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).

ACT:

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.

HEADNOTE:

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

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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).

[777B-D]

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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.

[782G]

(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.

[791H; 792A-B]

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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.

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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,    [1964]    4 S.C.R. 99,    Tata Engineering &    Locomotive Co. v. State of Bihar, [1964] 6 S.C.R., 885, Chiranjit Lal Choudhuri v. The Union of India & Ors. [1950] S.C.R. 869, Express Newspapers (Private) Ltd. & Anr. v. The Union of India & Ors. [1959] S.C.R. 12, Sakai Papers    (P) Ltd. & Ors. v. The Union of India, [1962] 3 S.C.R. 842, Romesh Thappar v. State of Madras, [1950] S.C.R. 594, Brij Bhushan V. State of Delhi, [1950] S.C.R. 605, R. C. Cooper v. Union of India, [1970] 3 S.C.R. 530, District Collector of Hyderabad & Ors. v. M/s Ibrahim    & Co.    etc. [1970]    3 S.C.R. 498, State of Madhya Pradesh     & Anr. v. Thakur Bharat Singh, [1967] 2 S.C.R. 454, Hamdard Dawakhana (Wakf)    Lal Kuan Delhi & Anr. v. Union of India & Ors., [1960]    2 S.C.R. 1671, Red Lion Broadcasting Co. v. Federal Communications    Com. [1969] 393 US 367=23 L.Ed    371, United States v. O'Brian, [1968] 391 US 367=23L.Ed. 2d 371, United States    v. O'Brien, [1968] 391, U.S. 367=20 L.Ed. 2d.    672, Abdul Azict Aminudinv. State of Maharashtra, [1964] 1 S.C.R. 830, Dwarkadas Shrinivas v.The Sholapur & Weaving Co. Ltd., [1954] S.C.R. 674,Commonwealth     of Australia v. Bank of New South Wales, [1950] A.C.235 and Citizen Publishing     Co. v. United States, [1969] 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

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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, ([1959]    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

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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 ([1960] 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]

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(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]

JUDGMENT:

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).

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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

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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.

767

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

14-L499Sup.CI/73

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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.

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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) [1964] 4 S.C.R. 99.     (2) [1964] 6 S.C.R. 885. (3) [1950]S.C.R. 869.     (4) [1959] S.C.R. 12. (5) [1962] 3 S.C.R. 842.

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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) [1950] S.C.R. 594     (2) [1950] 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

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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) [1970] 3 S.C.R. 530.

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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

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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) [1970] 3 S.C.R. 498.

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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) [1967] 2 S.C.R. 454.

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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) [1960] 2 S.C.R. 671.

Re: Bennett Coleman and Co. v/s UOI - violation of Article 19(1)(a)

Article 19(1) (a) provides that all citizens shall have     the right to freedom of speech and expression. Article 19     (2) states    that. 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 restrictions 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. Although Article 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.

In the Express Newspapers case (supra) it is said that there can be no doubt that liberty of the Press is an essential part of the freedom of speech and expression guaranteed by Article     19 (1) (a). The Press has    the right of    free propagation and free    circulation without any previous restraint on publication. If a law were to, single out     the Press for laying down prohibitive burdens on it that would restrict the circulation, penalise its freedom of choice as to personnel,    prevent newspapers from     being    started     and compel'     the press to Government aid.    This would violate Article     19 (1)(a), and would fall outside the protection afforded by Article 19 (2).

In Sakal Papers case (supra) it is said that the freedom of speech    and expression guaranteed by Article 19 (1) gives a citizen     the right to propagate and publish his ideas to disseminate them, to circulate them either by words of mouth or by writing.    This right extends not merely to the matter it is    entitled to circulate but also     to the volume of circulation. In Sakal Papers case (supra) the Newspaper (Price    and Page) Act     1956 empoweredthe Government     to regulate the prices of newspapers in relation to their pages and sizes and     to regulate the allocation of space     for advertisement matter.     The Government fixed the maximum- number    of pages that might be published by     a newpaper according to the price charged. The Government prescribed the number of supplements that would be issued.     This Court held that the Act and the Order placed restraints on     the freedom     of the press to circulate. This Court     also held. that, the freedom of speech could' no+. be restricted     for the purpose of regulating the commercial    aspects     of activities of the newspapers.

Publication means dissemination and circulation. The press has to carry on its activity by keeping in view the class of readers, the,conditions of labour, price of material, availability of advertisements, size     of paper and     the different kinds of     news comments     and'     views     and advertisements    which are to be published and     circulated. The law which lays excessive and prohibitive burden which, would restrict the circulation of a newspaper will not be saved by

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Article 19 (2).     If the area of advertisement is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakai Papery case (supra) to be the direct consequence of curtailment of advertisement. The freedom of a newspaper for publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression. This     freedom is violated    by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of     pages, a restraint on     circulation and a restraint on advertisements would affect the fundamental rights     under     Article 19 (1)(a) on the    aspects     of propagation, publication and circulation.

This Court in Hamdard Dawakhana case (supra) considered     the effect     of Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 in relation to Articles 19 (1)(a), 19 (1) (f), 19 (1)(g) and 19(6). The Act in that case     was to control the advertisement of drugs in certain cases to prohibit the advertisement for certain purposes of remedies alleged     to possess magic qualities and to    provide     for matters connected therewith. The Act was challenged on     the ground    of violation of fundamental rights. The ruling of this Court in Hamdard Dawakhana case (supra)    that advertisement is no doubt a form of speech and it is    only when an advertisement is considered with the expression or propagation of idea that it can be said to relate to freedom of speech. The right to publish commercial advertisements is not a part of freedom of speech.

The Additional Solicitor General contended that the news- print policy did not violate Article     19 (1) (a).     The reasons advanced were these. The newsprint policy does     not directly and immediately deal with, the right mentioned in Article     19 (1)(a). The test of violation is    the subject matter and not the effect or result of the legislation.     If the direct object of the impugned law or action is other than freedom of speech and expression Article 19 (1)(a) is not attracted    though the right to freedom of speech     and expression may be consequentially or incidentally abridged. The rulings of this Court in Express Newspapers case (supra) and Hamdard Dawakhana case (supra) were referred to. In the Express     Newspapers case (supra) the Act was said to be a beneficent legislation intended to regulate the conditions of service of the working journalists.    It was held that the direct and inevitable result of the Act could not be said to be taking away or abridging the freedom of     speech and expression of the petitioners.     In. the Hamdard Dawakhana case (supra) the scope     and object of the Act and its    true nature and character were found to be not interference    with the right of freedom of speech but to deal with trade or business. The subject matter of the import policy in the 779

present     case was rationing of imported commodity     and equitable distribution of newsprint. The restrictions in fixing    the page level and circulation were permissible as directions, which were considered necessary in order to     see that the imported newsprint was. properly utilised for     the purpose     for which the import     was considered necessary. Article 369 of the Constitution shows that rationing of     and distribution of quota of newsprint and regulation of supply is not     a direct infringement of Article 19 (1)(a).     The scarcity of newspapers Justifies the    regulation and     the direction in the manner of use. The American    decision in Red Lion Broadcasting Cc.. v. Federal Communications Com.(1) was relied on to show that neither regulation nor direction with regard to medium of expression encroaches on the First Amendment right of the American Constitution. Regulatory statutes which     do not control the content of     speech     but incidentally limit the unfettered exercise are not regarded as a type of law which the First Amendment to the American Constitution forbade the Congress of the United States to pass.    'the decision in United States     v. O'Brien(1)     was relied on as an authority for such regulation and control of the content of speech. Any     incidental limitation     or incidental restriction on the freedom of     speech     is permissible if the same is essential to the furtherance of important governmental     interest in regulating     speech     and freedom.

The Additional     Solicitor General further put    emphasis on the, pith and substance of the Import Control Act to control imports, and exports    for these reasons. One method of controlling import is to regulate the use and disposition of the goods after they are, bought. The decision in Abdul Aziz Amiudin v. State of Maharashtra(1) was    referred to indicate that    the scope of control of import extended to every stage at which the Government felt it necessary to see that the goods were properly     utilised. Therefore,     the Government submission is that regulations regarding utilisa- tion of goods by importers after import is not a regulation with regard to production, supply and distribution of goods so as to attract Entry 29 List 11 of the Government of India Act, 1935 corresponding to Entry 27 of List     11 in     the Constitution.    It was     said that even     if there was     any trenching on Entry 29 List II of' the 1935 Act corresponding to Entry 27 List II of the Constitution it would be an incidental encroachment not affecting the validity of'     the Act. The directions in the control policy are, therefore, justified by the Government under clause 5 of the    1955 Import Control     Order read with section 3(1) of the    1947 Import 'and Export Act and they are also justified under the provisions of clause 3 of the Newsprint Control Order- 1962. (1) [1969] 393 US 367-23L Ed. 2d. 371.

(2) [1968] 391 US 367-20 L. Ed. 2d. 672..

(3) [1964] 1 S.C.R. 830.

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The Newsprint Control Order 1962 was said to give sufficient guidance with regard to exercise of powers. Clause 3(5) of the Control Order of 1962 indicated that the Controller     was to have regard to the principles. The import     policy     was upheld    by the Government to have administrative character for guidance. in the matter of grant of licences. It     was said that the impeached newsprint policy was given to     the public    as information regarding principles governing issue of import licences. The import policy was     evolved to facilitate mechanism of the Act. The Import policy was said to have necessary flexibility for six years prior to April 1961.    The Newsprint Policy operated successfully.     The Controller has not abused his power.

Mr. Palkhivala said that the tests of pith and substance of the subject, matter and of direct and of incidental effect of the legislation are relevant to questions of     legislative competence but     they are irrelevant to the    question of infringement of fundamental rights. In our view this is a sound and correct approach to interpretation of     legislative measures and State action in relation to fundamental rights. The true test is whether the effect of the impugned action is to    take away or abridge fundamental rights. if it be assumed that the direct object of the law or action has     to. be direct abridgment of the right of free speech by     the impugned law or action it is to be, related to     the directness of    effect    and not to the     directness of     the subject     matter of the impeached law or action. The action may have a direct effect on a fundamental, right although its direct subject matter may be different. A law' dealing directly with    the Defence of India or defamation may     yet have a     direct effect on the freedom of speech. Article 19(2) could not have     such law if    the restriction is unreasonable even if it is related to matters mentioned therein. Therefore, the word "direct" would go to     the quality     or character of the effect and not to    the subject matter.     The object of the law or executive action is irrelevant when it establishes the petitioner's contention about fundamental right. In the present case, the object of the newspaper    restrictions has nothing to do with     the availability of newsprint or foreign exchange because these restrictions come into operation after the grant of quota. Therefore the    restrictions are to control the number of pages or circulation    of dailies or     newspapers. These restrictions are clearly outside the ambit of Article 19(2) of the Constitution. It, therefore, confirms that the right of freedom of speech and expression is abridged by these restrictions.

The question neatly raised by the petitioners    was whether the impugned Newsprint Policy is in substance    a newspaper control. A newspaper control policy is ultra vires     the Import    Control Act and the Import Control Order. Entry 19 of List 1 of the 1935 Act could empower Parliament to control imports. Both the State legislature and Parliament have power to legislate upon newspapers

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falling     under    Entry 17 of List III.    The two fields of legislation are different. The Import Control Act may include control of import of newsprint but it does not allow control of newspapers.    The machinery of the Import Control cannot be utilised to curb or control circulation of growth or freedom of newspapers in India. The pith and substance doctrine is used in ascertaining whether the Act falls under one Entry while incidentally encroaching upon another Entry. Such a question does not arise here. The Newsprint Control Policy    is found to be newspaper control order in the guise of framing an Import Control Policy for newsprint. This Court in the Bank Nationalisation case (supra)    laid down two tests.     First it is not the object of the authority making    the law impairing the right of the citizen nor     the form of action that determines the invasion of     the right. Secondly, it is the effect of the law and the    action    upon the right which attracts the jurisdiction of the court to grant relief.     The direct operation of the Act upon     the rights forms the real test.

In Sakal Papers case (supra) this Court referred to     the ruling in Dwarkadas Shrinivas v. The Sholapur & Weaving     Co. Ltd.(,)' that it is the substance and the practical result of the     act of the State that should be considered rather than the pure legal form. The correct approach _should be to enquire 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, restrictions. in Sakal Papers case (supra) raising the price affected and infringed fundamental rights. In Sakal Papers case (supra) this Court said that 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. The impact on the freedom of the    press would still be direct in spite of the fact that it is not said so with words. No law or action would state in     words    that rights    of freedom of speech and expression are abridged or taken away. That is why Courts have to protect and guard fundamental rights by considering the scope and provisions of the Act and its effect upon the fundamental rights. The ruling of this Court in Bank Nationalisation case (supra) is the test of direct operation upon the rights.     By direct operation is meant the direct consequence or effect of     the Act upon the rights. The decision of the Privy Council in Commonwealth of Australia v. Bank of New South Wales(2) also referred to the test, as to whether/the Act directly restricted inter-State     business of banking, in order to ascertain whether the Banking Act 1947 in that case (1) [1954] S.C.R. 674.     (2) [1950] A.C. 235. 782

is aimed or directed     at, and the purpose,     object     and intention of the Act is restriction of     inter-State trade, commerce and inter-course.

The various provisions of the newsprint import policy    have been examined    to indicate as to how the petitioners' fundamental rights have 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. The Additional Solicitor General contended that a law which merely    regulates even directly the freedom of the press is permissible so long as there is no abridgment or taking away of the fundamental rights of citizens.    He leaned heavily on American decisions in support of the submission that     the right of the press of free expression is of all citizens speaking, publishing and printing in all languages and     the grave concern for freedom of expression which permitted     the inclusion of Article    19 (1)(a) is not to be     read as a command     that the Government of Parliament is without power to protect that freedom. The Constitutional guarantees of freedom of speech and expression are said by the Additional Solicitor General to be not so much for the benefit of     the press as for    the benefit of all people. In     freedom of speech,     according to the Additional Solicitor    General, is included the right of the people to read and the freedom of the press assures maintenance of an open society. What     was emphasized on behalf of the Government was that the freedom of the     press    did not countenance the     monopolies of     the market.

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 +,he people to speak     and express.

