TaxTMI 
TaxTMI 
1972 (10) TMI 127
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....ions 3 and 4A 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 4A 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 increa....
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....s 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 Newsprin....
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....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....
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....ing with the enemy or perpetrating fraud on the Revenue authorities. Mukherjea J., in Chiranjit Lal Choudhuri v. The Union of India & Ors. ( [1950]S.C.R. 869) 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 Newpapers (Private) Ltd. & Anr. v. The Union of India & Ors.( [1959] S.C.R. 12.)'and Sakal Papers (P) Ltd. & Ors. v. The Union of India ([1962] 3 S.C.R. 842). In Express Newspapers 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 case (supra) challenged the vires of....
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....e 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 character- ised 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 speach 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 th....
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.... of printing and publishing of the dailies through the medium of the companies. In R. C. Cooper v. Union of India ([1970] 3 S.C.R. 530.) 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 ....
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....ised 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 News- papers case (supra) also support the competence of the petitioners to maintain the proceedings. Article 358 of the Constitution was invoked by the Additional Solicitor General to raise the bar to the maintainability of the petition. Under Article 358 while a proclamation of a emergency is in operation nothing in Article 19 shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent....
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....lenged the validity of the Newsprint Policy for 1971-72. The petitions were amended. As a result of the amendment the petitioners challenged the validity of the 1972-73 newsprint policy. The contention of the petitioners is correct that the impeached policy is a continuation of the old policy. Article 358 does not apply to executive action taken during the emergency if the same is a continuation of the prior executive action or an emanation of the previous law which prior executive action or previous law would otherwise be violative of Article 19 or be otherwise unconstitutional. The contention on behalf of the Government that the 1972-73 policy is protected during the proclamation of emergency and is a mere administrative action is unsound Executive action which is unconstitutional is not immune during the proclamation of emergency. During the proclamation of emergency Article 19 is suspended. But it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Article 19 without any legislative authority or in purported exercise of power conferred by any pre-emergency law which was invalid when enacted. This Court in St....
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.... covered by several statutes. The Imports and Exports Act 1947, the Imports Control Order, 1955, the Essential Commodities Act 1955 and the Newsprint Control Order 1962 were referred to in support of the proposition that if the petitioners asked for a quota of newsprint they had to abide the conditions prescribed. It was also said that the Press would have no special fundamental right under Article 19 (1) (a). The legislative measures were, therefore, said by the Government to be regulation of newspaper business even though there might be the incidental result of curtailing circulation. Reliance was placed on the decisions in Express Newspapers case (supra) and Hamdard Dawakhana (Wakf) Lal Kuan, Delhi & Apr. v. Union of India & Ors.( [1960] 2 S.C.R. 671.), in support of the contention that there would be no abridgement of fundamental right of the press if as a result of regulation of newspaper business there was the incidental effect of curtailing circulation. The Newsprint Policy was defended by the Government to be in aid of allowing small newspapers to grow and to prevent a monopolistic combination of big newspapers. The power of the Government to import newsprint cannot be d....
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.... includes freedom of the Press and circulation. In the Express Newspapers case (supra) 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 (supra) it is said that the freedom of speech and expression guaranteed by Article 19 (1) 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 (supra) the Newspaper (Price and Page) Act 1956 empoweredthe Government to regulate the prices of newspa....
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....s no doubt a form of speech and it is only when an advertisement is considered with the expression or propagation of idea that it can be said to relate to freedom of speech. The right to publish commercial advertisements is not a part of freedom of speech. The Additional Solicitor General contended that the news- print 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 (supra) and Hamdard Dawakhana case (supra) were referred to. In the Express Newspapers case (supra) 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 tak....
