Topic: Indian Express Newspapers v/s Union of India
Indian Express Newspapers v/s Union of India
Bench: Bhagwati, Natwarlal H., Sinha, Bhuvneshwar P., Imam, Syed Jaffer, Kapur, J.L., Gajendragadkar, P.B - Date of Judgment: 08/01/1958
Working journalists-Regulation of Conditions of Service- Constitutionl validity of enactment-Decision of Wage Board fixing rates of wages-Validity-Working journalists (Conditions of Service) and Miscellaneous Pro visions Act, 1955 (45 of 1955), SS. 3(2), 4. 5(1) (a)(iii), 9(1), 11, 12, 17, 20(d)(2)-Constitution of India, Arts. 19(1) (a), 19(1)(g), 14, 32.
These petitions on behalf of certain newspaper establishments challenged the constitutional validity of the Working journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, and the legality of the decision of the Wage Board, constituted thereunder, purporting to act under s. 9 of the Act. The impugned Act, which was passed in order to implement the recommendations of the Press Commission and had for its object the regulation of the conditions of service of working journalists and other persons employed in newspaper establishments, provided, inter alia, for the payment of gratuity to a working journalist who had been in continuous service, whether before or after the commencement of the Act, for not less than three years, even when he voluntarily resigned from service, regulated hours of work and leave, provided for the payment of retrenchment compensation with retrospective effect in certain cases and by s. 9(1) laid down the principles that the Wage Board was to follow in fixing the rates of wages of working journalists. Under those principles the Wage Board was to have regard to the cost of living, the prevalent rates of wages for comparable employments, the circumstances relating to the newspaper industry in different regions of the country and to any other circumstances which it might consider relevant. The petitioners contended on various grounds that the provisions of the impugned Act violated their fundamental rights under Arts. 19(1)(a), 19(1)(g), 14 and 32 Of the Constitution and that the decision of the Wage Board fixing the rates and scales of wages, which was arrived at without any consideration whatsoever as to the capacity of the newspaper industry to pay the same, imposed too heavy a financial burden on the industry and spelled its total ruin, was vitiated by a wrong approach and non-application of the proper criteria and transgressed the principles of natural justice and was, therefore, illegal and void: Held, that the constitutional validity of the impugned Act, with the sole exception of s. 5(1)(a)(iii) of the Act which infringed
Art. 19(1)(g) of the Constitution, was beyond question and as that section, severable as it was from the rest of the Act, must alone be declared ultra vires.
Section 9(1) of the Act, properly construed, made it incum- bent on the Wage Board to take into consideration the capacity of the newspaper industry to pay the rates and scales of wages recommended by it and as there was nothing to indicate that it bad done so, its decision was void and inoperative.
Held, further, that there could be no doubt, in view of the interpretation put upon Art. 19(1)(a) of the Constitution by this Court, that liberty of the press was an essential part of the freedom of speech and expression guaranteed by that Article and the press had thereunder the right of free propagation and free circulation without any previous restraint on publication.
Ramesh Thaper v. The State of Madras,  S.C.R. 594 and Brij Bhushan v. The State of Delhi,  S.C.R. 605, referred to.
It was legitimate and proper to refer in this connection to the decisions of the Supreme Court of the United States of America, since Art. 19(1)(a) of the Constitution was based on Amendment 1 of the Constitution of that country, and the rules that could be deduced therefrom made it clear that although freedom of the press included freedom from restriction in respect of employment in the editorial staff, the press was not immune from ordinary forms of taxation or from the application of general laws relating to industrial relations or laws regulating payment of wages. Case law reviewed.
But if a law were to single out the press for laying 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 seek Government aid, it would be violative of Art. 19(1)(a) and would fall outside the protection afforded by Art. 19(2) of the Constitution.
The impugned Act, judged by its provisions, was not such a law but was a beneficent legislation intended to regulate the conditions of service of the working journalists and the consequences aforesaid could not be the direct and inevitable result of it. Although there could be no doubt that it directly affected the press and fell outside the categories 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 petitioners and did not, therefore, infringe Art. 19(1)(a) of the Constitution. A.K. Gopalan v. The State of Madras,  S.C.R. 88, Ram Singh v. The State of Delhi,  S.C.R. 45I Minnesota Ex Rel. Olson, (1930) 283 U.S. 697 ; 75 L. Ed. 1357 and Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co., Ltd.,  S.C.R. 674, considered. 14
Nor could the impugned Act be held to be violative of Art. 19(1)(g) of the Constitution in view of the test of reason- ableness laid down by this Court.
Chintaman Rao v. The State of Madhya Pradesh,  S.C.R. 759, The State of Madras v. V. G. Rao,  S.C.R. 597, a State of West Bengal v. Subodh Gopal Bose,  S. C. R. 587 and Virendra v. State of Punjab,  S.C.R. 308, referred to.
It was not correct to say that s. 9(i) of the Act did not lay down the relevant criteria for the fixation of rates of wages. On a true construction of that section it must be held that the criterion of prevalent rates of wages for comparable employment could be consistent only with the wages higher than the bare subsistence or minimum wages and, since rates of wages must be held to include scales of wages as well, it was essential that the Wage Board should take into consideration the capacity of the newspaper industry to pay before it could fix the rates of wages. Although the Act did not specifically say so, it was possible to hold that the third criterion laid down by the section, namely, the circumstances relating to the newspaper industry in different regions of the country, included such a consideration. The provisions of the section were not, therefore, unreasonable and violative of Art. 19(1)(g) of the Constitution.
