The term Fourth Estate or fourth power refers to the press and news media both in explicit capacity of advocacy and implicit ability to frame political issues. Though it is not formally recognized as a part of a political system, it wields significant indirect social influence.

Article 19(1) (a) grants every citizen Freedom of Speech and Expression.

We hear in News Channel debate that in Mumbai police is using British Era Act. That is The Police (Incitement to Dissatisfaction) Act,1922 ( the said 1922 Act) It was a news for any lawyer. Justice M.C.Chagla had said, there are so many laws in India , that we also come to know when it is argued by an Advocate before us. This was relating to Rationing Law. Under the circumstances its necessary to read and understand the views of the Courts after Independence.

 Its relevant for us to study and understand the law and its effectiveness.

1. Short title, extent and commencement.—

(1) This Act may be called the Police (Incitement to Disaffection) Act, 1922.

 [(2) It extends to the whole of India, except [the territories which immediately before 1st November, 1956, were comprised in Part B States].]

(3) It shall come into force in any State or part of a State on such date as the State Government may, by notification in the Official Gazette, direct. State amendments Andhra Pradesh.—In sub-section (2) of section 1, after the expression ‘except the territories which immediately before the 1st November, 1956 were comprised in Part B States’ add ‘other than the territories specified in sub-section (1) of section 3 of the States Reorganisation Act, 1956’. [Vide Andhra Pradesh Act 23 of 1958, sec. 3 and Sch. (1-2-1960)] Madhya Pradesh.—In section 1—

(i) in sub-section (2), after ‘Part B States’, add ‘other than the Madhya Bharat and Sironja regions of the State of Madhya Pradesh’;

(ii) for sub-section (3), substitute the following:— “(3) It shall be in force in all such areas in Madhya Pradesh in which it was in force immediately before the commencement of Madhya Pradesh Second Extension of Laws Act, 1961 (40 of 1961), and shall come into force in other areas, on such date as the State Government may, by notification, appoint”. [Vide Madhya Pradesh Act 40 of 1961 First Schedule, Part A, Item 5.] Maharashtra, Gujarat.—In its application to the State of Maharashtra in section 1.—

(i) To sub-section (2), add the following proviso:— “Provided that on the commencement of the Police (Incitement to Disaffection) (Bombay Extension and Amendment) Act, 1958, it shall extend to the Saurashtra and Hyderabad areas of the State of Bombay”.

(ii) To sub-section (3), add the following proviso:— “Provided that on the commencement of the Police (Incitement to Disaffection) (Bombay Extension and Amendment) Act, 1958, it shall come into force in that part of the Saurashtra area of the State of Bombay in which the Police (Incitement to Disaffection) Act, 1922, as modified and applied to that area by the State of Saurashtra (Application of Central and Bombay Acts) Ordinance, 1948, was in force immediately before such commencement.” [Vide Bombay Act 77 of 1958, sec. 3 (7-10-1958): Act 11 of 1960, sec. 87 (1-5-1960)]

(Meghalaya) —In section 1 omit the sub-section (3) [Vide Meghalaya A.L.O. (No. 1) of 1974, Sch. (w.r.e.f. 21-1-1972)] Tamil Nadu.—In its application to the added territories in the State of Madras, in sub-section (2) of section 1, omit ‘other than the territories specified in sub-section (1) of section 3 of the State Reorganisation Act, 1956’. [Vide Madras (Ad Terr.) A.L.O. 1961]

2. Definition.—In this Act, the expression “member of a police-force” means any person appointed or enrolled for the performance of police duties under any enactment specified in the Schedule.

3. Penalty for causing disaffection, etc.—Whoever, intentionally causes or attempts to cause, or does any act which he knows is likely to cause disaffection towards 4 [***] the Government establishment by law in 5 [India] amongst the members of a police-force, or induces or attempts to induce or does any act which he knows is likely to induce, any member of a police-force to withhold his services or to commit a breach of discipline, shall be punished with imprisonment which may extend to six months, or with fine which may extend to two hundred rupees, or with both.

