Madras High Court
Publisher, Sport Star Magazine vs Girish Sharma on 21 December, 2000
Equivalent citations: 2001CRILJ1863
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. The Publisher, Sportstar Magazine is the petitioner herein.
2. This Sportstar Magazine dated 8-3-1997 published a photograph showing that Chess Grand Master Viswanathan Anand playing chess, against V. Topalov in the Tournament in Linares in Spain. In the photograph, the Stop Watch and the Flag of the countries of the participants, which were displayed by the Organisers, were also depicted. While the chess play began, the Organisers had placed the Indian Flag upside down. Within a few minutes, the same was corrected by the Organisers by putting the flag in a proper position. Thereafter, the play continued.
3. Below the photograph published in the Magazine, the writer of the article had written a short report on the Chess Tournament as under :-
Things went badly for Anand from the word go. He usually starts very well in such competitions. This time, he started with a defeat against Kasparov and ended the championship with a victory over Alexey Dreev. The Indian Flag, that was displayed, was placed upside down. When this was corrected, he started to play well and won 2 games.
4. The respondent/complainant, a resident of Gwalior, on reading the article published with the photograph depicting the Indian Flag which was placed upside down, felt that the Indian Flag was dishonoured. So, he filed a private complaint against the petitioner, the publisher of the Magazine alleging that he committed the act of insult to the Indian National Flag, thereby he is liable to be punished under Section 2 of the Prevention of Insults to National Honour Act, 1971 (hereinafter referred to as "the Act") before the learned Judicial Magistrate 1st class, Gwalior, Madhya Pradesh.
5. On receipt of the summons from the Court, the petitioner filed a transfer petition under Section 406 of Cr. P.C. before the Supreme Court for the transfer of the case to the Court at Chennai. Accordingly, by the order dated 27-7-1998, the Supreme Court ordered transferring the case to the Court of the Chief Metropolitan Magistrate, Chennai for trial. In pursuance of the said order, the case was transferred to Chennai and taken on the file of the Chief Metropolitan Magistrate, Egmore as C.C. No. 7760 of 1998.
6. On receipt of the complaint copy and other records, the petitioner has filed this petition under Section 482, Cr. P.C. to quash the proceedings on the ground that the complaint is not maintainable, since the facts stated in the complaint would not constitute the offence under Section 2 of the Act.
7. Entertaining this petition, this Court ordered notice to the respondent/complainant on 18-11-1998. However, the said notice was returned unserved. Therefore, by the order dated 3-2-1999 this Court directed private notice by issuing a telegram. Accordingly, a telegram was issued on 4-2-1999 and for proof of service, the petitioner has filed an affidavit of service stating that the private notice ordered by this Court has been served on the respondent/complainant. Even afer receipt of the notice, the respondent did not choose to enter appearance. Therefore, this Court is constrained to hear the counsel for the petitioner and pass an order after perusal of the petition and other records.
8. The main point urged in this application is as follows :-
On a proper interpretation of Section 2 of the Act, It is only if a person brings into contempt or otherwise deals with the Indian National Flag in the manner described in Section 2 that he would be responsible for committing an offence under Section 2. But, the facts and circumstances of the case as contained in the article and the complaint would reveal that the Organiser of the Tournament in a foreign country has merely by a mistake placed the Indian National Flag upside down. It is not the case of the complainant that the petitioner being a Publisher of the Magazine was responsible for placing the Indian National Flag upside down, but it was done by the Organiser of the Tournament, which was being conducted in Spain. This Sportstar Magazine was only reporting the events of Tournament in order to disseminate information to its reading public. Therefore, it cannot be said that the petitioner committed the offence under Section 2.
9. While dealing with the question whether the allegation contained in the complaint in the light of the contents of the article published in the Magazine would constitute the offence under Section 2 of the Act, it would be worthwhile to refer to the said Section
2. Insult to Indian National Flag and Constitution of India. -- Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which max extend to three years, or with fine or with both.
Explanation 1.-- Comments expressing disapprobation or criticism of the Constitution or the Indian National Flag or any measures of the Government with a view to obtain an amendment of the Constitution of India or an alteration of the Indian National Flag by lawful means do not constitute an offence under the Section Explanation 2.-- The expression "Indian National Flag" includes any picture, painting, drawing or photograph, or other visible representation of the Indian National Flag or any part or parts thereof, made of any substance or represented on any substance.
Explanation 3.-- The expression "public place" means any place intended for use by or accessible to, the public and includes any public conveyance.
10. The reading of the above provision would make it clear that whoever in any public place brings into contempt the Indian National Flag shall be punished.
11. The relevant portions of the complaint are as follows :--
That, the non applicant is the publisher of "The Sport Star Magazine". The non applicant has published a figure on page 36 and in month of 8 March, 1997, of Indian Flag alongwith V. Anand and Veselin Topalov those are the "Satranj" players.
That, in above said figure of the said magazine, the Indian Flag placed in wrong way, therefore, the green colour of the Indian Flag is in upper side and the "Kesharia" colour is in down word side which is against the law and is violating "The Prevention of Insults to National Honour Act, 1971.