The provisions of s. 9(1) of the impugned Act did not vest uncontrolled power in the Wage Board. The last criterion of that section which empowered the Board to take into consideration any other circumstances that it might think relevant, must be read ejusdem generis with the other criteria that preceded it and as they laid down with sufficient clarity and particularity the principles for the guidance of the Board, the Legislature was perfectly justified in leaving such considerations as might arise in course of the enquiry to the subjective satisfaction of the Board constituted, as it was, of equal number of representatives of both the employers and employees. Thakur Raghbir Singh v. Court of Wards, Ajmer,  S.C.R. 1049, considered.
It was not correct to say, having regard to the provisions of ss. 11 and 20(2)(d) of the impugned Act, that the Act did not lay down any procedure for the Board to follow or that it was open to the Board to follow any arbitrary procedure violating the principles of natural justice. There could be no substance in the contention of the peti- tioners that the provisions of the impugned Act relating to proofreaders, whom it included within the definition of working journalists, period of notice under s. 3(2), retrospective operation in cases specified by s. 4 and hours of work, imposed unreasonable restrictions on their fundamental right to carry on business.
Gratuity, however, was a reward for good, efficient and faithful service rendered for a considerable period and there could be
no justification for awarding the same when an employee voluntarily resigned, except in certain exceptional circumstances. The award of -gratuity, therefore, to an employee who voluntarily resigned from service after a period of only three years, under s. 5(1)(a)(iii) of the Act, must be held to be unreasonable and wholly unjustified. The impugned Act was not discriminatory in character and did not violate Art. 14 of the Constitution. Working journalists formed a separate class by themselves and could be classified apart from the rest of the newspaper employees on a perfectly intelligible differentia rationally related to the object which the Act had in view. Nor could the provisions of either s. 12 or s. 17 of the Act, therefore, be said to be discriminatory in character.
Budhan Choudhary v. The State of Bihar,  1 S.C.R. 1045, applied.
The impugned Act contained no prohibition nor did it in any way prevent the Wage Board from giving reasons for its decision and thus passing a speaking order where it chose to do so, and it could not, therefore,-be said to have violated the fundamental right of a citizen to move the Supreme Court for a writ of certiorari under Art. 32 of the Constitution. Rex v. Northumberland Com. Appeal Tribunal, Ex Parte Shaw,  1 K. B. 711 and Rex v. Northumberland Compensation Appeal Tribunal, Ex Parte Shaw,  1 K. B. 338, held inapplicable.
A.K. Gopalan v. The State of Madras,  S.C.R. 88, relied on.
The question whether a particular body was exercising legislative, administrative or judicial or quasi judicial functions has to be determined in the light of the statute under which it was constituted and an administrative body functioning as such can also be acting in a quasi-judicial capacity. The test would be whether it had to decide on evidence and decide judicially. So judged, there could be no doubt that the Wage Board under the impugned Act was functioning in a quasi-judicial capacity.
Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam,  S.C.R. 1240, referred to. Case-law reviewed.
Although this Court would not normally enter into questions of fact, in this case the Wage Board had wholly ignored an essential condition for the exercise of its function and imposed a very heavy financial burden on the newspaper industry. Although the Classification of the newspaper industry on the basis of grossrevenue, fixation of scales of wages, provisions as to the, hours of work, leave, retrospective operation in specified cases, and grouping of newspapers into chains or multiple units could not be said to be improper or unjustified, they made the burden heavier still.
The Board made no enquiry whatsoever as to the ability of the industry to pay either as a whole or region-wise and did not call for or hear representations from them before finalising its decision. Its decision was, therefore, ultra vires the Act and contrary to the principles of natural justice.
ORIGINAL JURISDICTION: Petitions Nos. 91, 99, 100, 101, 103 JUDGMENT:
Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 699-703 of 1957.
Appeals by special leave from the decision of the Wage Board for Working Journalists published in the Gazette of India Extraordinary (Part IT, Section 3) dated May 11, 1957. 1957. Dec. 3, 4, 5, 6, 10, 11, 12, 13, 17, 18, 19, 20. 1958. Jan. 8, 9, 10, 14, 15, 16, 17, 21, 22, 23, 24, 28. M. K. Nambiar and G. Gopalakrishnan, for the petitioners in Petition No. 91 of 1957. -The Working Journalists Act, 1955, is ultra vires as it infringes the fundamental rights of the Petitioners guaranteed by the Constitution under Arts. 19 (1) (a), 19 (1) (g), 14 and 32. Article 19 (1) (a) which guarantees freedom of speech and expression includes the freedom of the employment of means to exercise those rights and consequently comprehends the freedom of the Press. The guarantee of an abstract freedom of expression would be meaningless unless it contemplated and included in its ambit all the means necessary for the practical application of the freedom. (Freedom of the Press-A Framework of Principles-Report of the Commission on Freedom of Press in the United States of America, 1947; Report of the Royal Commission for the Press in the United Kingdom 1949; Ramesh Thapar v. The State of Madras,  S. C. R. 594; Brij Bhusan v. State of Delhi,  S. C. R. 605; Ex parte Jackson, 96 U. S. 727; Lovell v, City of Griffin, 303 U. S. 444; Orosjean v. American Press Co., 80 L; Ed. 660; Schneider v. Irvington, 84 L. Ed. 155.