Article     13 of our Constitution states that the State is prohibited from making any law which abridges or takes    away any fundamental rights. Again, Article 19(2) speaks of reasonable restrictions on the exercise of     fundamental rights     to freedom of speech and     expression.     Our Constitution does not speak of laws regulating     fundamental rights.     But there is no bar on legislating on the subject of newspapers    as long as legislation does     not impose unreasonable restrictions within the    meaning     of Article 19(2).    It

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is also important to notice as was done in earlier decisions of this Court     that our Article 19(1)(a) and the First Amendment of the American Constitution are different.     The First Amendment of the American Constitution enacts that the Congress shall make no law....... abridging the freedom of speech    or of    the press. The American First Amendment contains no exceptions like our Article 19 (2) of     the Constitution. Therefore, American decisions have evolved their    own, exceptions. Our Article     19(2)     speaks     of reasonable restrictions. Our Article 13 states that     the State shall not make laws which abridge or take    away fundamental rights in Part III of the Constitution. The concept of regulation of fundamental     rights     was borrowed and extracted by the Additional Solicitor General from American decisions. In Citizen Publishing Co. v. United States(1) the    power of the Government to regulate     the newspaper industry through the provisions of the Sherman Act was recognised. In that case the Court affirmed a decree requiring the    separation of    two potentially competing newspapers. The two newspapers entered into an agreement to end business or commercial competition between them. Three types of control were imposed by the agreement. One was with regard to price fixation. The second was profit pooling. The third was market control. The Government complained that the agreement was an unreasonable restraint on trade or commerce in violation of Sherman Act. The Citizen Publishing Co.(1) case (supra) held that the First Amendment in the American Constitution far from providing an argument    against     the application of the Sherman    Act under the     facts     of the case provided strong reasons to     the contrary.     The American decision rested upon the assumption that     the widest    possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the, public. The Sherman Act was invoked in that case to prevent non-governmental combinations     which    tended     to impose restraints upon constitutional guarantee of freedom.     The regulation of business is one thing. The American case is an instance of the power of the Government to regulate newspaper industry.

The    other    American decision on     which     the Additional Solicitor General relied is United States v. O'Brien     (supra). In O'Brien's case (supra) the     Court    held that one who had burnt one's selective service    registration certificate did so in violation of a federal statute making the knowing destruction or mutilation of such a     certificate a criminal offence. It was contended     in O'Brien's    case (supra) that whenever the person engaging in the conduct of burning     the certificate intends thereby to express an    idea the idea of both "speech" and "non-speech" elements    were combined to the same course

(1) [1969] 304 U.S. 131-22L.Ed.2d. 148

15-L499Sup.C. 1./73

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of conduct. It was held that there was- a    sufficiently important governmental interest in regulating the non-speech element. The    Court noticed there that such incidental limitation on First Amendment freedom was justified because an important and substantial     governmental interest was involved. The     Governmental interest     was found to     be unrelated to the suppression of free expression and that the incidental restriction     on any First     Amendment freedoms involved was no greater than absolutely essential in     the furtherance of the governmental interest.

These American decisions establish that a government regu- lation is justified in America as an important or essential government interest which is unrelated to the suppression of free expression. 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. At this stage it is necessary to appreciate the petitioners' contentions that the newsprint policy of 1972-73 violates Articles 19 (1)(a) and 14 of the Constitution. The first grievance is about Remark V in the newsprint policy.     'Remark V deals with dailies which are not above 10 pages and dailies over 10 pages. With regard     to dailies which are not     above    10 pages the policy is that     the computation of entitlement to newsprint is on the basis of the actual newsprint    consumption in    1970-71     or 1971-72 whichever is less. The average circulation,    the average number of pages and the average page area actually published are all taken into consideration. The petitioners and in particular the Bennett Coleman Group illustrated the vice of this feature in Remark V by referring to their    publications Maharashtra Times, Nav Bharat Times and Economic Times.     The average     circulation of these three publications in 1971-72 was higher than the average circulation in 1970-71. It     is, therefore, said that Remark V which shows the basis of consumption to be the lesser of the two years    will affect their quota. The Government version is that the figure of consumption in 1971-72 did not represent a realistic picture because     of three principal events during that year. These were the Bangladesh Crisis, the Indo-Pak War in 1971 and the Elections. The petitioners say that the quota for 1971-72 was determined     in April 1971 which     was prior to     the occurrence of all the three events. Again, in the past when there was the Sino Indian Conflict in 1962 and the Indo-Pak War in 1965 the performance of the newspapers    during.     the years preceding those events was not ignored as was done in the impugned policy for 1972-73. With regard to elections, the petitioners say that a separate additional quota     has been given. In the policies prior to 1971-72     the growth achieved in circulation as a result of the grant of     the additional quota

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for elections was taken into consideration in     determining the quota for the following year.     The Petitioners, therefore, contend that the policy in Remark V     instead of increasing circulation     win result in the reduction of circulation. The petitioners are, in our judgment, right in their submission that this policy negatives the claim of the Government that this policy is based on circulation. With regard to dailies over 10 pages Remark V    proceeds on the calculation of the basic entitlement to be on an average of 10 pages and either the average circulation in 1970-71 or the admissible circulation in terms of 1971-72 Newsprint Policy    plus increases admissible in terms of     Remark     VII whichever is more. The Bennett Coleman Group contends    that the Times of India Bombay, the Times of India Delhi and     the Times of India Ahmedabad had 13.13, 13.99 and 17.83 as     the average number of pages in 1971-72. The average number of pages in 1972-73 under Remark V of the Policy is fixed at

10. Therefore, the percentage of cut in pages is 23.8, 28.4 and 43.8 per cent respectively with regard to    these three papers.

The dominant direction in the newsprint policy    particularly in Remarks V and VIII is that the page limit of newspapers is fixed at 10.     The petitioners who had been operating on a page level of     over 10 challenge this feature as     an infringement of the freedom of speech and expression. Remark V is therefore impeached first on the ground of fixa- tion of 10 page ceiling and secondly on the basis of allotment of quota.

Prior to 1972-73 newspapers which had started before 1961-62 were allowed to increase pages by reducing circulation.     On the other hand newspapers which started after    1961-62     did not have sufficient quantity of newsprint for increasing circulation and could not increase pages. To. remedy this situation the     Government case is that the impeached newsprint Policy of 1972-73 provided     in Remark V    for- newspapers operating on a page level of 10 or less quota on an average page number and actual circulation of 1970-71 or 1971-72     whichever is less and 20% increase for increasing page number subject to ceiling of 10     pages.     The other provision in Remark V for quota relating to newspapers operating above 10 page level is an, average circulation of 1970-71 and admissible circulation in 1971-72 plus increases admissible whichever    is more. Thus in the case     of newspapers operating on 10 or less than 10     page level additional quota has been given to increase their pages to

10. But the imposition of 10 page ceiling on newspapers operating on a page level above 10 is said     to violate Articles 19(1)(a) and 14.

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The Government     advances these six reasons in     support of their policy.     First,     there    is shortage of newsprint. Second, the average page number of big dailies is 10.3.     Out of 45 big dailies 23 operate on a page level of less than 10 and 22 operate on a page level of more than 10.     Therefore, the Government says that the average of all dailies is    5.8. Thirdly, the Government says that the 45 big dailies with a circulation of 46.74 lakhs get about 1,16,700 metric tonnes. This is about 59.9 per cent of the total allocation.     The 346 medium and small dailies with a circulation of 41.60 lakhs get about 74,300. metric tonnes which represent as 40.1 per cent of the total allocation.    Fourthly it is    said that the feature is to remedy the situation arising out of historical reasons. Fifthly, the Government says that     the reduction in allotment is marginal. By way of    illustration it is said that the Bennett Coleman group gets 828.79 metric tonnes    less. Sixthly, it is said that 500 dailies applied for quota. Newprint has to be equitably rationed. Allowing some dailies more than 10 pages will adversely effect those dailies with less than 10 pages.

In our view shortage of newsprint can stop with allotment. If the Government rests content with granting consumers of newsprint a quantity equitably and fairly, the consumers will not quarrel with the policy.     The consumers     of newsprint are gravely concerned with the other features. The fixation of 1 0 page limit is said by the Government to be on    account of short supply of newsprint and equitable distribution of newsprint. In the year 1972-73 the quantity available for    allocation was     2,15,000 tonnes. In     the previous year    the quantity was 2,25,000 tonnes.     The shortfall is 10,000 tonnes. The percentage therefore    will be 10,00OX100=4-1/2%

----------

2,25,000

If the     reduction is only 4-1/2% the cut in the Hindu     was calculate 'by Mr. Nambiar to be 16-10=6 viz.    6X100=37-1/2 per cent.     -----

16

In other words, the     cut worked out to much higher proportion. Mr. Palkhivala for the Bennett Coleman group, Mr. Daphtary for the Hindustan Times group contended    that there was no shortage in quantity of newsprint. It is     not possible to go into    these disputes     of figures.     The reduction is     established by Mr.     Nambiar to     be disproportionate to shortfall.    Particularly in the past, in the year 1962 there was a shortage. There was a cut in quota.    The original cut was 5 per cent on those whose quota was above 100 tonnes but less than 1000 tonnes and 7-1/2 per 787

cent for those whose quota was 1000     tonnes     and above. Later,    the cut was reduced to 2-1/2 per cent    and applied uniformly to those whose quota was 1000 tonnes     and above. On behalf of the petitioners it was rightly said that if there was any real shortage 20 per cent increase in pages under Remark VII(C) to newspaper below 10 page level would not have been possible.

According to the petitioners, there is no distinction    made by the     Government between dailies in Indian language     and English dailies and particularly big English dailies. A big daily, according to the Government, is taken to mean a daily with a circulation of more than 50,000 copies    irrespective of the number of pages and it makes no distinction between language and English dailies. Out of the 45 big dailies 30 are language dailies and 15 are English dailies. The 15 pB`= English dailies operate on an average page level of over 10. The average of their page level has been about 13.     The medium English     dailies have had an average page level of above 11. Of    the 30 language dailies     23 operate on an average page level below. The language dailies, it is    said by the petitioners, operate on an average page level below 10 as they do not require more than 10 pages.    The average of the page level of language dailies is about 8. Six of the big language dailies    have a page level of about 9.     The petitioners, therefore, contend that if the maximum number of pages is fixed at 10 the average page level of the     big English     and language dailies would come down    to 9.8     and their page level would become more or less equal to the page level of medium dailies whose requirements are     much less. It would, therefore, in our view amount to treating unequals equally     and to benefit one type of daily at the cost of another.

Since 1957, dailies operating on a page level of 12 or    more have not been given any increase in page level. There     was no fixed number of pages. For determining quota the    page level of 1957 was taken. Dailies operating on a page level of less than 10 have been granted increase in     pages    from time to time.     Such dailies operating on a page level of less than 10 have chosen to increase circulation rather than to increase the number of pages, because    of lack of advertisement support.     From 1963-64    upto and including 1971-72 any quota for increase in pages could always be used for or adjusted against increase in circulation. Similarly any quota for increase in circulation, could be used for or adjusted against increase in number of pages.    It is    only because the newspapers were allowed to adjust between pages and circulation in the past that the big dailies' had an actual page level of more than the permissible page level of 1957. But most of the big language dailies which had a page level of less than 10 did not increase their pages though they were permitted to do so.

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In the past, newspapers which had 12 page limit were allowed to increase the page     number. This is said     to be     the justification on the part of the Government to wipe out     any inequity. It appears that 19 language dailies reduced their page numbers on the basis of which their quota was fixed in order to increase their circulation. If that is so, there is no reason for giving them additional quota for increasing page number specially     by reducing the quota    of the     big dailies     and imposing a 10 page limit on them.    It is    also found that 11 newspapers whose, quota was calculated on a page level above 10 have reduced their page numbers below 10 in order to increase circulation. These papers have also been granted additional quota to increase their pages    upto

10. The Government Annexure R-4 establishes that these 11 newspapers are obtaining double benefit. First, because of quota calculated on a page level above 10 and second because of additional quota to increase pages upto 10 for they     had actually reduced their page number to 10.

There are only 7 dailies of above 12 pages until the     im- pugned    policy hit these. Those are Amrita Bazar Patrike, Bombay    Samachar. Hindu, Hindustan Times, Indian Express (Delhi, Bombay, Madurai, Vijayawada and Bangalore editions), the Times of    India (Bombay and Delhi     editions) and the Statesman. Out of these 7 dailies 6 are English dailies. Bombay Samachar is a Gujarati daily. The maximum page level fixed at 10 and the prohibition against the adjustability between pages and circulation are strongly impeached by     the petitioners. These 7 dailies except Bombay Samachar are common ownership units.     Some of them publish other leading language dailies also.     The maximum number of pages at 10 will, according to the petitioners,    not only adversely affect their profits but also deprive them of expressing and publishing the     quality of writings and fulfilment of the role to be played by the newspaper in regard to their freedom of speech and expression. While it must be admitted that the language dailies should be allowed to grow,     the English     dailies should not be forced to languish under a policy    of regimentation. It is therefore correct that     the compulsory reduction to 10 pages offends article 19(1)(a) and infringes     the rights of freedom of speech     and expression.

