Topic: Bennett Coleman and Co. v/s UOI - violation of Article 19(1)(a)
Bennett Coleman and Co. v/s Union of India
Equivalent citations: 1973 AIR 106, 1973 SCR (2) 757 - Bench: Sikri, S.M. (Cj), Ray, A.N., Reddy, P. Jaganmohan, Mathew, Kuttyil Kurien, Beg, M. Hameedullah - Citation: 1973 AIR 106 1973 SCR (2) 757, 1972 SCC (2) 788 - Citator Info: RF 1973 SC1461 (1787), R 1974 SC 366 (98), F 1974 SC1232 (10), R 1974 SC1300 (24), RF 1974 SC1389 (174), F 1975 SC 32 (32), RF 1976 SC1207 (86,89,91,177,179,445,541) R 1978 SC 597 (41,68,77,131,176,195), R 1978 SC 727 (34), RF 1979 SC 25 (35), RF 1980 SC 898 (35), R 1981 SC1368 (7), RF 1983 SC 937 (12), RF 1986 SC 515 (22,33,35,64,65,89,102) RF 1986 SC 833 (45), R 1986 SC 872 (70,75,77) - Date of Judgment: 30/10/1972
violative of provision of Article 19(1)(a) and not to be reasonable restriction under Article 19(2).
Constitution of India 1950, Arts. 14 & 19 (1) (a)--Newsprint policy for 1972-73 whether violates Articles 19(1) (a) and 14 -Validity of Remarks V, VII(a), VII(c), VIll and X of Policy--Competency of shareholders of company to file petitions under Art.32--Emergency proclaimed under Art. 358 of Constitution--Application in respect of enforcement of fundamental rights whether barred.
The Import Control Order 1955 passed by the Central Government under ss. 3 and 4A of the Imports and Exports Control Act 1947 laid restrictions on the import of newsprint. As an essential commodity newsprint was also subject to control under s.3 of the Essential Commodities Act 1955. The Newsprint Control Order 1962 was passed under s. 3 of the Essential Commodities Act. Sub-clause 3 of clause 3 of the 1962 Order states that no consumer of newsprint shall in any licensing period consume or use newsprint in excess of quantity authorised by the Controller from time to time. Sub-clause 3A of clause 3 states that no consumer of newsprint other than a publisher of text books of general interest shall use any kind of paper other than newsprint except with the permission in writing of the Controller. Sub-clause (5) of Clause 3 of the 1962 Order states that in issuing an authorisation under this clause the Controller shall have regard to the principles laid down in the Import Control Policy with respect to newsprint announced by the Central Government from time to time. The newsprint Policy for 1972-73 was challenged in this Court in petitions under Art. 32 of the Constitution. The questions that fell for consideration were : (i) whether the petitioners being companies could invoke fundamental rights; (ii) whether Art. 358 of the Constitution was a bar to any challenge by the petitioners on violations of fundamental rights; (iii) whether the restriction on newsprint import under the 1955 Order was violative of Art. 19(1) (a) of the Constitution; (iv) whether the newsprint Policy fell within clause 5(1) of the Import, Control Order 1955 and was valid; (v) whether clauses 3 and 3A of clause 3 of the 1962 Newsprint Order were violative of Arts. 19,(1) (a) and 14 of the Constitution; (vi) whether Remarks V, VII(a), VII(c), VIII, and X of the Newsprint Policy for 1972-73 were violative of Arts. 19(1) (a) and 14 of the Constitution because of the following objectionable features : (a) No new paper or new edition could be started by a common ownership unit (i.e., a newspaper establishment or concern owning two or more news interest newspapers including at least one daily) even within the authorised quota of newsprint; (b) there was a limitation on the maximum number of pages to 10, no adjustment being permitted between circulation and the pages so as to increase the pages; (c) no interchangeability was permitted between different papers of common ownership unit or different editions of the same paper; (d) allowance of 20 per cent increase in page level up to a, maximum of 10 had been given to newspapers with less than 10 pages; (e) a big newspaper was prohibited and prevented from increasing the number of pages, page areas, and periodicity by reducing circulation to meet its requirement even within its admissible quota; (f) there was discrimination in entitlement between
newspapers with an average of more than 10 pages as compared with newspapers of 10 or less than 10 pages. Allowing the petitions,
HELD: Per Majority (Sikri. C.J., Rayand Jaganmohan Reddy, JJ.) (1)The Bank Nationalization case has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to form a company When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders' rights are equally and necessarily affected if the rights of the company are affected. The rights of shareholders with regard to Article 19(1) (a) are projected and manifested by the newspapers owned and controlled by the shareholders through the medium of the Corporation. [773C-D] In the present case the individual rights of freedom of speech and expression of editors,Directors and Shareholders are all expressed through their newspapers through which they speak. The locus standi of the shareholder petitioners is beyond challenge after the ruling of this Court in the Bank Nationalisation case., The presence of the company is on the same ruling not a bar to the grant of relief. [773D- F]
(ii)The present- petitions which were originally filed to challenge the Newsprint Policy for 1971-72 were amended to challenge the 1972-73 policy. The impeached policy was a continuation of the old policy. Article 358 does not apply to executive action taken during the emergency if the same is a continuation of the prior executive action or an emanation of the previous law which prior executive action or previous law would otherwise be violative of Art. 19 or be otherwise unconstitutional. [774 F, G, H] Executive action which is unconstitutional is not unusual during the proclamation of emergency. During the proclamation Art. 19 is suspended. But it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Art. 19 without any legislative authority or in purported exercise of power conferred by any pre-emergency law which was invalid when enacted. [775A-B]
(iii)The power of the Government to import newsprint cannot be denied. The power of the Government to control the distribution of newsprint cannot equally be denied. This Court cannot adjudicate on such policy measures unless the policy is alleged to. be mala fide. The Court could also not go into the dispute as to the quantity of indigenous newsprint available for newspapers. [776D; 776E] (iv)The records with regard to the making and publication of the news print policy for 1972-73 showed that the policy was published under the authority of the Cabinet decision. The policy was therefore validly brought into existence. (v) Although Art. 19(1) (a) does not mention the freedom of the Press, it is the settled view of this Court that freedom of speech and expression includes freedom of the Press and circulation. The Press has the right of free propagation and free circulation without any previous restraint on publication. If a law were to single out the press for laying down prohibitive burdens on it that would restrict the circulation, penalise its freedom of choice as to personnel, prevent newspapers from being started and compel the press to Government aid, this would violate Art. 19(1) (a) and would fall outside the Protection afforded by Art. 19(2).