Constitution of the United States of America, Revised and Annotated (1952), U. S. Govt. Printing Office pp. 792, 988). If the impugned Act is viewed as a whole it will appear that it authorised the fixation of salary of working journalists at a level which disables the running of the press. The impugned Act thus, impedes, controls and prohibits the free employment of the agencies of expression on that section of the Press which form its vocal chord and therefore the Act infringes the freedom contemplated under Art. 19 (1) (a) and is not saved by Art. 19 (2). In judging the validity of the enactment it must be tested by its operation and effect (Dwarkadas Srinivas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd.,  S. C. R. 674, 683; Minnesota Ex Rel. Olson, 75 L. Ed. 1357). The Act also violates the right guaranteed by Art. 19 (1) (g) of the Constitution as it places unreasonable restraint on the petitioners' freedom to carry on business (Chintaman Rao v. The State of Madhya Pradesh,  S. C. R. 759; cited with approval in Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh,  S. C. R. 803 and Ch. Tika Ramjidas v. State of U. P.  S. C. R. 393; The State of Madras v. V. G. Row,  S. C. R. 597, 606-607; The State of West Bengal v. Subodh Gopal Bose,  S. (C. R. 587; Virendra v. State of Punjab, A. 1. R. 1957 S. C. 896). The law imposing restrictions on fundamental rights must be reasonable not only in its substantive content but in its procedural content as well (Dr. N. B. Khare v. State of Delhi,  S. C. R. 519; Ourbachan v. State of Punjab,  S. C. R. 737). The relevant criteria for the fixation of wages were not laid down in s. 9 (1) of the Act. The criteria for the fixation of wages laid down in the Act were only relevant for fixing minimum rates of wages, though the word " minimum" used in the Bill 13 of 1955 as introduced in the Rajya Sabha was subsequently dropped before the Bill became the Act. It was not made incumbent on the Wage Board to consider the capacity of industry to pay as an essential criterion or a major factor in 3
fixing wages. The other circumstances, viz., " any other circumstances which to the Board may seem relevant " mentioned in s. 9 (1) of the Act was left to be determined by the Board on its subjective satisfaction which could not be controlled by any higher authority. The Act thus enables the Board to exercise arbitrary powers in regard to the same and that is unreasonable by itself (Thakur Raghbir Singh v. Court of Wards, Ajmer,  S. C. R. 1049; R. M. Seshadri v. District Magistrate, Tanjore,  1 S. C. R. 686). The procedure to be followed by the Wage Board was not laid down in the Act (c. f. The Bombay Industrial Relations Act, 1946, as amended) and it Was open to the Board to follow any arbitrary procedure disregarding the principle of audi alteration parted and as such the Act is unreasonable. The Wage Board was not exercising legislative functions but functions, which were quasi-judicial in character. The intention of the Legislature was to assimilate the Wage Board as much as possible to an Industrial Tribunal constituted under the Industrial Disputes Act, 1947. If it is held that s. 11 of the Act is an enabling provision, and gave the Board the arbitrary discretion whether to exercise the same powers and follow the same procedure of an Industrial Tribunal or any procedure it liked, it is unreasonable.
The provisions of ss. 2 (f), 3, 4, 5, 8 to 11, 12, 14, 15 and 17 place restraints on newspaper establishments which would have the effect of destroying the business of the petitioners. The right to impose restrictions on the right to carry on business under Art. 19 (6) conferred no power on the Legislature to destroy the business itself (Stone v. Farmers Loan and Trust Co., 29 L. Ed. 636; Municipal Corporation of the City of Toronto, v. Virgo, 1896 A. C. 88; A. G.,for Ontario v. A. G. for the Dominion,  A. C. 348).
The Act is discriminatory in character and violates Art. 14 of the Constitution. It gives the working journalists a more favoured treatment as compared to other employees in several ways, statutory benefits by ,way of retrenchment compensation, gratuity, limitation of the hours of work and leave, not enjoyed by
others in comparable employments. It is restricted in its scope to a selected section of newspaper employees. it gives them the benefit of the wage fixation by devising machinery in the form of a Pay Commission without the existence of any industrial dispute, without prescribing the major criterion of capacity to pay to be taken into consideration; (Britannia Bldg. and Iron Co. Ltd., (1954) 1 L. L. J. 651, 654; Union Drug Co. Ltd., (1954) 1 L. L. J. 766, 767; Report of the Committee on Fair Wages, pp. 13-15, paras. 21, 23 and 24); or following the procedure prescribed by the Industrial Disputes Act, 1947, even in disregard of principles of audi alteram partem. The employers of the newspaper establishments are subjected to discriminatory treatment by the Act in that (1) they are singled out from all other industrial employers who are covered by the ordinary law regulating industrial relations under the Industrial Disputes Act, 1947 ; (ii) they have been saddled with new burdens in regard to a section of their workers in matters of gratuity, compensation, hours of work and wages; (iii) s. 12 of the Act makes the decision of the Wage Board binding only on the employers and not on the employees and(iv) s. 17 provides for recovery of money from employers only and not from employees in the same manner as an arrear of land revenue.
The classification made by the impugned Act is arbitrary and unreasonable in so far as it removes the newspaper employers vis-a-vis the working journalists from the general operation of the Industrial Disputes Act, 1947.
The right to apply to Supreme Court for enforcement of a fundamental right under Art. 32 is itself a fundamental right guaranteed by the Constitution (Ramesh Thapar V. The State of Madras,  S. C. R. 594, 597). The right to claim a writ of certiorari against a decision is dependent on the fact that the impugned decision on its face is a " speaking order ". (Rex v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw,  1 K. B. 71 1, affirmed by the Court of Appeal in  1 K. B. 338 ; A. K. Gopalan v. The State of Madras,  S. C. R. 88, 243). The Act 20
contravenes Art. 32 of the Constitution because it does not provide for giving any reasons for the decision to be made by the Wage Board.
