Topic: Sakal Papers v/s Union of India, Newspaper price and page

Sakal Papers v/s Union of India
Equivalent citations: 1962 AIR 305, 1962 SCR (3) 842 - Bench: Sinha, Bhuvneshwar P.(Cj), Sarkar, A.K., Gupta, K.C. Das, Ayyangar, N. Rajagopala, Mudholkar, J.R - Citation: 1962 AIR 305 1962 SCR (3) 842 - Citator Info: MV 1967 SC 1 (19,103), F 1973 SC 106 (12,14,18,23,33,34,42,66,79,83 R 1974 SC1044 (15), E&R 1978 SC 68 (93), R 1978 SC 597 (41,67,77,131,182,202), R 1980 SC 898 (55), R 1986 SC 515 (33,38,64,85,39), R 1986 SC 872 (74,75), RF 1988 SC1136 (27) - Date of Judgment: 25/09/1961


Fundamental Right-Freedom of     speech-Statute     regulating number    of pages in newspaper according to price charged-- Constitutionality of--Newspaper (Price and Page) Act,    1956 (45 of 1956)-Daily Newspaper Price and Page) Order, 1960- Constitution of India, Art, 19 (1) (a).


The Newspaper    (Price and Page) Act, 1956, empowered     the Central     Government to regulate the prices of newspapers in relation to their pages and sizes and to regulate     the allocation of space for advertising matter. Under this     Act the Central Government made the Daily Newspapers (Price     and Page) Order, 1960, thereby fixing the     maximum number of pages that might be Published by a newspaper according to the price charged and prescribing the number of     supplements that-could be issued. The petitioner challenged the Act and the order as contravening Art. 19 (1) (a) of the Constitu- tion.

Held, that the Act and the Order were void as they violated Art. 19(1) (a) of the Constitution and A were not saved by Art. 19(2). The freedom of speech and expression guaranteed by Art. 19(1) (a) included the freedom of the    press.     For propagating his ideas a citizen had the right     to publish them, to disseminate them and to circulate them, either by word of mouth or by writing. The right extended not merely to the matter which he was entitled to circulate but also to the


volume    of circulation.     The impugned Act and Order placed restraints on the latter aspect of the right. But its    very object    the Act was directed against circulation and    thus interfered with the freedom    of speech and     expression. Article 19(2) did not permit the State to abridge this right in the interests of the general public.

Brij Bhushan v. The State of Delhi, [1950] S.     C. R.     605 Express Newspapers (p) Ltd. v. The Union of India, [1959] S. C. R. 12, Ramesh Thappar v. State of Madras [1950] S.C.R. 594, State of Madras v. V. G. Row, [1952] S.    C. R.    597, Dwarkadas Shrinivas v. The Sholapur    & Weaving Co.,Ltd. [1954] S. C. R. 674, Virendra v. The State of Punjab, [1958] S. C. R. 308 and Hamdard Dawakhana (wakf) v. Union of India, [1960] 2 S. C. R. 67 1, referred to.

Held, further,     that the State could not make a law which directly restricted one guaranteed freedom for securing     the better    enjoyment of another freedom.     Freedom of speech could not be restricted for the purpose of regulating     the commercial aspect of the activities of newspapers.


ORIGINAL JURISDICTION : Petitions Nos. 331 of 1960 and 67-68 of 1961.

Petitions under Art. 32 of the Constitution of India     for enforcement of Fundamental Rights.

G. S.     Pathak, R. Ganapathy Iyer, S. S. Shukla and G. Gopalakrishnan for the petitioners.

M. C. Setalvad, Attorney-General of India, B.     Sen, R. H. Dhebar and T. M. Sen, for the respondent.

H. P. Nathwani, J. B. Jadachanji, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the respondent No. 1. J. B.     Dadachanji, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the interveners Nos. 2 and 6.

K. R. Choudhri, for intervener No. 3.

S. T.     Desai,     E. Udayarathnam and    S. S.    Shukla,     for intervener No. 4.

W. S. Barlingay and A. G. Ratnaparkhi, for intervener     No.


S. T.    Desai,    E. Udayarathnam and S. S. Shukla, for     the petitioners (In petitions Nos. 67 and 68 of 1961). 844

1961. September 25 The Judgment of the Court was delivered by

MUDHOLKAR, J.-A matter of far-reaching importance affecting the freedom of the press is raised in these three petitions wherein     the constitutionality of the Newspaper     (Price     and Page) Act, 1956, and the Daily Newspaper (Price and Page) Order, 1960, is questioned.

The first petition is by a private limited company carrying on business inter alia of publishing daily and weekly newspapers in Marathi named "Sakal" from Poona and by     two persons who are the only shareholders in that company.     The second    and third petitions are preferred by two readers of "Sakal" who also challenge the constitutionality of the Act. Certain     parties were allowed to intervene. They supported the Union of India, the respondent, in all these petitions and sought to uphold the validity of the Act and the Order. In view of the common argument adduced before us it would be convenient to deal with the first petition only in full. The newspaper "Sakal" was started in the year 1932 and it is claimed that it has a net circulation of 52,000 copies on week days and 56,000 copies on Sundays in Maharashtra     and Karnataka and     as such plays a leading part in     the dissemination of news     and views and    in moulding public opinion in matters of public interest.

