TMI Blog2006 (12) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... s press. It acknowledges that the press is free to express its ideas but on the same hand, individual also has right to their own space and right not to be exposed against their will to other's expressions of ideas and actions. By way of this petition, the petitioner requested the Court to direct the authorities to strike a reasonable balance between the fundamental right of freedom of speech and expression enjoyed by the press and the duty of the Government, being signatory of United Nations Convention on the Rights of the Child, 1989 and Universal Declaration of Human Rights, to protect the vulnerable minors from abuse, exploitation and harmful effects of such expression. The petitioner requested the Court to direct the concerned authorities to provide for classification or introduction of a regulatory system for facilitating climate of reciprocal tolerance which may include:- (a) an acceptance of other people's rights to express and receive certain ideas and actions; and (b) accepting that other people have the right not to be exposed against their will to one's expression of ideas and actions. The reciprocal tolerance is further necessary considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of news from around the world and India. However, the tone and tenor of the article as a whole and the way some of the photographs are published and described may not be in the interest of the minors. The photographs annexed at page 24 of the paper book and the caption below them such as the center of attention , double jeopardy butt of course leave much for the thoughts of minors. If the minor is of an age where he/she cannot understand the meaning, he/she would like to know from others and if the minor has come to an age where he/she is able to understand this would certainly energize his grey cells in the brain and would titillate him/her. What kind of culture and message the article titled moan for more or get that zing bag into your sex life convey. Is it really necessary for a child to read at a very early stage the concept of masturbation, ejaculation, penetration etc. as is normally discussed by so called sex experts in columns of newspapers. At what age should we start telling our children where to have sex and how to break their monotony. News item on MMS clipping is certainly not obscene but do we really need to show the nude photographs with only small bla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have in the minds of the readers. It was observed by this Court in the matter of Lakshmikant Pandey vs. Union of India, (1984) 2 SCC 244 as follows: It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a supremely important national asset and the future well being of the nation depends on how its children grow and develop. The great poet Milton put it admirably when he said: Child shows the man as morning shows the day and the Study Team on Social Welfare said much to the same effect when it observed that the physical and mental health of the nation is determined largely by the manner in which it is shaped in the early stages . The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fulness of physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of growth should be our aim, for this would serve our larger purpose of reducing inequality and ensuring social justice. The National Policy sets out the measures which the Government of India proposes to adopt towards attainment of the objectives set out in the perambulatory introduction and they include measures designed to protect children against neglect, cruelty and exploitation and to strengthen family ties so that full potentialities of growth of children are realised within the normal family neighbourhood and community environment.. Further this Court in Unnikrishnan, J.P Ors vs. State of Andhra Pradesh Ors. , (1993) 1 SCC 645 upheld the right to education for children of age of 14 as fundamental right. In para 165, this Court observed as follows: It is thus well established by the decisions of this Court that the provisions of Parts III and IV are supplementary and complementary to each other and that Fundamental Rights are but a means to achieve the goal indicated in Part-IV. It is also held that the fundamental Rights must be construed in the light of the Directive Principles. It is from the above stand- point that Question No. 1 has to be appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 347 US 483 (1954) wherein it was emphasized in the following words: Today, education is perhaps the most important function of State and a local government.It is required in the performance of our most basic responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today, it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of education. This Court in the case of M.C. Mehta vs. State of T.N. and Ors. , (1996) 6 SCC 756 observed that: Of the aforesaid provisions, the one finding place in Article 24 has been a fundamental right ever since 28th January, 1950. Article 45 too has been raised to high pedestal by Unni krishnan, which was decided on 4th February, 1993. Though other articles are part of directive principles, they are fundamental in the governance of our country and it is the duty of all the organs of the State (a la Article 37) to apply these principles. Judiciary, being also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituted for preserving the freedom of press and maintaining and improving the standards of newspapers and news agency is a powerless body. No guidelines have been framed for the minors and adolescents in particular, which can be enforced in Court of law. The Council itself feel the necessity of some strong and effective measure to correct it. v) The citizens of this country can only pray to this Court to prevent injustice being done to them. This Court under Article 32 read with Article 142 can issue guidelines to ensure the growth of the children in a healthy and moral atmosphere which is exploited by the newspapers. Mr. Ajay Goswami relied on two judgments of this Court. In Comptroller Auditor General of India anr. Vs. K.S. Jagnathan, (1986) 2 SCC 679, this Court held as under: In order to prevent injustice resulting to the concerned parties, the Court may itself pass an order to give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. Similarly in Vineet Narain Ors. Vs. U.O.I. (1998) 1 SCC 226, this Court held as under: There are ample powers conferred by Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s indecent representation of women in any form. 4. Prohibition of publication or sending by post of books, pamphlets etc. containing indecent representation of women No person shall produce or cause to be produced, sell, let to hire, distribute or circulate or