Bennett Coleman and Co. Ltd. & Ors V Union of India & Ors

CASE BRIEF

Bennett Coleman and Co. Ltd. & Ors

V

Union of India & Ors

AIR 1973 SC 106

Petitioner – Bennett Coleman and Co. Ltd. & Ors

Respondent – Union of India & Ors

Decided on 30.10.1972

Statues referred :

1. The Constitution of India 1950 – Article 13, Article 14, Article 19, Article 32, Article 358.
2. Essential Commodities Act 1955 – Section 2, Section 3.
3. Imports and Exports Control Act 1947 – Section 3, Section 4A
4. Newsprint Policy for 1972-73 – Remarks V, VII(a), VII(c), VIII, X. (Whether these violate Article 19 & 14)
5. Newspaper Control Order 1962 (Passed under Section 3 of Essential Commodities Act 1955) – Clause 3, Clause 3(3), Clause 3A, Clause 5.

Facts :

1. The petitioners were 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.
2. Further, the Newsprint Policy of 1972-73 placed further restrictions based on four features:

• No new newspapers may be started by establishments owning more than two newspapers if at least one of which is a daily;
• The total number of pages may not exceed ten;
• The increase in number of pages may not be more than 20% for newspapers that are under ten pages;
• No-interchangeability of newsprint may permitted between different newspapers of the same establishment or between different editions of the same paper. 

1. Therefore, the petitioners were not allowed to make adjustments in circulation, etc., under these newsprint policies even within the quota limit. This was challenged for violation of Article 19(1)(a) of the Indian Constitution.
2. Originally, the petitioners challenged 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.

Issues :

1. Whether the petitioners being companies could invoke fundamental rights?
2. Whether Art. 358 of the Constitution was a bar to any challenge by the petitioners on violations of fundamental rights?
3. Whether the restriction on newsprint import under the 1955 Order was violative of Art. 19(1) (a) of the Constitution?
4. Whether the newsprint Policy fell within clause 5(1) of the Import, Control Order 1955 and was valid?
5. Whether clauses 3 and 3A of clause 3 of the 1962 Newsprint Order were violative of Arts. 19(1) (a) and 14 of the Constitution?
6. Whether Remarks V, VII(a), VII(c), VIII, and X of the Newsprint Policy for 1972-73 were violative of Arts. 19(1) (a) and 14 of the Constitution because of the following objectionable features

Contentions by parties :

• Petitioner’s Arguments

1. The petitioners contended 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.
2. Counsel on behalf of the petitioners contended that Article 358 is inapplicable because it has no application to the law or executive action taken prior to the proclamation of emergency. The Newsprint Policy was said by the petitioners to be a, continuation of the old newsprint policy which had originated earlier and continued from year to year for a decade till the proclamation of emergency in 1971. 
3. The petitioners raised a question as to whether the Newsprint Control Policy is a newsprint control or a newspaper control.
4. 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.
5. The Petitioners contend that the policy in Remark V instead of increasing circulation will result in the reduction of circulation.
6. The petitioners, therefore, contend that if the maximum number of 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.
7. The petitioners therefore emphasise that to equate the big English dailies which are in a class by themselves with other dailies which need less than 10 pages indicates negation of an equitable distribution and proves irrational treating of dailies.
8. The petitioners say that quota is not granted on the basis of actual circulation but is granted on the basis of notional circulation which means the actual circulation of 1961-62 with permissible increases year after year even though the actual circulation does not correspond to the permissible circulation on which the quota was based year after year.
9. Counsel for the petitioners rightly said that the Government could not determine which newspapers should grow in page and circulation, and which newspapers should grow only in circulation and not in pages.
10. 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.
11. Mr. Nambiar contended that the Newsprint Policy did not fall within clause 5(1) of the Import Control Order 1955 and it was not validly made by the Central Government-petitioner

• Respondent’s Arguments

1. 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.