The daily addition of the newspaper contains six pages a day for five days in a week and four pages on one     day.    This edition     is priced at 7 nP. The Sunday edition consists of ten pages and is priced at 12nP. About 40% of the space in the newspaper is taken up by advertisement matter and     the rest is &voted to news, articles, features, Views etc.     It is claimed on behalf of the petitioners that    one of the special     features of the newspaper is coverage     of foreign news and despatches on foreign affairs. It is     claimed on behalf of the petitioners that this


paper is not aligned with any political party and that    upon controversial questions the public look up to it     for impartial appraisement     of the issues involved and     for guidance.

Briefly     stated     the effect of the Act and of the impugned Order is to regulate the number of pages according to     the price charged,     prescribe the number of supplements to be publisher and     prohibit the    publication and sale     of newspapers in contravention of any Order made under s. 3 of the Act. The Act also provides for regulating by an Order under s. 3, the sizes and area of advertising matter in relation to the other matters contained in a newspaper. Penalties are    also prescribed for contravention of     the provision of the Act or Order.

We may mention here that in the year 1952 the Government of India appointed a Press Commission for enquiring into a large number of matters concerning the Press and one of     the recommendations of the Commission was to enact a law such as the one impugned before us. This law is alleged by     the respondent to    have been made to give effect to    that recommendation.     Both    the sides place     reliance upon     the finding     of the Press Commission and have invited us to accept     these findings, though not necessarily     the recommendations.

The petitioners point out that since the total number of pages which "Sakal" gives to its reading public on six    days in a week is 34, and that as a result of the impugned Order they will either have to raise its price from 7 nP. to 8 nP. per day or to reduce the total number of pages to 24.    They further     point out that while at present all newspapers     can issue any number of supplements as and when they choose, under the Order they would be prevented from doing so except with the permission of the Government.     According to    them the Order would have the effect of either compelling them to increase the price or to reduce the number of pages of practically every newspaper in the country as 846

also of preventing them from publishing supplements without extraneous restrictions, which they are able to do at present.

It is the petitioners' case that the impugned Act and     the impugned Order are pieces of legislation designed to curtail and which would in effect curtail the freedom of the press end as such are violative of the right guaranteed under Art. 19(1)(a) of the Constitution. They point out that' if    they continue to give in their newspaper the same number of pages as at present, they would have to increase its selling price and that this will adversely affect its circulation. If, on the other hand, they reduce the number of pages in order to conform     to the impugned order their right to     disseminate news and, views will be directly interfered with. Thus in either event there will be an interference with their right under Art. 19(1)(a) of the Constitution.

The petitioners point out that the impugned Order reserves to the     Central Government the power to permit issue of supplements, except those on January 26 and August 15,     and that the result of this would be to place them at the mercy of the Government and thus interfere with their freedom of expression.

They further point out that the Act    and the Order     are violative of the provisions of Art. 14 of the Constitution inasmuch as their avowed object is to    promote     arbitrarily the interests of some newspaper at the expense     of others. They contend that inequality is writ large in the provisions of the Act and of the Order and that there is no reasonable classification or basis or any rational relationship between the restrictions imposed and the objects sought to be achieved. According    to them, while the     established newspapers will be hardly affected by these provisions those that are endeavouring to come up will be hampered in their progress.


On behalf of the respondent, the Union of India, in     the Ministry of Information and    Broadcasting, while it is admitted that    the object of the Act is to regulate     the prices charged for newspapers in relation to their pages, it is pointed out that this is being done to prevent unfair competition amongst newspapers as also to prevent the    rise of monopolistic combines so that newspapers may have    fair opportunities of freer discussion.    The effect of     the provisions of    the Act is said to be to provide for     the maximum matter which a newspaper could make available to the public at a certain price and that this does not in any     way restrict the rights of the petitioners to propagate their ideas. The respondent, while admitting that by     the operation of the impugned Order a limitation is placed on the space which a newspaper would be able to devote to     the propagation of its ideas and to news, says that it would be open to those newspapers to increase the space     by raising the price. According to the respondent the circulation of a newspaper will     not be adversely affected by    raising     its price. It is then contended that even if the circulation is adversely affected thereby the fundamental rights of     the newspaper propritors guaranteed by Art. 19(1)(a) of     the Constitution will not be infringed. It is also contended that the legislation    in question does not    directly or indirectly deal with the subject of freedom of     speech     and expression and that    consequently no question of     the violation of the provisions of Art. 19(1)(a) at all arises. The effect of     the Act and the Order, according to     the respondent, would be to promote further the right of news- papers    in general to exercise the freedom of     speech     and expression. Thus, according to the respondent, neither     the intention nor the effect of the operation of the law is to take away or abridge the freedom of speech and expression of the petitioners.

