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A.N. RAY J. – These petitions challenge the Import Policy for Newsprint for the year April,
1972 to March, 1973. The Newsprint Policy is impeached as an infringement of fundamental
rights to freedom of speech and expression in Article 19(1)(a) and right to equality in Article
14 of the Constitution. Some provisions of the Newsprint Control Order, 1962, are challenged
as violative of Article 19(1)(a) and Article 14 of the Constitution.
- The Newsprint Control Order, 1962 (1962 Newsprint Order) is made in exercise of
powers conferred by Section 3 of the Essential Commodities Act, 1955. Section 3 of the Act
enacts that if the Central Government is of opinion that it is necessary or expedient so to do
for maintaining or increasing supply of essential commodities or for securing their equitable
distribution and availability at fair prices, it may, by order, provide for regulating or
prohibiting production, supply and distribution and trade and commerce therein. Section 2 of
the 1955 Act defines “essential commodity”. Paper including newsprint, paper board and
straw board is defined in Section 2 (a)(vii) of the 1955 Act to be an essential commodity. - The 1962 Newsprint Order in Clause 3 mentions restrictions on acquisition, sale and
consumption of newsprint. Sub-clause 3 of Clause 3 of the 1962 Newsprint Order states that
no consumer of newsprint shall, in any licensing period, consume or use newsprint in excess
of the quantity authorised by the Controller from time to time. Sub-clause 3-A of Clause 3 of
the 1962 Newsprint Order states that no consumer of newsprint, other than a publisher of textbooks or books of general interest, shall use any kind of paper other than newsprint except
with the permission, in writing, of the Controller. Sub-clause 5 of Clause 3 of the 1962
Newsprint Order states that in issuing an authorisation under this clause, the Controller shall
have regard to the principles laid down in the Import Control Policy with respect to newsprint
announced by the Central Government from time to time. Sub-clauses 3 and 3-A of Clause 3
of the 1962 Newsprint Order are challenged in these petitions on the ground that these clauses
affect the volume of circulation, the size and growth of a newspaper and thereby directly
infringe Article 19(1) (a) of the Constitution. The restrictions mentioned in these sub-clauses
of Clause 3 of the 1962 Newsprint Order are also said to be not reasonable restrictions within
the ambit of Article 19(2) of the Constitution. - Sub-clauses 3 and 3-A of Clause3 of the 1962 Newsprint Order are further impeached
on the ground that they offend Article 14 of the Constitution. Sub-clause 3-A is said to confer
unfettered and unregulated power and uncontrolled discretion to the Controller in the matter
of granting of authorisation. It is said that there are no provisions for redress of grievances by
way of appeal or revision of the Controller decision in the matter of grant or renewal of
authorisation. The restrictions are said to be not reasonable or justified in the interest of
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general public. The distinction between publishers of text-books and books of general interest
on the one hand and -other consumers of newsprint on the other in sub-clause 3-A is said to
be discriminatory and without any rational basis. Again, the disability imposed by sub-clause
3-A on newspapers preventing them from using printing and writing paper while permitting
all other consumers to do so, is said to be irrational discrimination between newspaper and
periodicals as the latter are permitted to use unlimited quantity of printing and writing paper
in addition to their allocation of newsprint. - The Newsprint Policy of 1972-73 deals with white printing paper (including waterlined newsprint which contained mechanical wood pulp amounting to not less than 78 per
cent. of the fibre content). Licences are issued for newsprint. The validity of licences is for 12
months. The Newsprint Policy defines “common ownership unit” to mean newspaper
establishment or concern owning two or more news interest newspapers including at least one
daily irrespective of the centre of publication and language of such newspapers. Four features
of the Newsprint Policy are called in question. These restrictions imposed by the Newsprint
Policy are said to infringe rights of freedom of speech and expression guaranteed in Article
19(1) (a) of the Constitution. First, no new paper or new edition can be started by a common
ownership unit even within the authorised quota of newsprint. Secondly, there is a limitation
on the maximum number of pages to 10. No adjustment is permitted between circulation and
the pages so as to increase the pages. Thirdly, no interchangeability is permitted between
different papers of common ownership unit or different editions of the same paper. Fourthly,
allowance of 20 per cent. increase in page level up to a maximum of 10 has been given to
newspapers with less than 10 pages. It is said that the objectionable and irrational feature of
the Newsprint Policy is that a big daily newspaper is prohibited and prevented from
increasing the number of pages, page area and periodicity by reducing circulation to meet its
requirement even within its admissible quota. In the Newsprint Policy for the year 1971-72
and the earlier periods the newspapers and periodicals were permitted to increase the number
of pages, page area and periodicity by reducing circulation. The current policy prohibits the
same. The restrictions are, therefore, said to be irrational, arbitrary and unreasonable. Big
daily newspapers having large circulation contend that this discrimination is bound to have
adverse effects on the big daily newspapers. - The Newsprint Policy is said to be discriminatory and violative of Article 14 because
common ownership units alone are prohibited from starting a new paper or a new edition of
the same paper while other newspapers with only one daily are permitted to do so. The
prohibition against interchangeability between different papers of the same unit and different
editions of the said paper is said to be arbitrary and irrational, because it treats all-common
ownership units as equal and ignores pertinent and material differences between some
common ownership units as compared to others. The 10 page limit imposed by the policy is
said to violate Article 14 because it equates newspapers which are unequal and provides the
same permissible page limit for newspapers which are essentially local in their character and
newspapers which reach larger sections of people by giving world news and covering larger
fields. The 20 per cent. increase allowed for newspapers, whose number of pages was less
than 10 is also challenged as violative of Article 14 by discriminating against newspapers
having more than 10 pages. The difference in entitlement between newspapers with an
average of more than 10 pages as compared with newspapers of 10 or less than 10 pages is
said to be discriminatory because the differentia is not based on rational incidence of
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classification.10. The Additional Solicitor-General raised the plea that the petitioners were
companies and therefore, they could not invoke fundamental rights. - This Court in State Trading Corporation of India Ltd. v. The Commercial Tax
Officer, Visakhapatnam [(1964) 4 SCR 99] and Tata Engineering and Locomotive Co. v.
