. Thus, according to
Article 32, he lodged a letter questioning the legality of Section 295A under Article
19(1)(a). He contended that the Provision limited his right to free speech and of speech
unduly. The point was that, according to Article 19(2), public order was the sole reason
for this, but any words offending a group's religious convictions or values don't always

7
Ramesh v. Union of India, AIR 1988 SC 775.
8
Ramji Lal Modi v. State of U.P., AIR 1957 SC 896.

14
result in a violation of law and order. Hence, the possibility of this kind of condition
must be taken into account before a statute limits the right to free speech. However, he
contended that the crime involved wasn't even one against public order, since it was
covered under the Section on Offenses Against Religion in the IPC rather than the
Offenses Against Public Tranquility. The Judge dismissed these claims, which argued
that since religious liberty was itself a matter of public order within Articles 25 and 26,
it can not be said that faith and law and order had no connection and that that distinction
could not by itself make the law null and void.
With regard to the first argument, the Court said that Article 19(2), covers a statute that
reasonably limits the enjoyment of the right to free speech and opinion 'in the interest
of' public order which is much broader than that of "preserving" the public order. Thus,
if some actions tend to create public disorder, a statute that punishes these behaviours
as a criminal offense may be deemed to be a rule which applies a reasonable restriction
in the interests of the public order even if these events, in some situations, do not in
reality result in a violation of the public order. Moreover, Section 295A would not
punish all such attacks on the religion or the faith of a class of people, but only punishes
such actions of offending or threatening to injure the religion or faith of a class of
people, which are committed in a calculated and hostile attempt to insult religion.
Insults to the faith unintentionally or recklessly made to insult the religious sentiments
of that group without any calculated or sinister intention do not fall within the scope. It
only prohibits the exacerbated sort of religious provocation except when carried out
with a calculated and sinister purpose to offend the class's religious sentiments. The
deliberate pattern of such an intensified sort of insult is to upset the law and order and
the section that punishes such acts is clearly a law under Article 19(2) enforcing
reasonable restrictions on the practice of the right of freedom of expression granted by
Article 19(1)(a) The court held that there was no chance of the enforcement of such a
statute for reasons not authorized by the Constitution.9
The applicants published, in Baba Khalil Ahmad v. State10, some books in answer to
some leaflets celebrating a certain man as a revered Hanafi figure. Such publications
were prohibited by the Provincial government under the 1950 Criminal Procedure
Code, which enabled a newspaper and book to be forfeited in some cases, such as when

9
Ibid, para9.
10
Baba Khalil Ahmad v. State, AIR 1960 All 715.

15
the object was to offend religious sentiments of any group with ill intent and deliberacy.
The above clause was reportedly unconstitutional. Referring to the Ramjilal Modi
ruling, the high Court noted that this case was guided by that judgement and the
disputed sections could also not be questioned because Section 295A was upheld in that
case. The Court alluded to various books published by the applicant, and some sections
therein making insulting allusions to the revered figure. In addition, it was pointed out
that Section 295A's main component was an attack on the faith and values of a category
of people in India and that an individual who highly respects the revered figure is likely
to be angered by the statements in the books. Another feature of the clause was that the
comments must be rendered with a conscious and hostile aim to antagonise a class of
citizens ' faith and related feelings. As the complainant had authored 6 texts in response
to some leaflets, it was known that the books were published intentionally and that
there could not be a reason to protect the texts from Section 295A. With regard to his
purpose in writing books, he argued that the claims in those books were justified; that
they were accurate and that there were plenty of authorities available.
The Court did not accept this argument and dismissed the case stating that the court
does not know if the revered figure was a person of poor character, as claimed by the
claimant or a person of faith, as suggested by Abdul Malik's side. It was noted that the
veracity or the falsity of the expression can never be championed or established in these
instances. This investigation has to restrict itself to the issue of the ill intent of offending
the religious sentiments of a group of people. Even a factual declaration could offend
religious sentiments. The court held that the verdict on the real nature of the figure's
personality is needless.11
In the case of Veerabadran Chettiar v. Ramaswami Naicker12 it was decided that the
purpose of Section 295 of the Indian Penal Code was to protect the faith and the values
of people from various faiths and the courts must take these sentiments into account
and interpret the provision on a case-to-case basis by looking at what conduct would be
offensive to a particular group of people, and this must be done even if the bench does
not have the same faith and even if the faith does not seem rational to the bench.
For film, the Act of 1952 places some limitations on the film show, and mandates the
formation of the Central Board of Movie Censors (CBFC), which shall monitor and