Decision of the Wage Board is illegal and void because (1) the Act under which it is made was ultra vires (Mohd Yasin v. Town Area Committee of Jalalabad,  S. C. R. 572; Himatalal Harilal Mehta v. State of U. P.,  S. C.R. 1122); (ii) the decision itself infringes the fundamental rights of the petitioners (Bidi Supply Co. v. Union of India,  S. C. R 267 and (iii) the decision is ultra vires the Act) Pandit Ram Narain v. State of U. P.,  S. C. R. 664). The reconstitution of the Board oil the retirement of one of its members was ultra vires and unauthorised by the Act as it stood at the time, the Rules having been published on July 10, 1956. The procedure as to decision by majority is not warranted by the Act, and the Rule which sanctioned such a procedure is ultra vires the Act. The procedure followed by the Board offended the principles of natural justice and is therefore invalid. It did not follow the procedure of ail Industrial Tribunal even though on two occasions, viz., when the questionnaire was issued and when a number of newspapers failed to reply to the questionnaire, the Board asserted that it had the powers of an Industrial Tribunal. Neither in the questionnaire nor at any time thereafter were concrete proposals submitted by the Board to the newspaper establishments. Its decision is invalid as no reasons are given for it nor does it indicate what considerations prevailed with the Board in arriving at it.
The classification of newspapers on the basis of gross revenue is contrary to the provisions of the Act. In the gross revenue which is earned by newspaper establishments advertisement revenue ordinarily forms a large bulk of such revenue and unless the proportion of advertisement revenue to the gross revenue were taken into consideration it would not be possible to form a correct estimate of the financial status of a newspaper establishment with a view to its classification. Profit and loss of newspaper establishment should. be the proper test and if that
test were adopted it would give an altogether different picture.
Until now whenever the wage had to be fixed for an industry the relevant consideration had always been the capacity of the industry to pay. The wages which are normally fixed after a general inquiry' applicable to the whole industry have always been minimum wages. Assessment of a wage level and scale only by reference to gross revenue was erroneous. The decision suffers from another major defect in computing gross revenue not for each newspaper but collectively for the Organization which might be running a number of papers. The result of this mode of calculation was that an organisation publishing a large number of papers might well fall within the top class by virtue of its gross revenue although each one of the papers taken individually might be running at a loss. This process of considering the multiple units or a chain of newspapers as one establishment has affected the petitioners adversely and is unauthorised by the Act. The Wage Board was not authorised by the Act to fix the wages of working journalists in relation to the whole industry but could do so only in respect of individual establishments as will appear from the definition of a " newspaper establishment " given in s. 2(d) of the Act. An establishment can only mean " an establishment " and not a group of them, even though such an individual establishment may produce or publish one or more newspapers. (Pravat Kumar v. W. T. C. Parker, A. 1. R. 1950 Cal. 116, 118; S. R. V. Service Co. Ltd. v. State of Madras,A. 1. R. 1956 Mad. 115, 121-122).
The decision of the Wage Board is illegal as it does not disclose that the capacity to pay of the individual establishment was ever taken into consideration. There is nothing on record to suggest that both as regard rates of wages and the scales of pay the Wage Board ever took into account as to what the impact of its decision would be on the capacity of the industry to pay either as a whole or region-wise. Even as regards the fixation of wages the Wage Board does
not seem to have taken into account the other provisions of the Act which conferred upon the working journalists other benefits which would affect the paying capacity of the newspaper establishments. Furthermore the working Journalists constitute only 1/5 of the total staff employed by various newspaper establishments. If the conditions of service of working journalists were to be improved by the Wage Board the other employees who form 85% were bound to be restive and likely to raise industrial disputes for betterment of their conditions of service. This would impose an additional financial burden on the newspaper establishments and would substantially affect their capacity to pay. The retrospective operation of the decision of the Wage Board was also calculated to impose financial burden on the newspaper establishments.
The Wage Board exceeded its power in giving retrospective operation to its decision. The Wage Board had acted illegally in fixing scales of pay for a period of three years when the Act does not give it such authority. Further the Wage Board was handicapped for want of Cost of Living Index.
K. M. Munshi, L. K. Jha, S. S. Shukla, Balbhadra Prasad Sinha and R. J. Joshi, for the petitioners in Petitions Nos. 99 to 101 of 1957. The freedom of the Press is a fundamental personal right of the petitioners. It rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. Such freedom is the foundation of a free government and as such enjoys a preferential position among the constitutional guarantees. This is a " preferred right ".
The purpose of the constitutional guarantee of free speech is to prevent public authority from assuming the guardianship of the public mind (Thomas v. Collins, 89 L. Ed. 430; The Supreme Court and the right of Free Speech and Press-Annotation in 93 L. Ed. 1151 ; Beauhairnais v. Illinois, 96 L. Ed. 919, 943dissenting opinion of Douglas, J.). While the Press enjoys no immunity from the application of the general laws relating to industrial relations, an Act or any
of its provision would violate the right of free speech and expression if it lays a direct and preferential burden on the freedom of the Press ; if it has a tendency to curtail circulation and thereby narrow the scope of disseminating information; if it fetters the petitioners' freedom to choose the means of exercising' their right to freedom of expression and if it is likely to undermine the independence of the Press by having to seek Government aid. The Act singles out the Press for levying upon it a direct burden which is excessive and so restrictive as to be prohibitive. It begets a class of workers whose benefits and rights are given a preferential enforceability parallel to that of a public debt. The impugned Act by s. 9 leaves, in violation of the Constitution, the fixation of wages to an agency invested with arbitrary and uncannily power to impose an indeterminate burden on the wage structure of the Press, such employer and employee relations at its discretion as it thinks fit, and such burden and restrictions for such time as it thinks fit. The Act and the decision of the Wage Board, which under the Act becomes enforceable as a part of it, have imposed an excessive and prohibitive burden which will have a tendency to curtail the revenue and restrict circulation which is the means of imparting information and giving free expression to speech, impose a penality on the petitioners' right to choose the instruments for its exercise or to seek alternative media of expression, drive the Press to seek Government aid in order to survive and prevent newspapers from being started. The Act has created an impossible situation in which the petitioner could only say " I cannot live, I cannot die and I cannot commit suicide ". Even if the petitioners were to close down their business and dispose of all their assets they would not be in a position to meet all the liabilities.