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....rt is not a regulation with regard to production, supply and distribution of goods so as to attract Entry 29 List 11 of the Government of India Act, 1935 corresponding to Entry 27 of List 11 in the Constitution. It was said that even if there was any trenching on Entry 29 List II of' the 1935 Act corresponding to Entry 27 List II of the Constitution it would be an incidental encroachment not affecting the validity of' the Act. The directions in the control policy are, therefore, justified by the Government under clause 5 of the 1955 Import Control Order read with section 3(1) of the 1947 Import 'and Export Act and they are also justified under the provisions of clause 3 of the Newsprint Control Order- 1962.. The Newsprint Control Order 1962 was said to give sufficient guidance with regard to exercise of powers. Clause 3(5) of the Control Order of 1962 indicated that the Controller was to have regard to the principles. The import policy was upheld by the Government to have administrative character for guidance. in the matter of grant of licences. It was said that the impeached newsprint policy was given to the public as information regarding principles governing issue of import l....
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....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 re....
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.... 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 abridgment 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 of 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 the people to read and the freedom of the press assur....
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....rce in violation of Sherman Act. The Citizen Publishing Co.( [1969] 304 U.S. 131-22L.Ed.2d. 148) case (supra) held that the First Amendment in the American Constitution far from providing an argument against the application of the Sherman Act under the facts of the case provided strong reasons to the contrary. The American decision rested upon the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the, public. The Sherman Act was invoked in that case to prevent non-governmental combinations which tended to impose restraints upon constitutional guarantee of freedom. The regulation of business is one thing. The American case is an instance of the power of the Government to regulate newspaper industry. The other American decision on which the Additional Solicitor General relied is United States v. O'Brien (supra). In O'Brien's case (supra) the Court held that one who had burnt one's selective service registration certificate did so in violation of a federal statute making the knowing destruction or mutilation of such a certificate a criminal offence. It was contended in O'Brien's case (supra) that wh....
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....he 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 Sino Indian 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 win result in the reduction of circulation. The petitioners are, 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 ....
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....l dailies is 5.8. Thirdly, the Government says that the 45 big dailies with a circulation of 46.74 lakhs get about 1,16,700 metric tonnes. This is about 59.9 per cent of the total allocation. The 346 medium and small dailies with a circulation of 41.60 lakhs get about 74,300. metric tonnes which represent as 40.1 per cent of the total allocation. Fourthly it is said that the feature is to remedy the situation arising out of historical reasons. Fifthly, the Government says that the reduction in allotment is marginal. By way of illustration it is said that the Bennett Coleman group gets 828.79 metric tonnes less. Sixthly, it is said that 500 dailies applied for quota. Newprint has to be equitably rationed. Allowing some dailies more than 10 pages will adversely effect those dailies with less than 10 pages. 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 fixation of 1 0 page limit is said by the Government to be on account of short supply of ne....
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.... pages is fixed at 10 the average page level of the big English and language dailies would come down to 9.8 and their page level would become more or less equal to the page level of medium dailies whose requirements are much less. It would, therefore, in our view amount to treating unequals equally and to benefit one type of daily at the cost of another. Since 1957, dailies operating on a page level of 12 or more have not been given any increase in page level. There was no fixed number of pages. For determining quota the page level of 1957 was taken. Dailies operating on a page level of less than 10 have been granted increase in pages from time to time. Such dailies operating on a page level of less than 10 have chosen to increase circulation rather than to increase the number of pages, because of lack of advertisement support. From 1963-64 upto and including 1971-72 any quota for increase in pages could always be used for or adjusted against increase in circulation. Similarly any quota for increase in circulation, could be used for or adjusted against increase in number of pages. It is only because the newspapers were allowed to adjust between pages and circulation in the past ....
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.... 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 (See Press in India 1971 page 134). 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 Newprint Policy of fixing the page level at 10 is seeking to make ....
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....y 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 adver- tisements is also reduced. This Court held in Hamdard Dawakhana case (supra) that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. In Sakal Papers case (Supra) this Court held that if the space for advertisement is reduced earnings would decline and if the price is raised that would affect circulation. It appears to us that in the present case, 'fixation of page limit will not only deprive the petitioners of their economic viability but also restrict the freedom of expression by reason of the compulsive re- duction of page level entailing reduction of circulation and denuding the area of coverage for news and views. T....