It is    further     pointed out that all     newspapers publish advertisements and that this is a trading activity. It     is, therefore, necessary to differentiate


between this activity and an activity which would fall under Art. 19(1)(a).    The impugned Act and the Order according to the respondent provide in    the public interest     for restrictions on the trading activity of newspapers. It is pointed     out that the space allocated to advertisements by newspapers varies from 46% to 59% and that these advertise- ments bring in a substantial revenue     which enables     the newspapers to    be sold at a     price    below the cost of production. Placing reliance upon the statement contained in the     Report of the Press Commission it is contended on behalf    of the respondent that newspapers of long standing which have built up a large and stable advertisement revenue being in a more advantageous Position than newcomers in     the field of journalism are in a position to squeeze out    such newcomers with the result that they are able to destroy     the freedom of expression of others. A free press, it is said, cannot mean a press composed of a few powerful combines     and that in order to ensure freedom of press it is necessary to secure full scope for the full development of smaller news- papers.

It is further pointed out on behalf of the respondent    that the diminution of advertisement revenue which would result from the operation of the Price Page    Schedule cannot be regarded as an infringement of the right under Art. 19(1)(a) According to the respondent the economies of newspapers     and the maximum number of pages that a paper can give with a reasonable margin for advertisement space was worked out by the Press Commission which also suggested a tentative Price Page Schedule.     In formulating the    schedule the Press Commission took into account various factors such as cost of (1) newsprint, (2) composing and printing, (3)    distribution (4) commission payable, (5)     editorial and     managerial expenses and (6) general overhead charges. The present Price Page Schedule is said to be based upon the one formulated by the Press Commission.


It is    further stated that the present measures have    been adopted     upon the recommendation of the Press Commission which after stating that the proper functioning of democracy requires that every individual should have equal opportunity to put forward his opinions suggested that measures should be adopted to     reduce     the differences due    to economic advantages and     other causes to enable newcomers to start with a fair chance of success.    It is with this end in    view that the present rates are stated to have been     prescribed. The respondent     further points out that the bulk of     the Indian language newspapers priced at 7nP. will not find     any difficulty whatsoever in conforming to the requirements of the order because they give five or less than five pages on week days. Only a few newspapers will be remotely affected by the order but in their case the issue of large number of pages is due to factors not connected with the     functioning of the     freedom of speech and expression but    for reasons connected with     their    business activities.     Newspapers, according to the respondent, are able to give     more pages because of their large advertisement revenue or because they belong    to a group or chain of newspapers which do     not entirely depend upon     the individual income of    each newspaper.

It is said that the petitioners in particular are able to give additional number of pages because they devote a larger volume of space to advertisements than others and that    this is not something done 'in the lawful exercise of their right of freedom of     speech and expression or of the right of dissemination of news and views. It is, however, as already stated,     admitted on behalf of the respondent that a newspaper is a product sold below the' cost of     production. The conclusion suggested by the respondent is that it is only by increasing the revenue from advertisement that a newspaper can increase the number of its pages. According to the respondent,     the true purpose of the impugned legislation being the prevention


of unfair competition     which has resulted in     denying to others    a right of propagation of ideas by publishing newspapers, this legislation cannot be said to infringe     the right of freedom of expression of a newspaper but on     the other hand said to be one which promotes and encourages healhty journalism. The impugned provisions will, according to the respondent, affect only those classes of newspapers which unfairly     compete with the smaller one-a, kind of competition which is considered by the Press Commission as unhealthy and against the interests of healthy journalism in a growing democracy. It is then said that "it is necessary to avoid unfair competition and even    to promote healthy competition that papers have to be put on a    criteria of equality and that this could only be done    by directly restricting the publication of large number of pages as against     the price charged." Then it is contended that    what is aimed at by the impugned legislation is the avoidance of concentration of ownership without interfering with healthy competition between equals equally situated. It is further stated that not only was the statute enacted on the recommendation of the Press Commission but that     the Price Page Schedule itself was introduced in response to the demand pressed by    the Indian Language     Newspapers Association. It is pointed out on behalf of the respondent that the quantity of import of newsprint is based on     the average number of pages of newspapers published in 1957     and that, therefore, no newspaper has the unrestricted right to increase the number of pages over the 1957 figure. It is also pointed out that the draft Price Page Schedule has been approved by the Indian Language Newspapers Association     and that this Association has recommended that the life of     the Price Page Act and Order should be extended by another    five to ten years.    It is denied that the provisions of the     Act infringe the     rights     conferred by Art. 14 of     the Constitution.


We have already indicated earlier, briefly, the effect of the impugned Act and the Order. In order to appreciate fully the contentions raised before us it would be useful to give in brief a summary of the provisions of the Act and of the impugned Order.

First,    there is the preamble which says that the object of the Act is to secure to newspapers fuller opportunities of freedom     or expression by preventing    unfair    competition. This is sought to be achieved by the regulation of prices charged for newspapers in relation to their pages. In    this manner the legislature expects to prevent unfair competition among newspapers.