The concept of regulation of fundamental rights borrowed and extracted from American decisions cannot be accepted. The American First Amendment contains no exceptions like our Art. 19(2) of the Constitution. This Court has established freedom of the press to speak and express. That freedom cannot be abridged and taken away by the manner the impugned policy has done. [783B; 784C]
(vi)A newspaper control policy is ultra vires the Import Control Act and the Import control Order. The machinery of Import Control cannot be utilised to control or curb circulation or growth or freedom of newspapers in India. The pith and substance doctrine is used in ascertaining whether the Act falls under one Entry while incidentally encroaching upon another Entry. Such a question does not arise here., The Newsprint Control Policy is found to be newspaper control order in the guise of framing an Import Control Policy for newsprint. [780H; 781A-B] (vii)This Court in the Bank Nationalisation case laid down two tests. First it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right. Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the court to grant relief. The direct operation of the Act upon the rights forms the real test. [781C-D]
An examination of the provisions of the newsprint policy indicates how the petitioner's fundamental rights had been infringed by the restrictions on page limit, prohibition against new newspapers and new editions. The effect and consequence of the impugned policy upon the newspapers is directly controlling the growth and circulation of newspapers. The direct effect is the restriction upon circulation of newspapers., The direct effect is upon growth of newspapers through pages. The direct effect is that newspapers are deprived of their area of advertisement. The direct effect is that they are exposed to financial loss. The direct effect is that freedom of speech and expression is infringed. [782B-C]
(viii)It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express.
(ix)In the present case fixation of page limit will not only deprive the petitioners of their economic vitality but also restrict the freedom of expression by reason of the compulsive reduction of page level entailing reduction of circulation and demanding the area of coverage for news and views. [790D-E]
If as a result of reduction in pages the newspapers will have to depend on advertisements as the main source of their income, they will be denied dissemination of news and views. That will also deprive them of their freedom of speech and expression. On the other hand if as a result of restriction on page limit the newspapers will have to sacrifice advertisements and thus weaken the limit of financial strength, the Organisation may crumble., The loss on advertisements may not only entail the closing down but also affect the circulation and thereby infringe on freedom of speech and expression. [790F-G]
(x)The impeached policy violates Art. 14 because it treats newspapers which are not equal equally in assessing the needs and requirements of newsprint. The 7 newspapers which were operating above 10 page level are placed at a disadvantage by the fixation of 10 page limit and entitle- ment to quota on that basis. There is no intelligible differentia.
The basic entitlement in Remark V to quota for newspapers operating above 10 page level violates Article 19(1)(a) because the quota is hedged in by direction not increase the page number above 10. The reduction of page limit to 10 for the aforesaid reasons violates Article 19(1)(a) and Article 14 of the Constitution. [792C]
(xi)Under Remark VII(C) those-newspapers within the ceiling of 10 pages get 20 per cent increase in the number of pages. They require circulation more than the number of pages. They are denied circulation as a result of the policy., The big English dailies which need to increase their pages are not permitted to do so. Other dailies which do not need increase in pages are permitted quota. for increase but they are denied the right of circulation. This is not newsprint control but newspaper control. [792F-G]
(xii)Discrimination is apparent from Remark VII in the newsprint Policy for 1972-73 by which newspapers with less than 1,00,000 circulation have been given 10% increase in circulation whereas those with more than 1,00,000 circulation have been given only 3% increase in circulation. [795C-D] (xiii) The first part of Remark VIII prohibits increase in pages by reducing circulation. in the past adjustability between pages and circulation was permitted. The individual requirements of different dailies render it eminently desirable in some cases to increase the number of pages than circulation. The denial of this flexibility or adjustment is rightly said to hamper the quality, range and standard of the dailies and to affect the freedom of the press. Big dailies are treated to be equal with newspapers who are not equal to them thus violating Art. 14. [793E-F] (xiv) The second prohibition in Remark VIII prevented common ownership units from adjusting between them the newsprint quota alloted to each of them. The prohibition is to use the newsprint quota of one newspaper belonging to a common ownership unit for another newspaper belonging to that unit. Newsprint is allotted to each paper. The news- paper is considered to be the recipient. A single newspaper will suffer if common ownership units are allowed to adjust quota within their group. [794 B; & D]
(xv) Under Remark X a common ownership unit could bring out a newspaper or start a new edition of an existing paper even from their allocated quota. it is an abridgment of the freedom of expression to prevent a common ownership unit from starting a new edition or a new newspaper. A common ownership unit should be free to start a new edition out of their allotted quota and it would be logical to say that such a# unit can use the allotted quota for changing the page structure and circulation of different editions of the same paper. Newspapers however cannot be permitted to use allotted quota for starting a new newspaper. Newspapers will have to make necessary application for allotment of quota in that behalf. It will be open to the appropriate authorities to deal with the application in accordance with law. [794G-H]
(xvi) The liberty of the press remains an Ark of the Covenant. The newspapers give the people the freedom to find out which ideas are correct. Therefore the freedom of the press is to be enriched by removing the restrictions on page limit and allowing them to have new editions of newspapers. [796A-C]
(xvii) The Press is not exposed to any mischief of monopolistic combination. The newsprint policy is not a measure to combat monopolies.