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....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....
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....-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.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 requirem....
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.... 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 another newspaper belonging to that unit. On behalf of the petitioners it was said that from 1963-64 till 1966-67 inter,changeability 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....
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....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% increase in circulation whereas those with more than 1,00,000 circulation have been given only 3% 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 quan....
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.... one stage said that it was open to any newspaper to an unrestricted use of any form of paper so long as newspapers do 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 1 1 January, 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 s....
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....tion 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 abridgment 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. The Additional Solicitor General contended that the business aspect of the press had no special immunity and the incidental curtailment in the circulation could not be freedom of speech and expression of the press. This Court in Sakai Papers case (supra) dealt with the measures for the fixation of price in relation to pages and the regulation of allotment of space for advertisement by each paper. These measures were said to be com- mercial activities of newspapers. This Court said that restrictions could be put upon the freedom to carry on business but the fundamental right of speech and expression could not be abridged or taken....
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....as to the circumstances under which a particular consumer of newsprint or class of consumers of newsprint other than a publisher of 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 (3A) of the Control Order. 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 prohibitio....
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.... of the description specified in Schedule 1, except under, and in accordance with, a licence or a customs clearance permit granted by the entral Government or by any officer specified in Schedule II". White printing paper (excluding laid marked paper which con- tains mechanical wood pulp amounting to not less than 70 per cent of the fibre content) is included as item 44 in Part V of Schedule I to that Order. Licence was granted to publishers of newspapers till 1962 for import of newsprint in accordance with the Import Trade Control policy promulgated from time to time,: On January 17, 1962, in the exercise of the powers under cl. 3 of the Essential Commodities Act, 1955, the Central Government promulgated the newsprint Control Order, 1962. Clause 3 and Schedule I of the Order are as follows "3. Restrictions on acquisition, sale and consumption of newsprint :- (1) No person other than an importer shall acquire newsprint except under and in accordance with the terms and conditions of an authorisation issued by the Controller under this Order. (2) No dealer in newsprint shall sell to any person newsprint of any description or in any quantity unless the sale to that p....
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.... number of pages` within the ceiling of 10 pages provided this increase is not utilised for the increase of circulation (Remarks VII(C) and VIII). (ii) Prohibition to increase the number of pages, page area and periodicity by reducing circulation within the authorised quota but they are permitted to reduce the number of pages, page area and periodicity for increasing circulation (Remark VIII). 3. (i) Prohibition to use the newsprint quota of one newspaper/periodical for the other newspaper/ periodical in the case of newspapers/periodicals belonging to a Common Ownership Unit (Remark VIII); and (ii) Prohibition to start a new newspaper/periodical by the Common Ownership Unit (Remark VIII); and 4. Denial of newsprint quota to (i) an existing newspaper belonging to a Common Ownership Unit which has not been granted newsprint quota; and (ii) additional newspapers sponsored or acquired by a common Ownership Unit (Remark- X). 5. Prohibition to use white printing paper by the newspapers which have been allotted newsprint (Cl. 3(3A) of the Newsprint Control Order). That there can be no unlimited right to acquire or use a scarce commodity like newsprint can admit of ....
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...., we may take it for granted, does not forbid 'the abridging of speech. But, at the same time, it does forbid the abridging of the freedom of speech." (See Political Freedom, p. 21) Art, 19(1)(a) guarantees to the citizens, the fundamental right of the freedom of speech and Art. 19(2) enumerates the type of restrictions which might be imposed by law. It does not follow from this that freedom of expression is not subject to regulations which may not amount to abridgment. It is a total misconception to say that speech cannot be regulated or that every regulation of speech would be an abridgment of the freedom of speech. In other words, regulation of speech is not inconsistent with the concept of the freedom, of speech unless the regulation amounts to abridgment of that freedom. No freedom, however absolute, can be free from regulation. Though the right under Art. 30(1) is in terms absolute, this Court said In Re the Kerala Education Bill, 1957([1959] S.C.R. 995.), that the right is subject to reasonable regulation. The Privy Council said in Commonwealth of Australia v. Bank of New South Wales( [1950] A.C. 235, 310) that regulation of trade and commerce is compatible with the ab....