Sub-section 3 of s. 1 provides that the Act shall cease to have effect on the expiration of a period of five years from its commencement except as respects things done or omitted to be done before the expiration. The Act came into force on September 7, 1956 and was thus due to expire on September 6, 1961. The Attorney-General, however, told us that it was proposed to extend to the life of the Act by a further period of five years and we understand that its life has now been extended for an indefinite period. Section 2 defines "daily newspaper" and "newspaper".

Section 3 is the most important provision in the Act. It is this provision     which empowers the Central Government to regulate prices and pages of newspapers. Sub-section (1) of s. 3 empowers the Central Government to regulate the prices of newspapers in relation to their pages and sizes if it is of opinion that it is necessary to do so for the purpose of preventing unfair competition     among newspapers and     in particular those published in Indian languages. It    also empowers the Government to regulate the allocation of space to be allotted for advertising matter.     Sub-section (2) of that section provides for an order under sub-s. (1) to be made in relation to newspapers generally or in relation to 852

any class of newspapers and further provides for the making of different provisions for daily newspapers and newspapers appearing at other periodical intervals as ",well as     for different classes of newspapers. Sub-seotion (3) provides that the Central Government, in making the Order, shall have due regard to a reasonable flexibility with respect to     the fall of news and flow of advertisements and other matters connected with     the normal working of newspapers.    Sub- section (4) makes it obligatory upon the Central Goverment to consult associations of publishers and such publishers as are likely to be affected by the Order as it may think     fit with respect to the action proposed to be taken. Section 4 prohibits publication     or sale of newspapers in     the territories to which the Act extends in contravention of any of the provisions of an order made under s. 3. Section 5 provides for furnishing returns by newspapers to the Press Registrar. Sub-section (1)of s. 6 provides penalties for publication and sale of    newspapers     in contravention of the provisions of s.    4. Sub-section     (2) of s.    6 provides penalties for some other contraventions with which we are not concerned. Section 7, which is     the last section, prohibits the Court from taking cognizance of offences under the Act except upon a complaint in writing by the Press Registrar or by an officer authorised by him. It will thus    be seen that the Act can be brought    into practical operation only after the Central Government     has taken action under sub-s. (1) of s. 3 and made an order regulating any of the matters referred to in that section. On October 24, 1960 in exercise of the powers conferred by s.    3 the    Central     Government, after consultationwiththe.Association of Newspapers and Publishers likely to be affected thereunder, made the Daily Newspapers (Price and Page) Order, 1960. This Order came into force on December 12, 1960. It contains a schedule to the Act which is in two


Parts,    Part I     and Part II.     Part I applies to daily newspapers published on six days in a week and Part II applies to weeklies. Paragraph 3 of the Order provides that where the price charged for daily newspapers is any of     the prices    specified in col. I of Part I of the Schedule     the total number of pages of all the issues of that newspaper published during six days in a week shall not     exceed     the maximum     number     of pages shown against that price in    that part.    Paragraph 4 deals with weekly editions of daily newspapers. Paragraph 5 provides that the total number of pages of all the issues of a daily newspaper published shall not exceed the maximum number of pages assigned under para- graphs    3 and    4 or under paragraph 3, according as     the newspaper is published on seven days in a week or on     six days. Then there is a proviso to this paragraph which    runs thus :

"Provided that where there is a weekly edition of any newspaper referred to in clause (b) and the price charged therefor is different    from that charged on other days, the total number of pages of all the issues of that newspaper published     during a week shall not exceed     the maximum number of pares assigned to    such newspaper under paragraph 4 and five-sixths of the maximum number of pages assigned to it under paragraph 3."

Paragraph 6 permits the publication of additional number of pages during the week not exceeding six.    Paragraph 7 permits     the publication of supplements on January 26     and August    15 each year and also once in every quarter on    such special     occasion as the publisher thinks fit.    Paragraph 8 empowers the Central Government to permit the publication of additional supplem nts or special editions in excess of those referred to in paragraph 7 and prescribes the number of pages which could be. published. Paragraph 9 relaxes to a certain extent the rigour of the provisions of paragraphs 4 to 6,


in that it provides that the daily newspaper shall not be deemed    to have contravened the provisions of the Order unless    the number of     pages of all the issues of    that newspaper published during any period of twelve     consecutive weeks exceeds the quota assigned to such newspaper during that period.

A bare     perusal of the Act and the Order thus makes it abundantly clear that the right of a news-, paper to publish news and views and to utilise as many pages as it likes     for that purpose is made to depend upon the price charged to the readers. Prior to the promulgation of the Order every news- paper was free to charge whatever price it chose, and    thus had a right unhampered by State regulation to publish    news and views. This liberty is obviously interfered with by the Order which provides for the maximum number of pages for the particular price charged. The question is whether    this amounts     to any abridgment of the right of a newspaper to freedom of expression.    Our Constitution does not expressly provide     for the freedom of press but it has been held by this Court that this freedom is included in    "freedom of speech and expression" guaranteed by cl. (1)(a) of Art. 19, vide Brij Bhushan v. The State of Delhi(1). This freedom is not absolute for, cl. (2) of Art. 19 permits    restrictions being placed upon it in certain circumstances.    That clause runs thus

"Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes    reasonable restric- tions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States,    public    order,    decency     or morality, or in relation to contempt of court, defamation or incitement to an offence."