1.  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 an 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 to make or to take. It was, therefore, said on behalf of the Government that the petitioners could not challenge the 1972-73 Newsprint Policy during the proclamation of emergency. 
2. The Additional Solicitor General contended that the right to import and utilise newsprint was not a common law right. It was said to be a special right 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). 
3. The Additional Solicitor General contended that the newsprint policy did not violate Article 19 (1) (a). The reasons advanced were these:

• The newsprint policy does not directly and immediately deal with, the right mentioned in Article 19 (1) (a). 
• The test of violation is the subject matter and not the effect or result of the legislation.
• If the direct object of the impugned law or action is other than freedom of speech and expression Article 19 (1) (a) is not attracted though the right to freedom of speech and expression may be consequentially or incidentally abridged.

1. The Additional Solicitor General further put emphasis on the pith and substance of the Import Control Act to control imports and exports for these reasons. The decision in Abdul Aziz Amiudin v. State of Maharashtra was referred to indicate that the scope of control of import extended to every stage at which the Government felt it necessary to see that the goods were properly utilised. 
2. 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.
3. The Additional Solicitor General relied on the American decision in Red Lion Broadcasting Co. v. Federal Communications Com. (supra) in support of the contention that there should be an uninhibited marketplace of idea in which truth will ultimately prevail and there should not be monopolization of that market whether it be by the government itself or by a private licensee- The press is not exposed to any mischief of monopolistic combination.
4. The Additional Solicitor General further 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.
5. The respondent contended that it is open to an unrestricted use of any form of paper so long as newspapers do not apply for newsprint. This would establish that there is no shortage of white printing paper. 

Judgement :

The Apex Court’s bench comprising of Sikri. C.J., Rayand Jaganmohan,Reddy, JJ held per majority the following:

1. The Bank Nationalization case has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to form a company when their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders’ rights are equally and necessarily affected if the rights of the company are affected. The rights of shareholders with regard to Article 19(1)(a)are projected and manifested by the newspapers owned and controlled by the shareholders through the medium of the Corporation. The locus standi of the shareholder petitioners is beyond challenge after the ruling of this Court in the Bank Nationalisation case. The presence of the company is on the same ruling not a bar to the grant of relief.
2. The present petitions which were originally filed to challenge the Newsprint Policy for 1971-72 were amended to challenge the 1972-73 policy. The impeached policy was 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. During the proclamation 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
3. The power of the Government to import newsprint cannot be denied. The power of the Government to control the distribution of newsprint cannot equally be denied. This Court cannot adjudicate on such policy measures unless the policy is alleged to be mala fide. The Court could also not go into the dispute as to the quantity of indigenous newsprint available for newspapers. The records with regard to the making and publication of the news print policy for 1972-73 showed that the policy was published under the authority of the Cabinet decision. The policy was therefore validly brought into existence.
4. Although Art 19(1) (a) does not mention the freedom of the Press, it is the settled view of this Court that freedom of speech and expression includes freedom of the Press and circulation. 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 Art.19(1)(a)and would fall outside the Protection afforded by Art 19(2)The concept of regulation of fundamental rights borrowed and extracted from American decisions cannot be accepted. The American First Amendment contains no exceptions like our Art 19 (2) of the Constitution. This Court has established freedom of the press to speak and express. That freedom cannot be abridged and taken away by the manner the impugned policy has done.
5. A newspaper control policy is ultra vires the Import Control Act and the Import control Order. The machinery of Import Control cannot be utilised to control or curb circulation or 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.
6. This Court in the Bank Nationalisation case laid down two tests.

• First it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right.
• Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the court to grant relief.

The direct operation of the Act upon the rights forms the real test. The 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, growth of newspapers through pages, exposed to financial loss, freedom of speech and expression is infringed.