11
Ibid, para 27.
12
AIR 1958 SC 1032.

16
approve films in compliance with some of these standards. It may be approved
as eligible to be displayed unrestrictedly ("U" Certificate), partly limited ("U / A"
Certificate), limited ("A" Certificate) and refused. Section 5B outlines the criteria for
the screening of movies that must be taken into account by the censor board before a
movie is accredited. The primary reason for enforcing reasonable restrictions set out in
Article 19(2) is this clause. Section 5E, which is an essential clause, enables the Federal
government to withdraw a movie certification. The Federal government could withdraw
the certificate by issuing a notice for that reason, if it considers that the movie for which
a certificate was awarded is shown in any other type than the one in which it was
displayed, or if the certificate awarded violates any of the provisions of Part II of the
Act which contain the above requirements. This would indicate that the central
government would be given the Executive Authority to cancel a certification issued by
an independent body (i.e. the CBFC) unless, for any cause under Article 19(2), a
certificate is provided.
Section 6 contains the amendment rights of the Central Government and allows the
revocation of the movie certification. In addition, in compliance with Section 13, the
national government could terminate the transmission of a movie in any territories of
the Union in case of a violation of peace. Many States have adopted State laws in
accordance with this Act, and these laws allow for the termination of the movie
screening in a way akin to Section 13. Since faith is so vulnerable in India, this clause
can possibly be used for the reason of spiritual repression for movies in which the same
can be defended on the basis that it does not disturb harmony. The regulations of the
Cable Television Networks Act (Regulation) of 1995 extend to cable television. A
combined interpretation in compliance with Rules 6 and 7 of the Cable Television
Network Rules of 1994 of the Cable Television Network Act, 1995 and Program and
Marketing Codes limits the scope of cable television operators.
According to Section 19 of the Act, authorized authorities may forbid the broadcast of
any program or network that is not in compliance with the Code of Programs or the
Advertisement Code, or which may facilitate discord or attitudes of hostility, haste or
malice between religious, ethnic, linguistic or regional groups, castes or populations.
Likewise, as per Section 20, any network or service can be controlled by or banned by
the National government. Such regulations apply for reasons similar to those provided
in connection with Article 19(2)22 as well as those relating to lack of compliance with
the Programme and Advertising Code. Furthermore, these laws and guidelines do not
17
seem to be rigidly enforced. Nonetheless, a provision that allows limitations on
programming and commercials is to be enforced as long as it is fair and for one of the
permitted reasons (which is expressed in such regulations as a justification for placing
restrictions), and it will not be unlawful.
An interesting example of theological censorship in media was the prohibition in
several states throughout India and abroad, of the movie' The Da Vinci Code.' This
movie was made on the work of author Dan Brown, which knit an imaginary plot
focussing on the Holy Grail, the story of Christ, implying that the Holy Grail applied to
a woman disciple of Christ and the Church became embroiled in a centuries-long effort
to hide the history of Jesus and the said woman.
Many leaders of the Catholic faith planned to oppose the idea depicted in the book and
the movie. After that, in view of the Supreme Court's dismissal of the All India Christian
Welfare Association's request to screen a movie and the CBFC certification acceptance
of the film, the movies are prohibited in Andhra Pradesh, Tamil Nadu, Goa, Punjab,
Nagaland, and other States. In the High Courts for example, Tamil Nadu and Andhra
Pradesh, some of these restrictions are questioned.
The revocation by the State of Tamil Nadu of a movie viewing was questioned before
the High Court in Sony Pictures v. State of Tamil Nadu13. The revocation was
pursuant to Section 13 of the Cinematograph Act and was reportedly questioned for
breach of Article 19(1)(a) of the Constitution. It was claimed that the film was made
feasible by an independent body through section 5B of the Cinematograph Act and that
the executive should not intervene in order to ban the film at this stage. What was
proposed that it would be necessary to read down the Section 13 in order to resolve
sections 5B and section 13 of the Act. The argument has been made that the Catholic
community was very hostile to the film and also that the film which weaved a made up
story is sacrilegious. The first question to be discussed was the consequence of the
language discrepancy between "public order" used in Article 19(1)(a) and the' violation
of peace' of Section 13 of the Cinematographic Act. In the petition filed before the
Supreme Court for banning the movie's exhibition, the issue was already addressed and,
14
after the Madhu Limaye v. Subdivision Magistrate ruling, it was specified, that the
term "public order" employed in the Constitution was sufficiently broad to include

13
Sony Pictures v. State of Tamil Nadu, (2006) 3 MLJ 289.
14
Madhu Limaye v. Sub Divisional Magistrate, AIR 1971 SC 2486.