State of Bihar [AIR 1965 SC 40] expressed the view that a corporation was not a citizen
within the. meaning of Article 19 and, therefore, could not invoke that article. The majority
held that nationality and citizenship were distinct and separate concepts. The view of this
Court was that the word “citizen” in Part II and in Article 19 of the Constitution meant the
same thing. The result was that an incorporated company could not -be a citizen so as to
invoke fundamental rights. In the State Trading Corporation case the Court was not invited
to “tear the corporate veil”. In the Tata Engineering and Locomotive Co. case this Court said
that a company was distinct and separate entity from shareholders. The corporate veil it was
said could be lifted in cases where the company is charged with trading with the enemy or
perpetrating fraud on the Revenue authorities. - There are however decisions of this Court where relief has been granted to the
petitioners claiming fundamental rights as shareholders or editors of newspaper companies. - In Express Newspapers case, the Express Newspapers (Private) Ltd. was the
petitioner in a writ petition under Article 32. The Press Trust of India Limited was another
petitioner in a similar writ petition. The Indian National Press (Bombay) Private Ltd.
otherwise known as the “Free Press Group” was a petitioner in the third writ petition. The
Saurashtra Trust was petitioner for a chain of newspapers in another writ petition. The
Hindustan Times Limited was another petitioner. These petitions in the Express Newspapers
case challenged the vires of the Working Journalists (Conditions of Service) and
Miscellaneous Provisions Act, 1955. The petitioners contended that the provisions of the Act
violated Articles 19(l)(a), 19(1)(g) and 14 of the Constitution. - In the Express Newspaper case, this Court held that freedom of speech and
expression includes within its scope the freedom of the Press. This Court referred to the
earlier decisions in Romesh Thappar v. State of Madras [1950 SCR 594] and Brij Bhushan
v. State of Delhi [AIR 1950 SC 129]. Romesh Thappar case related to a ban on the entry
and circulation of Thapper’s journal in the State of Madras under the provisions of the
Madras Maintenance of Public Order Act, 1949. Patanjali Sastri, J. speaking for the Court
said in Romesh Thappar case that “there can be no doubt that the 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 publication would be of little value”. In Brij Bhusan
case Patanjali Sastri, J. speaking for the majority judgment again said that “every free man
has undoubted right to lay what sentiments he pleases before the public; to forbid this, is to
destroy the freedom of the press”. Bhagwati, J. in the Express Newspapers case speaking for
the Court said that the freedom of speech and expression includes freedom of propagation of
ideas which freedom is ensured by the freedom of circulation and that the liberty of the press
is an essential part of the right to freedom of speech and expression and that the liberty of the
press consists in allowing no previous restraint upon publication. - Describing the impugned Act in the Express Newspapers case as a measure which
could be legitimately characterised to affect the press this Court said that if the intention or
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the proximate effect and operation of the Act was such as to bring it within the mischief of
Article 19(1)(a) it would certainly be liable to be struck-down. But the Court found in the
Express Newspapers case that the impugned measures were enacted for the benefit of the
working journalists and it was, therefore, neither the intention nor the effect and operation of
the impugned Act to take away or abridge the right of freedom of speech and expression
enjoyed by the petitioners. There are ample observations of this Court in the Express
Newspapers case to support the right of the petitioner companies there to invoke fundamental
right in aid of freedom of speech and expression enshrined in the freedom of the press. This
Court said that if the impugned measure in that case fell within the vice of Article 19(1)(a) it
would be struck down. This observation is an illustration of the manner in which the truth and
spirit of the freedom of press is preserved and protected. - In the present case, the petitioners in each case are in addition to the company the
shareholders, the editors and the publishers. In the Bennett Coleman group of cases one
shareholder, a reader of the publication and three editors of the three dailies published by the
Bennett Coleman Group are the petitioners. In the Hindustan Times case a shareholder who
happens to be a Deputy Director, a shareholder, a Deputy Editor of one of the publications,
the printer and the publisher of the publications and a reader are the petitioners. In the
Express Newspapers case the company and the Chief Editor of the dailies are the petitioners.
In the Hindu case a shareholder, the Managing Editor, the publisher of the company are the
petitioners. One of the important questions in these petitions is whether the shareholder, the
editor, the printer, the Deputy Director who are all citizens and have the right to freedom
under. Article 19(i) can invoke those rights for freedom of speech and expression, claimed by
them for freedom of the press in their daily publication. The petitioners contend that as a
result of the Newsprint Control Policy of 1972-73 their freedom of speech and expression
exercised through their editorial staff and through the medium of the publications is infringed.