(1) [1950] S.C.R. 605. 610.


It is not claimed on behalf of the State that either the Act or the Order made thereunder can be justified by any of     the circumstances set out     in this clause. The right     to propagate one's ideas     is inherent in     the conception of freedom     of speech and expression. For the     purpose of propagating his ideas every citizen has a right to publish them, to disseminate them and to circulate them. He is entitled to do so either by word of mouth or    by writing. The right garanteed thus extends, subject to any     law competent under Art. 19(2), not merely to the matter which he is    entitled to circulate, but also to the volume of circulation. In other words, the citizen is    entitled to propagate his    views and reach any class and number of readers     as he choses subject of course to the     limitations permissible under a law competent under Art.     19(2).     It cannot be gainsaid that the impugned order seeks to place a restraint on the latter aspect of the right by prescribing a price page schedule.    We may add that the fixation of a minimum     price for the number of pages which a newspaper is entitled to publish is obviously not for    ensuring a reasonable price to the buyers of    newspapers but for expressly cutting down the volume of circulation of    some newspapers by making the price so unattractively high for a class of its readers as is likely to deter it from    pur- chasing such newspapers.

It it; not disputed that every newspaper evolves a plan of its own for carrying on its activities.. Bearing in    mind factors     such as the place of publication, the class of     the reading     public     which may be excepted to subscribe to     the paper, the conditions of labour, the price of material, the, availability of advertisements and so on it decides upon its size, the proportion of different kinds of matter published in the newspaper, such as news, comments, views of readers, advertisements etc., and the price to be charged.. The    plan evolved     by it is sought to be rudely shaken if not completely Upset by an order which it is open to the Central 856

Government to make under s. 3(1) with a view to     curtailment of circulation of newspapers.    No doubt, under s. 3(4)     the Government is     required to     consult associations     of publishers. Apart from the fact that the Government is     not bound    by the     opinion of the associations, the    mere circumstance that consultation with them is made obligatory, the action of the Government in formulating an     order    does not cease to be a direct interference with the     freedom of speech and expression of a citizen.

After the schedule comes into force it will not be open to a newspaper proprietor to charge less than a certain minimum price if he wants to give a particular number of pages in his newspaper.     If he should contravene this order he    will incur a penalty. Similarly he cannot publish supplements in excess    of four as and when he chooses, except with     the permission of Government. The Order does not indicate     the circumstances which would entitle a newspaper proprietor to secure    the special permission of Government.     Apparently, whether     to allow an additional supplement or not would be dependent on the sweet will and pleasure of the Government and this would necessarily strike at the root of     the independence of the press.

In Express Newspapers     (Private) Ltd., v. The Union of India(,) this    Court has laid down that while there is no immunity to the press from the operation of the general laws it would not be legitimate to subject the press to    laws which take away or abridge the freedom of speech and expres- sion or adopt measures calculated and intended     to curtail circulation and thereby narrow the scope of dissemination of information, or fetter its freedom to choose its means of exercising the right or would undermine its independence by driving     it to     seek Government aid.    This Court further pointed out` that a law which lays upon the Press excessive and prohibitive, burdens which would restrict the (1) [1959] 6. C. R. 12.



circulation of a newspaper would not be saved by Art. 19(2) of the Constitution.

It must-be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense.     Certain rights have been    enshrined in     our Constitution as fundamental and,     therefore, while considering the nature and content of those rights the Court must not be too astute to interpret the language-of     the Constitution in so literal a sense as to whittle them down. On the other hand the Court must interpret the    Constitution in a manner which would enable the citizen to enjoy     the rights    guaranteed by it in the fullest measure subject, of course, to permissible restrictions. Bearing this principle in mind it would be clear that the right to     freedom of speech    and expression carries with it the right to publish and circulate one's ideas, opinions and views with complete freedom     and by resorting to any available means     of publication subject again to such restrictions as could be legitimately imposed under cl. (2) of Art. 19.     The first decision of this Court in which this     was recognized is Romesh    Thapar v. State of Madras (1).    There.,     this Court held that freedom of speech and expression includes freedom of propagation of ideas and that this freedom is ensured by the freedom of circulation. In that case this Court     has also pointed out that freedom of speech and expression     are tie foundation     of all democratic organisations and     are essential for    the proper functioning of the processes of democracy. There and in other cases this Court pointed     out that very narrow and stringent limits have been set to permissible legislative abridgment of the right of freedom of speech and expression. In State of Madras v. V. G.     Row (2) the question of the reasonableness of restrictions which could be posed upon a fundamental right has been considered. This Court has pointed out that the nature (1) [1950] S.C.R. 594.

