Case Summary
| Citation | Bennett Coleman & Co. & Ors v. Union Of India & Ors(1972) 2 SCC 788: AIR 1973 SC 106. |
| Keywords | freedom of speech and expression, art 19(1)(a), restrictions, newspaper, company, discrimination |
| Facts | In the 1960s, India faced a shortage of newsprint. To meet this demand, newsprint was imported from foreign countries. The Newsprint Control Order, 1962 was made under the Essential Commodities Act, 1955 and its import was regulated by the Import Control Order, 1955. The petitioners are media conglomerates involved in the publication of newspapers. They challenged the restrictions on the import of newsprint under Import Control Order 1955 and on the manner in which this is used by newspapers under the Newsprint Order 1962. The restrictions are: firstly, no new paper or new edition can be started by a common ownership unit even within the authorized quota. secondly, there is limitation on the maximum number of pages to 10. thirdly, no interchangeability is permitted between different papers of common ownership unit or different editions. fourthly, allowance of 20 % increase in page level up to max level of 10 pages. Writ Petitions were filed in the Supreme Court under Article 32 of the Indian Constitution by leading newspapers: The Times of India, Hindustan Times, and Indian Express. Afterwards, readers, shareholders, and newspaper editors also joined via Writ Petitions. Its legality was questioned in violation of Article 14 and Article 19(1) (a) of the Constitution of India. |
| Issues | Whether the petitioners being companies could invoke fundamental rights? Whether Art. 358 of the Constitution was a bar to any challenge by the petitioners on violations of fundamental rights? Whether the restriction on newsprint import under the 1955 Order was violative of Art. 19(1) (a) of the Constitution? |
| Contentions | Respondent Argument Additional Solicitor General raised two pleas that : first, it was said that petitioners were companies and therefore, they could not invoke fundamental rights. second, article 358 of constitution is a bar to any challenge by the petitioners of violation of fundamental rights. Petitioner Argument Petitioner contented that their freedom of speech and expression has been violated here. the policy outlined in Remark V will reduce circulation rather than increase it and that the government’s newsprint policy did not fall under clause 5(1) of the Import Control Order 1955, and it was therefore invalid. Article 14 is also violated here. |
| Law Points | The Supreme Court rejected Additional Solicitor General’s argument that the current petitions, which were originally filed to challenge the Newsprint Policy for 1971-72, were amended to challenge the 1972-73 policy, which had been in effect for a decade until the proclamation of emergency in the year 1971, Art 358 could not bar this petition on the grounds that Article 19 was suspended during the period of emergency. Court noted that freedom of the press was an essential element of Article 19(1)(a) and the absence of an express mention of such freedoms as a special category was irrelevant. The Court observed that freedom of the press had both quantitative and qualitative elements and, therefore, the quantitative controls constituted restrictions on freedom of expression. Since they were not justified on the basis of shortage of newsprint, they could not be considered to be reasonable restrictions. The Court held that the Newsprint Policy of 1972-73 was unconstitutional. However, the Newsprint Order and Import Control Order were considered not to be the source of these restrictions and were not struck down. |
| Judgement | The Honourable Supreme Court found that the sub-clauses 3 and 3A of paragraph 3 of the Newsprint Control Order, 1962 violated Article 19(1)(a) and Article 14 of the Constitution of India because they limit a newspaper’s size, readership, and growth and are not a reasonable restriction under Article 19(2) resulting in violation of Article 19(1)(a). The Controller’s powers are unrestrained and arbitrary, and they also led to discrimination between newspapers and periodicals, which is a violation of Article 14. |
| Ratio Decidendi & Case Authority |
Full Case Details
The majority judgment of Sikri, C.J. and Ray and Jaganmohan Reddy, JJ. was delivered by
Ray, J. Beg, J. delivered a separate concurring opinion. Mathew, J. delivered a separate
dissenting opinion.