It is further urged that the Government has fixed the quota on the     basis    of circulation    multiplied by pages.     The Government has on the one hand compared the circulation of the big dailies with the circulation of medium and small dailies     and on the other has ignored the difference in     the number of pages of big dailies as compared to the number of pages of the medium and the small dailies. The difference in pages coupled with the

789

difference in circulation affords a reason for difference in the percentage of total allocation given to the big dailies as compared to the medium and the small dailies.    _The average number of pages for the big dailies is 10.3, for the medium    'dailies 8.3, and for the small dailies 4.4    (See Press in India 1971 page 134).    The percentage of allocation for the big dailies reflects really the large number of pages they publish. The big dailies therefore have not only larger requirements but also they render larger services to the readers. The Newprint Policy of fixing the page level at 10 is seeking to make unequals equal and also to benefit one type of daily at the expense of another. The historical reason given by the Government for fixing the maximum     number     of pages at 10 is that the effect of     the policy    on allowing any page     increase and     circulation increase from time to time has been to help the growth of the Press. This is    how newspapers     like Ananda Bazar Patrika, Jugantar and Deccan Herald are said to have    come up. The Government also relies on the recommendation of the newspaper proprietors in the year 1971 that 8 pages should be considered the national minimum requirement for medium of information. The big English dailies had the number of pages over 12 in 1957. Because of adjustability between pages and circulation they had an actual page level which was higher than the permissible page level of     1957.     The petitioners say that this has not impeded the growth of other papers.    The policy prescribed by the Government of fixing    the maximum page limit at 10 is described by     the petitioners to     hit the big dailies and to    prevent     the newspapers from rising above mediocrity. It is true    that the Government relied on an historical reason.     It is    said to prevent big newspapers from getting any unfair advantage over newspapers which are infant in origin. It is also said that the Government policy is to help newspapers operating below 10 pages to attain equal position with those who     are operating above 10 page level.     But this intention to    help new and young newspapers cannot be allowed to     strangulate the freedom of speech and expression of the big dailies. The Government has sought to justify the reduction in     the page level to     10 not only on the ground of    shortage of newsprint but    also on the grounds that these big dailies devote    high percentage of space to     advertisements     and therefore the cut in pages will not be felt by them if    they adjusted their     advertisement space. In our judgment     the policy of the Government to limit all papers 790

at 10    pages is arbitrary. It tends to treat    unequals as equals    and discriminates against those who by virtue of their efficiency, standard and service and because of their All-India stature acquired a higher page level in 1957.     The main source    of income for     the newspapers is    from advertisements. The loss of revenue because of the cut in page level is said to be over several lakhs of rupees.    Even if there is a saving in raw material by cut in     page level there would be a revenue gap of a large sum of money.    This gap could have been partly recouped by increasing the    page level.     The    newspaper has     a built-in     mechanism. Advertisements are not only the sources of revenue but    also one of     the factors for circulation. Once circulation is lost it will be very difficult to regain the old level.     The advertisement rate has undergone slight increase since 1972. As a result of the cut in page level the area     for adver- tisements is also reduced.

This Court held in Hamdard Dawakhana case (supra) that an advertisement is no doubt a form of speech but its    true character is reflected by the object for the promotion of which it is employed.     In Sakal Papers case (Supra)    this Court held that if the space for advertisement     is reduced earnings would decline and if the price is raised that would affect    circulation. It appears to us that in    the present case, 'fixation of page limit will not only    deprive     the petitioners of their economic viability but also restrict the freedom of expression by reason of the compulsive     re- duction of page level entailing reduction of circulation and denuding the area of coverage for news and views. The estimated loss on account of reduction of page limit is Rs. 39 lakhs in the case of Bennett Coleman group, Rs. 44 lakhs in the case of Hindustan Times and Rs. 38 lakhs in the case of the Hindu. If as a result of reduction in pages the newspapers will have to depend on advertisements as their main source of 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 newspaper    will have to sacrifice advertisements 'and thus weaken the    link 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 impinge on free- dom of speech and expression.

The reason given by the Government that the entitlement on the basic of the previous year has caused only     a marginal loss in' allotment is controverted by the petitioners. it is said that if the total quantity of newsprint available is 2,15,000 tonnes in 1972-73 the shortfall is    only 10,000 tonnes because in the previous year the quantity available was 2,25,000 tonnes. The Bennett Coleman group alleges that the actual circulation of Times of India Bombay 791

in 1971-72 was of 1,58,700 copies though the quota for    that year was calculated on the basis of a circulation of 2,02,825 copies and a page level of 13 and adjustability between     paces    and circulation were permissible. It     is, therefore, said that though the Times of India under     the impeached policy would have an allowable circulation of 2,08,920 and a page level of 10 it would not under the     new policy have any permission to adjust between pages and    cir- culation. In fact, it is said that if the pages are reduced to 10, its circulation would fall even below that of    last year by reason of the fact that owing to reduction in pages the quality will suffer and the consequence will be downfall in circulation.     The petitioners therefore rightly emphasise that to equate the big English dailies which are in a class by themselves    with other dailies which need less than 10 pages indicates negation of an equitable distribution     and proves irrational treating of dailies.

The justification pleaded by the Government is that     big dailies chose. to increase pages rather than circulation in the past. In the past the newsprint allocation was based on the page level of 1957 and the circulation figures of 1961-

62. The Government says that newspapers which started after 1961-62 were unable to increase their pages. Therefore, the present policy is intended to remove that position. In     our judgment it will depend on each paper as to how it    will grow.    Those who are growing should not be restricted if they can grow     within their quota. In the past dailies having    less than 10 pages were given    increases and    were allowed to come up to 10 pages from 4 pages in 1961-62 and 6 pages in 1962-63. Most of them could not even fully utilize the page increase allowed. The present impeached policy seeks to remove iniquities created by previous policies. It depends upon facts as to how much more newsprint a group of newspapers started after 1961-62 will require and secondly whether they are in a position to increase the page number. It also appears that 19 language dailies reduced their page numbers     on the basis of which the quota was calculated in order to increase their circulation. Therefore, there appears     to be no justification for giving them additional quota for increasing page numbers by reducing the quota of the big dailies by imposing upon them the 10 page ceiling. The 10 page ceiling imposed affecting     22 big newspapers operating above 10 page level with approximate circulation of over 23 lakhs i.e. more than 25% of the total circulation is arbitrary and treats them equally with others who,     are unequal     irrespective of the needs and requirements of     the big dailies and thus violates Article 14 of     the Constitution.

The impeached policy violates Article 14 because it treats newspapers which are not equal equally in assessing     the needs and requirements of newsprint. The Government case is that out of 35 newspapers which were operating on a quota calculated on a higher page level than 10 pages 28 newspapers will benefit by the impeached policy of 1972-73. But 7 newspapers out of 22 which were operating above 10 page level are placed at a disadvantage by the fixation of 10 page limit and entitlement to quota on that basis. There is no intelligible differentia. Nor has this distinction any relation to equitable distribution of newsprint.

Re: Bennett Coleman and Co. v/s UOI - violation of Article 19(1)(a)

The impeached policy also offends Article 19 (1) (a) of the Constitution. Newspapers like 19 language dailies reduced their pages in order to increase circulation though such language dailies had prior to 1972-73 been given quota to increase pages. Under the impeached policy these language dailies are given additional quota to increase their pages against to 10.

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 to 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.

The other features in the newsprint policy complained of are those in Remark VII (c) read with Remark VIII of the impeached policy. Remark VII (c) allows 20 per cent increase to daily newspapers in the number of pages within the ceiling of 10 over the average number of pages on which the basic entitlement is fixed under Remark V. In other words, dailies with less than 10 pages are prevented from adjusting the quota for 20 per cent increase for increase in circulation. The Bennett Coleman group says that their Nav Bharat Times, Maharashtra Times and Economic Times would prefer to increase their circulation. Under Remark V they are entitled to quota on the basis of consumption in 1970-71 or 1971-72 whichever is less. This feature also indicates that the newsprint policy is not based on circulation. Under Remark VII (c) these newspapers within the ceiling of 10 can get 20 per cent increase in the number of pages. They require circulation more than the number of pages. They are denied circulation as a result of this policy._ The big English dailies which need to increase their pages are not permitted to do so. Other dailies which do not need increase in pages are permitted quota for increase but they are denied the right of circulation. In, our view, these features were rightly said by counsel for the petitioners to be not newsprint control but newspaper control in the guise of equitable distribution of newsprint. The object of the impeached policy is on the one hand said to increase circulation and on the other to provide for growth in pages for others. Freedom of speech and expression is not only in the volume of circulation but also in the volume of news and views.

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Remark VIII in the Newsprint Policy of 1972-73 imposes two types of restrictions. First a daily is not permitted to increase its number of pages by reducing circulation to meet its individual requirements. Secondly, dailies belonging to a common ownership unit are not permitted interchangeability between them of the quota allotted to each even when the publications are different editions of the same daily published from different places.

The first prohibition in Remark VIII against increase in pages, by reducing circulation has been introduced for the first time in the policy for 1972-73. The reason given by the Government for this feature is that newspapers would obtain a quota on the basis, of a certain stated circulation and they should not be allowed to, reduce circulation. The petitioners say that quota is not granted on the basis of actual circulation but is granted on the basis of notional circulation which means the actual circulation of 1961-62 with permissible increases year after year even though the actual circulation does not correspond to the permissible circulation on which the quota was based year after year. The Times of India Bombay in 1971-72 demanded quota on the basis of 20 pages and a circulation of 1,70,000. 'the Times of India was, allowed quota on the basis of 13.13 pages and a circulation of 2,02,817. The actual performance was average page number of 18.25 and circulation of 1,54,904. In the past, adjustability between pages and circulation was permitted. In our judgment, the petitioners correctly say that the individual requirements of the different dailies render it eminently desirable in some cases to increase the number of pages than circulation. Such adjustment is necessary to maintain the quality and the range of the readers in question. The denial of this flexibility or adjustment is in our view rightly said to hamper the quality, range and standard of the dailies and to affect the freedom of the press.

The restriction on the petitioners that they can use their quota, to increase circulation but not the page number violates Articles 19 (1) (a) as also Article 14. Big dailies are treated to be equal with newspapers who are not equal to them. Again, the policy of 1972-73 permits dailies with large circulation to increase their circulation. Dailies operating below 10 page level are allowed increase in pages. This page increase quota cannot be used for- circulation increase. Previously, the big dailies were allowed quota for circulation growth. The present policy has decreased the quantity for circulation growth. In our view counsel for the petitioners rightly said that the Government could not determine thus which newspapers should grow in page and circulation and which newspapers should grow only in circulation and not in pages. Freedom of press entitles newspapers to achieve any volume of circulation. Though requirements of newspapers as to page, circulation are both taken into consideration for fixing their quota 794

but the newspapers should be thereafter left free to adjust their page number and circulation as they wish in accordance with the dictates of Article 19 (1)(a) of the Constitution. Counsel for the petitioners contended that the second prohibition in Remark VIII in the Newsprint Policy prevented common ownership units from adjusting between them the newsprint quota allotted to each of them. The prohibition is to use the newsprint quota of one newspaper belonging to a common ownership unit for another newspaper belonging to that unit. On behalf of the petitioners it was said that from 1963-64 till 1966-67 inter,changeability was permitted between different editions of the same publication to the extent of 20 per cent. In 1967-68 and 1968-69 complete interchangeability between different editions of the same newspaper and between different newspapers and periodicals was permitted. In 1969-70 and 1970-71 the total entitlement was give" as an aggregate quota, though there was a separate calculation made for each newspaper. The present policy does not permit interchangeability. Interchangeability by using the quota for a new newspaper or a new edition or for another newspaper of the same unit will put common ownership unit in an advantageous position. Newsprint is allotted to each news; paper. The newspaper is considered to be the recipient. A single newspaper will suffer if common ownership units are allowed to adjust quota within their group.

The petitioners impeach Remark X in the Newsprint Policy for 1971-72 on the ground that a common ownership unit cannot bring out a new newspaper or start a new edition of an existing newspaper even from their allotted quota. Counsel on behalf of the petitioners rightly characterized this feature as irrational and irrelevant to the availability of newsprint. By way of illustration it was said that the Economic Times is sent by air to Calcutta and Delhi but the common ownership unit is not permitted to reduce the number of copies printed at Bombay and print copies out of the authorised quota for circulation at Calcutta and Delhi. Similarly, it was said that there was no reason to support the policy in Remark X preventing a common ownership unit from publishing a new daily though a person who brought out one daily was allowed to start a second daily. This was challenged as discriminatory. 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 its allotted quota for changing the page structure and circulation of different editions of the same paper. It is made clear that newspapers cannot be permitted to use allotted quota for starting a new newspaper. Newspapers will

795

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. Until 1968-69 big dailies were treated alike but thereafter from 1970-71 onwards dailies with circulation of more than 1,00,000 copies have been put in a different category and given a lesser increase than those with a circulation of 50,000 to 1,00,000 copies though both are big dailies. The policy of the Government is to level all papers at 10 pages. It tends to treat unequals. as equals. It discriminates against those who by virtue of their standing status and service on all India basis acquired a higher page level in the past. The discrimination is apparent from Remark VII in the newsprint Policy for 1972-73 by which newspapers with less than 1,00,000 circulation have been given 10% increase in circulation whereas those with more than 1,00,000 circulation have been given only 3% increase in circulation. Mr. Palkhivala said the policy worked admirably in the past because adjustability between pages and circulation was permitted. In our view the Newsprint Control has now been subverted to newspaper control. The growth of circulation does not mean that there should not be growth in pages. A newspaper "expands with the news and views. A newspaper reaches different sections. It has to be left to the newspapers as to how they will adjust their newsprint. At one stage the Additional Solicitor General said that if a certain quantity of steel was allotted the Government could insist as to how it was going to be used. It was said that the output could be controlled. In our view, newsprint does not stand on the same footing as steel. It has been said that freedom of the press is indispensable to proper working of popular Government. Patna jali Sastri, J. speaking for this Court in Ramesh Thappar's case (supra) said that "Thus, every narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic Organization, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible". It is appropriate to refer to what William Blackstone said in his commentaries : "Every free man has a undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press-, but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity."

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The faith of a citizen is that political wisdom and virtue will sustain themselves in the free market of ideas so long as the channels of communication are left open. The faith in the popular Government rests on the old dictum "let the people have the truth and the freedom to discuss it and all will go well". The liberty of the press remains an "Art" of the Covenant" in every democracy. Steel will yield products of steel. Newsprint will manifest whatever is thought of by man. The newspapers give ideas. The newspapers give the people the freedom to find out what 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 or new papers. It need not be stressed that if the quantity of newsprint available does not permit grant of additional quota for new papers that is a different matter. The restrictions are to be removed. Newspapers have to be left free, to determine their pages, their circulation and their new editions within their quota of what has been fixed fairly.