(2) [1952] S.C.R. 597.


of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and scope of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at that    time should    all enter into the judicial verdict. In Dwarkadas Shrinivas v. The Sholapur Spinning & Weaving Co., Ltd.     (1) this Court has pointed out     that in construing     the Constitution it is the substance " and the practical result of the     act of the State that should be considered rather than its purely legal aspect. The correct approach in    such cases should be to enquire as to what in substance is     the loss or injury caused to the citizen and not    merely    what manner and method has been adopted by the State in placing the restriction. In Virendra v. The State of Punjab (2) this Court has observed at p. 319 as follows :

"It is certainly a serious encroachment on the valuable    and cherished right of     freedom of speech and expression if a newspaper     is ,prevented from    publishing its    own or     the views of     its correspondents relating to or concerning what may be the burning topic of the day".

The impugned order requires all newspapers to    raise their prices if they want to maintain the present number of pages. The effect of raising the selling price of newspaper     has been considered by the Press Commission. In Paragraph     164 of the 'Report it is observed:

"The selling price of a paper would naturally have an important effect on its    circulation. In this connection we have examined the effect of price-cuts adopted by two English papers at Bombay on the circulation of those two papers as well as of the leading paper which did     not reduce its price' Prior to 27th October, 1952, Times of India which     had the highest circulation at Bombay was being sold     at Rs.0-2-6

(1) [1954] S.C.R. 674.

(2) [1958] S.C.R. 308.


while Free Press Journal and National Standard which rank next in circulation were being sold for Rs.0-2-0. On 27th October,     1952,    Free Press Journal reduced its price to Rs, 0- 1 -0 and within a year bad claimed to have doubled its circulation.     On 1st July, 1953,     the National Standard was converted into a Bombay edition of Indian Express with a selling price of Rs. 0- 1-6.     Within six months it     too claimed to have doubled its circulation...Dur- ing this period the Times of India which did not reduce its selling    price continued to retain its readership. Thus it would appear that Free Press Journal and Indian Express by reducing their price have been able to tap new readership which was latent in the market     but which could not pay the higher prices prevailing earlier".

Then in' paragraph 165 it is observed

"There is another instance illustrating     the ,effect of selling price on the    circulation. The two leading Tamil papers Swadesamitran and Dinamani    in Madras, anticipating towards     the end of 1950 a steep rise in the price of news- print, came to an understanding and raised the price of their papers from Rs.0-1-0 to Rs 0-1-

6. (These papers normally carried 30 to 36 pages per week).     The increase in price    from Rs. 0- 1 -0 per copy to Rs. 0-1-6 was brought into effect from 1st January,     1951.     The result was a drastic fall in circulation in both their cases. Subsequently in view of this fall in circulation they agreed to reduce their prices to the old figure.     While     the original    fall in circulation came about in three months duration one paper took more than 9 months to recover its old circulation while the other had not done so......... It may be mentioned    in this connection     that    th


circulation of     a    competing paper, Thanthi......... did not rise during the three 860

months when the two leading    papers     had increased     the price .......nor did it    fall when the     prices of the leading    papers    were lowered again.    The conclusion, therefore, appears to be that over 33,000 readers     had stopped taking any papers because the price- had been raised;......... The period examined coincided     with an accentuation     of draught conditions in Tamil Nadu; a certain fall in circulation all    round can be attributed to these conditions.     Nevertheless, it cannot be denied -that a change in price    did have a profound    effect on the circulation of those two papers".

Though the prices of newspapers appear to be on the low side it is a fact that even so many people find it difficult to pay that small price. This is what has been pointed out by the Press Commission    in paragraph 52 of its report. According to it the most common reason for people in     not purchasing newspapers is the cost of the newspaper and     the inability of the household to spare the necessary amount. This conclusion is based upon the evidence of a very large number    of individuals and representatives of Associations. We would, therefore, be justified in relying upon it     and holding     that raising the price of a newspaper     even by a small amount such as one nP. in order that its present size be maintained would adversely affect its circulation. It is, however, said that it is not necessary for newspapers to raise their prices but that they    could reduce their number    of pages. For one things, requiring newspapers to reduce their sizes would be compelling them to restrict     the dissemination of news and views and thus directly affecting their right under Art. 19(1)(a). But it is said that     the object    could be achieved by reducing    the advertisements. That is to say, the newspapers would be able to devote     the same space which they are devoting today to the publication of news and views by reducing to the necessary     extent     the space allotted to advertisements. It is pointed out    that news-


papers     allot     a disproportionately     large     space     to advertisements,     It is true that many newspapers do devote very large areas to advertisements. But then the Act is intended to apply also to newspapers which may carry no or very few advertisements. Again, after the commencement of the Act and the coming into force of the Order a newspaper which has a right to publish any 'number of pages     for carrying its news and views will be restrained from doing so except    upon the condition that it raises the selling price as provided in the schedule to the Order. This would be the direct    and immediate effect of the Order and As such would be violative of the right of newspapers guaranteed by    Art. 19(1)(a).

Again,    s. 3(1) of the Act in so far    as it    permits     the allocation of space to advertisements also directly affects freedom     of circulation. If the area for advertisements is curtailed the price of the newspaper will be forced up.     If that happens, the circulation will inevitably go down.    This would be no remote, but a direct consequence of     curtailment of advertisements.