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 import of newsprint is dealt with by Import Control Order, 1955 (referred to as the
1955 Import Order). The 1955 Import Order is made in exercise of powers conferred by
sections 3 and 4-A of the Imports and Exports Control Act, 1947 (referred to as the 1947
Act). Section 3 of the 1947 Act, speaks of powers of the Central Government to prohibit,
restrict or otherwise control imports and exports. Section 4-A of the 1947 Act contemplates
issue or renewal of licences under the 1947 Act for imports and exports. Item 44 in Part V of
Schedule I of the 1955 Import Order relates to newsprint. Newsprint is described as white
printing paper (including water lined newsprint which contained mechanical wood pulp
amounting to not less than 70% of the fibre content). The import of newsprint is restricted
under the 1955 Import Order. This restriction of newsprint import is also challenged because
it infringes Article 19(1)(a). It is said that the restriction of import is not a reasonable
restriction within the ambit of Article 19(2). - The Newsprint Control Order 1962 (referred to as the “1962 Newsprint Order”) is made in
exercise of powers conferred by section of the Essential Commodities Act 1955 (referred to
as “the 1955 Act”). Section 3 of the 1955 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 3A of clause 3 of
the 1962 Newsprint Order states 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. 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 of newsprint
announced by the Central Government from, time to time. Sub-clauses 3 and 3A 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 3A of clause 3 of the 1962 Newsprint Order are further impeached on
the ground that they offend Article 14 of the Constitution. Sub-clause 3A 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’s decision in the matter of grant or renewal of
authorisation. The restrictions are said to be not reason- able or justified in the interest of
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 3A is said to be
discriminatory and without any rational basis. Again, the disability imposed by sub-clause 3A
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 newspapers 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 referred to as the Newsprint Policy deals with white
printing paper (including water lined newsprint which contained mechanical wood pulp
amounting to not less than 70 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 inter-changeability 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 inter- changeability 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
news- papers 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 classification. - The import policy for newsprint has a history. From 1963-64 quota of newsprint for dailies
has been calculated on the basis of page level of 1957 and circulation of 1961-62 with ad hoc
increases for growth on the basis of percentage of pages calculated on circulation and
allowance of page increase of not more than 2 pages at a time subject to a maximum of 12
pages. The bulk of newsprint was imported in the past. Indigenous newsprint was limited in
supply. From 1963-64 till 1970-71 printing and writing paper available in our country was
taken into account for framing the import policy. The quantity which could be made available
to consumers of newsprint for the requirements of publishers of text-books were considered in
that behalf. After 1971-72 printing and writing paper was in short supply. According to the
Government this was adversely affecting the requirements of the publishers of text-books.
The loss to newsprint consumer from the non-availability of white printing paper was made
good in additional quantity of imported newsprint. The import quota of newsprint was
increased from 1,40,000 tonnes in 1970-71 to 1.80,000 tonnes in 1971-72. - From 1972-73 with regard to daily newspapers three principal changes were effected. First,
the base year for circulation was taken at 1970-71. Second, the page level was taken at the
maximum of 10 pages instead of the previously operating 10 page level. Those operating at a
page level of over 10 pages were given the facility of basing their required quota either on
actual circulation for 1970-71 or admissible or calculated circulation for 1971-72 whichever is
more. Third, the increase in quota for growth was allowed as in the past, In the case of
circulation growth it was stipulated in terms of percentage of circulation over the previous
year. In the case of page growth the maximum of 10 pages was permitted.
- The Additional Solicitor General raised two pleas in demurrer. First, it was said that the
petitioners were companies and therefore. they could not invoke fundamental rights.
Secondly, it was, said that Article 358 of the Constitution is a bar to any challenge by the
petitioners of violation of fundamental rights. - This Court in State Trading Corporation of India Ltd. v. The Commercial Tax Officer,
Visakhapatnam(1) and Tata Engineering & Locomotive Co. v. State of Bihar (2) 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(1) case (supra) the Court was not invited to “tear the corporate veil”. In the Tata
Engineering & Locomotive Co. (2) case (supra) 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. Mukherjea J., in Chiranjit Lal Choudhuri v. The Union of India & Ors.