The petitioners also challenge the fixation of 10-page ceiling and the restriction on circulation
and growth on their publications to be not only violative of but also to abridge and take away
the freedom of speech and expression of the shareholders and the editors. The shareholders,
individually and in association with one another represent the medium of newspapers through
which they disseminate and circulate their views and news. The newsprint policy exposes
them to heavy financial loss and impairs their right to carry on the business of printing and
publishing of the dailies through the medium of the companies. - In R. C. Cooper v. Union of India [(1970) 3 SCR 530], which is referred to as the
Bank Nationalisation case, Shah, J., speaking for the majority dealt with the contention
raised about the maintainability of the petition. The petitioner there was a shareholder, a
Director and holder of deposit of current accounts in the Bank. The locus standi of the
petitioner was challenged on the ground that no fundamental right of the petitioner there was
directly impaired by the enactment of the Ordinance and the Act or any action taken
thereunder. The petitioner in the Bank Nationalisation case claimed that the rights
guaranteed to him under Articles 14, 19 and 31 of the Constitution were impaired. The
petitioners grievances were these. The Act and the Ordinance were without legislative
competence. The Act and the Ordinance interfered with the guarantee of freedom of trade.
They were not made in public interest. The President had no power to promulgate the
Ordinance. His right to receive dividends ceased. He suffered financial loss. He was deprived
of the right as a shareholder to carry on business through the agency of the company.
238 - The ruling of this Court in Bank Nationalisation case was this:
“A measure executive or legislative may impair the rights of the company alone, and
not of its shareholders; it may impair the rights of the shareholders and not of the
Company; it may impair the rights of the shareholders as well as of the company.
Jurisdiction of the Court to grant relief cannot be denied, when by State action the
rights of the individual shareholder are impaired, if that action, impairs the rights of
the Company as well. The test in determining whether the shareholder’s right is
impaired is not formal; it is essentially qualitative; if the State action impairs the right
of the shareholders as well as of the Company, the Court will not, concentrating
merely upon the technical operation of the action, deny itself jurisdiction to grant
relief.” - In the Bank Nationalisation case, this Court held the statute to be void for infringing
the rights under Articles 19(1)(f) and 19(1)(g) of the Constitution. In the Bank Nationalistion
case, the petitioner was a shareholder and a director of the company which was acquired
under the statute. As a result of the Bank Nationalisation case, it follows that the Court finds
out whether the legislative measure directly touches the company of which the petitioner is a
shareholder. A shareholder is entitled to protection of Article 19. That individual right is not
lost by reason of the fact that he is a shareholder of the company. The Bank Nationalisation
case has established the view that the fundamental rights of shareholders as citizens are not
lost when they associate to form a company. When their fundamental rights as shareholders
are impaired by State action their rights as shareholders are protected. The reason is that the
shareholders’ rights are equally and necessarily affected if the rights of the company are
affected. The rights of shareholders with regard to Article 19(1)(a) are projected and
manifested by the newspapers owned and controlled by the shareholders through the medium
of the corporation. In the present case, the individual rights of freedom of speech and
expression of editors. Directors and shareholders are all exercised through their newspapers
through which they speak. The press reaches the public through the newspapers. The
shareholders speak through their editors. The fact that the companies are the petitioners does
not prevent this Court from giving relief to the shareholders, editors, printers who have asked
for protection of their fundamental rights by reason of the effect of the law and of the action
upon their rights. The locus standi of the shareholder petitioners is beyond challenge after the
ruling of the Supreme Court in the Bank Nationalisation case. The presence of the company
is on the same ruling not a bar to the grant of relief. - The petitioners challenged the validity of the 1972-73 newsprint policy.
- The power of the Government to import newsprint cannot be denied. The power of
the Government to control the distribution of newsprint cannot equally be denied. It has, of
course, to be borne in mind that the distribution must be fair and equitable. The interests of
the big, the medium and the small newspapers are all to be taken into consideration at the
time of allotment of quotas. In the present case, there was some dispute raised as to whether
there should be more import of newsprint. That is a matter of Government policy. This Court
cannot adjudicate on such policy measures unless the policy is alleged to be mala fide.
Equally, there was a dispute as to the quantity of indigenous newsprint available for
newspapers. This Court cannot go into such disputes.
239 - Article 19(1)(a) provides that all citizens shall have the right to freedom of speech
and expression. Article 19(2) states that nothing in sub-clause (a) of clause (1) shall affect the
operation of any existing law, ‘Or prevent the State from making any law, insofar as such law
imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in
the interests of the security of the State; friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an
offence. Although Article 19(l)(a) does not mention the freedom of the Press, it is the settled
view of this Court that freedom of speech and expression includes freedom of the Press and
circulation. - In the Express Newspapers case, it is said that there can be no doubt that liberty of
the Press is an essential part of the freedom of speech and expression guaranteed by Article
19(1) (a). The Press has the right of free propagation and free circulation without any
previous restraint on publication. If a law were to single out the Press for laying down
prohibitive burdens on it that would restrict the circulation, penalise its freedom of choice as
to personnel, prevent newspapers from being started and compel the press to Government aid.