18
cases of "breach of peace". With regard to the breach of liberties of expression the Court
stated that before the injunction, the complainant had met the Chief Minister requesting
his support with representatives of the Christian groups in order to make them watch
the movie. The movie was instead forbidden, disregarding the certification from an
expert authority. In addition, the movie was explicitly declared to be a fictional story,
as opposed to the book that claims to be an actual guide to locations, clandestine
traditions, art, etc. Therefore, it was argued that the order brought into question
breached the applicant's constitutional right to free speech and opinion.
In order to confirm that the movie is blasphemous and thus deserving to censorship, the
State depended upon the Parameswaram v. District Collector, Ernakulam15 Judgment.
A performance associated with Christ was banned in this instance, since it was
considered to be sacrilegious or offensive. Nevertheless, the Court correctly suggested
that the issue could be separated from the situation under review. The movie was shown
for Christian group representatives and Catholic clergy, and they stated that the film
does not blaspheme, although it could leave audiences with a false view of Catholics
and Catholicism. It should also be noted that, if it was, blasphemy is not a legal reason
to cancel movie exhibition in accordance with Section 13 of the Cinematograph Act.
While determining this, the High Court referred to a ruling in Lakshmi Ganesh Films v.
A.P,16 in which a similar order by the Government of Andhra Pradesh, prohibiting the
screening of the said movie, was found unconstitutional. Movie Enforcement Act,
1955. That clause required the movie to be halted if its shooting contributed to a
"violation of peace." Comparable points were also presented in that situation,
supporting the right to free speech and disputing the prohibition and were accepted. The
Court further stressed that the film's critics have not been forced to see the movie and
can not attempt to suppress it.
An efficient and systematic method for enforcing regulation has yet to be established
with respect to the Internet. There is a system to implement restrictions for now. The
CERT-IND is the only body in the country for censoring the internet and is allowed to
do so under the order issued under the Information Technology Act, 2000. The above
Order allows the filtering of sites on the internet since they constitute a threat to
security, but since the Notice has been passed in compliance with Section 67 of the IT

15
Parameswaram v. District Collector, Ernakulam, AIR 1988 Ker 175.
16
Lakshmi Ganesh Films v. State of A.P., 2006 (4) ALD 374.

19
Act, read with Section 88 of the Constitution and Section 67 concerns the punishments
for the publishing of obscene material, the CERT-IND is also capable of restricting a
site because it includes obscene materials. With regard to faith, it can be noted that acts
of such a body can not only be taken when religious expression harms the feelings of a
specific religion, but when it entails a threat to security and also when it becomes
"obscene." It is claimed that the odds are somewhat small, and since the law remains,
this tends to be a raw and simple provision. Therefore, CERT-IND is primarily
concerned with issues that are handled by others (including governmental bodies) and
is largely reactive and not initiating.

20
 CHAPTER III: RELIGIOUS ISSUES IN FOREGIN MEDIA LAW
REGIMES

 United States of America

Prior to the 20th century, the United States of America did not really have the legal
infrastructure to guarantee the freedom of speech. In the twentieth century, the United
States started to strike down the anachronistic laws on sacrilege which had existed for
centuries, and these laws were held unconstitutional.

The key source of freedom of expression as a right is the First Amendment to the United
States constitution which protects the right to freedom of speech by saying:

“Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the government for a redress
of grievances.”17

The said provision has been read to derive rights from in a number of judicial decisions.
It has been observed that the judiciary must attempt to balance the interest that it seeks
to protect from the publisher’s enjoyment of free speech, against the right of the
publisher, on the basis of the facts and circumstances of each case as they must be
weighed every time.18

The types of expression which have been declared to be outside the immunity of the
First Amendment by the courts in various instances are as follows:

 Vulgarity

 Speech which is a crime in itself

 Inciting imminent violence

 Fighting speech likely to provoke one into a retaliation19

 Libel, defamation, and slander

17
U.S. Const. Amend. I.
18
Bridges v State of California, 314 U.S. 252.
19
Chaplinsky v State of New Hampshire, 315 U.S. 568.