The Constitution does not permit any abridgment of the fundamental right of freedom of speech and expression unless it falls within the categories of restrictions mentioned in Art. 19(2). When the permitted restrictions were incorporated special care was taken by the framers of the Constitution to see that
freedom of speech was protected and that the right should not be at the mercy of the legislature which might want to impose excessive burden on the Press. It is for this reason that the " Public interest " restriction in Art. 19(6) appearing against the fundamental right in Art. 19(1)(g) is not to be found in Art. 19(2).A distinction has to be drawn between the Constitution of U. S. A. and India. What is known as the " due process of law " in America has been specifically omitted from the Constitution of India. In U. S. A. the " due process " clause enabled the Supreme Court to read into the Constitution any doctrine restrictive of the fundamental right, e. g., in the 1930's the U. S. Supreme Court had held that statutory fixation of minimum wage in the newspaper industry was violation of fundamental rights of free speech, but after some years the same Court acting under the discretion given by the due process clause took cognizance of altered circumstances in labour relations and held that the imposition of a minimum wage on the Press did not violate the fundamental right (Constitution of the United States of America, Revised and Annotated (1952), U. S. Govt. Printing Office, pp. 792, 988). The Indian Constitution does not permit restriction of freedom of speech except under the limitation set by Art. 19(2). Restrictions that could be held intra vires in respect of other industries would still be ultra vires under Art. 19(1)(a) of the Constitution in respect of the Press industry because of the special privilege of right of free speech. Any direct restriction placed by Government on the Press would be violation of Art. 19(1)(a), and therefore even if the Government had sought to impose a minimum wage for the Press by direct legislation it would have been equally unconstitutional. This illegality, however, would not attach to the finding of an adjudicatory machinery such as was contemplated under the Industrial Disputes Act, 1947. Where Government provided a media for the settlement of disputes and claims between citizen,,, and citizens there was no question of any contravention of fundamental rights which were protected against governmental encroachment. 25
The various sections of the Act have the effect of placing restrictions on the press which would in evitably have the effect of restricting the freedom of speech and expression in contravention of Art. 19 (1) (a). The Act has created a privileged class of working journalists above the other workers either in this country or anywhere also, above contract and above the law of the land.
The Wage Board has exceeded its authority and has arrived at conclusions and findings which restricts the fundamental rights of the petitioners. The Act authorizes the Central Government to constitute a Wage Board for fixing rates of wages. This does not authorize the Board to enter into the wider question of determination of scales of pay. Fixing could only mean fixing with reference to a point of time. The Legislature did not contemplate that single wage should determine the wage scales, for all time to come The whole framework of the Act was based on minimum wage and the sudden removal of the word " minimum " has caused all these difficulties. " Rates of wages " and not " scales of wages", the Wage Board was to consider. The term " rates of wages applies only to a particular point of time. [Sinha, J.-Section 9 (2) of the Act says that the Board may fix "rates of wages for time work and for piece work ". They cannot have any reference to scales. The same words in the statute mean the same thing. They cannot mean different things in different sections.]
Yes. These words are used again and again in the Act. In the Minimun Wages Act, the Payment of Wages Act, etc., where the same expression " rates of wages " is used to indicate a wage fixed in time and amount. The Wage Board has exceeded its power in fixing the scales of wages and increments and thereby places a fetter on the Press, not contemplated by the Act.
The Act and the Wage Board have disregarded all considerations which according to authority and law were germane to the proper fixation of wages without 4
placing restrictions on fundamental rights. Even the Minimum Wages Act provides for periodical reviews, and proposals for minimum wages should be notified for inviting the opinions.
The decision of the Wage Board has been arrived at in violation of the procedure prescribed by s. 11 of the impugned Act and in violation of the rules of natural justice and is thus illegal.
The Wage Board has been unreasonable in basing wages on revenue from all sources rather than on the revenue which the working journalists contributed by their labour. Classification of newspapers on the basis of the gross revenue of all papers run by an Organisation and fixation of wages on such classification has led to results which are absurd and discriminatory in effect and ignore the principle enunciated by the Act itself. As an example, take the case of a paper with small circulation in Kutch which is placed in a higher category than a paper in Bombay simply because the former is part of a larger Organisation. The Wage Board has not taken care to remain within the terms of the impugned Act, namely, that the wages should be based on regional consideration.
The Wage Board has given its decision in complete disregard of the newspapers' capacity to pay. it did not take proper care in framing its decision. Lack of such care in framing its decision makes it unreasonable and hence restrictive of fundamental rights.
The Wage Board has exceeded its authority by giving retrospective effect to the wage structure devised by it. This is invalid and ultra vires the Act.
Section 12 of the Act creates one-sided obligation by making decision of the Board binding only on the employers. Such one sided obligation can be appropriate when a minimum subsistence wage is fixed but cannot attach to payment of wages at luxury levels. This unilateral obligation on the employer leaves it open to the journalists to agitate for an increase in wages before an industrial tribunal, but it precludes the employer from seeking any alteration under any circumstances. The Act has provided no machinery 27
for a review or revision of the wage structure even if circumstances changed.
Restrictions on fundamental right to do business arise because the Act and the decision of the Wage Board have the effect, firstly, of considerably increasing the operating cost and, secondly, of fettering the conditions of service or the terms of the contract of service between the employer and the employee.
By disregarding the disparity in regional conditions the Wage Board has discriminated between paper and paper, employer and employer and employee and employee. S. P. Sinha, Gurbachan Singh, Harbans Singh and R. Patnaik, for the petitioners in Petition No. 103 of 1957. S. S. Shukla, for the petitioners in Petitions Nos. 116 to 118 of 1957.