This would violate Article 19(1)(a) and would fall outside the protection afforded by Article
19(2). - In Sakal Papers case, it is said that the freedom of speech and expression guaranteed
by Article 19(1)(a) gives a citizen the right to propagate and publish his ideas to disseminate
them, to circulate them either by words of mouth or by writing. This right extends not merely
to the matter it is entitled to circulate but also to the volume of circulation. In Sakal Papers
case the Newspaper (Price and Page) Act, 1956 empowered the Government to regulate the
prices of newspapers in relation to their pages and sizes and to regulate the allocation of space
for advertisement matter. The Government fixed the maximum number of pages that might be
published by a newspaper according to the price charged. The Government prescribed the
number ‘of supplements that would be issued. This Court held that the Act and the Order
placed restraints on the freedom of the press to circulate. This Court also held that the
freedom of speech could not be restricted for the purpose of regulating the commercial
aspects of activities of the newspapers. - Publication means dissemination and circulation. The press has to carry on its activity
by keeping in view the class of readers, the conditions of labour, price of material, availability
of advertisements, size of paper and the different kinds of news comments and views and
advertisements which are to be published and circulated. The law which lays excessive and
prohibitive burden which would restrict the circulation of a newspaper will not be saved by
Article 19(2). If the area of advertisement is restricted, price of paper goes up. If the price
goes up circulation will go down. This was held in Sakal Papers case to be the direct
consequence of curtailment of advertisement. The freedom of a newspaper to publish any
number of pages or to circulate it to any number of persons has been held by this Court to be
an integral part of the freedom of speech and expression. This freedom is violated by placing
restraints upon it or by placing restraints upon something which is an essential part of that
freedom. A restraint on the number of pages, a restraint on circulation and a restraint on
advertisements would affect the fundamental rights under Article 19(1)(a) on the aspects of
propagation, publication and circulation.
240 - The Additional Solicitor-General contended that the newsprint policy did not violate
Article 19(1)(a). The reasons advanced were these. The newsprint policy does not directly
and immediately deal with the right mentioned in Article 19(1)(a). The test of violation is the
subject-matter and not the effect or result of the legislation. If the direct object of the
impugned law or action is other than freedom of speech and expression Article 19(1)(a) is not
attracted though the right to freedom of speech and expression may be consequentially or
incidentally abridged. The rulings of this Court in Express Newspapers case and Hamdard
Dawakhana case were referred to. In the Express Newspapers case, the Act was said to be a
beneficent legislation intended to regulate the conditions of service of the working journalists.
It was held that the direct and inevitable result of the Act could not be said to be taking away
or abridging the freedom of speech and expression of the petitioners. In the Hamdard
Dawakhana case the scope and object of the Act and its true nature and character were found
to be not interference with the right of freedom of speech but to deal with trade or business.
The subject-matter of the import policy in the present case was rationing of imported
commodity and equitable distribution of newsprint. The restrictions in fixing the page level
and circulation were permissible as directions, which were considered necessary in order to
see that the imported newsprint was properly utilised for the purpose for which the import
was considered necessary. Article 369 of the Constitution shows that rationing of and
distribution of quota of newsprint’ and regulation of supply is not a direct infringement of
Article 19(1)(a). The scarcity of newspapers (sic) justifies the regulation and the direction in
the manner of use. - This Court in the Bank Nationalisation case laid down two tests. First it is not the
object of the authority making the law impairing the right of the citizen nor the form of action
that determines the invasion of the right. Secondly, it is the effect of the law and the action
upon the right which attracts the jurisdiction of the court to grant relief. The direct operation
of the Act upon the rights forms the real test. - The various provisions of the newsprint import policy have been examined to indicate
as to how the petitioners fundamental rights have been infringed by the restrictions on page
limit, prohibition against new newspapers and new editions. The effect and consequence of
the impugned policy upon the newspapers is directly controlling the growth and circulation of
newspapers. The direct effect is the restriction upon circulation of newspapers. The direct
effect is upon growth of newspapers through pages. The direct effect is that newspapers are
deprived of their area of advertisement. The direct effect is that they are exposed to financial
loss. The direct effect is that freedom of speech and expression is infringed. - The Additional Solicitor-General contended that a law which merely regulates even
directly the freedom of the press is permissible so long as there is no abridgement or taking
away of the fundamental rights of citizens. He leaned heavily on American decisions in
support of the submission that the right of the press of free expression is of all citizens
speaking, publishing and printing in all languages and the grave concern for freedom of
expression which permitted the inclusion of Article 19(1) (a) is not to be read as a command
that the Government or Parliament is without power to protect that freedom. The
Constitutional guarantees of freedom of speech and expression are said by the Additional
Solicitor-General to be not so much for the benefit of the press as for the benefit of all people.
In freedom of speech, according to the Additional Solicitor-General, is included the right of
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the people to read and the freedom of the press assures maintenance of an open society. What
was emphasised on behalf of the Government was that the freedom of the press did not
countenance the monopolies of the market. - It is indisputable that by freedom of the press is meant the right of all citizens to
speak, publish and express their views. The freedom of the press embodies the right of the
people to read. The freedom of the press is not antithetical to the right of the people to speak
and express. - Article 13 of our Constitution states that the State is prohibited from making any law
which abridges or takes away any fundamental rights. Again, Article 19(2) speaks of
reasonable restrictions on the exercise of fundamental rights to freedom of speech and
expression. Our Constitution does not speak of laws regulating fundamental rights. But there
is no bar on legislating on the subject of newspapers as long as legislation does not impose
unreasonable restrictions within the meaning of Article 19(2). Its also important to notice as
was done in earlier decisions of this Court that our Article 19(l)(a) and the First Amendment
of the American Constitution are different. The First Amendment of the American
Constitution enacts that the Congress shall make no law … abridging the freedom of speech of
the press. The American First Amendment contains no exceptions like our Article 19(1) and
(2) of the Constitution. Therefore, American decisions have evolved their own exceptions.