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....d in different forms of activity, the similar impact on expression seems clearly insufficient to constitute an abridgment of freedom of expression. The use of such measures to control the content of expression would be clearly impermissible as that would be an abridgment of the' freedom of speech. (see Thomas I. Emerson, Toward a General Theory of First Amendment( Yale Law Journal, Vol. 72, 962-63, 877). So also a special tax on press alone, or, a tax exemption available only to those with particular political views or associations would not be permitted (see Alice Lee Gorsjean v. American Press Company ( 297 U.S. 233 ) and Robert Murdock v. Commonwealth of Pennsylvania( 319 U.S. 105). "In other words, though the speech itself be under the First Amendment,the manner of its exercise or its, collateral aspects may fall beyond the scope of the amendment"(1). This principles illustrated by the case of Naresh Shridhar Mirajkar and Others v. The State of Maharashtra and Another((1966) 3 S.C.R.744,762) where the Bombay High Court, by an order, prohibited the publication of the evidence of a witness and the question was, whether the order abridged the fundamental right of the freedom of sp....
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....es of protection mentioned in Art. 19(2), it had not the effect of taking away or abridging the freedom of speech and expression of the petitioner and did not, therefore, infringe Art. 19(1)(a) of the Constitution." The same principle finds expression in the decision in U. S. v. O' Brien( 391 U.S. 367.) where the U.S. Supreme Court said that even assuming that the alleged communicative element in the burning of the Selective Service Certificate is sufficient to bring into play the freedom of speech, it combines both 'speech' and 'non-speech' 'elements, and when speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on the freedom of speech. The Court further obseved that a government regulation is sufficiently justi- fied if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression and the freedom of speech is no greater than is essential to the furtherance of that interest. In Sakal Papers (P) Ltd. ....
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....vation of Lord Porter in Commonwealth of Australia v.Bank of New South Wales(.')). With this background, let me proceed to consider more speci- fically the arguments of the petitioners. It was contended for the petitioners that the newsprint policy which fixes a 10-page ceiling for calculation of newsprint quota for their dailies which had a page level above ten directly abridges their fundamental right of free speech and that the provision of the Newsprint Policy_ which provides for 20 per cent increase in the number of pages to daily newspapers within the ceiling of 10 pages off-.ends Art. 14. Before 1972-73, the newsprint, allocation policy was based on the page level of 1957 coupled with the circulation figures of 1961-62, and all entitlements were calculated, with allowable increases and adjustments, from year to year on that basis. As a result, the newspapers which entered the field after 1962-63 were at a disadvantage and were pegged to their own lower page and circulation level. There were many papers specially in the Indian Languages group where the actual circulation even during 1970-71 exceeded the notional circulation figure which was arrived at cumulatively based....
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.... page level by 20 per cent increase in growth rate so as to enable them to attain a position of equality with those which were operating above 10-page level in 1970-71. It may be recalled that the Newsprint Policy provides for fixation of basic entitlement for newspapers whose actual number of pages was more than 10 during 1970-71 and 1971-72 on the basis of (1) an average of 10 pages, and (2) either the average circulation in 1970 or admissible circulation in 1971-72, plus, increase admissible under the policy of 1971-72. whichever is greater. Fixation of page level for calculating the entitlement of quota for a newspaper is not a new feature.. The previous policies provided inter alia that, a location would be calculated on the basis of a page level upto 12 pages and restricted to an increase of not more than 2 pages at a time. Therefore, even under the prior policies, the newsprint allocation was calculated on the basis of a maximum page level which was 12 pages as mentioned above, except in the case of six newspapers whose page level in 1957 was more than 12 pages. Dailies are classified as 'big', 'medium' and 'small'. A newspaper With a circulation of over 50,000 is 'big....