12. The perusal of the above paragraphs would dmake it clear that the Indian Flag was placed upside down in the Tournament took place on 8-3-1997 in which Chess was placed by V. Anand and Veselin Topalov and the said figure was published by the Publisher, the petitioner herein.
13. In paragraph 4 of the complaint, the complainant would state that the said figure of the Indian Flag which was placed upside down was published by the petitioner in his Magazine, thereby the Publisher caused dishonour and insult to the Indian Flag and Nation.
14. In short, it is the case of the complainant that the publication of the photograph displaying the event which took place in a foreign countiy where the Indian Flag was placed upside down while the Indian player and the foreign player were playing would amount to offence under the Act. Thus, it is clear that it is not the case of the complainant that the Indian Flag was placed by the Publisher in a wrong way or upside down.
15. On going through the article, which is the material on the basis of which complaint has been filed, it is clear that initially the Indian Flag was kept upside down, but the same was corrected by the Organisers within a few minutes. This is only an information disseminated through the press.
16. For placing Indian Flag upside down, it cannot be stated that the Publisher was in any way responsible. On the other hand, the mistake committed by the Organisers of the Tournament was clearly displayed and depicted through the photograph informing the reading public that the mistake committed by the Organisers in placing the Indian Flag in a wrong way at the beginning stage has been corrected by them even in the middle of the play.
17. Moreover, the writer of the article also would express his opinion that "when Indian Flag was placed upside down, the Indian player Anand did not play well, but once this was corrected, the Indian player started to' play well and won two games". This opinion given by the writer of the article would indicate that the players can play well only when the National Flag is placed in the correct way. Therefore, the publication of the photograph and writing the article about it giving the above opinion would not amount to insult to the National Flag. On the other hand, it is the warning to the Organisers not to place the Indian Flag upside down.
18. It would also indicate that when the, Indian players play in foreign countries, they have to verify whether the Indian Flag placed in the Chess Table is in a correct way and thereafter, they have to play and only then, play would be a fair play and they would also play well.
19. The photograph and the opinion given in the article by the writer in my view,, is to impress upon the players as well as the Organisers of the Tournament that at least in the future, the Flags of the respective countries must be placed in a correct way and proper placement of the National Flag only would pave the way for the proper play. Therefore, this is only a comment by the press which indicates the importance of the honour to be given to the National Flag.
20. Under those circumstances, this publication of the photograph and the events which took place in the foreign country while the Chess was played, along with the opinion of the writer of the article, would not attract any ingredients of Section 2 of the Act.
21. Furthermore, freedom of the press; expressing opinion on a particular event cannot be curtailed, since the said freedom is the heart of social and political intercourse. Though the expression "freedom of the press" has not been used in Article 19, it is comprehended within Article 19(1)(a). This expression means a freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers.
22. There cannot be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing the facts and opinion. It is the primary duty of the courts to uphold the freedom of the press.
23. Article 19(l)(a) means the right to express one's opinion by word of mouth, writing, printing, picture or in any other manner. It would thus include the freedom of communication and the right to propagate or publish opinion. The communication of ideas could be made through any medium, namely newspaper, magazine or movie.
24. The special treatment given to the newspapers has a philosophy and historical background. Freedom of press has been placed on a higher footing than other enterprises. Freedom of press has always been a cherished right. 25. The newspapers not only purvey news but also ideas, opinions and ideologies besides much else. They are supposed to guard public interest by bringing to fore the misdeeds, the failings and lapses of various bodies exercising governing power. Rightly, therefore, it has been described as the Fourth Estate.
26. The freedom of speech and expression includes right to acquire information and to disseminate it. The freedom of expression is necessary for self-expression which is an important means of free conscience and self-fulfilment.
27. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without any interference.
28. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution. Therefore, the Courts' must be ever vigilant in self-guarding this right of freedom of expression of opinion by the press because this is most precautious of all the freedoms guaranteed by our Constitution.
29. Freedom of expression which is legitimate and constitutionally protected, cannot be held to be ransom by an intolerant group of people. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself.
30. The guiding principles relating to the freedom of press have been given in detail in these judgments :--
(1) Secretary, Ministry of I.andB. v. Cricket Association of Bengal (1995) 2 SCC 161 : (AIR 1995 SC 1236);
(2) S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574;
(3) Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748;
(4) R. Rajagopal v. State ofT.N., AIR 1995 SC 264;
(5) Express Newspapers Pvt. Ltd. v. Union of India, AIR 1986 SC 872;
(6) Printers (Mysore) Ltd. v. Asstt. Commercial Tax Officer (1994) 2 SCC 434.
31. In the light of the above principles, the publication of the photograph and the opinion given by the writer of the article is well within the rights of the press as it conveys only its freedom of expression. In my opinion, this Sportstar Magazine has done its Dharmie Duty in expressing its correct opinion.
32. In view of the above discussion, the proceedings are liable to be quashed and accordingly, the same are quashed. Thus, the petition is allowed. Consequently, connected Crl. M. Ps. are closed.