Our Article 19(2) speaks of reasonable restrictions. Our Article 13 states that the State shall
not make laws which abridge or take away fundamental rights in Part III of the Constitution. - At this stage it is necessary to appreciate the petitioners’ contentions that the
newsprint policy of 1972-73 violates Articles 19(l)(a) and 14 of the Constitution. - The first grievance is about Remark V in the newsprint policy. Remark V deals with
dailies which are not above 10 pages and dailies over 10 pages. With regard to dailies which
are not above 10 pages the policy is that the computation of entitlement to newsprint is on the
basis of the actual newsprint consumption in 1970-71 or 1971-72 whichever is less. The
average circulation, the average number of pages and the average page area actually
published are all taken into consideration. The petitioners and in particular the Bennett
Coleman Group illustrated the vice of this feature in Remark V by referring to their
publications Maharashtra. Times, Nav Bharat Times and Economic Times. The average
circulation of these three publications in 1971-72 was higher than the average circulation in
1970-71. It is, therefore, said that Remark V which shows the basis of consumption to be the
lesser of the’ two years will affect their quota. The Government version is that the figure of
consumption in 1971-72 did not represent a realistic picture because of three principal events
during that year. These were the Bangladesh Crisis, the Indo-Pak War in 1971 and the
Elections. The petitioners say that the quota for 1971-72 was determined in April 1971 which
was prior to the occurrence of all the three events. Again, in the past when there was the SinoIndian Conflict in 1962 and the Indo-Pak War in 1965 the performance of the newspapers
during the years preceding those events was not ignored as was done in the impugned policy
for 1972-73. With regard to elections, the petitioners say that a separate additional quota has
been given. In the policies prior to 1971-72 the growth achieved in circulation as a result of
the grant of the additional quota for elections was taken into consideration in determining the
quota for the following year. The petitioners, therefore, contend that the policy in Remark V
instead of increasing circulation will result in the reduction of circulation. The petitioners are,
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in our judgment, right in their submission that this policy negatives the claim of the
Government that this policy is based on circulation. - With regard to dailies over 10 pages Remark V proceeds on the calculation of the
basic entitlement to be on an average of 10 pages and either the average circulation in 1970-
71 or the admissible circulation in terms of 1971-72 Newsprint Policy plus increases
admissible in terms of Remark VII whichever is more. - The dominant direction in the newsprint policy particularly in Remarks V and VIII is
that the page limit of newspapers is fixed at 10. The petitioners who had been operating on a
page level of over 10 challenge this feature as an infringement of the freedom of speech and
expression. - Remark V is therefore impeached first on the ground of fixation of 10 page ceiling
and secondly on the basis of allotment of quota. - In our view shortage of newsprint can stop with allotment. If the Government rests
content with granting consumers of newsprint a quantity equitably and fairly, the consumers
will not quarrel with the policy. The consumers of newsprint are gravely concerned with the
other features. - The maximum page level fixed at 10 and the prohibition against the adjustability
between pages and circulation are strongly impeached by the petitioners. These seven dailies
except Bombay Samachar are common ownership units. Some of them publish other leading
language dailies also. The maximum number of pages at 10 will, according to the petitioners,
not only adversely affect their profits but also deprive them If expressing and publishing the
quality of writings and fulfillment of the role to be played by the newspaper in regard to their
freedom of speech and expression. While it must be admitted that the language dailies should
be allowed to grow, the English dailies should not be forced to languish under a policy of
regimentation. It is therefore correct that the compulsory reduction to 10 pages offends article
19(1)(a) and infringes the rights of freedom of speech and expression. - It is further urged that the Government has fixed the quota on the basis of circulation
multiplied by pages. The Government has on the one hand compared the circulation of the big
dailies with the circulation of medium and small dailies and on the other has ignored the
difference in the number of pages of big dailies as compared to the number of pages of the
medium and the small dailies. The difference in pages coupled with the difference in
circulation affords a reason for difference in the percentage of total allocation given to the big
dailies as compared to the medium and the small dailies. The average number of pages for the
big dailies is 10.3, for the medium dailies 8.3, and for the small dailies 4.4. The percentage of
allocation for the big dailies reflects really the large number of pages they publish. The big
dailies therefore have not only larger requirements but also they render larger services to the
readers. The Newsprint Policy of fixing the page level at 10 is seeking to make unequals
equal and also to benefit one type of daily at the expense of another. - The historical reason given by the Government for fixing the maximum number of
pages at 10 is that the affect of the policy on allowing any page increase and circulation
increase from time to time has been to help the growth of the press. This is how newspapers
like Ananda Bazar Patrika, Jugantar and Deccan Herald are said to have come up. The
Government also relies on the recommendation of the newspaper proprietors in the year 1971
243
that eight pages should be considered the national minimum requirement for medium of
information. The big English dailies had the number of pages over 12 in 1957. Because of
adjustability between pages and circulation they had an actual page level which was higher
than the permissible page level of 1957. The petitioners say that this has not impeded the
growth of other papers. - The Government has sought to justify the reduction in the page level to 10 not only on
the ground of shortage of newsprint but also on the grounds that these big dailies devote high
percentage of space to advertisements and therefore the cut in pages will not be felt by them if
they adjusted their advertisement space. In our judgment the policy of the Government to
limit all papers at 10 pages is arbitrary. It tends to treat unequals as equals and discriminates
against those who by virtue of their efficiency, standard and service and because of their AllIndia statute acquired a higher page level in 1957. The main source of income for the
newspapers is from advertisements. The loss of revenue because of the cut in page level is
said to be over several lakhs of rupees. Even if there is a saving in raw material by cut in page
level there would be a revenue gap of a large sum of money. This gap could have .been partly
recouped by increasing the page level. The newspaper has a built-in mechanism.