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....id, 1 cannot forbear adding a remark or two 1 contend that whatever has been said about it amounts to nothing. What signifies a declaration that "the liberty of the press shall be inviolably preserved" ? What is the liberty of the Press ? Who can eve it any definition which would not leave the utmost latitude for evasion ? I hold it to be impracticable Professor Chafee said (Chafee, Book Review, 62, Harvard Law Review, 891, 898.) : "The truth is, I think, that the framers had no very clear idea as to what they meant by "the freedom of speech or of the press" but we can say with reasonable assurance .... that the freedom which Congress was forbidden to abridge was not, for them.' some absolute concept which had never existed on earth." What Lincoln said on liberty is relevant here: "The world has never had a good definition of [it]". Justice Holmes gave at different times opposite interpretations of the historic meaning of the First Amendment. Speaking for himself and Justice Brandeis, he observed :( Abrams v. U.S., 250 U.S. 616, 630. "History seems to me against the notion (that) the First Amendment left the common law of seditious libel in force." A few years ear....
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....heir wishes safely can be carried out. That at any rate is the theory of our Constitution." Judge Learned Hand said that the newspaper industry serves one of the most vital of all general interests, namely, the dissemination of news from as many different sources, and with as many different facets and colours as is possible; that the freedom of speech presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection (see United States v. Associated Press). (52 Federal Supplement 362, 372. (So Dist. N.Y. (1943)) The same sentiment was echoed by Justice Black when he said that the freedom of speech rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public (Associated v. United States(326 U.S. Reports 1, 20 (1945)) But this fundamental presupposition is seriously weakened by concentration of power. Instead of several views of the facts and several conflicting opinions, newspaper readers in many cities, or, still worse, in wide regions, may get only a single set of facts and a single body of opinion, all e....
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....conomic power in India, one must take into account this link between industry and newspapers which exists in our country to a much larger extent than is found in any of the other democratic countries in the world." If ever there was a self-operating, market of ideas, as Justice Holmes assumed, it has long since ceased to exist with the concentration of mass ,media in- few hands. Protection against government is not enough to guarantee that a man who has something to say will have a chance to say it. The owners and the managers of the press determine which persons, which facts, which version of facts, which ideas shall reach the public. Through concentration of ownership, the variety of sources of news and opinion has become limited. At the same time, the citizen's need for variety and new opinions has increased. He is entirely dependent on the quality, proportion and extent of his news supply,-the materials for the discharge of his duties as a citizen and a judge of public affairs-on a few newspapers. The Press Commission has observed in its report (Part 1, p. 3 1 0) that since the essence of the process of formation of opinion is that the public must have an opportunity of stud....
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....or discussion. Any scheme of distribution of newsprint which. would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of 'the freedom of speech of the petitioners. In other words, a scheme for distribution of a commodity like newsprint which will subserve the purpose of free flow of ideas to the market from as many different sources as possible would be a step to advance and enrich that freedom. If the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involves a regulation of the press which would amount to an abridgment of the freedom of speech (see Citizen Publishing' Co. v. United States).( 394 U.S. 131.) Promoting effective competition of ideas in the market alone will ensure the emergence of truth out of the competition; at any rate that is the basis underlying the guarantee of free speech, and any distribution of newsprint calculated to promote competition by making the competitors ....
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.... of the Constitution. To decide this question regard must be had to the criteria to be adopted in distributing the material resources of a community. Arguments about equality in this sphere are really arguments about the criteria of relevance. The difficulties involved in developing such criteria have occupied philosophers for centuries. Despite the refinements that distinguish the theories of various philosophers., most such theories represent variations on two basic notions of equality : numerical equality and proportional equality. The contrast between the two notions is illustrated by the difference between the right to an equal distribution of things and the equal- right with respect to a distribution of such things. According to the former, each individual is to receive numerically identical amounts of the benefit being distributed or the burden imposed in the public sector, whereas the latter means only that all will receive the same consideration in the distributional decision, but that the numerical amounts distributed may differ. Proportional equality means equality in the distribution according to merit or distribution- according to need (see Developments-Equal Protectio....