21
  False or illegal commercial/advertising speech.

Such areas have not been specified but described in accordance with the circumstances
20
of every other situation. The judiciary has determined that the validity of prior
prohibitions is assumed to be invalid, although penalty may be imposed after
publishing. No statutory, judicial or administrative intervention, as stipulated in the
New York Times Co. v. U.S.21, that prohibit speech ahead of time is allowed unless the
speech is likely to compromise vital interests like national security. 22

In the broadcasting sector, the Federal Communications Commission (FCC) controls

material on radio, television, internet, cable and other innovations regarding vulgarity,
strong language, commercial information, children's content, election candidates'
broadcasts and so on.23 No federal laws prohibit religious attacks or faith based slurs,
however some states do have blasphemy laws.

Maryland ruled blasphemy law invalid in 1972 in Maryland v. Irving K. West.

24
The U.S. apex Court in the case of Joseph Burstyn, Inc. v. Wilson, found the New
York blasphemy law to be an arbitrary limitation on freedom of expression beforehand.
The Court concluded that it is not the role of the state in the country to prevent perceived
or real abuses of a specific religious belief, whether they occur in papers, speeches or
movies. Six provinces continue to have prohibitions against sacrilege but have never
been imposed; and in the view of scholars, they are merely ethical condemnations.
However, progress needs to be made to even erase these namesake laws that hinder
intellectual and scientific discourse.

 Pakistan

1973 Constitution lays down an express clause enshrining the right to free speech and
press liberty. The determining factors of free speech and media liberties and restrictions
on these rights are provided in Article 19 of the Constitution. It states:

Each person must have a right to free speech and opinion, and the media shall be free,
except for any reasonable restrictions enforced by statute in the interest of Islam’s

20
Jacobellis v State of Ohio, 378 U.S. 184.
21
New York Times Co. v. U.S., 403 U.S. 713.
22
Near v. State of Minnesota ex rel. Olson, 283 U.S. 697.
23
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367.
24
343 U.S. 495 (1952).

22
dignity, honor, integrity or safety of the state, peaceful relations with other countries
states, public order, courtesy or morals, or disrespect of the trial.

In Pakistan, right to free speech is limited, notwithstanding its constitutional provisions.

Numerous causes and parties lead to the present situation as far as freedom of speech
is concerned. It is primarily limited by methods including surveillance, restrictive laws
and the harassment / murdering of reporters / human rights advocates and those who
express their views. Such methods are the persecution of ethnic minorities and the
denial of freedom of conscience and belief.

The Pakistan Penal Code (PPC) is an alteration of the Indian Penal Code by Macaulay.
Article fifteen of the PPC includes religious crimes and addresses things such as the
degradation of a sacred site (Section 295) and the intentional use of terms to hurt
religious sensibilities. Section 295 A was adopted in 1927 since the decision of the High
Court of Lahore regarding the publishing in 1923 of the Book' Rangeela Rasool.'

Section 295-A of the PPC discusses intentional and hostile actions that, by insulting
their religion, insult religious sentiments of any group. 25

Chapter 298-A was added to the PPC in 1980. The article deals with the use of negative
words "through speech... or by imputation or insinuation, whether directly or
indirectly," to venerated people of Islam. It has been deemed a criminal offense
punished by up to three years imprisonment.

The Pakistan Regulatory Authority Ordinance for Electronic Media 2002 is a specific
law to govern the country's airwaves. The legislation is aimed at "improving standards
on data, education and entertainment" and "ensuring openness, transparency and good
governance by maximizing free flow of information."

The Ordinance specifies that twelve members shall be appointed, including the
Chairperson of the Board, which shall be responsible for regulating all media and
communication services in Pakistan.26

25
William, X. P., Inside Islam: Drawing a Distinction between Blasphemy and Blasphemy Laws in
Pakistan, 2011.
26
Section 4 of the PEMRA Ordinance, 2002.

23
CODE OF CONDUCT FOR MEDIA BROADCASTERS and CABLE TV
OPERATORS:

(1) A show that (a) makes derogatory remarks about any faith or caste or culture or
hires photos or phrases that insult religious sects or ethnic groups or that encourages
racial or political sentiments or disharmony shall not be screened. 27

Nevertheless, Pakistan has a long way to go to open up debates on social and

particularly religious reforms by revisiting its system of media law and the abolition of
anachronistic legislation, such as blasphemy laws, which unhealthily restrict freedom
of speech.