Clauses 3 and 3A of the 1962 Newsprint Order prevent the petitioners from using white paper and writing paper. The additional Solicitor General at one stage said that it was open to any newspaper to an unrestricted use of any form of paper so long as newspapers do not apply for newsprint. This argument exposes grave errors. In the first place, it shows that there is no shortage' of white printing paper. Secondly, it will show that there is no justification for rationing of newsprint. The cost of indigenous white paper is double the cost of the imported newsprint. This high price of white printing paper is a deterrent to any newspaper to use it. The periodicals are permitted the use of white printing paper. That is because of Public Notice No. 4-ITC(PN)/63 dated 1 1 January, 1963. That may be one of the reasons why periodicals have not complained of the Policy. The periodicals can supplement their newsprint quota. Further, the clientele of the periodicals is different. The Prices of periodicals are also different. In any event, it cannot be said that the newspapers can buy white printing paper to meet their requirements. Nor can such plea be an answer to the violation of fundamental rights in Article 19 (1) (a) or infraction of Article 14 by the provisions of the impeached Newsprint Policy. In the present case, it cannot be said that the newsprint policy is a reasonable restriction within the ambit of Article 19(2). The newsprint policy abridges the fundamental rightS of the petitioners in regard to freedom of speech and expression. The newspapers are not allowed their right of circulation- The newspapers are not allowed right of page growth. The common ownership units of newspapers cannot bring out newspapers or new editions. The newspapers operating above 10 page level and newspapers Operating below 10 page level have been treated equally for assessing

797

the needs and requirements of newspapers with newspapers which are not their equal, Once the quota is fixed and direction to use the quota in accordance with the newsprint policy is made applicable the big newspapers are prevented any increase in page number. Both page numbers and circulation are relevant for calculating the basic quota and allowance for increases. In the garb of distribution of newsprint the Government has tended to control the growth and circulation of newspapers. Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content. The newsprint policy which permits newspapers to increase circulation by reducing the number of pages, page area and periodicity, prohibits them to increase the number of pages, page area and periodicity by reducing circulation. These restrictions constrict the newspapers in adjusting their page number and circulation. The Additional Solicitor General relied on the American decision in Red Lion Broadcasting Co. v. Federal Communica- tions Com. (supra) in support of the contention that there should be an uninhibited marketplace of idea in which truth will ultimately prevail and there should not be monopolization of that market whether it be by the government itself or by a private licensee- The press is not exposed to any mischief of monopolistic combination. 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.

This Court in Sakai Papers case (supra) dealt with measures empowering the government to regulate allocation of space to be allotted for advertising matter. This Court held that the measure had the direct effect of curtailing the circulation of the newspaper and thus to be violation of Article 19 (1) (a). It was said on behalf of the Government that regulation of space for advertisement was to prevent unfair competition. This Court held that the State could help or protect newly started newspapers but there could not be an abridgment of the right in Article 19(1)(a) on the ground of conferring right on the public in general or upon a section of the public.

The Additional Solicitor General contended that the business aspect of the press had no special immunity and the incidental curtailment in the circulation could not be freedom of speech and expression of the press. This Court in Sakai Papers case (supra) dealt with the measures for the fixation of price in relation to pages and the regulation of allotment of space for adver-

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tisement by each paper. These measures were said to be com- mercial activities of newspapers. This Court said that restrictions could be put upon the freedom to carry on business but the fundamental right of speech and expression could not be abridged or taken away. There could be reasonable restrictions on that right only as contemplated under Article 19(2).

Mr. Nambiar contended that the Newsprint Policy did not fall within clause 5(1) of the Import Control Order 1955 and it was not validly made by the Central Government. The records with regard to the making and publication of the newsprint policy for 1972-73 were looked into by this Court. It appears that the policy was published under the authority of the Cabinet decision. The policy was therefore validly brought into existence. The various restrictions of the newsprint policy have been examined earlier. The various restrictions imposed by the newsprint policy are found to be unconstitutional.

Clause 3 of the Newsprint Control Order 1962 was contended to confer unfettered and unregulated power on an executive officer. Clause (3A) of the Order of 1962 was also said to confer naked and arbitrary power. The disability imposed on newspapers from using printing and writing paper was said to be discriminatory. The Additional Solicitor General contended that it is open to an unrestricted use of any form of paper so long as newspapers do not apply for newsprint. This would establish that there is no shortage of white printing paper. The error in the Government contention is thereby exposed. The periodicals were permitted in terms of public Notice 4-ITC(PN)/63 dated 11 January 1963 unrestricted use of white printing paper to supplement their quota of newsprint. That again shows that the Government contention is wrong because there is restriction with regard to use of white printing paper. The cost of white printing paper is high. It is said that the cost is Rs. 2,750 per metric tonne for white printing paper compared to Rs. 1,274 of imported newsprint and Rs. 1,362 of Nepa newsprint. Clause 3 (3A) of the Order provides 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. White printing paper like newsprint can be rationed. The distribution is to be fair and equitable. It is necessary also to point out that text books and books of general interest require facilities for using white printing paper. Such measures with regard to rationing are defensible. It is true that no guidelines are to be found in clause 3 (3 Al) as to the circumstances under which a particular consumer of newsprint or class of consumers of newsprint other than a publisher of text books or books of general interest should or should not be allowed to use white printing paper. The Public Notice allowing periodicals

799

permission to use white printing paper is not challenged. Periodicals were not before this Court. It is therefore not necessary to express any opinion on clause 3 (3) and clause 3 (3A) of the Control Order.

For the foregoing reasons the newsprint policy for 1972-73 violates Articles 19 (1) (a) and 14 of the Constitution. The restrictions by fixing 10 page limit in Remarks V and VIII of the policy infringe Articles 19 (1)(a) and 14 of the Constitution and are therefore, declared unconstitutional and struck down. The policy of basic entitlement to quota in Remark V is violative of Articles 19(1)(a) and 14 of the Constitution and is therefore struck down. The measure in Remark VII(a) is violative of Articles 14 and 19 (1) (a) of the Constitution and is struck down.

The measures in Remark VII(C) read with Remark VIII are violative of Articles 19(1)(a) and 14 of the Constitution and are struck down. The prohibition in Remark X against common ownership unit from starting a new newspaper/periodical or a new edition is declared unconstitutional and struck down as violative of Article 19(1)(a) of the Constitution.

For these reasons the petitioners succeed. The import policy for newsprint for the year 1972-73 in regard to Remarks V, VII(a), VII(c), VIII and X as indicated above is struck down. The parties will pay and bear their own costs. MATHEW, J. These four writ petitions concern the validity of sub-clauses (3) and (3A) of Cl. 3 of the Newsprint Control Order, 1962, passed by the Government of India under S. 3 of the Essential Commodities Act, 1955, and the provisions of the Newsprint Import Control Policy for 1972-73 hereinafter called the Newsprint Policy". The petitioners challenge the validity of sub-clause (3) and (3A) of Cl. 3 of the- Newsprint Control Order and the provisions of the Newsprint Policy on the ground that they are violative of their fundamental right under Arts. 14 and 19 (1)(a) of 'the Constitution. Newsprint, which is a variety of printing paper, is the principal raw material required for newspapers and periodicals. Until 1957, the newsprint required in the country was being imported. In or about the year 1957, a mill called the National New-Sprint and Paper Mills Ltd. was started. This mill is the only source of supply of indigenous newsprint. The newsprint produced in this mill is quite inadequate to meet the needs of the country. The production, supply and distribution of newsprint has been controlled ever since 1939. Art. 369 of the Constitution vests the control of production, supply and distribution of newsprint within the exclusive jurisdiction of Parliament for a period of five years

-L499Sup. CI/73

800

from the commencement of the Constitution. Newsprint is an essential commodity' under the Essential Commodities Act, 1955 (see s. 2(a)(vii) of the Act).

The bulk of newsprint has to be imported from foreign coun- tries and the Central Government has a restricted system of import from the year 1943. The Central Government promulgated the Import (Control) Order, 1955, in the exercise, of the powers conferred by sections 3 and 4A of the Imports and Exports (Control) Act, 1947, and cl. 3(1) thereof reads as follows :

"3. Restrictions of Import on certain goods- (1) Save as otherwise provided in this Order, no person shall import any goods of the description specified in Schedule 1, except under, and in accordance with, a licence or a customs clearance permit granted by the entral Government or by any officer specified in Schedule II".

White printing paper (excluding laid marked paper which con- tains mechanical wood pulp amounting to not less than 70 per cent of the fibre content) is included as item 44 in Part V of Schedule I to that Order.

Licence was granted to publishers of newspapers till 1962 for import of newsprint in accordance with the Import Trade Control policy promulgated from time to time,: On January 17, 1962, in the exercise of the powers under cl. 3 of the Essential Commodities Act, 1955, the Central Government promulgated the newsprint Control Order, 1962. Clause 3 and Schedule I of the Order are as follows "3. Restrictions on acquisition, sale and consumption of newsprint :-

(1) No person other than an importer shall acquire newsprint except under and in accordance with the terms and conditions of an authorisation issued by the Controller under this Order.

(2) No dealer in newsprint shall sell to any person newsprint of any description or in any quantity unless the sale to that person of newsprint of that description or in that quantity is authorised by the Controller.

(3) 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.

all dailies with a circulation of 41.60

Re: Bennett Coleman and Co. v/s UOI - violation of Article 19(1)(a)

which represent of

KHANNA AND Y. V. CHANDRACHUD, JJ.]

801

SCHEDULE-1

1. White printing paper (excluding laid marked paper) with fibre Content of not less than 70 per cent mechanical wood pulp.

2. Glazed newsprint.

3.lndigenous newsprint manufactured by NEPA mills."

On December 29, 1962, the Central Government amended the said Order by promulgating a new sub-clause in cl. 3, viz., cl. (3A) which runs as follows :-

"(3A)-No consumer of newsprint, other than an publisher of text books or books of general interest, shall use any kind of paper other than newsprint except with the permission, in waiting, of the Controller."

The policy with regard to the import and utilization of newsprint is enumerated from time to time in the Import Trade Control Policy (Red Books). The Registrar of Newspapers, determines the newsprint and printing and writing paper entitlement of publishers of each of the newspapers in accordance with the aforesaid policy and the Chief Controller of Imports and Exports issues licences for import of newsprint in accordance with the determination by the Registrar.

The imported newsprint together with that produced in the country has to be rationed among the various newspapers in the Country.

In the year 1972-73, on account of suspension of U.S. aid, there was a reduction of 11,000 tonnes in the import of newsprint. Therefore, the newsprint available for distribution was less than what it was in 1971-72. The provisions of the Newsprint Policy which are challenged in these petitions might be summarised as follows

1. Fixation of basic entitlement for newspapers whose actual number of pages was more than 10 during 1970-71 or 1971-72 on the basis of (i) an average of 10 pages, and (ii) either the average circulation in 1970-71 or admissible circulation in 1971-72 plus in- creases admissible under the Policy of 1971-72 whichever is more (Remark V).

2. (i) Reduction in increases from 5 per cent to 3 percent for dailies with circulation of more than 1 lakh (Remark VII); and giving of 20 per cent increase to daily newspapers in the number of

802

pages` within the ceiling of 10 pages provided this increase is not utilised for the increase of circulation (Remarks VII(C) and VIII).

(ii) Prohibition to increase the number of pages, page area and periodicity by reducing circulation within the authorised quota but they are permitted to reduce the number of pages, page area and periodicity for increasing circulation (Remark VIII).

3. (i) Prohibition to use the newsprint quota of one newspaper/periodical for the other newspaper/ periodical in the case of newspapers/periodicals belonging to a Common Ownership Unit (Remark VIII); and

(ii) Prohibition to start a new

newspaper/periodical by the Common Ownership Unit (Remark VIII); and

4. Denial of newsprint quota to

(i) an existing newspaper belonging to a Common Ownership Unit which has not been granted newsprint quota; and

(ii) additional newspapers sponsored or acquired by a common Ownership Unit (Remark- X).

5. Prohibition to use white printing paper by the newspapers which have been allotted newsprint (Cl. 3(3A) of the Newsprint Control Order).

That there can be no unlimited right to acquire or use a scarce commodity like newsprint can admit of no doubt. The argument of the petitioners that Government should have accorded greater priority to the import of newsprint to supply the need of all newspaper proprietors to the maximum extent is a matter relating to the policy of import and this Court cannot be propelled into the unchartered ocean of Governmental policy.

Let me first take the general question whether the provisions of the Newsprint Policy and the Newsprint Control Order abridge the freedom of speech.

The freedom of the press is no higher than the, freedom of speech of a citizen under Art. 19(1)(a). Art. 19 does not specifically provide for the freedom of the press as the First Amendment of the Constitution of the U.S.A. does. The freedom of the press is simply an emanation from the concept of fundamental right of the freedom of speech of every citizen (see Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha and Others(1).

(1) [1959] Supp. 1 S.C.R. 806.

803

The respondents contended that the Newsprint Control Order and the Newsprint Policy are concerned with regulating the distribution of newsprint as a scarce commodity, and, if, in regulating the distribution of the commodity, the fundamental right of the freedom of speech is indirectly affected, that is not an abridgment of the freedom of speech, but only an abridgment of speech which is not prohibited by Art. 13(2). In other words, the contention is that the provisions of the Newsprint Control Order as well as those of the Newsprint Policy relate to the regulation and distribution of newsprint as a commodity necessitated by its scarcity and that these provisions are concerned, if at all, with the business activity of the press and have nothing to do with the freedom of speech,- and, even if there is an indirect impingment upon the freedom of speech, it is not an abridgment of that freedom as contemplated by Art. 13(2).

Art. 13(2) provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause shall, to the extent of the contravention, be void. In the context, what is prohibited by Art. 13(2) is, the making of any law which takes away or abridges the right conferred by Art. 19(1)(a). What Dr. Meiklejohn said of the First Amendment of the Constitution of U.S.A. applies equally to Art. 19(1)(a) read with Art. 13(2). He said: "That amendment, then, we may take it for granted, does not forbid 'the abridging of speech. But, at the same time, it does forbid the abridging of the freedom of speech."

(See Political Freedom, p. 21)

Art, 19(1)(a) guarantees to the citizens, the fundamental right of the freedom of speech and Art. 19(2) enumerates the type of restrictions which might be imposed by law. It does not follow from this that freedom of expression is not subject to regulations which may not amount to abridgment. It is a total misconception to say that speech cannot be regulated or that every regulation of speech would be an abridgment of the freedom of speech. In other words, regulation of speech is not inconsistent with the concept of the freedom, of speech unless the regulation amounts to abridgment of that freedom. No freedom, however absolute, can be free from regulation. Though the right under Art. 30(1) is in terms absolute, this Court said In Re the Kerala Education Bill, 1957(1), that the right is subject to reasonable regulation. The Privy Council said in Commonwealth of Australia v. Bank of New South Wales(2) that regulation of trade and commerce is compatible with the absolute freedom of trade and commerce. In fact, the very essence of freedom in an ordered society is regu- (1) [1959] S.C.R. 995.