The newsprint policy should allow the newspapers that amount of freedom of discussion and information which is needed or will appropriately enable the members of the society to preserve their political expression of comment not only upon public affairs but also upon the vast range of views and matters needed for free society. [797D-F]
(xix) Clause 3(3A) of the 1962 Order provides that no consumer of newsprint other than a publisher of text books of general interest shall use any kind of page other than newsprint except with the permission of the Controller. It was therefore wrong to say that it was open to newspapers to make unrestricted use of any form of paper so long as news- papers did not apply for newsprint. [798F]
(xx) In the result the provisions in remarks V, VII(a), VII(C) and VIII of the Policy being violative of Arts. 14 & 19 (1) (a) of the Constitution must be struck down as unconstitutional. The prohibition in Remark X against common ownership unit from starting a new newspaper periodical or a new edition must be declared unconstitutional and struck down as violative of Art. 19 (1) (a) of the Constitution. [799B-D]
[In the circumstances of the case the Court did not find it necessary to express any opinion on Clause 3(3) and' Clause 3(3A) of the Control Order]
State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatanam,  4 S.C.R. 99, Tata Engineering & Locomotive Co. v. State of Bihar,  6 S.C.R., 885, Chiranjit Lal Choudhuri v. The Union of India & Ors.  S.C.R. 869, Express Newspapers (Private) Ltd. & Anr. v. The Union of India & Ors.  S.C.R. 12, Sakai Papers (P) Ltd. & Ors. v. The Union of India,  3 S.C.R. 842, Romesh Thappar v. State of Madras,  S.C.R. 594, Brij Bhushan V. State of Delhi,  S.C.R. 605, R. C. Cooper v. Union of India,  3 S.C.R. 530, District Collector of Hyderabad & Ors. v. M/s Ibrahim & Co. etc.  3 S.C.R. 498, State of Madhya Pradesh & Anr. v. Thakur Bharat Singh,  2 S.C.R. 454, Hamdard Dawakhana (Wakf) Lal Kuan Delhi & Anr. v. Union of India & Ors.,  2 S.C.R. 1671, Red Lion Broadcasting Co. v. Federal Communications Com.  393 US 367=23 L.Ed 371, United States v. O'Brian,  391 US 367=23L.Ed. 2d 371, United States v. O'Brien,  391, U.S. 367=20 L.Ed. 2d. 672, Abdul Azict Aminudinv. State of Maharashtra,  1 S.C.R. 830, Dwarkadas Shrinivas v.The Sholapur & Weaving Co. Ltd.,  S.C.R. 674,Commonwealth of Australia v. Bank of New South Wales,  A.C.235 and Citizen Publishing Co. v. United States,  394 U.S. 131=22 L. Ed. 2 d. 148, referred to.
Per Beg J. (concurring) The ambit of the conditions in a licence cannot under the provisions of the Imports and Exports Control Act, after newsprint has been imported under a licence, extend to laying down how it is to be utilized by a newspaper concern for its own genuine needs and businesses because this would ?.mount to control of supply of news by means of newsprint instead of only regulating its import. [833C-D]
The relevant enactments and orders seem to authorise only the grant of licences for particular quotas to those who run newspapers on the strength of their needs, assessed on the basis of their past performances and future requirements and other relevant data, but not to warrant an imposition of further conditions to be observed by them while they are genuinely using the newsprint themselves in the course of carrying on a legitimate and permissible occupation and business. The impugned restrictive conditions thus appear to go beyond, the scope of the Essential Commodities Act 1955 as well as the imports & Exports (Control) Act, 1947. Nor could any legal
authority be found for them in the provisions of the Press Books Act 1867, Registration of Newspapers (Central Rules) 1956, and Press Council Act, 1965, to which reference was made. [833D-G]
Therefore the argument put forward on behalf of the petitioners that after the allocation of quotas of newsprint to each set of petitioners, on legally relevant material, the further restrictions sought to be imposed, by means of the notified newsprint control policy, on the actual mode of user of newsprint for publication of information or views by the licensees, similar to those which were held by this Court in Sakai Papers case to be invalid, are not covered by any law in existence, had to be accepted. Hence it was not even necessary to consider whether they were reasonable restrictions warranted by either Art. 19 (2) or Art. 19 (6) of the Constitution. They must first have the authority of some law to support them before the question of considering whether they could be reasonable restrictions on fundamental rights of the petitioner could arise. [833H-834B] Per Mathew J. (dissenting) (1) Art. 19 (1) (a) guarantees to the citizens, the fundamental right of the freedom of speech and Art, 19(2) enumerates the type of restrictions which might be imposed by law. It does not follow from this that freedom of expression is not subject to regulations which may not amount to, abridgment. It is a total misconception to say that speech cannot be regulated or that every regulation of speech would be anabridgment of the freedom of speech. No freedom however absolute, can be free from regulation. Though the right under Art. 30(1) is in terms absolute, this Court said in In Re the Kerala Education Bill 1957, ( S.C.R. 995), that the right is subject to reasonable regulation. [803F-G]
(ii) If, on account of scarcity of newsprint, it is not possible, on an equitable, distribution to allot to the petitioners, newsprint to the extent necessary to maintain the present circulation of the newspapers or their page level has to be reduced, it cannot be contended that there has been abridgment of freedom of speech. Surely the reduction in the page level or circulation is the direct result of the diminished supply of newsprint. Yet it cannot be said that there is an abridgment of the freedom of speech of the petitioners. There might be an abridgment of speech, but not an abridgment of the freedom of speech. [807C-D] (iii) The pith and substance test, although not strictly appropriate, might serve a useful purpose in the process of deciding whether the provisions in question which work some interference with the freedom of speech are essentially regulatory in character. [807C-D]
(iv) The crucial question today, as regards Art. 14, is whether the command implicit in it constitutes merely a bar on the creation of inequalities existing without any contribution thereto by State action. It has been said that justice is the effort of man to mitigate the inequality of man. The whole drive of the directive principles of the Constitution is toward this goal and it is in consonance with the new concept of equality. The only norm which the Constitution furnishes for distribution of the material resources of the community is the elastic norm of the common good [see Art. 39(b)]. It cannot be said that the principle adopted for the distribution of newsprint is not for the common good. [816C-F]
That apart one of the objects of the Newsprint policy was to remedy the inequality created by the previous policies and to enable the dailies having less than 10 pages attain a position of equality with those operating on a page level of 10 or more.. The allowance of 20 per cent
