Democracy can thrive through vigilant eye of Legislature but also care and
guidance of public opinion and press par excellence. Freedom of speech include
right to propagate one's views through print media or any other communication
channel e.g. radio, television subject to reasonable restrictions imposed under
Bennett Coleman v. Union of India is a very important case when it comes to the
freedom of press. The Supreme Court of India in this case held that the freedom
of the press is an important facet of the fundamental right of the freedom of
speech and expression guaranteed under Article 19 (1) (a) of the Constitution of
The Idea of distributing scarce resources fairly through Control Orders is a
very alluring one in theory. In actuality, it simply resulted in a booming
parallel economy where prohibited goods were being sold on the black market at
exorbitant prices. The negative effects of the state control policy, which
resulted in a significant generation of black money, are still evident today.
One of the things under control was newsprint. In this case, Newsprint Control's
repressive control over newspapers and newspaper corporations was contested
before the Supreme Court.
In the 1960s, India faced a shortage of newsprint. To meet this demand,
newsprint was imported from foreign countries. The Newsprint Control Order, 1962
was made under the Essential Commodities Act, 1955 and its import was regulated
by the Import Control Order, 1955.
The Newsprint Policy of 1972-73 added some
restrictions, which are as follows:
- No new newspapers or new editions may be started by a particular company
owning more than two newspapers, if at least one of which is a daily, that
too, even if the newspaper did not request an enhanced quota.
- The total number of pages may not exceed 10 pages. No adjustment may be
permitted between circulation and pages; a newspaper couldn't reduce
circulation and increase the number of pages or vice-versa.
- No newsprint Interchangeability may be permitted between different
newspapers published by the same establishment or between different editions
of the same paper.
- For newspapers with fewer than ten pages, the increase in page count may
be no more than 20%.
Writ Petitions were filed in the Supreme Court under Article 32 of the Indian
Constitution by leading newspapers: The Times of India, Hindustan Times, and
Indian Express. Afterwards, readers, shareholders, and newspaper editors also
joined via Writ Petitions. Its legality was questioned in violation of Article
14 and Article 19(1) (a) of the Constitution of India.
The questions that fell for consideration were:
- Whether the petitioners being companies could invoke fundamental rights
- Whether Art. 358 of the Constitution was a bar to any challenge by the
petitioners on violations of fundamental rights;
- Whether the restriction on newsprint import under the 1955 Order was violative of Art. 19(1) (a) of the Constitution;
- Whether the newsprint Policy fell within Clause 5(1) of the Import,
Control Order 1955 and was valid;
- 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;
- 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 .
- The petitioners claimed that the Newsprint Control Policy of 1972�1973
violated their right to free speech and expression, which they exercised
through their editorial staff and the publication medium.
- According to the counsel of petitioners the policy of 1972-73 authorized
a 20% increase only for daily newspapers of less than 10 pages. It was
argued that these were discriminatory quota newspapers with 10 or more pages
and thus infringed Article 14. It was argued that there was a disparity in
the entitlement of newspapers with an average of more than 10 pages compared
to newspapers with 10 pages or less was based on no reasonable
- Mr. Nani Palkhivala argued that the newsprint policy was really a policy of
'newspaper control'; and contended it to be a subtle and sophisticated device to
control newspapers .The Import Control Act and the Import Control Order are
violated by a newspaper control policy. The 1935 Act's Entry 19 on List 1 could
provide Parliament the authority to regulate imports.
- It was argued that Article 358 is inapplicable because it has no
application to the law or executive action taken prior to the proclamation
of emergency. The Newsprint Policy was said by the petitioners to be a,
continuation of the old newsprint policy which had originated earlier and
continued from year to year for a decade till the proclamation of emergency
- The petitioners argued that the policy outlined in Remark V will reduce
circulation rather than increase it and that the government's newsprint
policy did not fall under clause 5(1) of the Import Control Order 1955, and
it was therefore invalid.
- The petitioners contended that equating the large English daily, which
are in a class by themselves, with smaller dailies that require fewer than
10 pages disproves an equitable distribution and demonstrates the treatment
of dailies in an unreasonable manner.
- According to the petitioners, quotas are not granted on the basis of
actual circulation but rather on the basis of notional circulation, which
means the actual circulation of 1961-62, with permissible increases year
after year, even if the actual circulation does not correspond to the
permissible circulation on which the quota was based year after year.
- It was asserted that the common ownership units were unable to change
the newsprint quota given to each of them because of the second prohibition
in Remark VIII of the Newsprint Policy. Using the newsprint quota of one
newspaper owned by a common ownership unit for another newspaper owned by
that unit is prohibited which was not the case earlier.
- The Additional Solicitor General raised two pleas in demurrer. Firstly,
it was claimed that the petitioners were corporations and thus could not
invoke fundamental rights. Secondly, it was claimed that Article 358 of the
Constitution precludes petitioners from challenging a violation of
- Article 358 of the Constitution was invoked by the Additional Solicitor
General to raise the bar to the maintainability of the petition. Nothing in
Article 19 shall limit the state's ability to enact laws or carry out
executive actions that it would be competent to do absent the provisions of
that portion while a proclamation of an emergency is in effect. Therefore,
it was asserted on behalf of the government that the petitioners were not
permitted to contest the 1972�1973 newsprint policy while the state of
emergency was declared.
- According to the Additional Solicitor General, the right to import and
use newsprint is not a common law right. It was claimed to be a unique right
protected by several statutes. The Imports and Exports Act of 1947, the
Imports Control Order of 1955, the Essential Commodities Act of 1955, and
the Newsprint Control Order of 1962 were cited in support of the proposition
that if the petitioners asked for a newsprint quota, they had to follow the
prescribed conditions. It was also stated that under Article 19 (1), the
press would have no special fundamental right (a).