We would consider this matter in another way     also.     The advertisement revenue of a newspaper is proportionate to its circulation. Thus the higher the circulation of a newspaper the larger would be its advertisement revenue. So if a newspaper with a high circulation were to raise its price its circulation would go down and this in turn would bring down also the advertisement revenue. That would force     the newspaper either to close down or to raise     its price. Raising the price further would affect the circulation still more and thus     a vicious cycle would set in    which would ultimately end in the closure of the newspaper.     If, on     the other hand, the space for advertisement is    reduced     the earnings of a newspaper would go down and it would either have to run at a loss or close down or raise its price.     The object of the Act in regulating the space for advertisements is stated to


be to     prevant "unfair' competition.     It is thus directed against circulation of a newspaper. When a law is intended to bring about this-result there would be     a' direct interference with the     right    of freedom of     speech     and expression guaranteed under Art. 19(1)(a). Since the very object of the' impugned law is to affect     the circulation of     certain newspapers which, are    said to be practising unfair competition it is difficult to appreciate how it could be sustained. The right to freedom of speech and expression is an individual right guaranteed to every citizen     by Art. 19(1)(a) of the Constitution. There is nothing     in el. (2) of Art. 19 which permits the State, to abridge this right on the ground of conferring benefits upon the public in general or upon a section of the public.     It is not open to the State to curtail or infringe the freedom of speech of one for promoting the general welfare of a section     or a group of people unless its action could be justified under a law competent under el. (2) of Art.     19. It is    admitted that the impugned provisions cannot be justified on the grounds referred to     in the aforesaid. clause.

It was, however, contended on behalf of the State that there are two aspects of    the activities     of newspapers-the dissemination of news and views and the commercial aspect. These two aspects, it is said fare    different from     one another     and under cl. (6) of Art. 19 restrictions can be placed    on the latter right in the interest of    the general public.     So far as it is relevant for the purpose of     the argument el. (6) reads thus:

"Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes or prevent     the State from making any law imposing in     the interests of the general public, reasonable'restrictions on the exercise of the    right conferred     by the said    sub- clause . . . . . . . . . . . . .


It may well be within the power of the State to place, in the interest of the general public, restrictions upon     the right of a citizen to carry on business but it is not    open to the     State    to achieve this object by directly     and immediately curtailing     any other freedom of that citizen guaranteed by the Constitution     and     which     is     not susceptible of abridgement on the same grounds as are Bet out in cl. (6) of Art. 19. Therefore, the     right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen. Freedom of speech can be restricted only in     the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of    the general public.     If a law directly affecting it is challenged it is no answer that the    restrictions enacted by it     are justifiable under cls. (3) to (6). For, the scheme of    Art. is to enumerate different freedoms separately and then to specify     the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and el. (1) does not     prefer     one freedom     to another.    That is the plain meaning of    this clause.     It follows from this that the State cannot make a law which directly restricts one freedom even for scouring the better enjoyment of another freedom. All    the greater reason, therefore for holding that the State cannot directly restrict one freedom by placing an otherwise     permissible restriction on another freedom.

Viewing     the question from this angle it would be seen    that the reference    to the Press being a business    and to     the restriction imposed by the impugned Act being referable or justified as a proper restriction on the right to carry on the business of publishing a, newspaper would be 864

wholly    irrelevant for considering whether the impugned     Act infringes or does not infringe the freedom guaranteed by Art. 19(1)(a).

The only question that would then remain would     be whether the impugned enactment directly impinges on the guarantee of freedom of speech and expression. It would directly impinge on this freedom either by placing restraint upon it or by placing restraint upon something which is an essential    part of that freedom. The freedom of a newspaper to publish     any number of pages or to circulate it to any number of persons is each an integral part of the freedom of     speech     and expression. A restraint placed upon either of them would be a direct infringement of the right of freedom of speech     and expression. Perhaps an illustration would make the point clear.     Let us suppose that the enactment had said    that newspaper "A' or newspaper "B' (ignoring for the moment     the objection to the illustration based upon Art. 14 shall     not have more than a specified number of subscribers. Could such a law    be valid in the face of the guarantee     under    Art. 19(1)(a)? The     answer must unhesitatingly be    no, because such a law would be recognized as directly impinging    upon the freedom of expression which encompasses     freedom of circulation and to restrain the citizen from propagating his views to any other beyond the limit or number prescribed by the statute. If this were so, the fact that the legislation achieves the same result by means of the schedule of rates makes no difference and the impact on     the freedom would still be direct notwithstanding that it does not appear so on its face.