increase for growth in the page level provided in Remark VII is based on a classification and that classification is grounded on an intelligible differentia having a nexus to the object sought to be achieved. [816G]
(v) If the entitlement of a consumer of newsprint is calculated on the basis of page-level and circulation of the newspaper it would be an integral part of any system of rationing to tell the consumer that he should maintain the page level and circulation of the paper. The provision in Remark VIII does not say that the proprietor or publisher of a newspaper should reduce its circulation. The provision in effect only tells the proprietor/ publisher of the newspaper "maintain the circulation at the present level or increase it if you like by reducing the page level." This would not amount to an abridgment of the freedom of speech. [817 D & F]
(vi) Under the theory of the freedom of speech which recognises not only the right of the citizens to speak but also the right of the community to hear, a policy for the distribution of newsprint for maintenance of circulation at its highest possible level as it furthers the right of the community to hear, will only advance and enrich that freedom. [819D]
(vii) It is difficult to understand how the fixation of a maximum page level of 10 for calculation of quota of newsprint would offend the fundamental right of freedom of speech of the petitioners. The freedom of speech does not mean a right to obtain or use an unlimited quantity of newsprint., Art. 19(1) (a) is not the "guardian of unlimited talkativeness." [814F-G]
(viii) It is settled by the decision of this Court in Hamdard Dawakhana ( 2 S.C.R. 671) that commercial advertisement does not come within the ambit of the freedom of speech guaranteed by Art. 19(1)(a). Curtailment of speech occasioned by rationing of newsprint due to its scarcity can only affect freedom of speech indirectly and consequently there would be no abridgment of it. [815B-C] (ix) The Government may under cls. 3 of the Imports (control) Order, 1955 totally prohibit the import of newsprint and thus disable any person from carrying on a business in newsprint, if it is in the general interest of the public not to extend any foreign exchange on that score. If the affirmative obligation to expend foreign exchange and permit the import of newsprint stems from need of the community for information and the fundamental duty of Government to educate the people as also to satisfy the individual need for self expression, it is not for the proprietor of a newspaper alone to say that he will reduce the circulation of the newspaper and increase its page level, as the community has an interest in maintaining or increasing circulation of newspapers.. The claim to enlarge the volume of speech at the expense of circulation is not for exercising the freedom of speech guaranteed by Art. 19(1) (a) but for commercial advertisement for revenue which will fall within the ambit of that subarticle. [820B-E] (x) The printer or publisher of each newspaper owned by a common ownership unit is a separate consumer and it is to that consumer that the quota is allotted. The application for quota made by the common ownership unit specifies the entitlement of each newspaper owned by it, and quota is granted to each newspaper on that basis. If it were opened to a common ownership unit to use the quota allotted for one newspaper owned by it for another newspaper, or for a different edition of the-same newspaper, that would frustrate the whole scheme of rationing. Prohibition of interchangeability has nothing to do with Art. 19(1) (a). [822C-D]
(xi) That there is a valid classification between a person owning no newspaper and a common ownership unit owning two or more newspapers cannot be denied. Any person desiring to express himself by the medium of a newspaper cannot be denied an opportunity for the same. The right guaranteed under Art. 19(1)(a) has an essentially individual aspect. A common ownership unit has already been given the opportunity to express itself by the media of two or more newspapers. if a common ownership unit were to go on acquiring or sponsoring new newspapers and if the claim for quota for all the newspapers is admitted, that would result in concentration of newspaper ownership and will accelerate the tendency towards monopoly in the newspaper industry. Since the quantity of newsprint available for distribution is limited, any system of rationing must place some limitation upon the right of a person to express himself through newspapers. [822H; 823A-D]
(xii) The contention that the newsprint Policy was not binding since it had no statutory backing could not be accepted. The newsprint Policy was issued by the Chief Controller of Imports & Exports and the Additional Secretary to Government, had authenticated it. The newsprint Policy was placed before both the Houses of Parliament. Even if it was administrative in character it was capable of founding rights and duties. [823F; 824B]
(xiii) The contention that after newsprint has been imported, there was no longer any power left in the Government or in the Chief Controller of Imports and Exports to direct the manner in which it should be utilized, could not be accepted. Even if it be assumed that Government or the Chief Controller of Imports and Exports has no power under cl. 5(1)(i) of the Imports (Control) Order 1955, to issue directions as regards the mode of utilization of newsprint after its import, it is clear that the Government has power by virtue of the provisions of s. 3 of the Essential Commodities Act, 1955, to pass an Order as regards the utilization of newsprint, as newsprint is an "essential commodity" under s. 2(vii) of that Act. [824F; 825C-D] (xiv) Clauses 3(3) and 3(3A) of that newsprint order were not violative of Art. 14 of the Constitution. [826F] (xv) It was not necessary to express any opinion as regards the maintainability of the writ petitions on the ground that consumers of newsprint in question were not citizens. [826G]
ORIGINAL JURISDICTION Writ Petitions Nos. 334 of 1971, 175, 186 and 264 of 1972.
Petitions under Article 32 of the Constitution of India for the enforcement of fundamental rights.
N. A. Palkhiwala, S. J. Sorabjee, M. O. Chenai, S. Swarup, Ravinder Narain, O. C. Mathur and J. B. Dadachanji, for the petitioners (in W.P. No. 334 of 1971.)
C. K. Daphtary, M. C. Bhandare, Liela Seth, O. P. Khaitanand N. C. Shah, for the Petitioner (in W.P. No. 175 of 1972).
S. J. Sorabjee, Ramanathan, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for the Petitioners (in W.P. No. 186 of 1972).
M. K. Nambyar, K. K. Venugopal, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for the petitioners (in W.P. No. 264 of 1972).
F. S. Nariman, Additional Solicitor-General of India, G. Das and B. D. Sharma, for the respondents (in W.Ps. Nos. 334, 175 and 186 of 1972).
J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the Interveners Nos. 1 and 2.
O. P. Khaitan, for Intervener No. 3.
The majority judgment of Sikri, C.J. and Ray and Jaganmohan Reddy, JJ. was delivered by Ray, J. Beg, J. delivered a separate concurring opinion. Mathew, J. delivered a separate dissenting opinion.