Advertisements are not only the sources of revenue but also ‘one of the factors for circulation.
Once circulation is lost it will be very difficult to regain the old level. The advertisement rate
has undergone slight increase since 1972. As a result of the cut in page level the area for
advertisements is also reduced. - The estimated loss on account of reduction of page limit is Rs 39 lakhs in the case of
Bennett Coleman group, Rs 44 lakhs in the case of Hindustan Times and Rs 38 lakhs in the
case of the Hindu. If as a result of reduction in pages the newspapers will have to depend on
advertisements as their main source of income, they will be denied dissemination of news and
views. That will also deprive them of their freedom of speech and expression. On the other
hand, if as a result of restriction on page limit the newspaper will have to sacrifice
advertisements and thus weaken the link of financial strength, the organisation may crumble.
The loss on advertisements may not only entail the closing down but also affect the
circulation and thereby impinge on freedom of speech and expression. - The impeached policy violates Article 14 because it treats newspapers which are not
equal equally in assessing the needs and requirements of newsprint. The Government case is
that out of 35 newspapers which were operating on a quota calculated on a higher page level
than 10 pages 28 newspapers will benefit by the impeached policy of 1972-73. But seven
newspapers out .of 22 which were operating above 10 page level are placed at a disadvantage
by the fixation of 10 page limit and entitlement to quota on that basis. There is no intelligible
differentia. Nor has this distinction any relation to equitable distribution of newsprint. The
impeached policy also offends Article 19(1)(a) of the Constitution. Newspapers like 19
language dailies reduced their pages in order to increase circulation though such language
dailies had prior to 1972-73 been given quota to increase pages. Under the impeached policy
these language dailies are given additional quota to increase their pages against to 10. - The basic entitlement in Remark V to quota for newspapers operating above 10 page
level violates Article 19(1)(a) because the quota is hedged in by direction not to increase the
page number above 10. The reduction of page limit to 10 for the aforesaid reasons violates
Article 19(1)(a) and Article 14 of the Constitution.
244 - The other features in the newsprint policy complained of are those in Remark VII (c)
read with Remark VIII of the impeached policy. Remark VII (c) allows 20 per cent. increase
to daily newspapers in the number of pages within the ceiling of 10 over the average number
of pages on which the basic entitlement is fixed under Remark V. In other words, dailies with
less than 10 pages are prevented from adjusting the quota for 20 per .cent. increase for
increase in circulation. The Bennett Coleman group says that their Nav Bharat Times,
Maharashtra Times and Economic Times would prefer to increase their circulation. Under
Remark V they are entitled to quota on the basis of consumption in 1970-71 or 1971-72
whichever is less. This feature also indicates that the newsprint policy is not based on
circulation. Under Remark VII, these newspapers within the ceiling of 10 can get 20 per cent.
increase in the number of pages. They require circulation more than the number of pages.
They are denied circulation as a result of this policy. The big English dailies which .need to
increase their pages are not permitted to do so. Other dailies which do not need increase in
pages are permitted quota for increase, but they are denied the right of circulation. In our
view, these features were rightly said by counsel for the petitioners to be not newsprint
control but newspaper control in the guise of equitable distribution of newsprint. The object
of the impeached policy is on the one hand said to increase circulation and on the other to
provide for growth in pages for others. Freedom of speech and expression is not only in the
volume of circulation but also in the volume of news and views. - Remark VIII in the Newsprint Policy of 1972-73 imposes two types of restrictions.
First, a daily is not permitted to increase its number of pages by reducing circulation to meet
its individual requirements. Secondly, dailies belonging to a common ownership unit are not
permitted interchangeability between them of the quota allotted to each even when the
publications are different editions of the same daily published from different places. - The first prohibition in Remark VIII against increase in pages by reducing circulation
has been introduced for the first time in the policy for 1972-73. The reason given by the
Government for this feature is that newspapers would obtain a quota on the basis of a certain
stated circulation and they should not be allowed to reduce circulation. The petitioners say –
that quota is not granted on the basis of actual circulation but is granted on the basis of
notional circulation which means the actual circulation of 1961-62 with permissible increases
year after year even though the actual circulation does not correspond to the permissible
circulation on which the quota was based year after year. The Times of India Bombay in
1971-72 demanded quota on the basis of 20 pages and a circulation of 1,70,000. The Times of
India was allowed quota on the basis of 13.13 pages and a circulation of 2,02,817. The actual
performance was average page number of 18.25 and circulation of 1,54, 904. In the past,
adjustability between pages and circulation was permitted. In our judgment, the petitioners
correctly say that the individual requirements of the different dailies render it eminently
desirable in some cases to increase the number of pages than circulation. Such adjustment is
necessary to maintain the quality and the range of the readers in question. The denial of this
flexibility or adjustment is in our view rightly said to hamper the quality, range and standard
of the dailies and to affect the freedom of the press. - The restriction on the petitioners that they can use their quota to increase circulation
but not the page number violates Article 19(1)(a) as also Article 14. Big dailies are treated to
be equal with newspapers who are not equal to them. Again, the policy of 1972-73 permits
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dailies with large circulation to increase their circulation. Dailies operating below 10 page
level are allowed increase in pages. This page increase quota cannot be used for circulation
increase. Previously, the big dailies were allowed quota for circulation growth. The present
policy has decreased the quantity for circulation growth. In our view counsel for the
petitioners rightly said that the Government could not determine thus which newspapers
should grow in page and circulation and which newspapers should grow only in circulation
and not in pages. Freedom of press entitles newspapers to achieve any volume of circulation.