 UK:

The Magna Carta signed by King John in 1215 AD saw the beginning of the recognition
of civil rights in Britain even though it didn’t envisage the freedom of expression. It
was the Bill of Rights, 1688 which granted the legal rights of freedom of speech.

Article 10 of the European Convention on Human Rights enshrines the freedom of

expression which has been enforced by Human Rights Act, 1998 since the UK doesn’t
have a written constitution. However, the ECHR Article 10 only refers to individuals
and not businesses. The first upholding of freedom of expression in media was in the
28
case of Centro Europa 7 S.R.L. and Di Stefano v Italy whereby the necessity for
pluralism and liberty of expression in the media was held to be essential to a democracy.

The Blasphemy Act 1697 enacted that when, through reading, speaking, educating, or
recommending, anyone, learned in or having made a career of the Christian faith,
refuses that the representatives of the Holy Trinity is God, or believe that there are more
than one god, or refuses the Christian faith to be real; or if the Holy Scriptures have
divine authority, the first offence should depose him of any office o faith and the second
offence should strip him of all his functions and lead to a non-bailable sentence of at
least three years of imprisonment.

England and Wales repealed their blasphemy legislations in May 2008. The crimes of
blasphemy and blasphemous libel were both legislative and common law crimes which

27
Section-1(a), Schedule-A, PEMRA Rules, 2009.
28
Centro Europa 7 S.R.L. and Di Stefano v Italy, (Application No 38433/09), [2012] ECHR 974
(ECtHR).

24
were opposed to the ideal of free expression and perhaps opposed to human rights
legislations enacted by the UK, which uphold right of free speech. The acts essentially
guarded some Christian ideals and made it criminal to question them or refute them.

An amendment was enacted to the Criminal Justice and Immigration Act 2008 which
repelaed the common law crimes of blasphemy and blasphemous libel in England and
Wales.29

The Human Rights Act 1998 is operative in Scotland as well as England and Wales.
While blasphemy and blasphemous libel continue to be an offence in Scotland and
Northern Ireland, it is a presumption that owing to the long time since a carried out
conviction, sacrilege in Scotland is not an offence anymore, although sacrilegious
behavior may be prosecuted as a breach of the peace.

The 16th century onwards till the 19th century, sacrilege against the Christian faith was
considered to be a crime under principles of common law. After the year 1838, sacrilege
is only such content which attacks or undermines the Church of England,30 as was laid
down in the case of R v Gathercole.

In the case of R v Gathercole, the respondent was charged with and held guilty of the
offence of libel targeted at a Roman Catholic establishment.

In this case the court observed that an individual might target the Jewish faith, the
Islamic faith or any variant of the Christian faith but not the established faith of the state
which is the faith of the Church of England, because that faith has a superior position
as it is upheld by law as the official religion and is an element of the nation’s
constitution. Therefore, any insult to the Christian faith o the Church of England is
liable to criminal proceedings as it is the faith of the state in an official.31

This judgment was struck down as recently as 2008.

Presently, The Office of Communications, established under the Communications Act

2003, looks after the statutory supervision of commercial television and radio stations
in the UK, as well as the BBC. It also regulates other broadcasts that operate on air.

29
Section 79, Criminal Justice and Immigration Act, 2008.
30
Temperman, Jeroen; Koltay, Andras, Blasphemy and Freedom of Expression: Comparative,
Theoretical and Historical Reflections after the Charlie Hebdo Massacre, Cambridge University Press.
2017, p. 597.
31
R v Gathercole (1838) 2 Lew CC 237 at 254.

25
Office of Communications regulates how the content is broadcast and what material is
broadcast.

There is no corresponding body like the Office of Communications for print media.
Except for anti-monopoly laws, and civil and criminal statutes, print media is not
subject to legal control and is, on the contrary, expected to regulate itself. This is mostly
in the shape of ethical codes of the profession.

Other provisions regarding content likely to hurt religious sentiments of certain groups
of people are as follows:

Section 319(6) of the Communications Act 2003:

Section 319(6) lays down certain criteria for the content that is broadcast and the
standards that such content is expected to abide by and these standards have been
specified in the Act. This provision aims to ensure that religious programmes do not
involve inappropriate manipulation of the viewers of the programme or any form of
attacks against the faith and sentiments of people hailing from a particular religious
community.32

Ofcom Broadcasting Code 2009

The Broadcasting Code 2009 lays down certain strict standards that need to be abided
by in the content of the programmes being transmitted. The said standards are
concerned with the shielding of minors, criminal content, harmful content per se,
content violating privacy and content hurtful to religious sensibilities. Rule 4.2 of the
Code says that the faith and sentiments of people hailing from a certain denomination
shall not be made open to attacks or insults.