(3) expressed the minority view that an incorporated company can come up to this Court for
enforcement of fundamental rights. - 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. These are
Express Newspapers (Private) Ltd. & Anr. v. The Union of India & Ors. (4) and Sakal Papers
(P) Ltd. & Ors. v. The Union of India (5). - In Express Newspapers (4) case (supra) the Express News papers (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(4) case (supra) 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(1) (a), 19(1)(g) and 14 of the Constitution. - In Sakal Papers(5) case (supra) the petitioners were a Private limited company carrying on
business of publishing daily and weekly newspapers in Marathi and two shareholders in the
company. There were two other petitions by readers of “Sakar” newspaper. ‘Me reader
petitioners also challenged the constitutionality of the Act. The petitioners there challenged
the Daily Newspapers (Price and Page) Order, 1960 as contravening Article 19(1)(a) of the
Constitution.
(1) [1964] 4 S.C.R. 99. (2) [1964] 6 S.C.R. 885. (3) [1950]S.C.R. 869. (4) [1959] S.C.R. 12.
(5) [1962] 3 S.C.R. 842.
- Neither in the Express Newspapers case (supra) nor in Sakal Papers case (supra) there
appears to be any plea raised about the maintainability of the writ petition on the ground that
one of the petitioners happened to be a company. - In the Express Newspapers case (supra) 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 (1) and Brij Bhushan v. State of Delhi
(2). Romesh Thappar’s case (supra) 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’s case
(supra) 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 Bhushan’s case (supra)
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 (supra)
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 (supra) as a measure which
could be legitimately characterised to affect the press this Court said that if the intention or
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 (supra) 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 (supra) 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.
(1) [1950] S.C.R. 594 (2) [1950] S.C.R. 605 - In Sakal Papers case (supra) this Court struck down section 3(1) of the Newspaper (Price
and Page) Act, 1956 and allowed the petitioner company relief-on that basis. In the, Sakal
Papers case (supra) relief was granted to the shareholders and the company. The Court
thought it unnecessary to express any opinion on the right of the readers to complain of
infraction of fundamental rights in Article 19(1)(a) by reason of impact of law abridging or
taking way the freedom of speech and expression.
- 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
happened 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(1) 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 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 express
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 (1) which is referred to as the Bank Nationalisation(1)
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 (supra) claimed that the rights guaranteed to him under Articles 14,
19 and 31 of the Constitution were impaired. The petitioner’s 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. In consequence of hostile discrimination
practiced by the State the value of the petitioner’s investment in the shares is reduced. 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. - The ruling of this Court in Bank Nationalisation case (supra) 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 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.”
(1) [1970] 3 S.C.R. 530.
- In the Bank Nationalisation case (supra) 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
Nationalisation case (supra) 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 (supra) 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 - That individual right is not lost by reason of the fact that he is a shareholder of the
company. The Bank Nationalisation case (supra) has established the view that the
fundamental rights of shareholders as citizens are not lost when they associate to from 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 this Court in the Bank
Nationalisation case (supra). The presence of the company is on the same ruling not a bar to
the grant of relief. - The rulings in Sakal Papers case (supra) and Express Newspapers case (supra) also
support the competence of the petitioners to maintain the proceedings. - 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 (supra) to be the direct
consequence of curtailment of advertisement. The freedom of a newspaper for 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.
- The question neatly raised by the petitioners was whether the impugned Newsprint Policy
is in substance a newspaper control. A newspaper control policy is ultra vires the Import
Control Act and the Import Control Order. Entry 19 of List 1 of the 1935 Act could empower
Parliament to control imports. Both the State legislature and Parliament have power to
legislate upon newspapers falling under Entry 17 of List III. The two fields of legislation are
different. The Import Control Act may include control of import of newsprint but it does not
allow control of newspapers. The machinery of the Import Control cannot be utilised to curb
or control circulation of growth or freedom of newspapers in India. The pith and substance
doctrine is used in ascertaining whether the Act falls under one Entry while incidentally
encroaching upon another Entry. Such a question does not arise here. The Newsprint Control
Policy is found to be newspaper control order in the guise of framing an Import Control
Policy for newsprint. - This Court in the Bank Nationalisation case (supra) 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. - In Sakal Papers case (supra) this Court referred to the ruling in Dwarkadas Shrinivas v.