Though requirements of newspapers as to page, circulation are both taken into consideration
for fixing their quota but the newspapers should be thereafter left free to adjust their page
number and circulation as they wish in accordance with the dictates of Article 19(1)(a) of the
Constitution. - Counsel for the petitioners contended that the second prohibition in Remark VIII in
the Newsprint Policy prevented common ownership units from adjusting between them the
newsprint quota allotted to each of them. The prohibition is to use the newsprint quota of one
newspaper belonging to a common ownership unit for other newspaper belonging to that unit.
On behalf of the petitioners it was said that from 1963-64 till 1966-67 interchangeability was
permitted between different editions of the same publication to the extent of 20 per cent. In
1967-68 and 1968-69 complete interchangeability between different editions of the same
newspaper and between different newspapers and periodicals was permitted. In 1969-70 and
1970-71 the total entitlement was given as an aggregate quota, though there was a separate
calculation made for each newspaper. The present policy does not permit interchangeability.
Interchangeability by using the quota for a new newspaper or a new edition or for another
newspaper of the same unit will put common ownership unit in an advantageous position.
Newsprint is allotted to each newspaper. The newspaper is considered to be the recipient. A
single newspaper will suffer if common ownership units are allowed to adjust quota within
their group. - The petitioners impeach Remark X in the Newsprint Policy for 1971-72 on the ground
that a common ownership unit cannot bring out a new newspaper or start a new edition of an
existing newspaper even from their allotted quota. Counsel on behalf of the petitioners rightly
characterised this feature as irrational and irrelevant to the availability of newsprint. By way
of illustration it was said that the Economic Times is sent by air to Calcutta and Delhi but the
common ownership unit is not permitted to reduce the number of copies printed at Bombay
and print copies out of the authorised quota circulation at Calcutta and Delhi. Similarly, it was
said that there was no reason to support the policy in Remark X preventing a common
ownership unit from publishing a new daily though a person who brought out one daily was
allowed to start a second daily. This was challenged as discriminatory. It is an abridgement of
the freedom of expression to prevent a common ownership unit from starting a new edition or
a new newspaper. A common ownership unit should be free to start a new edition out of their
allotted quota and it would be logical to say that such a unit can use its allotted quota for
changing the page structure and circulation of different editions of the same paper. It is made
clear that newspapers cannot be permitted to use allotted quota for starting a newspaper.
Newspapers will have to make necessary application for allotement of quota in that behalf. It
will be open to the appropriate authorities to deal with the application in accordance with law.
246 - Until 1968-69 big dailies were treated alike but thereafter from 1970-71 onwards
dailies with circulation of more than 1,00,000 copies have been put in a different category and
given a lesser increase than those with a circulation of 50,000 to 1,00,000 copies though both
are big dailies. The policy of the Government is to level all papers at 10 pages. It tends to
treat unequals as equals. It discriminates against those who by virtue of their standing status
and service on all India basis acquired a higher page level in the past. The discrimination is
apparent from Remark VII in the Newsprint Policy for 1972-73 by which newspapers with
less than 1,00,000 circulation have been given 10 per cent. increase in circulation whereas
those with more than 1,00,000 circulation have been given only 3 per cent. increase in
circulation. - Mr Palkhivala said the policy worked admirably in the past because adjustability
between pages and circulation was permitted. In our view the Newsprint Control has now
been subverted to newspaper control. The growth of circulation does not mean that there
should not be growth in pages. A newspaper expands with the news and views. A newspaper
reaches different sections. It has to be left to the newspapers as to how they will adjust their
newsprint. At one stage the Additional Solicitor-General said that if a certain quantity of steel
was allotted the Government could insist as to how it was going to be used. It was said that
the out-put could be controlled. In our view, newsprint does not stand on the same footing as
steel. It has been said that freedom of the press indispensable to proper working of popular
Government. Patanjali Sastri, J., speaking for this Court in Romesh Thappar case said that
“Thus, every 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”. It is appropriate to refer to what William
Blackstone said in his commentaries:
“Every free man has an undoubted right to lay what sentiments he pleases before the
public; to forbid this is to destroy the freedom of the press; put if he publishes what is
improper, mischievous or illegal, he must take the consequence of his own temerity.” - The faith of a citizen is that political wisdom and virtue will sustain themselves in the
free market of ideas so long as the channels of communication are left open. The faith in the
popular Government rests on the old dictum, “let the people have the truth and the freedom to
discuss it and all will go well.” The liberty of the press remains an “Arc of the Covenant” in
every democracy. Steel will yield products of steel. Newsprint will manifest whatever is
thought of by man. The newspapers give ideas. The newspapers give the people the freedom
to find out what ideas are correct. Therefore, the freedom of the press is to be enriched by
removing the restrictions on page limit and allowing them to have new editions or new
papers. It need not be stressed that if the quantity of newsprint available does not permit grant
of additional quota for new papers that is a different matter. The restrictions are to be
removed. Newspapers have to be left free to determine their pages, their circulation and their
new editions within their quota of that has been fixed fairly. - Clauses 3 and 3-A of the 1962 Newsprint Order prevent the petitioners from using
white paper and writing paper. The Additional Solicitor- General at one stage said that it was
open to any-newspaper to an unrestricted use of any form of paper so long as newspapers do
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not apply for newsprint. This argument exposes grave errors. In the first place, it shows that
there is no shortage of white printing paper. Secondly, it will show that there is no
justification for rationing of newsprint. The cost of indigenous white paper is double the cost
of the imported newsprint. This high price of white printing paper is a deterrent to any
newspaper to use it. The periodicals are permitted the use of white printing paper. That is
because of Public Notice No. 4-ITC(PN)/63, dated January 11, 1963. That may be one of the
reasons why periodicals have not complained of the policy. The periodicals can supplement
their newsprint quota. Further, the clientele of the periodicals is different. The prices of
periodicals are also different. In any event, it cannot be said that the newspapers can buy
white printing paper to meet their requirements. Nor can such plea be an answer to the
violation of fundamental rights in Article 19(1)(a) or infraction of Article 14 by the
provisions of the impeached Newsprint Policy. - In the present case, it cannot be said that the newsprint policy is a reasonable
restriction within the ambit of Article 19(2). The newsprint policy abridges the fundamental
rights of the petitioners in regard to freedom of speech and expression. The newspapers are
not allowed their right of circulation. The newspapers are not allowed right of page growth.