However, despite guarantees of freedom of expression, self-censorship is induced

across Europe by incidents such as the threats faced by author Salman Rushdie for his
work Satanic Verses and the terror attack on Charlie Hebdo over a controversial cartoon
which was claimed to hurt religious sentiments. This acts as a greater source of
restrictions on freedom of expression than codified law and the restrictions therein, and
is harmful to the evolution of democratic nations and societies and detrimental to the
development of a scientific temper and reformative initiatives.

32
Section 319(6), Communications Act 2003.

26
 CHAPTER IV: EFFECT OF RESTRICTIONS ON REFORM

Colonial India saw the abolition of many social evils that plagued the development of
the Indian society for centuries. An imperial administration could enforce these laws
despite widespread protests since they did not fear an adverse popular mandate as being
elected to office was not a concern for officials appointed by the Crown.

However, in a Republic, the elected representatives are reluctant to initiate drastic

reforms for fear of electoral losses in the future and upsetting the popular narrative
against their government. Therefore, a social narrative has to be built so that popular
support can be gathered in favour of reformative legislations.

In the age where mass media has become widely accessible and as a result, influential,
it plays an instrumental role in shaping social narratives. Print, television, radio and
social media, not only disperse information but also opinions, which together have
immense potential of changing socio-cultural perspectives.

These modes of the media enjoy their freedom of expression as enshrined in Article 14
of the Constitution, subject to the reasonable restrictions therein. It is the responsibility
of the media to air disperse content that can add value to the public discourse and bring
about reforms wherever needed.

India is a diverse and multicultural society where a number of religions are practiced.
In the name of religion, a number of ancient practices persist and hinder our growth and
the attainment of intellectual maturity and the development of a scientific temper. Not
to mention, it continues to confine a section of our population to their adverse situations
and curtails socioeconomic mobility since their beliefs impact their decisions with
regard to education, employment, marriage etc. Despite the law prohibiting
discrimination against caste, instances are being reported from across the country
regarding lynching of lower caste children for defecating in the open, or a lower caste
funeral procession being refused passage through upper caste lands. The Sabrimala
prohibition on entry of menstruating women saw widespread outrage which silenced
the political proponents of reform and the mantle was then taken by mass media to
discuss the issue and shape the public discourse in favour of reform.

The establishment in the past has walked on eggshells around the subject of reforming
personal law, particularly with regard to the abolition of the practice of polygamy or

27
triple talaq. However, social media, along with television and print media brought about
a revolution in the public discourse started by Muslim feminists who demanded the
abolition of these medieval traditions that continue to affect the lives of Muslim women
in the country. This created a popular mandate for the Supreme Court to strike down
the practice of triple talaq as unconstitutional, despite protests from conservative
sections claiming that the court was interfering with their faith. Had we curbed the
media’s discussion on these issues in the name of protecting religious sentiment, this
wave of reform would have been impossible to achieve by purely legislative or
executive means.

The media has also debunked the myths around a number of godmen and exposed them
despite their devotees protesting against an attack on their faith. This has alleviated
major portions of the population from the danger of manipulation and exploitation, even
though it came at the cost of hurting or injuring the beliefs of certain people who held
these godmen in high regard and considered their beliefs to be injured when the said
godmen were exposed for their crimes or their manipulative tricks.

Therefore, to maintain a healthy public discourse, the media needs to have complete
freedom to criticise regressive practices and the environment of fear created by extra-
legal means which induces self-censorship even in the absence of laws that censor
content, must be checked so as to allow mature spaces of discussion to flourish.

We must take a leaf out of United States of America’ book in this regard and place our
rights under Article 19(1) above all, just the way they give paramount importance to
their First Amendment rights.

28
 CHAPTER V: RECOMMENDATIONS AND CONCLUSIONS

The evolution of the public discourse is a mark of a country’s progress and the
protection of religion and religious beliefs and practises from criticism hinders this
progress to a great and unhealthy extent.