M. C. Setalvad, Attorney-General for India, B. Sen and R. H. Dhebar, for respondent No. I (The Union of India) in all the Petitions. Before going into the merits of the case it is necessary to examine the background and the perspective in which the Act was enacted, the careful inquiry which preceded its enactment and the conditions which the Act was designed to meet. (Report of the Press Commission, dated July 14, 1954; Report of the Inquiry Committee constituted in 1947; Report of the C. P. and Berar Press Inquiry Committee constituted on March 27, 1948).
The Act does not infringe any of the fundamental rights of the petitioners guaranteed under Arts. 19(J) (a), 19(1)(g), 14 and 32 of the Constitution. The functions of the Wage Board constituted tinder s. 8 of the Act were not judicial or quasi-judicial in character; the fixation of the rates of wages by the Wage Board was a legislative act and not a judicial one; the Wage Board arrived at its decision on a consideration of all the criteria laid down in s. 9(1) of the Act for fixation of wages and the material as well as the evidence placed before it; a large number of the decisions of the Wage Board was unanimous; under the Act the Wage Board has the power and authority to fix the 28
scales of wages also and to give retrospective operation to its decision. The financial position of the petitioners was not such as to lead to their collapse as a sequel to the enactment of the provisions of the Act and the decision of the Wage Board.
Regarding alleged infringement of Art. 19(1)(a), I submit that the legislation should be examined in order to determine whether it is legislation directly in respect to the fundamental rights mentioned in the Constitution. The principle enunciated by the Supreme Courtney several decisions is that when a legislation is attacked on the round of contravention of a fundamental right, the Court must first examine whether it directly deals with the fundamental right. If the legislation is not one directly with respect to a fundamental right no further question arises, (A. K. Gopalan v. The State of Madras,  S. C. R. 88, per Kania, C. J., Ram Singh v. State of Delhi,  S.C.R. 451, 455). The Supreme Court has also in this connection invoked the doctrine of "pith and substance ". The fact that a legislation, directed in its path and substance to regulate gambling, incidentally placed certain restrictions on business was held not to make the law violative of the fundamental right to carry on business. (State of Bombay v. R. M. D. Chamarbaugwala,  S. C. R. 874). The provisions of the Act are clearly designed to regulate the conditions of service of journalists and not the freedom of expression or speech, and therefore no question of the infringement of fundamental right under Art. 19(1)(a) arises. The contention of the petitioners based on American decisions, e. g., Minnesota Ex Rel. Olson (75 L. Ed. 1357) cannot be sustained. First, the provisions of the American Constitution are substantially different; secondly, the American Courts have adopted the same view as our Supreme Court in A. K. Gopalan v. The State of Madras,  S. C. R. 88, and other cases. (The Associated Press v. The National Labour Relations Board, 81 L. Ed. 953,960- 966; Mabee v. White Plains Publishing Co., 90 L. Ed. 607, 613-where application of U. S. Fair Labour Standards Act, 1938, to newspaper undertakings was held not to 29
infringe freedom of speech; Oklahoma Press Publishing Co. v. Walling, 90 L. Ed. 614, 621; Murdock v. Pennsylvania, 87 L. Ed. 1292).
The restrictions under Art. 19(6) on the freedom to carry oil business under Art. 19(1)(g) will not cease to be reasonable even if such restrictions resulted in prohibition of carrying on business in certain cases. Such restrictions can be imposed if they are in the interest of the general public. Having regard to the Report of the Committee on Fair Wages appointed by the Government of India and the practice prevailing in other countries, the Act has not adopted any unusual procedure in constituting a Wage Board for the determination of rates of wages of working journalists. The Act follows the recommendations of the Press Commission for the most part. The only important deviation it has made is that whereas the Press Commission had recommended fixation of a minimum wage, the Act provides for fixation of all wages. Under the directive principles of State Policy (Art. 43 of the Constitution) the goal was not merely a minimum wage but a fair wage and a living wage. We have to march to that goal.
[Gajendragadkar, J.-True, but in marching to that goal we have to consider the capacity to pay.]
Yes, capacity to pay region-wise and capacity to pay country-wise but not capacity to pay unit-wise, that is, according to each newspaper's capacity.
The Court has to consider what the Legislature intended. The term " minimum wage" has been understood in two different senses, the first being an " industrial minimum wage " and the second a " statutory minimum wage ". Is it an " industrial minimum ", or is it a " statutory minimum " ? An " industrial minimum " is a subsistence wage that has to be paid by any unit if it wishes to exist; a " statutory minimum " is someting more than a subsistence level wage and may be any level which the Legislature thinks fit to impose. The statutory minimum wage need not be confined to fixing a single determinate amount but can legitimately include the fixing of a scale of wage. " Wages " has been defined 30
very comprehensively in s. 2(rr) of the Industrial Disputes Act, 1947, and in the Third and Fourth Schedule to that Act wages are stated to include the period and mode of payment. [Sinha, J. Does it refer to scales ?]
Wages include in its ambit the scales. It was on this basis that various Industrial Tribunals have fixed scales. Even the Supreme Court decided that way.
[Sinha, J. My point is whether the question has been raised and decided or has it been only assumed ?]
The matter, so far as I know, has not been raised and decided. It has only been assumed.