Explanation.—Expression of disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, or of disapprobation of the administrative or other action of the Government, do not constitute an offence under this section unless they cause or are made for the purpose of causing or are likely to cause disaffection. state amendment

(Maharashtra) —(a) Section 3 renumbered as sub-section (1) thereof and in sub-section (1) so renumbered for the portion beginning with the words “shall be punished” and ending with the words “or with both” the following portion substituted, namely:— “shall, on conviction, be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees or with both: Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than six months and such time shall not be less than five hundred rupees”.

(b) After sub-section (1) of section 3 add the following sub-section (2), namely:— “(2) All offences under this Act shall be cognisable and non-bailable”. [Vide Maharashtra Act 23 of 1983, sec. 2 (w.r.e.f. 18-1-1983)]

4. Saving of acts done by police associations and other persons for certain purposes.—Nothing shall be deemed to be an offence under this Act which is done in good faith.—

(a) for the purposes of promoting the welfare or interest of any member of a police-force by inducing him to withhold his services in any manner authorised by law; or

(b) by or on behalf of any association formed for the purpose of furthering the interests of members of a police-force as such where the association has been authorised or recognised by the Government and the act done is done under any rules or articles of association which have been approved by the Government. state amendment Madhya Pradesh.—After section 4 insert the following section, namely:— “4A. Offences to be cognizable and non-bailable.—(1) Every offence under this Act shall be cognizable and non-bailable.

Comments on the provisions of the Act,1922:

Above are relevant provisions of the Act. If you see the frame and language of the Act, it does not define “cause disaffection” towards the Government. Hence its vague and critically depend on the discretion of the Court. However there is an Explanation to this Section which says that, Expression of disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, or of disapprobation of the administrative or other action of the Government, do not constitute an offence under this section unless they cause or are made for the purpose of causing or are likely to cause disaffection.

Now let us study relevant Judgments on the subject:

Indulal K. Yagnik vs State  decided on 18 November, 1959 by Bombay High Court This is very important case on the subject under reference.

Observation made: “it is not possible to sustain the argument that the restriction imposed on by Section 3 of the Act is unlimited”

Para13 of the Judgment Reads as under:

The Explanation to Section 3 thus exempts from the purview of Section 3 all expressions of disapprobation of the measures of Government and its administrative actions made with a view to have them altered by lawful means unless they cause or are made for the purpose of causing or are likely to cause disaffection. Likewise Under Section 4 an act would not be an offence if it were done in good faith, for the purpose of promoting the welfare or interests of a member of a police-force even if it amounts to inducing him to withhold his services provided it is done in a manner authorised by law or if it is done by or on behalf of an association where such association is recognised by Government “and the act is done under the rules of such association approved by Government. Thus the freedom of the right of the speech and expression is curtailed to a limited extent in so far as it is used to cause disaffection in reference not to all persons as in the case of Section 124-A of the Penal Code but to a limited and special class of persons, namely, the members of police force. The right of speech to constables also is not curtailed in general but with reference the certain aspects only and for limited purposes, namely, against causing disaffection against Government. Even the extent of that restriction is limited by the Explanation to Section 3 and the provisions of Section 4 of the Act. It would not, therefore, be objectionable for a person to communicate his view which disapprove the measures of Government, both administrative and otherwise, with a view to have them changed by lawful means and which are not communicated for the purpose of causing disaffection, and similarly things done in good faith with the object of ameliorating the interests and the conditions of a member of the police force are not objectionable. Even inducing a constable to withhold his services in a manner authorised by law by an individual or by or on behalf of an association recognised by Government would not fall within the mischief of Section 3 of the Act. In the light of the circumscribed scope of Section 3 of the impugned Act, it is not possible to sustain the argument that the restriction imposed on by Section 3 of the Act is unlimited or that it would include in its purview even innocent expressions of disapprobation against Government or its measures or the conditions of service of the constabulary.