The Sholapur & Weaving Co. Ltd. (1) that it is the substance and the practical result of the act
of the State that should be considered rather than the pure legal form. The correct approach
_should be to enquire what in substance is the loss or injury caused to the citizen and not
merely what manner and method has been adopted by the State in placing the, restrictions in
Sakal Papers case (supra) raising the price affected and infringed fundamental rights. In Sakal
Papers case (supra) this Court said that the freedom of a newspaper to publish any number of
pages or to circulate it to any number of persons is each an integral part of the freedom of
speech and expression. A restraint placed upon either of them would be a direct infringement
of the right of freedom of speech and expression. The impact on the freedom of the press
would still be direct in spite of the fact that it is not said so with words. No law or action
would state in words that rights of freedom of speech and expression are abridged or taken
away. That is why Courts have to protect and guard fundamental rights by considering the
scope and provisions of the Act and its effect upon the fundamental rights. The ruling of this
Court in Bank Nationalisation case (supra) is the test of direct operation upon the rights. By
direct operation is meant the direct consequence or effect of the Act upon the rights. The
decision of the Privy Council in Commonwealth of Australia v. Bank of New South Wales (2)
also referred to the test, as to whether/the Act directly restricted inter-State business of
banking, in order to ascertain whether the Banking Act 1947 in that case is aimed or directed
at, and the purpose, object and intention of the Act is restriction of inter-State trade,
commerce and inter-course.
(1) [1954] S.C.R. 674. (2) [1950] A.C. 235.
- 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. - 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) . It is also important to notice as
was done in earlier decisions of this Court that our Article 19(1)(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 or
of the press. The American First Amendment contains no exceptions like our Article 19(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. - There are only 7 dailies of above 12 pages until the impugned policy hit these. Those are
Amrita Bazar Patrika, Bombay Samachar. Hindu, Hindustan Times, Indian Express (Delhi,
Bombay, Madurai, Vijayawada and Bangalore editions), the Times of India (Bombay and
Delhi editions) and the Statesman. Out of these 7 dailies 6 are English dailies. Bombay
Samachar is a Gujarati daily. The maximum page level fixed at 10 and the prohibition against
the adjustability between pages and circulation are strongly impeached by the petitioners.
These 7 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 of
expressing and publishing the quality of writings and fulfilment 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.
- The justification pleaded by the Government is that big dailies chose to increase pages
rather than circulation in the past. In the past the newsprint allocation was based on the page
level of 1957 and the circulation figures of 1961-62. The Government says that newspapers
which started after 1961-62 were unable to increase their pages. Therefore, the present policy
is intended to remove that position. In our judgment it will depend on each paper as to how it
will grow. Those who are growing should not be restricted if they can grow within their
quota. In the past dailies having less than 10 pages were given increases and were allowed to
come up to 10 pages from 4 pages in 1961-62 and 6 pages in 1962-63. Most of them could
not even fully utilize the page increase allowed. The present impeached policy seeks to
remove iniquities created by previous policies. It depends upon facts as to how much more
newsprint a group of newspapers started after 1961-62 will require and secondly whether they
are in a position to increase the page number. It also appears that 19 language dailies reduced
their page numbers on the basis of which the quota was calculated in order to increase their
circulation. Therefore, there appears to be no justification for giving them additional quota for
increasing page numbers by reducing the quota of the big dailies by imposing upon them the
10 page ceiling. The 10 page ceiling imposed affecting 22 big newspapers operating above 10
page level with approximate circulation of over 23 lakhs i.e. more than 25% of the total
circulation is arbitrary and treats them equally with others who, are unequal irrespective of the
needs and requirements of the big dailies and thus violates Article 14 of the Constitution. - 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 7
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.
- 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 (c) 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. - The restriction on the petitioners that they can use their quota, to increase circulation but
not the page number violates Articles 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
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. - 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 “Art” 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 what has been fixed fairly.
- 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 newspapers 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. - For the foregoing reasons the newsprint policy for 1972-73 violates Articles 19 (1) (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) (a) 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. The parties will pay and bear their own costs.
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