send by post any book, pamphlet, paper, slide, film, writing drawing, painting, photographs, representation or figure of women in any form, provided that nothing in this section shall apply to: (a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure:- (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in the interest of science, literature, art or learning or other object of general concern; or (ii) which is kept or used bona fide for religious purposes; (b) any representation sculptured, engraved, painted or otherwise represented on or in - (i) any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and Remains Act, 1958 (24 of 1958) (ii) any temple, or on any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions are complied with and its observations implemented by the erring parties. Lack of punitive powers with Press Council has tied its hands in exercising control over the erring publications. Learned counsel further submitted that despite various requests to the Central Government from the year 1999 to amend the Press Council Act, 1978, the same has not been amended. Recently, on 1.6.2006, under clause 18(d), an advertisement policy was issued by the Directorate of Audio Visual Publicity under the Central Government Advertisement Policy stating that the newspapers will be suspended from empanelment by DG, DAVP with immediate effect if it indulged in unethical practices or anti-national activities as found by the Press Council of India. Learned counsel further submitted that as the issue which arise in the present petition requires urgent action, it will be appropriate that this Court may formulate certain guidelines as suggested by the Press Council vide its letter dated 6.1.2002 for amendment by way of incorporation of two provisions viz., Section 14(2)(a) and Section 14(2)(b) in the Press Council Act, 1978 till the law made by the legislature amending the Press Council ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically, defined by the applicable state law, (c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value. In Shri Chandrakant Kalyandas Kakodkar v. The State of Maharashtra and Others, (1962 (2) SCC 687), this Court observed that: 12. The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society. What is considered as a piece of literature in France may be obscene in England and what is considered in both countries as not harmful to public order and morals may be obscene in our country. But to insist that the standard should always be for the writer to see that the adolescent ought not to be brought into contact with sex or that if they read any references to sex in what is written whether that is the dominant theme or not they would be affected, would be to require authors to write books only for the adolescent and not for the adults. Learned counsel referred to the case of Samaresh Bose and Another v. Amal Mitra and Another, (1985) 4 SCC 289, this court observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to public good taste. ii) Newspapers shall not display advertisements which are vulgar or which, through depiction of a woman in nude or lewd posture, provoke lecherous attention of males as if she herself was a commercial commodity for sale. iii) Whether a picture is obscene or not, is to be judged in relation to three tests: namely a) Is it vulgar and indecent? b) Is it a piece of mere pornography? c) Is its publication meant merely to make money by titillating the sex feelings of adolescents and among whom it is intended to circulate? In other words, does it constitute an unwholesome exploitation for commercial gain. Other relevant considerations are whether the picture is relevant to the subject matter of the magazine. That is to say, whether its publication serves any preponderating social or public purpose, in relation to art, painting, medicine, research or reform of sex. iv) The globalisation and liberalization does not give licence to the media to misuse freedom of the Press and to lower the values of the society. The media performs a distinct role and public purpose which require it to rise above commercial consideration guiding other in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainability of Writ Petition: Before proceeding further, we feel better to reproduce the prayers made in the writ petition which read as follows: 1) Issue writ in the nature of writ of mandamus/order or direction to the respondent Nos. 1 2 for laying down rules/regulations to ensure that minor is not exposed to sexually explicit material whether or not the same is obscene or is within the law without express consent of the parents, guardians or the experts on sex education. 2) Respondent Nos. 1 2 be directed to constitute an expert committee to look into the problem of unwanted exposure to the minor through press and to lay down appropriate rules and regulations for the same. The maintainability of the writ petition was also raised as a preliminary issue by learned counsel appearing for some of the respondents and, in particular, respondent Nos. 3 and 4. Learned counsel for respondent No.3 pointed out that there can be no mandamus for legislation and in support of the said submission, he relied on the judgment of this Court in Networking of Rivers: In Re: (2004 (11) SCC 360) wherein this Court held . It is not open to this Court to issue any direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agency, the editor or the journalist or disapprove the conduct of the editor or the journalist, as the case may be : Provided that the Council may not take cognizance of a complaint if in the opinion of the Chairman, there is no sufficient ground for holding an inquiry. Section 14(2) states:- If the Council is of the opinion that it is necessary or expedient in public interest so to do, it may require any newspaper to publish therein in such manner as the Council thinks fit, any particulars relating to any inquiry under this section against a newspaper or news agency, an editor or a journalist working therein, including the name of such newspaper, news agency, editor or journalist. Section 292 of the Indian Penal Code reads:- Sale, etc., of obscene books, etc. (1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Archaeological Sites and Remains Act, 1958 (24 of 1958), or (ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.] Sections 4 and 6 of the Indecent Representation of Women Act, 1986 are also in existence. In view of the availability of sufficient safeguards in terms of various legislations, norms and rules and regulations to protect the society in general and children, in particular, from obscene and prurient contents, we are of the opinion that the writ at the instance of the petitioner is not maintainable. Article 19(1)(a) deals with freedom of speech and expression. In the matter of