" Wages " in ss. 9 and 8 of the Act has been used in a comprehensive sense. The correct approach is to see what the term " wages " means and to see whether the word " rates " cuts down that meaning. In order to construe the section. it will not be legitimate to see what happened in the Legislature, what was said in the Bill and how the word " Minimum " was dropped. One of the criteria specified in s. 9(1) of the Act is the prevalent rates of wages for comparable employments. This has no reference to minimum wage (Nellimarla Jute Mills, (1953) 1 L. L. J. 666). It shows that s. 9(1) contemplates fixation of rates of wages which are higher than the bare subsistence or industrial minimum wage. The criterion " the circumstances relating to newspaper industry in different regions of the country " in s. 9(1) can have no other meaning than the capacity to pay region-wise. The discretion given to the Wage Board to consider " any other circumstances which to the Board may seem relevant" is no doubt subjective. It is the Board which has to decide what is relevant and what is not. Such power is neither unreasonable nor arbitrary. The general policy with regard to the Wage Board was that they were given the widest discretion and there was no question of their discretion being fettered. Even if the Legislature left the fixation of wage to the Board without laying down any criteria it would have been a competent legislative Act because of the nature of the
Board. In fact, three criteria have been laid down in s. 9(1) of the Act. Having regard to the variety and complexity of the matters involved it was not possible for the Legislature itself to visualise or indicate the various circumstances which might be relevant.
There is nothing unusual or arbitrary in leaving to the Wage Board a wide discretion in the matter of its procedure. In U. K. the Central Co-ordinating Committee under the Wage Councils Act, 1945, and the Agricultural Wages Board under the Agricultural Wages Regulation Act, 1924, are authorised to regulate their own proceedings. No formal procedure has been prescribed for Wage Boards in Australia. The inclusion of proofreaders in the definition of "Working Journalist" in s. 2(1) of the Act is not unreasonable. Proof-readers occupy a very important position in the editorial staff of a newspaper (Kemsley- Manual of Journalism, p. 337, B. Sen Gupta-Journalism as a Career (1955 Edn.). There is nothing unreasonable in the period of notice for retrenchment in s. 3(2) of the Act. (Halsbury's Laws of England, 2nd Edn., Vol. 22, p. 150, para. 249 foot-note (e)). The retrospective operation of compensation in certain cases given by s. 4 of the Act is designed to meet the few cases of retrenchment by the management anticipating the implementation of the recommendation of the Press Commission and cannot be said to be unreasonable. There is nothing unusual in s. 5 of the Act which provides for a gratuity. Gratuity is recognised by Industrial Tribunals (Ahmedabad Municipal Corporation,  L. A. C. 155, 158; Nundydroog Mines Ltd.,  L. A. C. 265, 267). Under the law of various countries payment of indemnity to an employee who voluntarily resigns is provided for (Legislation for Press, Film and Radio in the World Today (1957) UNESCO publication at p. 404 ; Collective Agreement between the Geneva Press Association and the Geneva Union of Newspaper Publishers dated April 1, 1948). Even in India Labour Courts have awarded gratuity on voluntary resignation (Cipla Ltd., (1955) 11 L. L. J. 355, 358; Indian Oxygen and Acetylene Co. Ltd., (1956) 1 L. L. J. 435). The hours of work provided in s. 6 of 32
the Act cannot be said to be unreasonable having regard to the nature of work to be done by a working journalist. Such hours of work are fixed by s. 54 of the Factories Act, 1948, (See also, Mines Act, 1952; Shops and Establishments Acts of different States in -India). Sections 8 to II deal with the constitution of the Wage Board and the fixation of rates of wages by the Board. The Wage Board was to consist of an equal number of representatives of employers and employees and an independent chairman. There is nothing unreasonable in the constitution of the Board. The principles for the guidance of the Wage Board in the matter of fixation of wages have been laid down by the Act. It cannot, therefore, be said that these provisions are unreasonable. Section 17 of the Act relates only to the mode of recovery of money from an employer and does not impose any financial burden; therefore it could not be said that it infringes Art. 19(1)(g).
Article 14 of the Constitution does not forbid reasonable classification for the purpose of legislation (Budhan Choudhry v. The State of Bihar,  1 S. C. R. 1045, 1048). The work of a journalist is peculiar and demands a high degree of general education and some kind of specialised training (Report of the Press Commission, para. 512; Legislation for Press, Film and Radio in the World Today (1951) UNESCO publication at p. 403). The working journalists are a class by themselves apart from the other employees of the newspaper establishments and also employees in other industries. They can be singled out for the purpose of -ameliorating their conditions of service. There would be no discrimination if special. legislation is enacted for the benefit of this class and a special machinery is created for fixing the rates of its wages different from the machinery for other workmen. Even if the Act be considered as a social welfare measure the State can only make a beginning somewhere. Such a measure need not be all embracing. There is nothing unreasonable in s. 12 of the Act which makes the decision of the Board binding on the employers only. A provision which has for its object the protection of
employees cannot be said to be repugnant to Art. 14 on the ground that it discriminates against the employers (South Bank Ltd. v. Pichuthayappan, A. 1. R. 1954 Madras 377). Section 17 of the Act is for the benefit of the working journalists It enables him to realise the money due from an employer under the Act. Similar provision is to be found in s. 33C of the Industrial Disputes Act. There is nothing discriminatory in a provision which governs employees in other industries being extended to working journalists. The object sought to be achieved by the Act is the amelioration of the conditions of service of working journalists. The classification is based on intelligible differentiate which distinguish them from other employees of the newspaper establishments and also in other industries. These differentiae have a rational basis. The legislation amply fulfils the conditions of permissible classification. It is " fantastic " to contend that the Act infringes Art. 32 of the Constitution. The Act does not prohibit the Wage Board from giving a reason for its decision. No question therefore arises of the infringement of the fundamental right of the petitioners under Art. 32.
Assuming any provision of the Act is void then the question will be whether it is severable. If it is severable then the whole Act will not be void but only the section. Similarly, if the court finds that the Act is constitutional but a decision of the Wage Board is ultra vires the Act or unconstitutional the Court will strike down such decision. That will not affect the validity of the Act. (State of Bombay v. F. N. Balsara,  S. C. R. 682; State of Bombay v. The United Motors (India) Ltd.,  S. C. R. 1069 and R. M.,D. Chamarbaugwala v. The Union of India,  S. C. R. 930).