RAY, J. These petitions challenge the Import Policy for Newsprint for the year April 1972 to March 1973. The News- print Policy is impeached as an infringement of fundamental rights to freedom of speech and expression in Article 19 (1) (a) and right to equality in Article 14 of the Constitution. Some provisions of the Newsprint Control Order 1962 are challenged as violative of Article 19(1)(a) and Article 14 of the Constitution.
The import of newsprint is dealt with by Import Control Order, 1955 (referred to as the 1955 Import Order). The 1955 Import Order is made in exercise of powers conferred by sections 3 and 4A of the Imports and Exports Control Act, 1947 (referred to as the 1947 Act). Section 3 of the 1947 Act, speaks of powers of the Central Government to prohibit, restrict or otherwise control imports and exports. Section 4A of the 1947 Act contemplates issue or renewal of licences under the 1947 Act for imports and exports. Item 44 in Part V of Schedule I of the 1955 Import Order relates to newsprint. Newsprint is described as white printing paper (including water lined newsprint which contained mechanical wood pulp amounting to not less than 70% of the fibre content). The import of newsprint is restricted under the 1955 Import Order. This restriction of newsprint import is also challenged because it infringes Article 19(1)(a). It is said that the restriction of import is not a reasonable restriction within the ambit of Article 19(2). The Newsprint Control Order 1962 (referred to as the 1962 Newsprint Order) is made in exercise of powers conferred by section of the Essential Commodities Act. 1955 (referred to as the 1955 Act). Section 3 of the 1955 Act enacts that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supply of essential commodities or for securing their equitable distribution and availability
at fair prices, it may, by order, provide for regulating or prohibiting production, supply and distribution and trade and commerce therein. Section 2 of the 1955 Act defines "essential commodity" Paper including newsprint, paper board and straw board is defined in section 2 (a) (vii) of the 1955 Act to be an essential commodity.
The 1962 Newsprint Order in clause 3 mentions restrictions on acquisition, sale and consumption of newsprint. Sub- clause 3 of clause 3 of the 1962 Newsprint Order states that no consumer of newsprint shall, in any licensing period, consume or use newsprint in excess of the quantity authorised by the Controller from time to time. Sub-clause 3A of clause 3 of the 1962 Newsprint Order states that no consumer of newsprint, other than a publisher of text books or books of general interest, shall use any kind of paper other than newsprint except with the permission, in writing, of the Controller. Sub-clause 5 of clause 3 of the 1962 Newsprint Order states that in issuing an authorisation under this clause, the Controller shall have regard to the principles laid down in the Import Control Policy with respect of newsprint announced by the Central Government from, time to time. Sub-clauses 3 and 3A of clause 3 of the 1962 Newsprint Order are challenged in these petitions on the ground that these clauses affect the volume of circulation, the size and growth of a newspaper and thereby directly infringe Article 19 (1 ) (a) of the Constitution. The restrictions mentioned in these sub-clauses of clause 3 of the 1962 Newsprint Order are also said to be not reasonable restrictions within the ambit of Article 19 (2) of the Constitution.
Sub-clauses 3 and 3A of clause 3 of the 1962 Newsprint Order are further impeached on the ground that they offend Article 14 of the Constitution. Sub-clause 3A is said to confer unfettered and unregulated power and uncontrolled discretion to the Controller in the matter of granting of authorisation. It is said that there are no provisions for redress of grievances by way of appeal or revision of the Controller's decision in the matter of grant or renewal of authorisation. The restrictions are said to be not reason- able or justified in the interest of general public. The distinction between publishers of text-books and books of general interest on the one hand and other consumers of newsprint on the other in sub-clause 3A is said to be discriminatory and without any rational basis. Again, the disability imposed by sub-clause 3A on newspapers preventing them from using printing and writing paper while permitting all other consumers to do so, is said to be irrational discrimination between newspapers and periodicals as the latter are permitted to use unlimited quantity of printing and writing paper in addition to their allocation of newsprint.
The Newsprint Policy of 1972-73 referred to as the Newsprint Policy deals with white printing paper (including water lined newsprint which contained mechanical wood pulp amounting to not less than 70 per cent of the fibre content). Licences are issued for newsprint. The validity of licences is for 12 months. The Newsprint Policy defines "common ownership unit" to mean newspaper establishment or concern owning two or more news interest newspapers including at least one daily irrespective of the centre of publication and language of such newspapers. Four features of the Newsprint Policy are called in question. These restrictions imposed by the Newsprint Policy are said to infringe rights of freedom of speech and expression guaranteed in Article 19 (1)(a) of the Constitution. First, no new paper or new edition can be started by a common ownership unit even within the authorised quota of newsprint. Secondly, there is a limitation on the maximum number of pages to 10. No adjustment is permitted between circulation and the pages so as to increase the pages. Thirdly, no inter-changeability is permitted between different papers of common ownership unit or different editions of the same paper. Fourthly, allowance of 20 per cent increase in page level up to a maximum of 10 has been given to newspapers, with less than 10 pages. It is said that the objectionable and irrational feature of the Newsprint Policy is that a big daily newspaper is prohibited and prevented from increasing the number of pages, page area and periodicity by reducing circulation to meet its requirement even within its admissible quota. In the Newsprint Policy for the year 1971-72 and the earlier periods the newspapers and periodicals were permitted to increase the number of pages, page area and periodicity by reducing circulation. The current policy prohibits the same. The restrictions are, therefore, said to be irrational, arbitrary and unreasonable. Big daily newspapers having large circulation contend that this discrimination is bound to have adverse effects on the big daily newspapers.