(2) [1950] A.C. 235, 310.

lation. The application of the term '-abridge' is not difficult in many cases but the problem arises in certain types of situations. The important ones are where a regulation is not a direct restriction of expression but is designed to accomplish another objective and the impact upon the expression is secondary or indirect. This problem may appropriately be formalized in terms of defining the key elements, namely, "freedom of speech "abridge" and "law". These definitions must be functional in character, derived from the basic considerations underlying a system of freedom of expression (See Thomas I- Emerson, Toward a General Theory of First Amendment(1). As I said, measures which are directed at other forms of activity but which have a secondary, indirect or incidental effect upon expression do not generally abridge the freedom of speech unless the content of, the speech itself is regu lated. Such measures include various types of tax and economic regulations, the imposition of political qualification for obtaining Government employment or any other benefits or privileges, the activities of legislative committees and the political restrictions on rights of aliens. By hypothesis, the regulation imposed is, taken by itself, a legitimate, one, aimed directly at the control of some other activity. The question is its secondary impact upon an admitted area, of expression. This is essentially a problem of determining when the regulation at issue has an effect upon expression which constitutes an abridgment within the meaning of Art. 13(2). In other words, the Court must undertake to define and give content to the word "abridge" in Art. 13(2). This judgment, like the judgment in defining "free speech" must be made in the light of the affirmative theory underlying freedom of expression to which I shall come in a moment, and the various conditions essential to maintaining a workable system. In fact, regular tax measures, economic regulations, social welfare legislation like a general corporation tax, wage and hour legislation, factory laws and similar measures may, of course, have some effect upon freedom of expression when applied to persons or orga- nisations engaged in various forms of communication., But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on expression seems clearly insufficient to constitute an abridgment of freedom of expression. The use of such measures to control the content of expression would be clearly impermissible as that would be an abridgment of the' freedom of speech. (see Thomas I. Emerson, Toward a General Theory of First Amendment(1). So also a special tax on press alone, or, a tax exemption available only to those with particular political views or associations would not be permitted (see Alice Lee Gorsjean v. American Press Company (2 ) and Robert Murdock v. Commonwealth of Pennsylvania(3). "In other words, though the speech itself be under the First Amendment,

(1) Yale Law Journal, Vol. 72, 962-63, 877. (2) 297 U.S. 233.

(3) 319 U.S. 105.

the manner of its exercise or its, collateral aspects may fall beyond the scope of the amendment"(1). This principles illustrated by the case of Naresh Shridhar Mirajkar and Others v. The State of Maharashtra and Another(2) where the Bombay High Court, by an order, prohibited the publication of the evidence of a witness and the question was, whether the order abridged the fundamental right of the freedom of speech of the petitioner in the case. This Court held by a majority that it did not. Gajendragadkar, C. J. said: "As we have already indicated, the impunged order was directly concerned with giving such protection to the witness as was thought to be necessary in order to obtain true evidence in the case with a view to do justice between the parties. If, incidentally, as a result of this order, the petitioners were not able to report what they heard in Court, that cannot be said to make the impugned order invalid under Article 19(1)(a) .... Any incidental consequence which may flow from the order will not introduce any constitutional infirmity in it".

Re: Bennett Coleman and Co. v/s UOI - violation of Article 19(1)(a)

It was said that this dictum of the learned Chief Justice was made under the radiating influence of A. K. Gopalan v. State of Madras(3) and that the decision has been practically overruled by Bank Nationalization Case (4). 1 do not wish to enter the controvercial thicket as to the extent to which the principle laid down in Gopalan's case(3) has been eroded by the Bank Nationalisation case (4). I need only say that in the area of free speech, the principle I have stated is well established. The principle was applied by this Court in Express Newspapers Private Ltd. and Another v. The Union of India and others(5). There the question was whether the provisions of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, violated the fundamental night of the 'petitioner under Art. 19(1)(a). The argument was that the decision of the Wage Board in fixing the rates and scales of wages without any consideration whatsoever as to the capacity of the newspaper industry to pay the same, imposed too heavy a financial burden on the industry and, had disabled it from exercising its fundamental right of the freedom. of, speech. But the Court said:

"The impugned Act,, judged by its provisions, was not such, a law but was a beneficient legislation intended to regulate the

conditions of service of the working journalists and the consequences aforesaid could not be the

(1) William J. Brennan, Jr., "The Supreme Court and the Meiklejohn Interpretation of the First Amendment," Harvard Law.Review, Vol. 79, No.1 p.1

(2) (1966) 3 S.C.R.744,762.

(3) (1960) S.C.R. 88.

(4) (1970) 3 S.C.R. 532.

(5) (1959) S.C.R. 12.

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direct and inevitable result of it. Although, there could be no doubt that it directly affected the press and fell outside the categories of protection mentioned in Art. 19(2), it had not the effect of taking away or abridging the freedom of speech and expression of the petitioner and did not, therefore, infringe Art. 19(1)(a) of the Constitution." The same principle finds expression in the decision in U. S. v. O' Brien(1) where the U.S. Supreme Court said that even assuming that the alleged communicative element in the burning of the Selective Service Certificate is sufficient to bring into play the freedom of speech, it combines both 'speech' and 'non-speech' 'elements, and when speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on the freedom of speech. The Court further obseved that a government regulation is sufficiently justi- fied if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression and the freedom of speech is no greater than is essential to the furtherance of that interest.

In Sakal Papers (P) Ltd. and others v. Union of India(2) this Court was concerned with the validity of the Newspaper (Price and Page) Act, 1956, and Daily Newspaper (Price and Page) Order, 1960. The whole subject matter fell directly under Art.' 19(1)(a). It was not a case where the impingement on the freedom of speech was indirect. The legislation in that case directly restricted circulation of newspapers. The direct effect of the legislation, in other words, was to abridge the freedom of speech by curtailing circulation. The learned judges, after referring to the Express Newspaper case(3) said that the impugned law, far from being one which merely interfered with the right of freedom of speech incidentally, did so directly. Mr. Palkhiwala, appearing for the petitioners in Writ Petition No. 334 of 1971, submitted that the true test to decide Whether the freedom of speech of the petitioners has, been abridged is to see what is the direct effect of the Newsprint Control Order and the Newsprint Policy. He submitted that it is neither their pith and substance nor their subject matter that should be taken into consideration for deciding the question whether they operate to abridge the freedom of speech. but their direct effect. The question to be asked and answered, according to counsel is, what is the direct effect of the Newsprint Control Order and the Newsprint Policy ?

(1) 391 U.S. 367. (2) [1962] 3 S.C.R. 842, 866. (3) [1959] S.C.R. 12.

807

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 owned by them with same page level and, as a result, the circulation of the newspapers or their page level has to be reduced, could it be contended that there has been abridgment of the freedom of speech ? Surely, the reduction in page level or circulation is the direct result of the diminished supply of newsprint. Yet, I do not think that anybody Will say that there is an abridgement of the freedom of speech of the petitioners. There might be an abridgement of speech, but not an abridgment of the, freedom of speech. 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 (see the observation of Lord Porter in Commonwealth of Australia v.Bank of New South Wales(.')). With this background, let me proceed to consider more speci- fically the arguments of the petitioners.

It was contended for the petitioners that the newsprint policy which fixes a 10-page ceiling for calculation of newsprint quota for their dailies which had a page level above ten directly abridges their fundamental right of free speech and that the provision of the Newsprint Policy_ which provides for 20 per cent increase in the number of pages to daily newspapers within the ceiling of 10 pages off-.ends Art. 14.

Before 1972-73, the newsprint, allocation policy was based on the page level of 1957 coupled with the circulation figures of 1961-62, and all entitlements were calculated, with allowable increases and adjustments, from year to year on that basis. As a result, the newspapers which entered the field after 1962-63 were at a disadvantage and were pegged to their own lower page and circulation level. There were many papers specially in the Indian Languages group where the actual circulation even during 1970-71 exceeded the notional circulation figure which was arrived at cumulatively based on the 1961-62 figures. The result of the previous policies was that some news papers which had already a very large circulation at the time of introduction of newsprint rationing and were not interested in in- creasing circulation substantially were able to use the newsprint allotted to them so as to increase the number of pages. On the other hand, the newspapers which were at a lower level of circulation but had the potential to increase the readership were restricted to the ad hoc percentage (1) [1950] A.C. 235, 312-3.

808

increase allowed under those policies but were unable, at the same time to increase the number of their pages as they could not afford to cut down the existing circulation. The growth of such newspapers was, therefore, affected by the prior newsprint allocation policies. The Newsprint Policy in question seeks to remedy this situation. It recognises the circulation of all newspapers big and small as of 1970- 71 and provides for a small growth rate. 1970-71 is taken as the base year because, with the events in Bangla Desh, Indo- Pak hostilities and the State elections, the circulation figures for 1971-72 would not represent the circulation figures of a normal year.

The fixation of 10-page ceiling for the calculation of newsprint quota has, among the big newspapers, affected 22 newspapers which , prior to the policy for 1972-73, were actually operating on a page-level above 10. The Union of India justifies the reduction in the page level of these papers to 10 on three principal grounds : (1) that these papers devote proportionately high percentage of space for advertisements at high rates and that the cut in pages 'imposed would not be felt by them if they rationalise their working and adjust their advertisement space; (2) that the imposition of cut in the pages was necessary on account of the short supply of 11,000 tonnes of newsprint due to suspension of U.S. Aid and (3) that the cut was necessary to have fair and equitable distribution of newsprint amongst all newspapers and periodicals.

The objectives sought to be achieved. by. the Newsprint Policy are : (1) to correct the inequity of the previous newsprint allocation policies as a result of which the newspapers which had high page level in 1957 got unfair advantage over the newspapers which were started thereafter and (2) to help the newspapers operating below 10 pages to achieve, a 10 page level by 20 per cent increase in growth rate so as to enable them to attain a position of equality with those which were operating above 10-page level in 1970-

71.

It may be recalled that the Newsprint Policy provides for fixation of basic entitlement for newspapers whose actual number of pages was more than 10 during 1970-71 and 1971-72 on the basis of (1) an average of 10 pages, and (2) either the average circulation in 1970 or admissible circulation in 1971-72, plus, increase admissible under the policy of 1971-

72. whichever is greater. Fixation of page level for calculating the entitlement of quota for a newspaper is not a new feature.. The previous policies provided inter alia that, a location would be calculated on the basis of a page level upto 12 pages and restricted to an increase of not more than 2 pages at a time. Therefore, even under the prior policies, the newsprint allocation was calculated on the basis of a maximum

809

page level which was 12 pages as mentioned above, except in the case of six newspapers whose page level in 1957 was more than 12 pages.

Dailies are classified as 'big', 'medium' and 'small'. A newspaper With a circulation of over 50,000 is 'big', that with a circulation ranging from 15,000 to 50,000 is 'medium' and that with a circulation below 15,000 is 'small'. The average page number of big dailies was 10.3. Out of the 45 big dailies, 23 operated on a page level of less than 10 pages and 22 operated on a page level of more than 10. The average page level of all the dailies was 5.8. Out of the 45 big dailies, 30 are language, and 15 English. All the 15 big dailies in English operated on an average page level over 10 and their average page level was 13.45. Even the medium English dailies operated on a page level over 10 and the average of their page level was 11. 08. The Government contended that the effect of the policy of allowing page increase and circulation increase from time to time has been to help the growth of press; that this is how papers like Anand Bazar Patrika Jugantar and Deccan Herald (English) have come to the present level of circulation and that newspaper proprietors in India including the petitioners have unanimously recommended to the Government in January, 1969, that a page level of 8 should be the national minimum requirement for a medium of information and that it should be permitted to reach as wide a public as possible.

To examine the question whether Newsprint Policy is directed against the big dailies and is calculated to strangle them and whether it would offend their fundamental rights under Art. 14 and 19 (1) (a), it is necessary to have an idea as to what are the objects sought to be achieved by the freedom of speech and how they could be achieved. It is also necessary to have some notion about the concept of equality in the distribution of a scare commodity like newsprint. The freedom of speech is a concept which was transplanted into our Constitution from the First Amendment to the Constitution of U.S.A. In Express, Newspapers case(1) this Court observed

"It is trite to, observe that the fundamental right to the freedom of speech and expression enshrined in Art. 19 (1)(a) of our Constitution is based on these provisions in Amendment 1 of the Constitution of the United States of America.....

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

Re: Bennett Coleman and Co. v/s UOI - violation of Article 19(1)(a)

As to what the 'freedom of speech' means there is no unanimity A among the jurists. Writing in the Federalist Papers(1), Alexander Hamilton observed :

"On the subject of the liberty of the press, as much as has been said, 1 cannot forbear adding a remark or two 1 contend that

whatever has been said about it amounts to nothing. What signifies a declaration that "the liberty of the press shall be inviolably preserved" ? What is the liberty of the Press ? Who can eve it any definition which would not leave the utmost latitude for evasion ? I hold it to be impracticable

Professor Chafee said (2 ) :

"The truth is, I think, that the framers had no very clear idea as to what they meant by "the freedom of speech or of the press" but we can say with reasonable assurance .... that the freedom which Congress was forbidden to abridge was not, for them.' some absolute concept which had never existed on earth."

What Lincoln said on liberty is relevant here: "The world has never had a good definition of [it]".

Justice Holmes gave at different times opposite interpretations of the historic meaning of the First Amendment. Speaking for himself and Justice Brandeis, he observed :(3) "History seems to me against the notion (that) the First Amendment left the common law of seditious libel in force."

A few years earlier, he had written for the Court

"(T)he main purpose of such constitutional provisions 'to prevent all such previous restraints... as had been practices by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare".

In this statement Holmes had the support of Cooley, who maintained that its Blackstonian outlook "has been followed by American commentators of standard authority as embodying correctly the idea incorporated in the constitutional law of the country by the provisions in the American Bill of Rights."

The values sought by society in protecting the right to the freedom of speech would fall into four broad categories. Free expression is necessary : (1) for individual fulfilment, (2) for attainment of truth, (3) for participation by members of the society

(1) The Federalist, No. 84, at p. 514.