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....concept of equality. The, only norm which the Constitution furnishes for distribution of the material resources of the community is the elastic norm of the common good [see Art. 39 (b) 1] 1 do not think I can say that the principle adopted for the distribution of newsprint is not for the common good. That apart, one of the objects of the Newsprint Policy was to. remedy the inequality created by. the previous policies and to enable the dailies having less than 10 pages attain a position of equality with those operating on a page level of 10 or more. I think the allowance of 20 per cent increase for growth in page-level provided in Remark VII is based on a classification and that the classification is grounded on an intelligible differential. having a nexus to the object sought to be achieved. By, far the, most fundamental attack made by counsel for the petitioners was that levelled against the provision in Remark VIII which provides that within the quantity of newsprint authorized for the licensing period, each newspaper/periodical will be free to increase circulation by reducing the number of pages, page area and periodicity, but will not be free to increase the number of pag....
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....interfered with that freedom. It was argued that if the provision in question had not insisted upon maintaining the circulation at the present level, the publisher could have reduced the circulation of the newspaper and increased the number of its pages and, increasing the number of pages at the expense of circulation is a matter of freedom included within the concept of the freedom of speech. I cannot agree. Suppose, the provision in the Newsprint Policy had simply said that the proprietor of a newspaper is not allowed to reduce its present circulation and stopped there ? What would have been the effect ? The effect would have been the same, namely, that the proprietor would not have been entitled to increase the page level of the newspaper within the authorised quota. The incidental effect of the direction to maintain the circulation or increase it would be to tell the proprietor or publisher riot; to increase the number of its pages. If the Newsprint Policy could legitimately say, without abridging the freedom of speech, that a newspaper should maintain its present circulation, the fact that it also said that it, should not increase its page level and reduce circulation would no....
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....pt of the freedom of speech is also clear from the pioneering opinion of Justice Burger, as he then was, in Office of Communication of United Church of Christ v. F. C.C.( Federal Reporter, 359, 2nd series, 994. 820). The learned judge emphasised principally the primary status of "the right of the public to be informed, rather than any right of the Government, any broadcasting licencee or any individual member of the public to broadcast his own particular views on any matter." If the right of the public to hear and be informed is also within the concept of the freedom of speech, the government, when it insists upon, the newspapers concerned maintaining their present level of circulation does not abridge the freedom of speech but only enriches and enlarges it. In other words, under the theory of the freedom of speech which recognises not only the right of the citizens to speak but also the right of the community to hear, a policy in the distribution of newsprint for maintenance of circulation at its higher possible level, as it furthers the right of the community to hear, will only advance and enrich that freedom. At present, our circulation is only 1.3 copies for every 100 peo....
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....ndamental right if he were told that he cannot curtail the circulation and increase the pages. A claim to enlarge the volume of speech by diminishing the circulation raises the problem of reconciling the citizens' right to unfettered exercise of speech in volume with the community's right to undiminished circulation. Both rights fall within the ambit of the concept of freedom of speech as explained above. I would prefer to give more weight to the community's claim here especially as I think that the claim to enlarge the volume of speech at the expense of circulation is not for exercising the freedom of speech guaranteed by Art. 19(1)(a) but for commercial advertisement for revenue which will not fall within the ambit of that sub-article. In every society, there are many interests. held in varying degrees, by individuals and groups, viz., the interest in, valuing of, or concern, for free speech, peace, quiet, protection of property, fair trial, education, national security, good highways, a decent minimum wage, etc. "The attainment of freedom of expression is not the sole aim of the good society. As the private right of the individual, freedom of expression is an end in itself, b....