- It was contended that the legislative measures were intended to regulate
the newspaper industry. The rulings in the cases of Hamdard Dawakhana (Wakf)
Lal Kuan, Delhi & Apr. v. Union of India & Ors. And Express Newspapers case
(supra) were cited.
- The Additional Solicitor General argued that Article 19 (1) (a) was not
violated by the newsprint policy.
These were the arguments put forth:
- The right referred to in Article 19 (1) (a) is not directly and
immediately addressed by the newsprint policy.
- The law's subject matter, not its effect or outcome, is what determines
whether it has been violated.
- Although the right to freedom of speech and expression may be
consequentially or incidentally restricted, Article 19 (1) (a) is not
invoked if the impugned law or action's primary goal is something other than
freedom of speech and expression.
- The Additional Solicitor General emphasised the pith and substance of the
Import Control Act to control imports and exports. According to the decision in
Abdul Aziz Amiudin v. State of Maharashtra, the scope of import control extended
to every stage at which the Government felt it was necessary to ensure that the
goods were properly utilised.
- The respondents argued that a law that merely regulates, even directly,
press freedom is permissible as long as there is no infringement or denial
of citizens' fundamental rights. He relied heavily on American decisions to
support his argument that the right of the press to free expression is of
all citizens speaking, publishing, and printing in all languages, and that
the grave concern for freedom of expression that allowed the inclusion of
Article 19 (1) (a) is not to be interpreted as a command that the Government
of Parliament is powerless to protect that freedom.
- It was argued that there should no' monopolisation of that market, whether it
be by the government itself or by a private licensee, because there should be an
unrestricted marketplace of ideas where truth will finally win. The press is not
at risk from any monopolistic combination harm.
- The respondent contended that, it is open to an unrestricted use of any
form of paper so long as newspapers do not apply for newsprint. This would
establish that there is no shortage of white printing paper.
- The Additional Solicitor General argued that the commercial side of the
press did not have any particular exemptions and that any incidental
restriction on circulation could not harm press freedom of expression.
The Supreme Court upheld the maintainability of the writ petition applying the
observations in the Bank Nationalization Case and upheld the right of company
under Art.32 when joined in by affected individuals to invoke their fundamental
rights. The Supreme Court reasoned '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
The Supreme Court rejected Additional Solicitor General's argument that the
current petitions, which were originally filed to challenge the Newsprint Policy
for 1971-72, were amended to challenge the 1972-73 policy, which had been in
effect for a decade until the proclamation of emergency in the year 1971, Art
358 could not bar this petition on the grounds that Article 19 was suspended
during the period of emergency.
The case was heard by a 5 Judges Bench. Four Judges (i.e. Chief Justice S.M.
Sikri, and Justices A.N. Ray, P. Jaganmohan Reddy, H.M. Beg) gave decision in
the favour of petitioners. Justice Ray, speaking for the majority, struck down
the newsprint control policy as violative of Article 14 and Article 19(1) (a) of
the Constitution. Justice Mathew dissented from the majority and upheld the
The Judges concluded that If there was a shortage of newsprint, the government
have the power to control import of newsprint and government should have
implemented it in a fair and equitable basis instead of reducing the number of
pages, circulation of newspaper, advertisement, new edition of newspapers, in
violation of Articles 14 and 19(1)(a) of the Constitution.
After analysing the records, the Supreme Court rejected the petitioners'
argument that the newsprint policy was invalid because it did not comply with
section 5(1) of the Import Control Order, 1955. The Court, however, determined
that the restrictions imposed by the Newsprint Policy of 1972�1973 were ultra-vires.
The Supreme Court found Remarks V, VII(a), VII(c), VIII, and X of the Newsprint
Control Policy, 1972-73 as ultra-virus of Article 14 and Article 19(1)(a) of the
The Court held the sub-clauses 3 and 3A of clause 3 of the Newsprint Control
Order, 1962 as violative of Article 19(1) (a) and Article 14 of the Constitution
of India on the grounds that these clauses restrict the size, circulation and
growth of a newspaper and not a reasonable restriction within the ambit of
Article 19(2). (Violative of Article 19(1) (a))
And the powers given to the Controller are unregulated arbitrary and also it
brought discrimination between newspapers and periodicals thus being Violative
of Article 14.
The Honourable Supreme Court found that the sub-clauses 3 and 3A of paragraph 3
of the Newsprint Control Order, 1962 violated Article 19(1)(a) and Article 14 of
the Constitution of India because they limit a newspaper's size, readership, and
growth and are not a reasonable restriction under Article 19(2) resulting in
violation of Article 19(1)(a). The Controller's powers are unrestrained and
arbitrary, and they also led to discrimination between newspapers and
periodicals, which is a violation of Article 14.
The Court concluded that the freedom of the press involved both qualitative and
quantitative dimensions, the Newsprint Control Policy was unconstitutional as
it's being violative of Article 14 and 19(1)(a) as it's quantitative
restrictions were not justified by a shortage of newsprint . The Newsprint Order
and Import Control Order were not struck down.
If newsprint was in short supply, then there could be no objection to ration it
equitably but to further dictate the number of pages that could be published,
and ban any new edition was clearly aimed at controlling the newspapers. As
Justice Ray rightly observed, the ostensible object of control of newsprint had
been subverted to newspaper control.
- Nani Palkhivala: The Courtroom Genius by Arvind P. Datar and Soli
Award Winning Article Is Written By: Mr.Shobhit Rawat
Authentication No: OT228239731417-9-1022