(2) Chafee, Book Review, 62, Harvard Law Review, 891, 898. (3) Abrams v. U.S., 250 U.S. 616, 630.

(4) Patterson v. Colorado, 215 U.S. 454, 462. 811

in political or social decision making and (4)- for maintaining the balance 'between stability and change in society. In the traditional theory, freedom of expression is not only an individual good, but a social good. It is the best process for advancing knowledge and discovering truth. The theory contemplates more than a process of individual judgment. It asserts that the process is also the best method to reach a general or social judgment. In a democracy the theory is that all men are entitled to participate in the process of formulating- common decisions. (see Thomas I. Emerson, Toward a General Theory of First Amendment) (supra). The crucial point is not that freedom of expression is politically useful but that it is indispensable to the operation of a democratic system. In a democracy the basic premise is that the people are both the governors and the governed. In order that governed may form intelligent and wise judgment it is necessary that they must be appraised of all the aspects of a question on which a decision has to be taken so that they might arrive at the truth. And this is why Justice Holmes said in Abrams v. United States (supra)

"But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our

Constitution."

Judge Learned Hand said that the newspaper industry serves one of the most vital of all general interests, namely, the dissemination of news from as many different sources, and with as many different facets and colours as is possible; that the freedom of speech presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection (see United States v. Associated Press). (1) The same sentiment was echoed by Justice Black when he said that the freedom of speech rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public (Associated v. United States(2) But this fundamental presupposition is seriously weakened by concentration of power. Instead of several views of the facts and several conflicting opinions, newspaper readers in many cities, or, still worse, in wide regions, may get only a single set of facts and a single body of opinion, all emanating from one or two owners.(3) Our Constitutional law has been singularly indifferent

(1) 52 Federal Supplement 362, 372. (So Dist. N.Y. (1943). (2) 326 U.S. Reports 1, 20 (1945).

(3) See Zechariah Chafee, Jr., Government and Mass Communications, Vol. 1, pp. 24-25.

to the reality and implications of non-governmental obstructions to the spread, of political truth.' This indifference becomes critical when a comparatively few private hands are in a position to determine not only the content of information but its very availability (see Jerome A. Barren, "Access to the Press"-A New First Amendment Right").(1)

With the concentration of mass media in a few hands, the chance of an idea antagonistic to the idea of the, proprietors of the big newspapers getting access to the market has become very remote. It is no use having a right to express your idea, unless you have ,got a medium for expressing it. The concept of a free market for ideas presupposes that every type of ideas will get into the market and if free access to the market is denied for any ideas, to that extent, the process of competition becomes limited and the chance of all the ideas coming to the market is removed. There can be no doubt that any mass medium having the greatest circulation will influence the political life of the country because the ideal for which the paper stands has got the greatest chance of getting itself known to the public. It will also affect the economic pattern of the society. Whether or not the modern big newspaper is the cultural arm of the industry, it has an interest in the present method of production and distribution, as it subsists mainly upon advertisement. The Mahalanobic Committee on Distribution of Income and Levels of Living, in its report has, after stating that economic power is exercised also through control over mass media of communication, said

"Of these, newspapers are the, most important and constitute a powerful ancillary to sectoral and group interests. It is not,

therefore, a matter for surprise that there is so much inter-linking between newspapers and big business in this country, with newspapers controlled to a substantial extent by selected industrial houses directly through ownership as well as indirectly through membership of their boards of directors. In addition of course, there is the indirect control

exercised through expenditure on advertisement which has been growing apace during the Plan periods. In a study of concentration of economic power in India, one must take into account this link between industry and newspapers which exists in our country to a much larger extent than is found in any of the other democratic countries in the world."

(1) Harvard Law Review, Vol. 80, 1641, 1643. (2) Report of the Committee on Distribution of income and levels of Living, Part I, pp. 51-52.

Re: Bennett Coleman and Co. v/s UOI - violation of Article 19(1)(a)

If ever there was a self-operating, market of ideas, as Justice Holmes assumed, it has long since ceased to exist with the concentration of mass ,media in- few hands. Protection against government is not enough to guarantee that a man who has something to say will have a chance to say it. The owners and the managers of the press determine which persons, which facts, which version of facts, which ideas shall reach the public. Through concentration of ownership, the variety of sources of news and opinion has become limited. At the same time, the citizen's need for variety and new opinions has increased. He is entirely dependent on the quality, proportion and extent of his news supply,-the materials for the discharge of his duties as a citizen and a judge of public affairs-on a few newspapers. The Press Commission has observed in its report (Part 1, p. 3 1 0) that since the essence of the process of formation of opinion is that the public must have an opportunity of studying various points of view and that the exclusive and continuous advocacy of one point of view through the medium of a newspaper which holds a monopolistic position is not conducive to the formation of healthy opinion, diversity of opinion should be promoted in the interest of free discussion of public affairs,

The mass media's development of an antepathy to ideas anta- gonistic to theirs or novel or unpopular ideas, unorthodox points of view which have no claim for expression in their papers makes the theory of market place of ideas too unrealistic. The problem is how to bring all ideas into the market and make the concept of freedom of speech a live one having its roots in reality. A realistic view of our freedom of expression requires the recognition that right of expression is somewhat thin if it-can be exercised only on the sufferance of the managers of the leading newspapers. The freedom of speech, if it has to fulfil its historic mission, namely, the spreading of political truth and the widest dissemination of news, must be a freedom for all citizens in the country. "What is essential" according to Meiklejohn, "is not that everyone shall speak but that every thing worth saying shall be said".(1) If media are unavailable for most of the speakers, can the minds of the hearers be reached effectively? It is here that creation of new opportunities for expression or greater opportunities to small and medium dailies to reach a position of equality with the big ones, is as important as the right to express ideas without fear of governmental restraint. It is only the new media of communication that can lay sentiments before the public and it is they rather than the government who can most effectively abridge expression by nullifying the opportunity for an idea to win acceptance. As a con- stitutional theory for communication of ideas, laissez faire is manifestly irrelevant (see Barren, Access to Press).(2) What is, therefore, required is an interpretation of Art. 19 (1) (a) which focuses

(1) Political Freedom, p. 26. (2) Harvard Law Review, Vol. 80, 1641.

on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion. Any scheme of distribution of newsprint which. would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of 'the freedom of speech of the petitioners. In other words, a scheme for distribution of a commodity like newsprint which will subserve the purpose of free flow of ideas to the market from as many different sources as possible would be a step to advance and enrich that freedom. If the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involves a regulation of the press which would amount to an abridgment of the freedom of speech (see Citizen Publishing' Co. v. United States).(1) Promoting effective competition of ideas in the market alone will ensure the emergence of truth out of the competition; at any rate that is the basis underlying the guarantee of free speech, and any distribution of newsprint calculated to promote competition by making the competitors equal in strength cannot but be characterized as a scheme to advance the freedom. One cannot promote competition by making the strong among the competitors stronger or the tall taller but by making the weak among them strong and the short tall. So, even if the scheme of distribution aims at making dailies with smaller page-level and less circulation attain a position of' equality in respect of page level and circulation with those, having a page level of 10 and enjoying greater circulation, that would not, in any way, be open to objection on the ground of violation of Art. 19 (1) (a). I am unable to understand how the fixation of a maximum page level of 10 for calculation of quota of newsprint would offend the fundamental right of the freedom of speech of the petitioners. In any scheme of distribution of a scarce com- modity, there must be some basis on which the entitlement should be calculated. It is because newsprint is scarce that it is being rationed. Ex-hypothesi, newsprint cannot be distributed according to the needs of every consumer. The freedom of speech does not mean a right to obtain or use an unlimited quantity of newsprint. Art. 19 (1) (a) is not a guardian of unlimited talkativeness'. The average page level of all the dailies was 58. The Union of India contends that the petitioners themselves recommended a national minimum page level of 8 for dailies and that, but for the inordinate space devoted to commercial advertisement, 10 pages for a

(1) 394 U.S. 131.

daily would be sufficient to express its views and publish the news and that the petitioners beat the big bass drum of Art. 19 (1) (a). not because their freedom of expression is abridged, but that they are deprived of a part of the revenue from commercial advertisement.

It is settled by the decision of this Court in Hamdard Dawa- khana (Wakf) Lal Kuan, Delhi & Another v. Union of India and Others(1) that commercial advertisement does not come within the ambit of the freedom of speech guaranteed by Art. 19(1) (a). I have already indicated that any curtailment of speech occasioned by rationing of newsprint due to its scarcity can only affect freedom of speech indirectly and consequently there would not be any abridgement of it. It has been said that in the scheme of distribution of news- print, unequals have been treated equally and therefore, the Newsprint Policy violates Art' 14 of the Constitution. To decide this question regard must be had to the criteria to be adopted in distributing the material resources of a community. Arguments about equality in this sphere are really arguments about the criteria of relevance. The difficulties involved in developing such criteria have occupied philosophers for centuries. Despite the refinements that distinguish the theories of various philosophers., most such theories represent variations on two basic notions of equality : numerical equality and proportional equality. The contrast between the two notions is illustrated by the difference between the right to an equal distribution of things and the equal- right with respect to a distribution of such things. According to the former, each individual is to receive numerically identical amounts of the benefit being distributed or the burden imposed in the public sector, whereas the latter means only that all will receive the same consideration in the distributional decision, but that the numerical amounts distributed may differ. Proportional equality means equality in the distribution according to merit or distribution- according to need (see Developments-Equal Protection). (2) But the Supreme Court of U.S.A. has departed froth this traditional aproach in the matter of equality and has adopted a more dynamic concept as illustrated by the decision in Griffin v. Illinois(") and Douglas v. California. (4) In these cases it was held that the State has an affirmative duty to make compensatory legislation in order to make men equal who are really, unequal has undergone radical other words, the traditional doctrine that the Court is concerned with formal equality before the law and is not concerned to make men equal who are really unequal has under gone radical

(1) [1960] 2 S.C.R. 671, 688-90
(2) Harvard Law Review, Vol. 82, p. 1165.
(3) 351 U.S. 12.
(4) 372 U.S. 353.


change in the recent years as illustrated by these cases. Justice Harlan dissented both in Griffin's case and Douglas' case and his dissenting opinion in the former case reveals the traditional and the hew approaches and also highlights the length to which the majority has, gone : "The Court thus holds that, at least in this area of criminal appeals, the Equal Protection Clause imposes on the States an affirmative duty to lift the handicaps flowing from differences in economic circumstances. That holding produces the anomalous result that a constitutional admonition to the States to treat all persons equally means in this instance that Illinois must give to some what is requires others to pay for.... It may as accurately be said that the real issue in this case is not whether Illinois has discriminated but whether it has a duty to discriminate." The crucial question today, as regards Art. 14, is whether the command implicit in it constitutes merely a ban on the creation of inequalities by the State, or, a command, as well, to eliminate inequalities existing without any contribution thereto by State action. The answer to this question, has already been given in the United States under the equal protection clause in the two cases referred to, in certain areas. The Court, in effect, has began to require the State to adopt a standard which takes into account the differing economic and social conditions of its citizens, whenever these differences stand in the way of equal access to the exercise of their basic rights. It has been said that justice is the effort of man to mitigate the inequality of men. 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) 1] 1 do not think I can say that the principle adopted for the distribution of newsprint is not for the common good.

That apart, one of the objects of the Newsprint Policy was to. remedy the inequality created by. the previous policies and to enable the dailies having less than 10 pages attain a position of equality with those operating on a page level of 10 or more. I think the allowance of 20 per cent increase for growth in page-level provided in Remark VII is based on a classification and that the classification is grounded on an intelligible differential. having a nexus to the object sought to be achieved.

By, far the, most fundamental attack made by counsel for the petitioners was that levelled against the provision in Remark VIII which provides that within the quantity of newsprint authorised for the licensing period, each newspaper/periodical will be free to increase circulation by reducing the number of pages, page area and periodicity, but will not be free to increase the number of pages, page area and periodicity by reducting circulation, to meet its individual requirements. It was contended that this is direct inroad upon the freedom of speech and that by-no stretch of imagination can it be characterized as newsprint control The argument was that when once the quota has been determined and allotted, further direct-ions as regards circulation or page number is nothing but brazen-faced trespass into the domain of the guaranteed freedom. It was said that once the quota has been fixed and allotted, the control over newsprint as a commodity was over and any stipulation as regards its utilisation thereafter can only sound in the realm of abridgment of the freedom of speech.

Now, let me examine this argument with the respect which it deserves. If the entitlement of a consumer of newsprint is calculated on the basis of page-level and circulation of the newspaper, I think 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. That apart, as Meiklejohn said-and that, is plain commonsense- "First, let it be noted, that by these words (First Amendment) Congress is not debarred from all action upon freedom of speech. Legislation which abridges that freedom is forbidden, but not legislation to enlarge and enrich it."(1) These remarks apply with equal force to Art. 1 9 (1 ) (a) read with Art. 13(2). Any law or executive action which advances the freedom of speech cannot be considered as an abridgment of it. The provision in question does not say that the proprietor or publisher of a newspaper should reduce its circulation. If the provision had said that the proprietor or publisher must reduce the circulation of the newspaper, one could have understood a complaint of abridgment of the freedom of speech. The provision, in effect, only tells the proprietor/publisher of the newspaper: "maintain the circulation at the present level or increase if it you like by reducing the page lever'. Would this amount to an abridgment of the freedom of speech? I think not. The freedom of speech is only enriched and enlarged.

it was contended that a proprietor/publisher of a newspaper has the undoubted freedom to increase its page level within the authorised quota and the provision in question, by insisting that page level should-not be increased by reducing circulation, has interfered with that freedom. It was argued that if the provision in question had not insisted upon maintaining the circulation at the present level, the publisher could have reduced the circulation of the newspaper and increased the number of its pages and, increasing the number of pages at the expense of circulation is a matter of freedom included within the concept of the freedom of speech. I cannot agree. Suppose, the provision in the Newsprint Policy had simply said that the proprietor of a newspaper is not allowed to reduce its present circulation and stopped there ? What would have been the effect ? The effect would have been the same, namely, that the proprietor would not have been entitled to increase the page level of the newspaper within the authorised quota. The incidental effect of the direction to maintain the circulation or increase it would be to tell the proprietor or publisher riot; to increase the number of its pages. If the Newsprint Policy could legitimately say, without abridging the freedom of speech, that a newspaper should maintain its present circulation, the fact that it also said that it, should not increase its page level and reduce circulation would not in any way affect the question. If telling a publisher or proprietor to maintain the circulation of a newspaper or increase it, is not an abridgment of the freedom of speech, the further express direction in the Newsprint Policy not to increase its page-level within the authorised quota would not be an abridgment of the freedom, of speech as it is an implied consequence of- the- direction to maintain the circulation.