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....e other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First Fourteenth Amendment forbade Congress or the State to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. See e.g. Schneider v. State, 308 U.S. 147, 161; Cox v. New Hampshire; 312 U.S. 569; Prince v. Massachusetts, 321 U.S. 158; Kovacs v. Cooper, 336 U.S. 77; American Communications Assn. v. Douds, 339 U.S. 382; Breard v. Alexandria 341 U.S. 622." It was contended on behalf of the petitioners that prohibition of interchangeability of quota between different newspaper,-,owned by a common ownership unit, or different editions of the same newspaper owned by that unit is an abridgment of their fundamental right under Art. 19(1)(a). A common ownership unit is defined to mean a newspaper establishment or concern owning two or more newspapers including at least one daily irrespective of the centers of publication and language of such papers. The ....
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....ship units. That there is a valid classification between a person owning no newspaper and a common ownership unit owning two or more newspapers cannot be denied. Any person desiring to express himself by the medium of a newspaper cannot be denied an opportunity for the same. The right guaranteed under Art. 19 (1)(a) has an essentially individual aspect. A common ownership unit has already been given the opportunity to express itself by the media of two or more newspapers. If a common ownership unit were to go on acquiring or sponsoring new newspapers and if the claim for quota for all the newspapers is admitted, that would result in concentration of newspaper ownership and will accelerate the tendency toward monopoly in the newspaper industry. When the prohibition against interchangeability of newsprint quota between or among the newspapers owned by a common ownership unit is found valid, the restriction imposed on common ownership unit to bring out a new newspaper from its authorised quota must be held to be valid and not offending Art. 19(1) (a). If the quota allotted for a newspaper owned by the common ownership unit cannot be used for any other newspaper, it stands to reason to....
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..... Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the King's shilling ; afterwards the officer is sued by the Government for being short in his accounts; among other items he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it by the court exactly as effect will be given to a statute providing that murderers shall be hanged, or that last wills must have two witnesses. It was contended on behalf of the petitioners that the direction contained in the Newsprint Policy as regards the utilization of. the newsprint after the allotment of the quota is ultra vires the powers of the licensing authority issuing the same. It is said that after newsprint has been imported, there was no Ion any power left in the Central Government or in the Chief Controller of Imports and Exports to direct the manner in which it should be utilized. Cl.5(1) of the Imports (Control) Order, 1955 provides; "5. Conditions of Licenses : (1) The licensing authority issuing a licence under this Order may issue the same subject to....
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....d the body of the sections sufficiently formulate the legislative policy. that the ambit and character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the frame work- of that policy and that s. 3 was valid. And as regards s. 4 the Court said that the section enumerates the classes of persons to whom the power could be delegated or sub-delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself. Section 4 of the Essential Commodities Act, 1955, provides that an order made under s. 3 may confer powers and impose duties upon the Central Government or the State Government or officers and authorities of the Central Government or State Government, and may contain directions to any State Government or to officers and authorities thereof as to the exercise of any such powers or the discharge of any such duties. It was, therefore, open to the Government to confer such powers upon the "controller" as defined in the Newsprint Control Order, 1962: "2(b) Controller means the Chief Controller of Imports and Exports and includes any off....
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....lumns of the Schedule gives the serial number of the item involved which is 44/V of the I T C Schedule. Volume I of the ."Red Book" on Import Trade Control Policy, issued by the Ministry of Foreign Trade, mentions, against item 44/V for white printing paper, that import policy for "News Print" Will be announced later. The impugned items, found in the remarks' column, contain that announcement applicable from April, 1971 to March, 1972. A subsequent similar notification dated 11-41972 shows that identically worded terms were to be applicable to the period from April, 1972 to March, 1973, and these are also assailed by the petitioners. Apparently, the impugned remarks constitute conditions for the import of quotas of news print assigned to the licensees. They are meant to be obeyed if the licensees want their quotas. The implication of such an imposition clearly is that the licences could be revoked if terms of their grant are not complied with apart from other possible consequences in the future. It is alleged that these terms interfere with the fundamental rights of petitioners to freely express their opinions through their newspapers and to carry on the manufacture and sale of ....