The Newsprint Policy is said to be discriminatory and violative of Article 14 because common ownership units alone are prohibited from starting a new paper or a new edition of the same paper while other newspapers with only one daily are permitted to do so. The prohibition against inter- changeability between different papers of the same unit and different editions of the said paper is said to be arbitrary and irrational, because it treats all common ownership units as equal and ignores pertinent and material differences between some common ownership units as compared to others. The 10 page limit imposed by the policy is said to violate Article 14 because it equates newspapers which are unequal and provides the same permissible page limit for newspapers which are essentially local in their character and news- papers which reach larger sections of people by giving world news
and covering larger fields. The 20 per cent increase allowed for newspapers, whose number of pages was less than 10 is also challenged as violative of Article 14 by discriminating against newspapers having more than 10 pages. The difference in entitlement between newspapers with an average of more than 10 pages as compared with newspapers of 10 or less than 10 pages is said to be discriminatory because the differentia is not based on rational incidence of classification.
The import policy for newsprint has a history. From 1963-64 quota of newsprint for dailies has been calculated on the basis of page level of 1957 and circulation of 1961-62 with ad hoc increases for growth on the basis of percentage of pages calculated on circulation and allowance of page increase of not more than 2 pages at a time subject to a maximum of 12 pages. The bulk of newsprint was imported in the past. Indigenous newsprint was limited in supply. From 1963-64 till 1970-71 printing and writing paper available in our country was taken into account for framing the import policy. The quantity which could be made available to consumers of newsprint for the requirements of publishers of text books were considered in that behalf. After 1971-72 printing and writing paper was in short supply. According to the Government this was adversely affecting the requirements of the publishers of text books. The loss to newsprint consumer from the non-availability of white printing paper was made good in additional quantity of imported newsprint. The import quota of newsprint was increased from 1,40,000 tonnes in 1970-71 to 1.80,000 tonnes in 1971-72.
From 1972-73 with regard to daily newspapers three principal changes were effected. First, the base year for circulation was taken at 1970-71. Second, the page level was taken at the maximum of 10 pages instead of the previously operating 10 page level. Those operating at a page level of over 10 pages were given the facility of basing their required quota either on actual circulation for 1970-71 or admissible or calculated circulation for 1971-72 whichever is more. Third, the increase in quota for growth was allowed as in the past, In the case of circulation growth it was stipulated in terms of percentage of circulation over the previous year. In the case of page growth the maximum of 10 pages was permitted.
The Additional Solicitor General raised two pleas in demurrer. First, it was said that the petitioners were companies and therefore. they could not invoke fundamental rights. Secondly, it was, said that Article 358 of the Constitution is a bar to any challenge by the petitioners of violation of fundamental rights.
This Court in State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatnam(1) and Tata Engineering & Locomotive Co. v. State of Bihar (2 ) expressed the view that a corporation was not a citizen within the meaning of Article 19, and, therefore, could not invoke that Article. The majority held that nationality and citizenship were distinct and separate concepts. The view of this Court was that the word "citizen" in Part 11 and in Article 19 of the Constitution meant the same thing. The result was that an incorporated company could not be a citizen so as to invoke fundamental rights. In the State Trading Corporation(1) case (supra) the Court was not invited to "tear the corporate veil". In the Tata Engineering & Locomotive Co. (2) case (supra) this Court said that a company wag a distinct and separate entity from shareholders. The corporate veil it was said could be lifted in cases where the company is charged with trading with the enemy or perpetrating fraud on the Revenue authorities. Mukherjea J., in Chiranjit Lal Choudhuri v. The Union of India & Ors. (3 ) expressed the minority view that an incorporated company can come up to this Court for enforcement of fundamental rights.
There are however decisions of this Court where relief has been granted to the petitioners claiming fundamental rights as shareholders or editors of newspaper companies. These are Express Newpapers (Private) Ltd. & Anr. v. The Union of India & Ors.(4)'and Sakal Papers (P) Ltd. & Ors. v. The Union of India (5).
In Express Newspapers (4 ) case (supra) the Express News papers (Private Ltd. was the petitioner in a writ petition under Article 32. The Press Trust of India Limited was another petitioner in a similar writ petition. The Indian National Press (Bombay) Private Ltd. otherwise known as the "Free Press Group" was a petitioner in the third writ petition. The Saurashtra Trust was petitioner for a chain of newspapers in another writ petition. The Hindustan Times Limited was another petitioner. These petitions in the Express Newspapers(4) case (supra) challenged the vires of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955. The petitioners contended that the provisions of the Act violated Articles 19(1) (a), 19(1)(g) and 14 of the Constitution. In Sakal Papers(5) case (supra) the petitioners were a Pri- vate limited company carrying on business of publishing daily and weekly newspapers in Marathi and two shareholders in the
(1)  4 S.C.R. 99. (2)  6 S.C.R. 885. (3) S.C.R. 869. (4)  S.C.R. 12. (5)  3 S.C.R. 842.
company. There were two other petitions by readers of "Sakar" newspaper. 'Me reader petitioners also challenged the constitutionality of the Act. The petitioners there challenged the Daily Newspapers (Price and Page) Order, 1960 as contravening Article 19(1)(a) of the Constitution. Neither in the Express Newspapers case (supra) nor in Sakal Papers case (supra) there appears to be any plea raised about the maintainability of the writ petition on the ground that one of the petitioners happened to be a company. In the Express Newspapers case (supra) this Court held that freedom of speech and expression includes within its scope the freedom of the Press. This Court referred to the earlier decisions in Romesh Thappar v. State of Madras(1) and Brij Bhushan v. State of Delhi(2). Romesh Thappar's case (supra) related to a ban on the entry and circulation of Thapper's journal in the State of Madras under the provisions of the Madras Maintenance of Public Order Act, 1949. Patanjali Sastri, J. speaking for the Court said in Romesh Thappar's case (supra) that "there can be no doubt that the freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation publication would be of little value". In Brij Bhushan's case (supra) Patanjali Sastri, J. speaking for the majority judgment again said that every free man has undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press". Bhagwati, J. in the Express Newspapers case (supra) speaking for the Court said that the freedom of speech and expression includes freedom of propagation of ideas which freedom is ensured by the freedom of circulation and that the liberty of the press is an essential part of the right to freedom of speech and expression and that the liberty of the press consists in allowing no previous restraint upon publication. Describing the impugned Act in the Express Newspapers case (supra) as a measure which could be legitimately character- ised to affect the press this Court said that if the intention or the Proximate effect and operation of the Act was such as to bring it within the mischief of Article 19 (1) (a) it would certainly be liable to be struck down. But the Court found in the Express Newspapers case (supra) that the impugned, measures were enacted for the benefit of the working journalists and it was, therefore, neither the intention nor the effect and operation
(1)  S.C.R. 594 (2)  S.C.R. 605 771
of the impugned Act to take away or abridge the right of freedom of speach and expression enjoyed by the petitioners. There are ample observations of this Court in the Express Newspapers case (supra) to support the right of the petitioner companies there to invoke fundamental right in aid of freedom of speech and expression enshrined in the freedom of the press. This Court said that if the impugned measure in that case fell within the vice of Article 19(1) (a) it would be struck down. This observation is an illustration of the manner in which the truth and spirit of the freedom of press is preserved and protected. In Sakal Papers case (supra) this Court struck down section 3(1) of the Newspaper (Price and Page) Act, 1956 and allowed the petitioner company relief-on that basis. In the, Sakal Papers case (supra) relief was granted to the shareholders and the company. The Court thought it unnecessary to express any opinion on the right of the readers to complain of infraction of fundamental rights in Article 19(1) (a) by reason of impact of law abridging or taking way the freedom of speech and expression.