The matter can be looked at from another angle. The consti- tutional guarantee of the freedom of speech is not so much for the benefit of the press as it is for the benefit of the public. The freedom of speech includes within its compass the right of all citizens to read and be informed. In Time v. Hill(1) the U.S. Supreme Court said:

"The constitutional guarantee of freedom of speech and press are not for the benefit of the press so much as for the benefit of all the people."

In Griswold v. Connecticut(2) the, U.S. Supreme Court was of the opinion that the right of freedom of speech and press includes not only the right to utter or to print, but the right to read.

As I said. the freedom of speech protects two kinds of interest. There is an individual interest, the need of men to express their opinion on matters vital to them and a social interest in the attainment of truth so that the country may not only accept the wisest course but carry it out in the wisest way. "Now, in the method of political Government, the point of ultimate interest is not the words of the speakers, but the minds of hearers.... The welfare of the community requires that those who decide issues shall understand them"(3). "The general principles underlying first amendment safeguards may, for present purposes, be reduced to three judicially recognized specifics. First, Professor Alexander.

Re: Bennett Coleman and Co. v/s UOI - violation of Article 19(1)(a)

Meiklejohn's assertion that the first amendment was intended to define not an individual right to speak, but rather, a community right to hear has been assumed by modem constitutional decision (Rosenblatt v. Baer(1), Lamont v. Postmaster General (2) Roth v. United States(3), Stromberg v. California(4)"(see Paul Goddstein, Copyright and the First Amendment(5). That the right of the public to-hear is within the concept of the freedom of speech is also clear from the pioneering opinion of Justice Burger, as he then was, in Office of Communication of United Church of Christ v. F. C.C.(6). The learned judge emphasised principally the primary status of "the right of the public to be informed, rather than any right of the Government, any broadcasting licencee or any individual member of the public to broadcast his own particular views on any matter."

If the right of the public to hear and be informed is also within the concept of the freedom of speech, the government, when it insists upon, the newspapers concerned maintaining their present level of circulation does not abridge the freedom of speech but only enriches and enlarges it. In other words, under the theory of the freedom of speech which recognises not only the right of the citizens to speak but also the right of the community to hear, a policy in the distribution of newsprint for maintenance of circulation at its higher possible level, as it furthers the right of the community to hear, will only advance and enrich that freedom.

At present, our circulation is only 1.3 copies for every 100 people and 4.6 copies for every 100 literates in the country. Circulation must be doubled if the press is to reach 'all the literates in the country. This is a sufficient justification for a circulation oriented policy. Newsprint which is in short supply must be used so as to help to achieve the widest possible dissemination of news and at the same time meet the demands of the press as a whole.

Under Art. 41 of the Constitution the State has a duty to take effective steps to educate the people within limits of its available economic resources. That includes political education also.

Public discussion of public issues together with the spreading of information and any opinion on these issues is supposed to be the main function of newspaper. The highest and lowest in the scale of intelligence resort to its columns for information. Newspaper is the most potent means for educating the people as it is read by those who read nothing else and, in politics, the common in an gets his education mostly from newspaper.

(1) 383 U.S. 74, 94-95.

(2) 381 U.S. 301.

(3) 354 U.S. 476, 484.

(4) 283 U.S. 359, 369.

(5) Columbia Law Review, Vol. 70, 983, 989. (6) Federal Reporter, 359, 2nd series, 994. 820

The affirmative obligation of the Government to permit the import of newsprint by expending foreign exchange in that behalf is not only because press has a fundamental right to express itself, but also because the community has a right to be supplied with information. and the Government a duty to educate the people within the limits of its resources. The Government may, under cl. 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, it is in the general interest of the public not to expend any foreign exchange on that score. If the affirmative obligation to expend foreign exchange and permit the import of newsprint stems from the 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 the newspapers. It is said that a proprietor of a newspaper has the freedom to cater to the needs of intellectual highbrows who may choose to browse in rich pastures and for that he would require more pages for a newspaper and that it would be a denial of his fundamental right if he were told that he cannot curtail the circulation and increase the pages. A claim to enlarge the volume of speech by diminishing the circulation raises the problem of reconciling the citizens' right to unfettered exercise of speech in volume with the community's right to undiminished circulation. Both rights fall within the ambit of the concept of freedom of speech as explained above. I would prefer to give more weight to the community's claim here especially as I think that the claim to enlarge the volume of speech at the expense of circulation is not for exercising the freedom of speech guaranteed by Art. 19(1)(a) but for commercial advertisement for revenue which will not fall within the ambit of that sub-article.

In every society, there are many interests. held in varying degrees, by individuals and groups, viz., the interest in, valuing of, or concern, for free speech, peace, quiet, protection of property, fair trial, education, national security, good highways, a decent minimum wage, etc. "The attainment of freedom of expression is not the sole aim of the good society. As the private right of the individual, freedom of expression is an end in itself, but it is not the only end of man as an individual. In its social and political aspects, freedom of expression is primarily a process or a method for reaching other goals. It is a basic element. in the democratic way of life, and as a vital process it shapes and determines the ends of democratic society. But it is not through this process alone that a democratic society will attain its ultimate ends"(1). (1) See Thomas 1, Emerson, Toward a General Theory of' the First Amendment Yale Law Journal, Vol. 72, 1962-63. 877,

907.

821

Therefore, any theory of freedom of expression must take into account other values such as justice, equality, moral progress, the right of tile public to education arising from the affirmative duty cast on the Government by the directive principles to educate the people, apart from the right of the community to read and be informed arising under the theory of the freedom of speech itself. Art. 19(2) is concerned with laws restricting or abridging the freedom of speech for protecting the more important values. It has nothing to do with regulation as to the, manner or method of speech, including its volume, when that regulation does not touch or concern the content of speech, and when it is intended or calculated to subserve or promote some paramount social interest(1). The question then is whether the Government could, in the distribution of newsprint, insist on the widest circulation possible to subserve the right of the people to be educated in opposition to the right of the proprietor or publisher to reduce the circulation and enlarge the page number. As I said, any regulation not intended to control the content of speech but incidentally limiting its unfettered exercise will not be regarded as an abridgment of the freedom of speech, if there is a valid governmental interest arising from its duty to educate the people and the value of the public of the end which the regulation seeks to achieve is more than the individual and social interest in the unfettered exercise in volume of the right of free speech. The formula in such cases is that the Court must, balance the individual and social interest in freedom of expression against the social interest sought by the regulation which restricts expression (supra). In Konigsberg v. State Bar(2), Justice Harlan speaking for the majority observed:,

.lm15

". . . . . . . On the other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First Fourteenth Amendment forbade Congress or the State to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. See e.g. Schneider v. State, 308 U.S. 147, 161; Cox v. New Hampshire; 312 U.S. 569; Prince v. Massachusetts, 321 U.S. 158; Kovacs v. Cooper, 336 U.S. 77; American Communications Assn. v. Douds, 339 U.S. 382; Breard v. Alexandria 341 U.S. 622."

It was contended on behalf of the petitioners that prohibition of interchangeability of quota between different newspaper,-,

(1) Criminal Appeal No. 152 of 1970 decided on 15-9-1972. (2) 366 U.S. 36, 50.

822

owned by a common ownership unit, or different editions of the same newspaper owned by that unit is an abridgment of their fundamental right under Art. 19(1)(a). A common ownership unit is defined to mean a newspaper establishment or concern owning two or more newspapers including at least one daily irrespective of the centers of publication and language of such papers. The newsprint is allotted to a newspaper. In other words, the unit of allotment is a newspaper. Clause 2(a) of the Newsprint Control Order defines "consumer of newsprint":

"consumer of newsprint means a printer or pub- lisher of newspapers, periodicals, text books or books of general interest who uses newsprint."

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 open 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. If a common ownership unit were to use the quota allotted to one newspaper for another newspaper owned by it, could discontinue one newspaper and use its quota for another and thus secure an advantage over individual units owning only one newspaper. It is on the basis of page level and circulation that quota is allotted to a newspaper and to say that it is open to a common ownership unit to use the quota for a different newspaper owned by it or a different edition of the same newspaper would be tantamount to saying that since the common ownership unit gets the ownership of the quota, it can use the quota for a newspaper owned even by a different proprietor. I do not think that the prohibition against interchangeability of quota among different newspapers owned by a common ownership unit is violative of Art. 19 (1) (a). In my opinion, prohibition of interchangeability has nothing to do with Art. 19(1)(a). That a commodity rationed to a Unit must be utilized by that Unit and no other unit is, I think, a regulation necessary for the successful working of any system of rationing. It was then contended for the petitioners that a common ownership unit is not permitted to start a new newspaper or a new edition of an existing newspaper even out of their authorized quota whereas a person owning no other newspaper can start a newspaper and obtain a quota for the same, and that this offends the fundamental right under Art. 19(1)(a) of the common ownership units. That there is a valid classification between a person owning no newspaper and a common ownership unit owning two or more newspapers cannot be denied. Any person desiring to express himself by the medium of a newspaper cannot be denied an opportunity for the same. The right guaranteed under Art. 19 (1)(a) has an essentially individual aspect. A common ownership unit has already been given the opportunity to express itself by the media of two or more newspapers. If a common ownership unit were to go on acquiring or sponsoring new newspapers and if the claim for quota for all the newspapers is admitted, that would result in concentration of newspaper ownership and will accelerate the tendency toward monopoly in the newspaper industry. When the prohibition against interchangeability of newsprint quota between or among the newspapers owned by a common ownership unit is found valid, the restriction imposed on common ownership unit to bring out a new newspaper from its authorised quota must be held to be valid and not offending Art. 19(1) (a). If the quota allotted for a newspaper owned by the common ownership unit cannot be used for any other newspaper, it stands to reason to hold that the prohibition against bringing out a new newspaper cannot be challenged as violative of Art. 19(1) (a). No doubt, if the system of rationing were not there, it would be open to any person to own or conduct any number of newspapers but, 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. Mr. M. K. Nambiar, appearing for "The Hindu", contended that the Newsprint Policy is not law, that it is only an adminis- trative direction with no statutory backing and so, the restrictions which the policy impose are not binding. The Newsprint Policy was issued by the Central Government, and the Chief Controller of Imports and Exports, as Additional Secretary to Government, has authenticated it. The Newsprint policy was placed before both the Houses of Parliament. In Joint Chief Controller of Imports and Exports, Madras v. M/s. Aminchand Mutha, etc.(1) this Court said :

authorities in the matter of granting import licences, the Central Government issued certain administrative instructions to be followed by the licensing authorities."

The Import Trade Policy has been characterized as a notice giving information to the public as to the principle governing, the issue of licence for import of goods for a specified period (see East India Commercial Co. Ltd. Calcutta and Another v. The Collector of Customs, Calcutta(2): Shah, J. speaking for the Court in Union of India and Others v. M/s. Indo Afghan Agencies Ltd. 3 ) said:

Court has held that Courts have the power in appropriate cases to compel performance of the obligations imposed by the schemes upon the departmental authorities. . . . " Even if the Newsprint Policy is administrative in character, it is capable of founding rights and liabilities. Generally speaking, it is true that an administrative order can confer no justiciable rights or impose duties enforceable in a Court. But it can confer rights and impose duties. The limit within which such rights and duties will be recognised and enforced has been stated by an eminent author: "Let us take one of Mr. Harrison's instances, a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the King's shilling ; afterwards the officer is sued by the Government for being short in his accounts; among other items he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it by the court exactly as effect will be given to a statute providing that murderers shall be hanged, or that last wills must have two witnesses.

It was contended on behalf of the petitioners that the direction contained in the Newsprint Policy as regards the utilization of. the newsprint after the allotment of the quota is ultra vires the powers of the licensing authority issuing the same. It is said that after newsprint has been imported, there was no Ion any power left in the Central Government or in the Chief Controller of Imports and Exports to direct the manner in which it should be utilized. Cl.5(1) of the Imports (Control) Order, 1955 provides; "5. Conditions of Licenses : (1) The licensing authority issuing a licence under this Order may issue the same subject to one or more of the conditions stated below :-

(i) that the goods covered by the licence shall not be disposed of, except in the manner prescribed by the licensing authority, or otherwise dealt with, without the written permission of the licensing authority or any person duly authorised by it;"

(1) John Chimpman Gray, the Nature and Sources of the Law, Second Edition In Abdul Aziz Aminuddin v. State of Maharashtra(1), this Court said that the power conferred under s. 3(1) of the Act (Imports and Exports (Control) Act, 1947) is not restricted merely to prohibiting or restricting imports at the point of entry but extends also to controlling the subsequent disposal of the goods imported and that the person licensed to import goods would be amenable to the orders of the licensing authority with respect to the way in which those goods are to be utilized. This dictum was approved by this Court in State of West Bengal v. Motilal Kanoria(2). See also the observation of Sarkar, J. in East India Commercial Co. Ltd., Calcutta and Another v. The Collector of Customs Calcutta(3), at p. 348. 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 that Act (see s. 2(vii) of the Act).

The only other point which remains for consideration is whether clauses 3(3) and 3(A) of the Newsprint Control Order violate Art. 14 of the Constitution. None of the provisions of the Essential Commodities Act, 1955, is challenged as ultra vires the Constitution. The Newsprint Control Order was passed under s. 3 of the Essential Commodities Act, 1955. Sections 3 and 4 of this Act are in pari materia with sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946. These provisions were challenged, on the ground of excessive delegation of legislative power, in the case of Harishankar Bagla and Another v. The State of Madhya Pradesh (4) . But this Court said that the preamble and the body of the sections sufficiently formulate the legislative policy. that the ambit and character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the frame work- of that policy and that s. 3 was valid. And as regards s. 4 the Court said that the section enumerates the classes of persons to whom the power could be delegated or sub-delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself. Section 4 of the Essential Commodities Act, 1955, provides that an order made under s. 3 may confer powers and impose duties upon the Central Government or the State Government or officers and authorities of the Central Government or State Government, and may contain directions to any State Government or to officers and authorities thereof as to the exercise of any such powers or the discharge of any such duties. It was, therefore, open to the Government to confer such powers upon the "controller" as defined in the Newsprint Control Order, 1962:

"2(b) Controller means the Chief Controller of Imports and Exports and includes any officer appointed by the Central Government to exercise the powers of the Controller under this Order."