It is a ginormous hurdle in the already rocky path of achieving substantial changes and
reform especially since in a democracy where elected representatives fear popular anger
will oust them from power and are scared to start revolutionary narratives to improve
the situation plagued by religious anachronisms. Therefore, the role of the media
becomes more important than ever in a democratic setup. The media has the moral
responsibility of improving the quality of the discourse by addressing controversial
issues, not for increased viewership, but with the aim of changing age-old perspectives.

The situation of women, people from underprivileged caste backgrounds etc will
benefit immensely from increased freedom of speech in the media with respect to
religious issues as the restrictions imposed on them in the name of religion can be called
out and brought to public attention, even if they are not immediately removed.

The media must take the example of international media houses who do not observe
constitutional variants of blasphemy laws disguised as laws protecting religious
sensibilities. This will enable our society to develop scientific temper and possess a
rational outlook towards social issues and give us a chance to truly compete with first
world developed nations.

However, India and other developing countries are not the only ones with sacrilege laws
in this day and age. Italy, Greece, Scotland and Northern Ireland, among many other
countries still have blatant blasphemy laws, and not just laws protecting religious
feelings. Therefore, our constitutional guarantees have placed us ahead of many of these
countries but the ground reality of the country discourages the free and absolute
enjoyment of the said guarantees and protections.

These ground realities will change with judicial upholding and broadening of the
liberties given in the constitution and the statues that the media enjoys, and the more
the discourse on religious issues, the more the evolutionary pace of our intellect, even
though it might shock and offend certain conservative sections in the initial phase of
the exercise of the said widened freedoms.

29
There also has to be a corresponding process of narrowing the scope of restrictive
provisions to very important issues such as hate speech and violence-inducing speech,
and the constructive criticism of religion and the practices continued in its name must
be brought outside the purview of the said restrictive provisions.

The United States model of media liberties is the most ideal model to look at and take
inspiration from as it has no federal restrictions in the name of religion. This gives the
media immense scope to criticise and debate without fears of legality of their content.

India must guard its constitutional liberties from self-proclaimed vigilantes who try to
enforce their personal views and prevail them over the freedoms given in the very law
of the land which is to be supreme.

30
 BIBLIOGRAPHY

BOOKS

1. William, X. P., Inside Islam: Drawing a Distinction between Blasphemy and

Blasphemy Laws in Pakistan, 2011.
2. Temperman, Jeroen; Koltay, Andras, Blasphemy and Freedom of Expression:
Comparative, Theoretical and Historical Reflections after the Charlie Hebdo
Massacre, Cambridge University Press. 2017.

CASE LAWS

20. Bennett Coleman v. Union of India, AIR 1973 SC 106.

21. O. K. Ghosh v. E. Joseph, AIR 1963 SC 812.
22. Virendra v. State of Punjab, AIR 1957 SC 896.
23. State of Madras v. V.G. Row, [1952] S.C.R. 597, 607.
24. Ramji Lal Modi v. State of U.P., AIR 1957 SC 620.
25. Babu Rao Patel v. State (Delhi Administration), AIR 1980 SC 763.
26. Ramesh v. Union of India, AIR 1988 SC 775.
27. Baba Khalil Ahmad v. State, AIR 1960 All 715.
28. Sony Pictures v. State of Tamil Nadu, (2006) 3 MLJ 289.
29. Madhu Limaye v. Sub Divisional Magistrate, AIR 1971 SC 2486.
30. Parameswaram v. District Collector, Ernakulam, AIR 1988 Ker 175.
31. Lakshmi Ganesh Films v. State of A.P., 2006 (4) ALD 374.
32. Chaplinsky v State of New Hampshire, 315 U.S. 568.
33. Jacobellis v State of Ohio, 378 U.S. 184.
34. New York Times Co. v. U.S., 403 U.S. 713.
35. Near v. State of Minnesota ex rel. Olson, 283 U.S. 697.
36. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367.
37. Bridges v State of California, 314 U.S. 252.
38. Centro Europa 7 S.R.L. and Di Stefano v Italy, (Application No 38433/09),
[2012] ECHR 974 (ECtHR).

31
STATUTES

1. U.S. Const. Amend. I.

2. Indian Penal Code, 1860.
3. PEMRA Ordinance, 2002.
4. PEMRA Rules, 2009.
5. Criminal Justice and Immigration Act, 2008.
6. Communications Act 2003.

OTHERS

1. Constitution of India, 1950.

2. Constitution of Pakistan, 1973.
3. Broadcasting Code 2009.

32