Jackson (96 U.S. 727) and Lovell v.  City  of Griffin (303 U.S. 444)

Freedom of speech and expression includes freedom propagation  of ideas and that freedom is  ensured  by  the freedom of circulation.  Ex-parte 

Right to Circulation:

Leading case on this issue is Romesh Thapar vs The State Of Madras on 26 May, 1950. It was held by Full Bench that, there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. “Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value ” It is therefore perfectly clear that the order of the Government of Madras would be a violation of the petitioner’s fundamental right under article 19 (1) (a), unless section 9 (1-A) of the impugned Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 which (omitting immaterial words regarding laws relating to libel, slander, etc., with which we are not concerned in this case) saves the operation of any “existing law in so far as it relates to any matter which undermines the security of, or tends to overthrow, the State.”

Court further while emphasizing Tilaks Case noted that, “emphatically reaffirmed the view expressed in Tilak’s case (1) to the effect that “the offence “consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small ” King Emperor v. Sadashiv Narayan Bhalerao (2) Deletion of the word “sedition” from the draft article 13 (2), therefore, shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. It is also significant that the corresponding Irish formula of “undermining the public order or the authority of the State” article 40 (6) (i) of the Constitution of Eire, [1937] did not apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was “the leading spirit in the preparation of the First Amendment of the Federal Constitution,” that “it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.”: [Quoted in Near v. Minnesotta ]. We are therefore of opinion ‘that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19…”

Law and Order :

The distinction between violation of ‘law and order’ and an act that would constitute disturbing the maintenance of ‘public order’ had fallen for consideration of the Hon’ble Supreme Court in State of U.P. & Anr. V. Sanjay Pratap Gupta @ Pappu and others reported in 2004 (8) SCC 591, where the Apex Court after an extensive survey of authority on the issue brought out the distinction in fine detail thus:-

“12. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different.

13. The two concepts have well-defined contours, it being well established that stray and unorganized crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. Law and order represents the largest scale within which is the next circle representing public order and the smallest circle represents the security of State. “Law and order” comprehends disorders of less gravity than those affecting “public order” just as “public order” comprehends disorders of less gravity than those affecting “security of State”. (See Kuso Sah v. State of Bihar 1974 1 SCC 185, Harpreet Kaur v. State of Maharashtra 1992 2 SCC 177, T.K Gopal Alias Gopi v. State of Karnataka 2000 6 SCC 168 and State of Maharashtra v. Mohd. Yakub 1980 2 SCR 1158.)

14. The stand that a single act cannot be considered sufficient for holding that public order was affected is clearly without substance. It is not the number of acts that matters. What has to be seen is the effect of the act on the even tempo of life, the extent of its reach upon society and its impact.”

When an offence ?

Supreme Court in Vijaya Rao v. State of Rajasthan and another it has was held that mere reference to the expressions mentioned in the provision would not disclose commission of an offense, when the ingredients constituting the offense in question are conspicuously lacking. In the facts of the present case, merely because in the first information reports, it has been stated that the articles in question have been published with the intention to cause hatred against senior police officers of the State Government established by law and that the same have been published as an attempt to cause contempt and hatred against the State Government, the same would not fall within the ambit of section 124A IPC or section 3 of the Police (Incitement to Disaffection) Act, 1922, when the ingredients for constitution of an offense under section 124A IPC and section 3 of the said Act are woefully lacking.

Freedom of Speech:

Bharat vs State on 18 April, 2012 Gujarat High Court

it is a settled legal position that a citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with intention of creating public disorder. The allegations made in the first information reports have to be viewed in the light of the principles enunciated in the above referred decisions of the Supreme Court as well as this High Court.

Investigation during trial by media when person arrested:

Saibal Kumar Gupta And Others vs B. K. Sen And Another on 13 January, 1961 Hon’ble Supreme Court dealt with such case