Sub-clause (3A) was introduced in cl. 3 of the Newsprint Control Order, 1962, for a particular purpose. There is only a limited quantity of white printing paper. In view of the shortage of white printing paper in the country, it was considered necessary by the Government to restrict its use by consumers of newsprint who were getting quota of imported newsprint. In fact, for newspapers and periodicals, newsprint is the more acceptable raw material than white printing paper. It was found that some of the more affluent papers had started drawing heavily on the limited quantity of white printing paper available, thereby causing great hardship to the other consumers of this commodity like Central and State Governments, text-book publishers and students. It was with a view to meet this situation that restriction on its use by a consumer of newsprint other than the person specified therein was imposed.

The argument that unregulated discretion has been conferred under sub-clauses 3 and 3A of cl. 3 is not correct. The preamble and the provisions of the Essential Commodities Act furnish sufficient guidance for the exercise of the powers conferred. It is impossible, in the nature of things, to specify with greater particularity the guidelines for the exercise of the powers conferred under these clauses. If the conferment of the power upon the Government under s. 3 is valid and is not open to attack under Art. 14, 1 think the power conferred upon the sub-delegate is also valid. It is not necessary for me to express any opinion as regards the maintainability of the writ petitions on the ground that the consumers of the newsprint in question are not citizens and I do not express any opinion.

I would dismiss the petitions without any order as to costs. BEG, J. The Writ Petitions before us challenge what is des- cribed as "News Print Policy" notified for the period from April, 1971 to March, 1972. As the impugned Notification does not mention the provision of law under which it was issued, we have to scrutinise its contents to discover the authority for its promulgation. It is headed "Public Notice" on "Import Trade Control". The subject is given as "Import Policy for News Print". The "Policy" is contained in a schedule annexed to the Notice. The first of the 827

six columns of the Schedule gives the serial number of the item involved which is 44/V of the I T C Schedule. Volume I of the ."Red Book" on Import Trade Control Policy, issued by the Ministry of Foreign Trade, mentions, against item 44/V for white printing paper, that import policy for "News Print" Will be announced later. The impugned items, found in the remarks' column, contain that announcement applicable from April, 1971 to March, 1972. A subsequent similar notification dated 11-41972 shows that identically worded terms were to be applicable to the period from April, 1972 to March, 1973, and these are also assailed by the petitioners.

Apparently, the impugned remarks constitute conditions for the import of quotas of news print assigned to the licensees. They are meant to be obeyed if the licensees want their quotas. The implication of such an imposition clearly is that the licences could be revoked if terms of their grant are not complied with apart from other possible consequences in the future. It is alleged that these terms interfere with the fundamental rights of petitioners to freely express their opinions through their newspapers and to carry on the manufacture and sale of newspapers to the public. If, however, these terms and conditions do not fall under any provision of law but interfere with the exercise of petitioners' fundamental rights, the question of testing their reasonableness will not arise,.

What is termed "policy" can become justiciable when it exhi- bits itself in the shape of even purported "law". According to Article 13(3) (a) of the Constitution, "law" 'Includes "any Ordinance, Order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law". So long as policy remains in the realm of even rules framed for the guidance of executive and administrative authorities it may bind those authorities as declarations of what they are expected to do under it. But, it cannot bind citizens unless the impugned policy is shown to have acquired the force of "law". Mr. Nambiar, appearing for the Hindu Newspaper, has, therefore, assailed the impugned items of the news print control policy on the ground, inter-alia, that the fundamental rights of the petitioners represented by him cannot be curtailed by anything less than "law".

For the reasons given by both my learned brethren Ray and Mathew the impugned items of what is called the "Newsprint Policy" seem to me to be intended to have the force of law which, if not observed by the petitioners, will impede and jeopardise the exercise by them of their fundamental rights. The intention behind the publication of the Newsprint Policy was obviously to bind the petitioners by the conditions laid down in the remarks' column. It had, therefore, to be brought under some provision of law which could authorise the laying down of such binding conditions upon 828

those who run the newspapers and want to either express their opinions freely or to carry on their businesses without let or hindrance. I, seems to me that this Court should not hesitate to remove such restrictions if they purport to have the force of law. even if they are not "law", provided they have the effect of restricting the exercise of fundamental rights. This effect the res- trictions certainly have had and will have unless they are removed by us. According to the petitioners, their observance has entailed such heavy losses to them that they may have to stop doing their business if the restrictions continue.

It is difficult to over-emphasize the importance of Freedom of the Press as one of the pillars of a Government "of the people,. by the people, and for the people". I may quote what Lord Bryce said in The American Commonwealth (New and Revised Edition) (pp. 274, 275, 367):

"The more completely popular sovereignty prevails in a country, so much the more important is it that the organs of opinion should be adequate to its expression, prompt, full, and unmistakable in their utterances**** The press, and particularly the newspaper press, stands by common consent first among the organs of opinion* * * The conscience and common sense of the nation as a whole keep down the evils which have crept into the working of the Constitution, and may in time extinguish them. That which, carrying a once famous phrase, we may call the genius of universal publicity, has some disagreeable results, but the wholesome ones are greater and more numerous. Selfishness, injustice, cruelty, tricks and jobs of all sorts, shun the light; to expose them is to defeat them. No serious evils, no rankling sort in the body politic, can remain long concealed, and, when disclosed, it is half destroyed. So long as the opinion of a nation is sound, the main lines of its policy cannot go far wrong".

John Stuart Mill, in his essay on "Liberty", pointed out the need for allowing even erroneous opinions to be expressed on the ground that the correct ones become more firmly established by what may be called the 'dialectical' process of a struggle with wrong ones which exposes errors. Milton, in his "Areopagitica" 1 644) said:

"Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; whoever knew Truth put to the worse, in a free and open encounter ? ..... I Who knows not that Truth is strong, next to the Almighty; she needs no policies, no stratagems, no licensings to make her victorious; those are the shifts and defenses that error makes against her power........

Political philosophers and historians have taught us that intellectual advances made by our civilisation would have been impossible without freedom of speech and expression. At any rate, political democracy is based on the assumption that such freedom must be jealously guarded. Voltaire expressed a democrat's faith when he told an adversary in argument : "I do not agree with a word you say, but I will defend to the death your right to say it". Champions of human freedom of thought and expression throughout the ages, have realised that intellectual paralysis creeps over a Society which denies, in however subtle a form, due freedom of thought and expression to its members.

Although, our Constitution does not contain a separate guar- antee of Freedom of the Press, apart from the freedom of expression and opinion contained in Article. 19(1) (a) of the Constitution, yet. it is well recognised that the Press provides the principal vehicle of expression of their views to citizens. It has been said : "Freedom of the Press is the Ark of the Covenant of Democracy because public criticism is essential to the working, of its institutions. Never has criticism been more necessary than today, when the weapons of propaganda are so strong and so Subtle. But, like other liberties, this also must be limited." The exent of permissible limitations on freedom of expression is also indicated by our Constitution which contains the fundamental law of the land. To that law all Governmental policies, rules and regulations, orders and directions, must conform so that there is "a Government of laws and not of men" , or, in other words, a Government whose policies are based on democratic principles and not on human caprice or arbitrariness. Article 19(2) of the Constitution. requires that Governmental action which affects freedom of speech and expression of Indian citizens should be founded on some "law" and also that such "law" should restrict freedom of expression and opinion reasonably only "in the interests of the sovereignty and integrity of India, the security of the St-ate, friendly relations with foreign states, Public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence." Although, the ambit of restrictions which can be imposed by "law" on freedom to carry on any occupation, trade, or business, guaranteed by Article 19 (1) (g) of the Constitution, is wider than that of restrictions on freedom of speech and expression, yet, these restrictions have also to be limited to those which are reasonably necessary "in the interest of the general public" as contemplated by Article 19(6) of the Constitution. Permissible restrictions on any fundamental right, even where they are imposed by duly enacted law- must not be excessive, or, in other words, they must not go beyond what is necessary to achieve the objects of the law under which they are sought to be imposed. The power to impose restrictions on fundamental rights is essentially a power to "regulate" the exercise of these rights. In fact, "regulation" and not extinction of that which is to be regulated is generally speaking the extent to which per- missible restrictions may go in order to satisfy the test of reasonableness. The term "regulate" has come up for interpretation on several occasions before American Courts which have held that the word "regulate" means "to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws". (See : Words and Phrases, VoL 36, p. 687 by West Publishing Co.). I do not see any reason to give a different meaning to the term "regulation" when we use it.

In the cases before us, I confess that it is very difficult to make out the real object of the restrictions imposed by the impugned items of Newsprint Policy. The Additional Solicitor General did not contend that these items of newsprint import policy were not meant to have the force of rules for conducting business or regulating actions binding upon the petitioners or of "law". He sought to justify them, in so far as they affect freedom of speech and expression, as either necessary incidents of import of essential commodities and the allocation of foreign exchange, which is limited, between them, or, as a method of ensuring a more widely spread freedom of expression by striking at monopolisation of opinion by large newspaper concerns. I am unable to see how these restrictions, after quotas have, been allotted on the basis of past performance and respective needs of each newspaper concern, could fall within the objects of any import policy found in any statutory provision or order. And, so far as any attempt to control .any monopolistic tendencies in the newspaper world is concerned, no material was placed before us to enable us to see how the impugned conditions of import licences, sought to be imposed by the entries in the remarks columns of the notified Import Trade Control Policy, are related to any law directed against monopolisation. The impugned items in the declaration of newsprint policy, which are meant to bind those who had obtained import_licences, were not imposed under any law made to check monopolies. It was also not possible for me to see the relevance of these restrictions to any of the objects of either the Essential Commodities Act, 1955 or orders passed thereunder or to the Import and Export (Control) Act of 1947 or to orders made thereunder. The objects and ambits of the two enactments mentioned above, which were relied upon. on behalf of the Union, are fairly clear and well defined.

No doubt clause 3 of the Newsprint Control Order, 1962, issued in exercise of powers conferred by Section 3 of the Essential Commodities Act 1955 lays down certain restrictions "on acquisition, sale and consumption of newsprint". The clause runs as follows :-

"(1) No person other than an importer shall acquire newsprint except under and in accordance with the terms and conditions of an authorisation issued by the Controller under this Order. ,

(2) No dealer in newsprint shall sell to any person newsprint of any description or in any quantity unless the sale to that person of newsprint of that description or in the quantity is authorised by the Controller.

(3) No consumer of newsprint, in any licensing period, consume or use newsprint in excess of the quantity authorised by the Controller from time to time.

(3A) 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.

(4) An authorisation under this clause shall be in

writing in the form set out in Schedule II. (5) 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".

Section 3(1) of the Essential Commodities Act, 1955 lays down the condition for and objects of issue of orders under it in the following terms :-

"3(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military

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operations it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein".

Section 3(2) lays down that "without prejudice to the generality .of the powers conferred by sub s. (1), an order made thereunder may provide" inter alia : (a) "for regulating by licences, permits or otherwise the, production or manufacture of any essential commodity;" and (b) "for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity".

Orders issued under Section 3 of the Essential Commodities Act 1955 must bear a reasonable relationship to the purposes for which such orders can be made. Clause 3 (5) of the Newsprint Control Order, 1962, presupposes the existence of some principles ,of "Import Control Policy" without either stating them or indicating how they are to be related to the objects of Section 3. Obviously, they cannot go beyond the Act. If the impugned terms and conditions could be covered by the vague clause 3(5) ,of the News Print Control Order, 1962, 1 venture to think that this provision of the News Print Control Order 1962 may itself have to be declared invalid by us. I may also mention that there seems to be a serious flaw here inasmuch as no machinery for fair and just administrative decisions, so as to correlate conditions im- posed upon competing claimants for quotas of a limited amount of news print to their needs and to the requirements of a law which is meant to ensure an "equitable distribution", is provided here. However, as it is not necessary, for the purposes of giving relief to the petitioners, to pronounce on the validity of clause 3 (5) of the Newsprint Control Order, 1962, I will, in conformity with the opinion expressed by my learned brother Ray on this aspect, refrain from deciding the question of the validity of its provisions in the cases before us.

Section 3(1) of the Imports & Exports (Control) Act, 1947, restricts the power of the Central Government, "by order published in the official Gazette", to making "provisions for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to such exceptions if any as may be made by or under the order :- (a) the import, export, carriage coast-wise or shipment in ships stores of goods of any specified description;

(b) the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried".

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Clause 3 of the Imports (Control) Order, 1955, made in exercise of powers conferred by Sections 3 and 4A of the Imports & Exports (Control) Act, 1947, says : .lm15

"3. Restriction of Import of certain goods:-- (1) Save as otherwise provided in this order, no person shall import any goods of the description specified in Schedule 1, except under, and in accordance, with a licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule 11". It seems to me that 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 utilised by a newspaper concern for its own genuine needs and businesses because this would amount to control of supply of news by means of newsprint instead of only regulating its import. The enactments and orders mentioned above seem to me 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 me to go beyond the scope of the Essential Commodities Act, 1955, as well as of the Imports and Exports (Control) Act, 1947.

References were also made by the learned Additional Solicitor General to the provisions of the Press and Regulation Books Act, 1867, Registration of Newspapers (Central Rules), 1956, and Press Council Act, 1965, as parts of a possibly desperate attempt to justify the impugned items of newsprint control policy and to show that they are covered by some provision of law. I am unable to- find the legal authority anywhere here also for these items of Newsprint Control Policy.

I think, for the reasons given above, that the argument put forward oil 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 Sakal Papers (P.) Ltd. & Ors. Vs. The Union of India(1), to be invalid, are not covered by any law in existence, has to be accepted. Hence, it is not even necessary for us to consider whether they are reasonable restrictions warranted by either Article 19(2) or Article 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 petitioners could arise.

1, therefore, concur with the conclusions reached and the orders proposed by my learned brother Ray.