In the present case, the petitioners in each case are in addition to the company the shareholders, the, editors and the publishers. In the Bennett Coleman group of cases one shareholder, a reader of the publication and three editors of the three dailies published by the Bennett Coleman Group are the petitioners. In the Hindustan Times case a shareholder who happened to be a Deputy Director, a shareholder, a Deputy Editor of one of the publications, the printer and the publisher of the publications and a reader are the petitioners. In the Express Newspapers case the company and the Chief Editor of the dailies are the petitioners. In the Hindu case a shareholder, the Managing Editor, the publisher of the company are the petitioners. One of the important questions in these petitions is whether the shareholder, the editor, the printer, the Deputy Director who are all citizens and have the right to freedom under Article 19(1) can invoke those rights for freedom of speech and expression, claimed by them for freedom of the press in their daily publication. The petitioners contend that as a result of the Newsprint Control Policy of 1972-73 their freedom of speech and expression exercised through their editorial staff and through the medium of publications is infringed. The petitioners also challenge the fixation of 10 page ceiling and the restriction on circulation and growth on their publications to be not only violative of but also to abridge and take away the freedom of speech and expression of the shareholders and the editors. The shareholders, individually and in association with one, another represent the medium
of newspapers through which they disseminate and circulate their views and news. The newsprint policy express them to heavy financial loss and impairs their right to carry on the business of printing and publishing of the dailies through the medium of the companies.
In R. C. Cooper v. Union of India (1) which is referred to as the Bank Nationalisation(1) case Shah, J. speaking for the majority dealt with the contention raised about the maintainability of the petition. The petitioner there was a shareholder, a Director and holder of deposit of current accounts in the Bank. The locus standi of the petitioner was challenged on the ground that no fundamental right of the petitioner there was directly impaired by the enactment of the Ordinance and the Act or any action taken thereunder. The petitioner in the Bank Nationalisation case (supra) claimed that the rights guaranteed to him under Articles 14, 19 and 31 of the Constitution were impaired. The petitioner's grievances were these. The Act and the Ordinance were without legislative competence. The Act and the Ordinance interfered with the guarantee of freedom of trade. They were not made in public interest. The President had no power to promulgate the Ordinance. In consequence of hostile discrimination practiced by the State the value of the petitioner's investment in the shares is reduced. His right to receive dividends ceased. He suffered financial loss. He was deprived of the right as a shareholder to carry on business through the agency of the company.
The ruling of this Court in Bank Nationalisation case (supra) was this :
"A measure executive or legislative may impair the rights of the company alone, and not of its shareholders; it may impair the rights of the shareholders not of the Company; it may impair the rights of the shareholders as well as of the company. Jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of the individual shareholder are impaired, if- that action, impairs the rights of the Company as well. The test in determining whether the
shareholder's right is impaired is not formal; it is essentially qualitative; if the State action impairs the right of the shareholders- as well as of the Company, the Court will not, concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant relief."
(1)  3 S.C.R. 530.
In the Bank Nationalisation case (supra) this Court held the statute to be void for infringing the rights under Articles 19(1)(f) and 19(1)(g) of the Constitution. In the Bank Nationalisation case (supra) the petitioner was a shareholder and a director of the company which was acquired under the statute. As a result of the Bank Nationalisation case (supra) it follows that the Court finds out whether the legislative measure directly touches the company of which the petitioner is a shareholder. A shareholder is entitled to protection of Article 19. That individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalisation case (supra) has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to from a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders' rights are equally and necessarily affected if the. rights of the company are affected. The rights of shareholders with regard to Article 19(1) (a) are projected and manifested by the newspapers owned and controlled by the shareholders through-the medium of the corporation. In the present case, the individual rights of freedom of speech and expression of editors, Directors and shareholders are all exercised through their newspapers through which they speak. The press reaches the public through the Newspapers. The shareholders speak through their editors- The fact that the companies are the petitioners does not prevent this Court from giving relief to the shareholders, editors, printers who have asked for protection of their fundamental rights by reason of the effect of the law and of the action upon their rights. The locus standi of the shareholder petitioners is beyond challenge after the ruling of this Court in the Bank Nationalisation case (supra). The presence of the company is on the same ruling not a bar to the grant of relief.
The rulings in Sakal Papers case (supra) and Express News- papers case (supra) also support the competence of the petitioners to maintain the proceedings.
Article 358 of the Constitution was invoked by the Additional Solicitor General to raise the bar to the maintainability of the petition. Under Article 358 while a proclamation of a emergency is in operation nothing in Article 19 shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take. It was, therefore, said on behalf of the Government that the petitioners could not challenge the 1972-73 Newsprint Policy during the proclamation of emergency. Counsel on behalf of the petitioners contended that Article 358 is inapplicable because it has no application to the law or executive
action taken prior to the proclamation of emergency. The Newsprint Policy was said by the petitioners to be a, continuation of the old newsprint policy which had originated earlier and continued from year to year for a decade till the proclamation of emergency in 1971. The restrictions on newsprint policy were imposed before the proclamation of emergency. It was, therefore, said that these restrictions could be challenged.