1. 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.
2. The impeached policy violates Article 14 because it treats newspapers which are not equal equally in assessing the needs and requirements of newsprint. The 7 newspapers 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.
3. 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 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.
4. Under Remark VII(C) those-newspapers within the ceiling of 10 pages 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 the 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. This is not newsprint control but newspaper control.
5. 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.
6. The first part of Remark VIII prohibits increase in pages by reducing circulation. In the past adjustability between pages and circulation was permitted. The individual requirements of different dailies render it eminently desirable in some cases to increase the number of pages than circulation. The denial of this flexibility or adjustment is rightly said to hamper the quality, range and standard of the dailies and to affect the freedom of the press. Big dailies are treated to be equal with newspapers who are not equal to them thus violating Article 14.
7. The second prohibition in Remark VIII 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. Newsprint is allotted to each paper. The newspaper is considered to be the recipient. A single newspaper will suffer if common ownership units are allowed to adjust quota within their group.
8. Under Remark X a common ownership unit could bring out a newspaper or start a new edition of an existing paper even from their allocated quota. it is an abridgment of the freedom of expression to prevent a common ownership unit from starting a new edition or a new newspaper. A common ownership unit should be free to start a new edition out of their allotted quota and it would be logical to say that such a unit can use the allotted quota for changing the page structure and circulation of different editions of the same paper. Newspapers however cannot be permitted to use allotted quota for starting a new newspaper. Newspapers will have to make necessary application for allotment of quota in that behalf. It will be open to the appropriate authorities to deal with the application in accordance with law.
9. The liberty of the press remains an Ark of the Covenant. The newspapers give the people the freedom to find out which 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 of newspapers.
10. The Press is not exposed to any mischief of monopolistic combination. The newsprint policy is not a measure to combat monopolies. The newsprint policy should allow the newspapers that amount of freedom of discussion and information which is needed or will appropriately enable the members of the society to preserve their political expression of comment not only upon public affairs but also upon the vast range of views and matters needed for free society.
11. Clause 3(3A) of the 1962 Order provides that no consumer of newsprint other than a publisher of text books of general interest shall use any kind of page other than newsprint except with the permission of the Controller. It was therefore wrong to say that it was open to newspapers to make unrestricted use of any form of paper so long as newspapers did not apply for newsprint.
12. In the result the provisions in remarks V, VII (a), VII(C) and VIII of the Policy being violative of Arts. 14 &19 (1) (a) of the Constitution must be struck down as unconstitutional. The prohibition in Remark X against common ownership unit from starting a new newspaper periodical or a new edition must be declared unconstitutional and struck down as violative of Article 19(1)(a)of the Constitution. In the circumstances of the case the Court did not find it necessary to express any opinion on Clause 3(3) and Clause 3(3A).

Cases referred :

1. Express Newspaper Pvt Ltd & Anr v Union of India & Ors
2. Sakal Papers Ltd & Ors v Union of India
3. Chiranjit Lal Choudhuri v Union of India & Ors.
4. State Trading Corporation of India Ltd v The Commission Tax Officer
5. Tata Engineering & Locomotive v State of Bihar
6. Romesh Thappar v State of Madras
7. Hamdard Dawakhana Lal Kuan Delhi v Union of India & Ors
8. Brij Bhushan v State of Delhi
9. Dwarkadas Shrinivas v The Sholapur & Weaving Co.

Rule of law :

The Supreme Court, in this case, recognized that for freedom of press to be effective, unnecessary interference that affects its economic viability must be prevented.This decision recognizes that freedom of the press is not restricted to freedom from direct regulation of content. Quantitative restrictions that are not purely content-based can also affect freedom of the press.

Conclusion :

The Supreme Court of India accepted petitioners’ challenges that certain restrictions and regulations on newspapers affected the right to freedom of speech and expression. The Court found that because the freedom of the press involved both qualitative and quantitative dimensions, the Newsprint Policy was unconstitutional as its quantitative restrictions were not justified by a shortage of newsprint; the Newsprint Order and Import Control Order were not struck down.