Facts: The first respondent, the then Commissioner of the  Corporation  of  Calcutta,  was after a  protracted  trial  for  an alleged  offence  under s. 497 of  the    Indian Penal         Code discharged by the Magistrate under s. 253(1) of the Code  of Criminal  Procedure.  The Sessions judge, on a         petition  in revision  filed  by the complainant, holding that  the   said Respondent  had        suborned the  complainants  witnesses,  set-aside the order of discharge and directed further enquiry by another    Magistrate who permitted the complainant to  tender further     evidence.  The Respondent moved the High  Court  in revision  and  a  Division Bench issued a  Rule   and  stayed further  proceedings.      While the matter  was  thus  pending before         the  High Court, the Corporation of  Calcutta  by  a resolution  appointed  the  three appellants  members  of  a Special Committee Held  (per  Imam  and Raghubar Dayal,  JJ.,  Subba  Rao,  J.dissenting), that the appellants were not guilty of contempt of Court and the appeal must succeed. It could not be said that the Special Committee had  constituted  itself  a court of parallel enquiry  with  regard  to matters     in issue either before the trial Magistrate or  the High Court. There  can be no comparison between the present case  and  a trial conducted by a newspaper. The  Special  Committee was directed by the  Corporation  to enquire     into  malpractices on the part   of  its  employees, necessarily   including  unworthy  appointments,   and the ascertainment of the motive could only be incidental to  the main  purpose  of  the enquiry and could  not  lead  to the conclusion that the Special Committee was holding a parallel enquiry on  matters pending before the  Court and  thereby intended to interfere with the course of justice.The record clearly showed that the appellants had at no time intended  to interfere with the course of justice,  nor had their  conduct tended to do so.   They had taken care not  to comment on any proceedings pending in I court or the  issues arising out of them.

This concept of judicial superiority was not endorsed by Lord Dilhorne. Even in United States the judiciary has been of the view that the court cannot function properly if a reporting is calculated to disturb the judicial mind. In John D. Pennekamp vs. State of Florida, it was observed,

“No Judge fit to be one is likely to be influenced consciously, except by what he see or hears in court and by what is judicially appropriate for his deliberations. However, Judges are also human and we know better than did our forbears how powerful is the pull of the unconscious and how treacherous the rational process—and since Judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print.”

In M.P. Lohia vs. State of West Bengal the Supreme Court has strongly deprecated the media for interfering with the administration of justice by publishing one-sided articles touching on merits of cases pending in the courts. Pointing out that the article was a one-sided version of the case, N. Santosh Hedge Justice said that the facts narrated therein are materials that may be used in the forthcoming trial in this case and that this type of article appearing in the media would certainly interfere with the administration of justice. He remarked-

“We deprecate this practice and caution the Publisher, Editor and the journalist who are responsible for the said articles against indulging in such trial by media when the issue is sub-judice. Others concerned in journalism would take note of this displeasure expressed by us for interfering with the administration of justice.”

Aniruddha Bahal vs State on 24 September, 2010 Delhi High Court held that, It is obligatory on the part of police to investigate into the crime in full and not in a piecemeal manner. The police is directed to book all those persons involved in the offence of taking bribe, their middlemen and to get them punished according to law. The police cannot book only the middlemen and the media persons and leave the real recipients of bribe untouched. If this is done, this would not only violate the principle of equality before law guaranteed under the Constitution of this Country but also would reflect subservient character of criminal justice system. This would also give a cause to the people to behave that giving and taking of bribe is a privilege of Members of Legislature”.

I consider that it is a fundamental right of citizens of this country to have a clean incorruptible judiciary, legislature, executive and other organs and in order to achieve this fundamental right, every citizen has a corresponding duty to expose corruption wherever he finds it, whenever he finds it and to expose it if possible with proof so that even if the State machinery does not act and does not take action against the corrupt people when time comes people are able to take action either by rejecting them as their representatives or by compelling the State by public awareness to take action against them.

In 1988 (2) SCC 602 (Antulay’s case), Justice Sabyasachi Mukharji observed as under:

“Values in public life and perspective of these values in public life, have undergone serious changes and erosion during the last few decades. What was unheard of before is common place today. A new value orientation is being undergone in our life and in our culture. We are at the threshold of the cross-roads of values. It is, for the sovereign people of the country to settle those conflicts yet the Courts have vital roles to play in such matters.”


These are some excerpts and few points. This is vast subject and it depends upon facts of the case. There are not much cases where media is punished or penalized under the said 1922 Act. But where authorities fail to deliver justice, some independent machinery which is forth estate must speak up for rights of Citizens, within parameters of the Constitutional provisions.

Shruti Desai

28th October,2020