Virendra vs. State of Punjab Another, [AIR 1957 SC 896] this Court held: It is certainly a serious encroachment on the valuable and cherished right to freedom of speech and expression if a newspaper is prevented from publishing its own views or the views of its correspondents relating to or concerning what may be the burning topic of the day. Our social interest ordinarily demands the free propagation and interchange of views but circumstances may arise when the social interest in public order may require a reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have available to them a large number of classics, novels, stories and pieces of literature which have a content of sex, love and romance. As observed in Udeshi's case (Supra) if a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. In the field of art and cinema also the adolescent is shown situations which even a quarter of a century ago would be considered derogatory to public morality, but having regard to changed conditions are more taken for granted without in anyway tending to debase or debauch the mind. What we have to see is that whether a class, not an isolated case, into whose hands the book, article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thought aroused in their minds. The charge of obscenity must, therefore, be judged from this aspect In Samaresh Bose Anr. Vs. Amal Mitra Anr. (Supra), this Court held as under: In England, as we have earlier noticed, the decision on the question of obscenity rests with the jury who on the basis of the summing up of the legal principles governing such action by the learned Judge decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity, the Judge in the first place should try to place himself in the position of the author and from the view point of the author the judge should try to understand what is it that the author seeks to convey and whether what the author conveys has any literary and artistic value. The Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers. A Judge should thereafter apply his judicial mind dispassionately to decide whether the book in question can be said to be obscene within the meaning of Section 292 I.P.C. by an objective assessment of the book as a whole and also of the passages complained of as obscene separately. In appropriate cases, the Court, for eliminating any subjective element or personal preference which may remain hidden in the sub-conscious mind and may unconsciously affect a proper objective assessment, may draw upon the evidence on record and also consider the views expressed by reputed or recognised authors of literature on such questions if there be any for his own consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odies an overarching commitment to make sure that Congress has designed its statute to accomplish its purpose without imposing an unnecessarily great restriction on speech. In 146 Led 2d 865, United States v Playboy Entertainment Group, Inc., it has been held that: In order for the Stateto justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. What the Constitution says is that these judgments are for the individual to make, not for the government of decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us. Literary merit and prepondering social purpose Where art and obscenity are mixed, what must be seen is whether the artistic, literary or social merit of the work in question outweighs its obscene content. This view was accepted by this Court in Ranjit D. Udeshi v. State of Maharashtra. AIR 1965 SC case: Where there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, may draw upon the evidence on record and also consider the views expressed by reputed or recognized authors of literature on such questions as if there by any of his own consideration and satisfaction to enable the court to discharge the duty of making a proper assessment. Clear and Present Danger In S.Ragarajan v. P. Jagjivam Ram, while interpreting Article 19(2), this Court borrowed from the American test of clear and present danger and observed: the commitment to freedom demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably like the equivalent of a 'spark in a power keg'. Test of Ordinary Man The test for judging a work should be that of an ordinary man of common sense and prudence and not an out of the ordinary or hypersensitive man. As Hidayatullah, C.J. remarked in K.A. Abbas: If th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have to strictly adhere to the standards set by the Press Council Act, 1978. According to them, the advertisement, news articles and photographs are scrutinized by the advertising department and in the event the advertising department is in doubt, the assistance of the legal department is resorted to. It is also their case that the said departments are manned by qualified persons who are well acquainted with the Norms and Guidelines issued by the press Council. It was also submitted that respondent No.4, as among others, consistently rejected the publication of liquor and sexually exploitative advertisements, which may offend the sensibilities of families and in contravention it was further submitted that respondent No.4, keeping in mind, special educational needs of school going children publishes a supplement called HT Next School Times every Monday and the respondent does not send any supplement to schools other than HT Next School Times along with the main paper. Further, the respondent publishes HT Next which is a newspaper positioned mainly for the youth. This paper too keeps in mind the special needs of the youth of today. The market segment that the respondent's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferred by the Constitution has triggered various issues. One of the most controversial issues is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and idea. Be that as it may, the respondents are leading newspapers in India they have to respect the freedom of speech and expression as is guaranteed by our constitution and in fact reaches out to its readers any responsible and decent manner. In our view, any steps to ban publishing of certain news pieces or pictures would fetter the independence of free press which is one of the hallmarks of our democratic setup. In our opinion, the submissions and the propositions of law made by the respective counsel for the respondents clearly established that the present petition is liable to be dismissed as the petitioner has failed to establish the need and requirement to curtail the freedom of speech and expression. The Times of India and Hindustan Times are leading newspapers in Delhi having substantial subscribers from all sections. It has been made clear by learned counsel appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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