In regard to the decisions of the Wage Board the Court has to consider first, whether the decisions are intra vires the Act-since an authority to whom the power of subordinate legislation is delegated cannot act contrary to the statute, and secondly, do the decisions being a part of the Act in any way contravene the Constitution. These are the only questions which
arise in regard to the decisions of the Wage Board. No question arises of its procedure being in accordance with the principles of the natural justice nor of the application of audi alteram partem.
[Bhagwati, J.-They say it is contrary to the principles of natural justice-audi alteram partem.]
That is a maxim about which we have heard so much. It has, no application to this case of delegated legislation. [Bhagwati, J.-Can it not be urged, having regard to s. 11, that the Legislature did not contemplate that the Wage Board was to function as delegated authority because it gives the choice of the provisions of the Industrial Disputes Act being followed by the Board ?]
No, even for a subordinate legislative authority there are procedures to be followed for arriving at certain conclusions.
[Kapur, J.-Is it not necessary to hear everybody who may be affected by the decisions of the Board ?] No question of hearing arises. It is a question of a subordinate legislative authority gathering such information as it wants and it is obliged to take into consideration all the relevant circumstances.
Certiorari and prohibition lie only in respect of judicial or quasi-judicial acts. (Halsbury's Laws of England, 3rd Edn. Vol. 11, p. 55, para. 114). The principle audi alteram partem also applies only to judicial or quasi- judicial proceedings. (Patterson v. Dist. Commr. of Accrator,  A. C. 341). For a distinction between judicial and legislative functions, See Cooley's Constitutional Limitations, 8th Edn. Vol. 1, p. 185; Prentis v. Atlantic Coast Co. Ltd., 211 U.S. 210, 226-227, Per Holmes J.; Mitchell Coal Co. v. Pennsylvania, 57 L. Ed. 1479, 1482; Louisville and Nashville Railroad Co. v. Green Garrett, 58 L. Ed. 229, 239). The functions of the Wage Board in the United Kingdom have been characterised by writers as legislative in character. (Robson's Justice and Administrative Law, 3rd Edn. p. 608; Griffith's Principles of Administrative Law, p. 39; Barbara Wootton, Social Foundations of Wage Policy, Modern methods of 35
Wage determination, p. 88). This is also the case in Australia. (Federated Saw Mills Case, 8 C. L. R. 465; Australian Boot Trade Employees Federation v. Whybrow and Co., 10 C. L. R. 266, 289, 317, per Isaacs, J.). The Labour and Industry Act, 1953, of Victoria (Australia) in s. 39 (2) gives statutory recognition to the decisions in 8 C. L. R. 365 and 10 C. L. R. 266, by providing that every determination shall have force, validity and effect as if enacted in the Act. The very constitution of the Wage Board under the impugned Act, with an equal number of representatives of employers and employees with an independent chairman is against its being judicial or quasi- judicial in character, for, no man should be judge in his own cause. (Franklin v. Minister of Town and Country Planning,  A. C. 87, 103).
It is incorrect to infer that once the Wage Board is constituted under s. 8 of the Act the power of the Government under the Act is exhausted and nothing more can be done. The power to constitute the Board can by virtue of s. 14 of the General Clauses Act, 1897, be used from time to time as the occasion demands. There was nothing wrong in the Central Government reconstituting the Board on the resignation of Shri K. P. Keshava Menon. The decision by majority is provided by Rules framed by the Central Government under s. 20 of the Act which became a part of the Act. Hence a decision by a majority in conformity with the Rules under the Act cannot be impeached.
In examining the decisions of the Wage Board the Court will attach to them the same consideration and weight as to a decision by a legislature. (Pacific States Box and Basketing Co. v. White, 80 L. Ed. 138; 296 U. S. 170). Under s. II of the Act the Wage Board "may" exercise the powers and follow the procedure laid down under the Industrial Disputes Act, 1947. There is nothing to warrant the provision being read as obligatory or mandatory. The provisions of the Industrial Disputes Act are basically enacted for the adjudication of disputes between two parties and they are on
their face inapplicable to the Wage Board. That is precisely why the Board was given the option to exercise some of the powers conferred by the Industrial Disputes Act or to follow procedures prescribed in that Act. It is not incumbent under the Act on the Wage Board to give any reasons for its decisons. The Board would be perfectly within its right if it chose not to give any reasons. While judging the reasonableness of the wage structure for the whole industry it would be entirely fallacious to see how it hit a particular newspaper or a unit. Multiple units or chains could be classified on the basis of the total gross revenues of all the constituent units because economies would be possible in group operations resulting in the reduction of the cost of production. There is nothing in the Act which prohibits the Wage Board from grouping into chains or multiple units. Further, there is nothing in the Act to prohibit the treating of several newspaper establish- ments publishing one or more newspapers though in different parts of the country as one establishment for fixing rates of wages.
Some sort of classification was inevitable when the newspaper establishments all over the country had to be considered for fixing the rates of wages. If the Wage Board adopted gross revenue as a workable basis for classification there was nothing wrong and that fact could not vitiate its decision. Profits of newspaper establishments were vague and difficult to ascertain as many things are mixed up in calculating profit. It would be dangerous to go by the profit and loss of individual concerns to ascertain their capacity to pay. Even the Bank Award has taken the "turnover" or the aggregate resources as the basis of the classification. The basis of gross revenue was the only proper and convenient method of ascertaining the actual status of a newspaper establishment for fixing a wage structure.
Wage-structure recommended by the Board would show that compared with the scales and salaries obtaining now in many of the newspaper establishments the scales given by the Board were not exorbitant or