The common ownership units of newspapers cannot bring out new papers or new editions.
The newspapers operating above 10 page level and newspapers operating below 10 page ^
level have been treated equally for assessing the needs and requirements of newspapers with
newspapers which are not their equal. Once the quota is fixed and direction to use the quota in
accordance with the newsprint policy is made applicable the big newspapers are prevented
any increase in page number. Both page numbers and circulation are relevant for calculating
the basic quota and allowance for increases. In the garb of distribution of newsprint the
Government has tended to control the growth and circulation of newspapers. Freedom of the
press is both qualitative and quantitative. Freedom lies both in circulation and in content. The
newsprint policy which permits newspapers to increase circulation by reducing the number of
pages, page area and periodicity, prohibits them to increase the number of pages, page area
and periodicity by reducing circulation. These restrictions constrict the newspapers in
adjusting their page number and circulation. - This Court in Sakal Papers case dealt with measures empowering the Government to
regulate allocation of space to be allotted for advertising matter. This Court held that the
measure had the direct effect of curtailing the circulation of the newspaper and thus to be
violation of Article 19(1)(a). It was said on behalf of the Government that regulation of space
for advertisement was to prevent unfair competition. This Court held that the State could help
or protect newly started newspapers but there could not be an abridgement of the right in
Article 19(1) (a) on the ground of conferring right on the public in general or upon a section
of the public. - Clause 3 of the Newsprint Control Order, 1962, was contended to confer unfettered
and unregulated power on an executive officer. Clause 3 (3-A) of the Order of 1962 was also
said to confer naked and arbitrary power. The disability imposed on newspapers from using
printing and writing paper was said to be discriminatory. The Additional Solicitor-General
contended that it is open to an unrestricted use of any form of paper so long as newspapers do
not apply for newsprint. This would establish that there is no shortage of white printing paper.
The error in the Government contention is thereby exposed. The periodicals were permitted in
terms of Public Notice 4-ITC(PN)/63, dated January 11, 1963, unrestricted use of white
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printing paper to supplement their quota of newsprint. That again shows that the Government
contention is wrong because there is restriction with regard to use of white printing paper.
The cost of white printing paper is high. It is said that the cost is Rs 2,750 per metric tonne for
white printing paper compared to Rs 1,274 of imported newsprint and Rs 1,362 of Nepal
newsprint. Clause 3 (3-A) of the Order provides that no consumer of newsprint other than a
publisher of text books or books of general interest shall use any kind of paper other than
newsprint except with the permission in writing of the Controller. .White printing paper like
newsprint can be rationed. The distribution is to be fair and equitable. It is necessary also to
point out-that text books and books of general interest require facilities for using white
printing paper. Such measures with regard to rationing are defensible. It is true that no
guidelines are to be found in Clause 3 (3-A) as to the circumstances under which a particular
consumer of newsprint or class of consumers of newsprint other than a publisher or text
books or books of general interest should or should not be allowed to use white printing
paper. The Public Notice allowing’ periodicals permission to use white printing paper is not
challenged. Periodicals were not before this Court. It is therefore not necessary to express any
opinion on Clause 3(3) and Clause 3(3-A) of the Control Order. - For the foregoing reasons the newsprint policy for 1972-73 violates Articles 19(l)(a)
and 14 of the Constitution. The restrictions by fixing 10 page limit in Remarks V and VIII of
the policy infringe Articles 19(1)(a) and 14 of the Constitution and are, therefore, declared
unconstitutional and struck-down. The policy of basic entitlement to quota in Remark V is
violative of Articles 19(1) (a) and 14 of the Constitution and is therefore struck down. The
measure in Remark VII(a) is violative of Articles 14 and 19(1)(f) of the Constitution and is
struck-down. - The measures in Remark VII(c) read with Remark VIII are violative of Articles 19(1)
(a) and 14 of the Constitution and are struck-down. The prohibition in Remark X against
common ownership unit from starting a new newspaper/periodical or a new edition is
declared unconstitutional and struck-down as violative of Article 19(1)(a) of the Constitution. - For these reasons the petitioners succeed. The import policy for newsprint for the year
1972-73 in regard to Remarks V, VII(a), VII(c), VIII and X as indicated above is struck
down.