Here the Act by enacting As. 4 and 5 directly    prohibits a newspaper from exercising that right, should the newspaper fail to comply with the requirement of an order made under s. 3.    This is a direct invasion of the right     under    Art. 19(1)(a) and not an incidental or problematic effect thereon as


was found in the. Express Newspapers case(1).    In that case the challenge     to certain provisions of the Working Journalists (Conditions. of Service)     and Miscellaneous Provisions Act, 1955 on the round that it infringes     the right guaranteed by Art. 19 ,(1)(&) of the Constitution. That challenge failed because the object of that enactment was to secure the amelioration of the condition of working journalists and also because the law did not have the effect of directly interfering with the right of the newspaper proprietors guaranteed under     Art. 19 (1)(a) of     the Constitution.    The distinction between direct and indirect effect of 'a law upon the freedom of press has been adverted to in that case. At p.     135, Bhagwati, J., who spoke     for the Court has said :

"All the consequences     which     have    been visualised in this behalf by the    petitioners, viz., the tendency to curtail circulation     and thereby narrow the scope of dissemination of information,     fetters on     the

petitioners'freedom to choose the means of exercising the    right,    likelihood of     the independence of the press being undermined by having to seek government aid;.........    etc. would be     remote     and depend upon various factors which may or may not come into play. Unless these were the direct or inevitable consequences of the measures enacted in     the impugned    Act, it would not be    possible to strike down the legislation as    having    that effect and operation."

That the impugned Act was intended to effect circulation and thus directly affect the freedom of speech is     discernible also from the preamble which we way here quote. It    runs thus:

"An Act to provide for the regulation of     the prices charged for newspapers in relation to their pages and of matters connected therewith for the purpose of preventing unfair

(1) (1959) S.C..R. 12


competition among newspapers so     that news. papers may have fuller opportunities     of freedom of expression."

Its object thus is to regulate something which, as already stated,     is directly related    to the     circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom of speech the Act must be regarded as one directed against the freedom of speech. It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech viz., the right to circulate one's views to all whom one can reach or    care to reach for the imposition of a restriction.    It seeks to achieve     its object of enabling what are termed the smaller newspapers to secure larger circulation by provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it seeks to achieve    the and by purporting to regulate the business aspect of a newspaper. Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all     the freedoms guaranteed by our Constitution. The     reason     for this is obvious. The freedom of speech and expression of opinion     is of     paramount importance    under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.     No doubt, the law in question was made upon the recommendation of the Press Commission but since its object is to affect directly the right of circulation of newspapers which would necessarily undermine    their power to influence public opinion     it cannot. but be regarded as a dangerous weapon which is capable of being used against democracy itself. In these circumstances the Act and the Order cannot be sustain d upon the ground that it merely


implements a recommendation of the Press Commission and     was thus not made with an ulterior object. The    decision in Hamdard     Dawakhana (Wakf) v. Union of India (1)     upon which reliance was placed by the respondent in support of     the contention that where an enactment is     challenged on     the ground    of violation of fundamental rights it is legitimate to take into consideration several factors including     the purpose     of the legislation, the mischief intended to be suppressed, the remedy purposed by the legislature and     the true reason for that remedy does not, therefore, arise     for consideration.    Similarly since the Act taken in conjunction with the order made thereunder operates as a restraint on the freedom of Speech and expression of newspapers the    mere fact that its object was to suppress unfair practices by newspapers would not    validate them.    Carrying on unfair practices may be a matter for condemnation. But that would be no    ground    for placing restrictions on the right of circulation.

It was     argued that the object of the Act was     to prevent monopolies and     that monopolies are obnoxious. We    will assume    that monopolies are always against public interest and deserve to be suppressed.     Even so, upon the view we have taken that the intendment of the Act and the direct and immediate effect of the Act taken along with the impugned order was to interfere with the freedom of circulation of newspapers the circumstance that its object was to suppress monopolies and prevent unfair practices is of no assistance. The legitimacy of the result intended to be "achieved    does not necessarily imply that every means to achieve it is permissible; for even if the end    is desirable     and permissible, the means employed must    not transgress     the limits    laid down by the Constitution, if they directly impinge     on any of the fundamental rights guaranteed by     the Constitution it is no answer when the constitutionality (1) [1960] 2 S.C. R. 671.


of the measure is challenged that apart from the fundamental right infringed the provision is otherwise legal. Finally it was said that one of its objects is to give    some kind of protection to small or newly started newspapers and, therefore, the Act is good. Such an object may be desirable but for attaining it the State cannot make inroads on     the right of, other newspapers which Art. 19(1)(a) guarantees to them. There may be other ways of helping them and it is for or the State to search for them but the one they have chosen falls foul of the Constitution.

To repeat, the only restrictions which may be     imposed on the, rights of an individual under Art. 19(1)(a) are those which cl. (2) of Art. 19 permits and no other. Coming to Writ Petitions 67 and 68 of 1961, considering that the relief granted by us in the main petition will redress the grievance of the petitioners in these two petitions it will be only of academic interest to decide whether they, as readers of newspapers, can complain of an interference    with their right under Art. (19) (1) (a). We, therefore, refrain from making any Order on their petitions.

Upon the view we take it would follow that s.     3(1)     of the Act, which is its pivotal provision, is unconstitutional and therefore, the Daily newspaper (Price and Page) Order, 1960 made thereunder is also unconstitutional.     If a.    3(1) is struck down as bad, nothing remains in the Act itself. Accordingly we     allow    this petition    with costs.    'The petitioners in     W. Ps. 67 and 68 of 1961 as well as     the interveners will bear their respective costs.