In District Collector of Hyderabad & Ors. v. M/s Ibrahim & Co. etc.(1) this Court considered whether the Sugar Control Order 1963 was protected under Article 358 and 359 because the President had declared that state of emergency. The Sugar Control Order 1963 was made in exercise of powers conferred by section 3 of the Essential Commodities Act. The order placed restrictions on sale and delivery by the producers. The Order also controlled the production, distribution of sugar by producers or recognised dealers. The Order regulated the movement of sugar at fixed price. The state of emergency was declared on 28 October, 1962. It was contended that on the issue of proclamation of emergency the State is, for the duration of the emergency, competent to enact legislation notwithstanding that it impairs the freedoms guaranteed by Article 19 of the Constitution. The State was also said to be competent to take executive action during the proclamation of emergency which the State would for the provisions contained in Article' 19 of, the Constitution be competent to make. In Ibrahim's case (supra) the State made an executive order. It was said "the executive action of the State Government which is otherwise invalid is not immune from attack, merely because a proclamation of emergency is in operation when it is taken". The Order of the State Government in that case was held to be contrary to statutory provisions contained in the Sugar Dealers Licensing Order and the Sugar Control Order. The executive action was, therefore, held not to be protected under Article 358 of the Constitution.
Originally, the petitioners challenged the validity of the Newsprint Policy for 1971-72. The petitions were amended. As a result of the amendment the petitioners challenged the validity of the 1972-73 newsprint policy. The contention of the petitioners is correct that the impeached policy is a continuation of the old policy. Article 358 does not apply to executive action taken during the emergency if the same is a continuation of the prior executive action or an emanation of the previous law which prior executive action or previous law would otherwise be violative of Article 19 or be otherwise unconstitutional. The contention on behalf of the Government that the 1972-73 policy is protected during the proclamation of emergency and is a mere administrative action is unsound Executive action which is unconstitutional
(1)  3 S.C.R. 498.
is not immune during the proclamation of emergency. During the proclamation of emergency Article 19 is suspended. But it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Article 19 without any legislative authority or in purported exercise of power conferred by any pre-emergency law which was invalid when enacted.
This Court in State of Madhya Pradesh & Anr. v. Thakur Bharat Singh(1) considered whether the State Government could make an order under the Madhya Pradesh Public Security Act 1959 directing that Thakur Baharat Singh shall not be in any place in Raipur District and that he was to reside in a named town. The Order was made on 24 April, 1963. The Government contended in the Madhya Pradesh case (supra), that Article 358 protected legislative and executive action taken after the proclamation of emergency which was declared on 20 October, 1962. This Court rejected the contention of the State that the Order was protected by Article 358. This Court held that if the power conferred by the 1959 Act to impose unreasonable restrictions offended Article 13 by taking away or abridging the rights conferred by Part El of the Constitution the law in contravention of Article 13 would be void. Article 358 suspends the provisions of Article 19 during an emergency. This Court said that all executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State but for the provisions in Part III of the Constitution. Article 358 does not invest the State with arbitrary authority to take action to the prejudice of citizens, and others; it merely provides that so long as the proclamation of emergency subsists law may be enacted and executive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid. Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. The Madhya Pradesh was (supra) is an authority for the proposition that Article 358 does not operate to validate any legislative provision which is invalid because of the constitutional prohibition. In the present case, the impugned newsprint policy is continuation of prior executive action and of previous law. Therefore, in our judgment there is no merit in this preliminary objection.
The Additional Solicitor General contended that the right to import and utilise newsprint was not a common law right. It was said to be a special right covered by several statutes. The Imports
(1)  2 S.C.R. 454.
and Exports Act 1947, the Imports Control Order, 1955, the Essential Commodities Act 1955 and the Newsprint Control Order 1962 were referred to in support of the proposition that if the petitioners asked for a quota of newsprint they had to abide the conditions prescribed. It was also said that the Press would have no special fundamental right under Article 19 (1) (a). The legislative measures were, therefore, said by the Government to be regulation of newspaper business even though there might be the incidental result of curtailing circulation. Reliance was placed on the decisions in Express Newspapers case (supra) and Hamdard Dawakhana (Wakf) Lal Kuan, Delhi & Apr. v. Union of India & Ors.(1), in support of the contention that there would be no abridgement of fundamental right of the press if as a result of regulation of newspaper business there was the incidental effect of curtailing circulation. The Newsprint Policy was defended by the Government to be in aid of allowing small newspapers to grow and to prevent a monopolistic combination of big newspapers.
The power of the Government to import newsprint cannot be denied. The power of the Government to control the distribution of newsprint cannot equally be denied. It has, of course, to be borne in mind that the distribution must be fair and equitable. The interests of the big, the medium and the small newspapers are all to be taken into consideration at the time of allotment of quotas. In the present case, there was some dispute raised as to whether there should be more import of newsprint. That is a matter of Government policy. This Court cannot adjudicate on such policy measures unless the policy is alleged to be malafide. Equally, there was a dispute as to the quantity of indigenous newsprint available for newspapers. This Court cannot go into such disputes.
The petitioners raised a question as to whether the Newsprint Control Policy is a newsprint control or a newspaper control. Mr. Palkhivala characterised the measure to be newspaper control with degrees of subtlety and sophistication. Rationing of newsprint is newsprint control. That is where quota is fixed. Newspaper control can be said to be post-quota restrictions. The post-quota restrictions are described by Mr. Palkhivala to be newspaper control. The newspaper control, according to the petitioners, is achieved by measures adopted in relation to common ownership units owning two or more newspapers. These common ownership units are not allowed to bring out new papers of new editions of their dailies. These are not to have interchangeability of quota within their unit. In addition large papers are not allowed to have more than 10 pages. It was said that in the past several years Newsprint Control Policy worked remarkably without any challenge. (1)  2 S.C.R. 671.