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....he Press as one of the pillars of a Government "of the people,. by the people, and for the people". I may quote what Lord Bryce said in The American Commonwealth (New and Revised Edition) (pp. 274, 275, 367): "The more completely popular sovereignty prevails in a country, so much the more important is it that the organs of opinion should be adequate to its expression, prompt, full, and unmistakable in their utterances**** The press, and particularly the newspaper press, stands by common consent first among the organs of opinion* * * The conscience and common sense of the nation as a whole keep down the evils which have crept into the working of the Constitution, and may in time extinguish them. That which, carrying a once famous phrase, we may call the genius of universal publicity, has some disagreeable results, but the wholesome ones are greater and more numerous. Selfishness, injustice, cruelty, tricks and jobs of all sorts, shun the light; to expose them is to defeat them. No serious evils, no rankling sort in the body politic, can remain long concealed, and, when disclosed, it is half destroyed. So long as the opinion of a nation is sound, the main lines of its policy canno....
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....nform so that there is "a Government of laws and not of men" , or, in other words, a Government whose policies are based on democratic principles and not on human caprice or arbitrariness. Article 19(2) of the Constitution. requires that Governmental action which affects freedom of speech and expression of Indian citizens should be founded on some "law" and also that such "law" should restrict freedom of expression and opinion reasonably only "in the interests of the sovereignty and integrity of India, the security of the St-ate, friendly relations with foreign states, Public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence." Although, the ambit of restrictions which can be imposed by "law" on freedom to carry on any occupation, trade, or business, guaranteed by Article 19 (1) (g) of the Constitution, is wider than that of restrictions on freedom of speech and expression, yet, these restrictions have also to be limited to those which are reasonably necessary "in the interest of the general public" as contemplated by Article 19(6) of the Constitution. Permissible restrictions on any fundamental right, even where they are imposed....
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....ned import_licences, were not imposed under any law made to check monopolies. It was also not possible for me to see the relevance of these restrictions to any of the objects of either the Essential Commodities Act, 1955 or orders passed thereunder or to the Import and Export (Control) Act of 1947 or to orders made thereunder. The objects and ambits of the two enactments mentioned above, which were relied upon. on behalf of the Union, are fairly clear and well defined. No doubt clause 3 of the Newsprint Control Order, 1962, issued in exercise of powers conferred by Section 3 of the Essential Commodities Act 1955 lays down certain restrictions "on acquisition, sale and consumption of newsprint". The clause runs as follows :- "(1) No person other than an importer shall acquire newsprint except under and in accordance with the terms and conditions of an authorisation issued by the Controller under this Order. , (2) No dealer in newsprint shall sell to any person newsprint of any description or in any quantity unless the sale to that person of newsprint of that description or in the quantity is authorised by the Controller. (3) No consumer of newsprint, in any licensing per....
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....ion that there seems to be a serious flaw here inasmuch as no machinery for fair and just administrative decisions, so as to correlate conditions im- posed upon competing claimants for quotas of a limited amount of news print to their needs and to the requirements of a law which is meant to ensure an "equitable distribution", is provided here. However, as it is not necessary, for the purposes of giving relief to the petitioners, to pronounce on the validity of clause 3 (5) of the Newsprint Control Order, 1962, I will, in conformity with the opinion expressed by my learned brother Ray on this aspect, refrain from deciding the question of the validity of its provisions in the cases before us. Section 3(1) of the Imports & Exports (Control) Act, 1947, restricts the power of the Central Government, "by order published in the official Gazette", to making "provisions for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to such exceptions if any as may be made by or under the order :- (a) the import, export, carriage coast-wise or shipment in ships stores of goods of any specified description; (b) the bringing into any p....