757

A BENNETT COLEMAN & CO. & ORS.

v.

UNION OF INDIA & ORS.

October 30, 1972

[S. M. S!KRI, C.J., A. N. RAY, P. JAGANMOHAN REDDY, K. K.

B MATHEW AND M. H. BEG, JJ.]

c

D

E

F

G H

Co11.1titutio11 of India 1950, Arts. 14 & 19 (l)(a)-Newspri11t policy

for

1972-73

whether violates Articles 19(1)(a) and 14 -Validity of Re­

"""*' V, Vll(a), Vll(c), V//J «nd X of Policy-Competency of share­

holders of company to file petitions under Art.32-Emergency proclaimed

11nder Art. 358 of Cons1it11tio11-App/icatio11 in respect of enforcement of

fundamental rights whether barred.

The Import Control Order 1955 passed by the Central Government

under

ss. 3 and 4A of the Imports and Exports

Control Act 1947 laid

restrictions on the in1port Of newsprint. As 3.n essential commodity news­

print 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 sh..tl in any licensing period con­

sume 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

cif 'paper other than newsprint except with the penilission in

Writing of the Controller. Sub-clause ( 5) of Clause 3 of the 1962 Order

st&es 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 Constitu­

tion was a bar to any chi:.llengc by the petitioners on violations of fun­

damental rights; (iii) whether the restriction on newsprint import under

the

1955

Order was violative of Art. 19(1)(a) of the Constitution;

(iv) whetber 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 <if the 1962 Newsprint Order were violative of Arts. 19(1 )(a)

and 14 of the Constitution; (vi) whether Remarks V, VIl(a), VIl(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 objection­

able features : (a) No new p::.per or new edition could be started by a

common ownership unit (i.e., a newspaper establishment or concern own­

ing tw'? '?r more new~ interest newspapers including at least one daily)

even

w1thm. the

authorised quota cif newsprint; (b) there was a limitation

on the ma_x1mun_i number of pages to 10, no adjustment being permitted

~etween circ~l~t10n and the. pages so as to increase the pages; (c) no

mtercha~geab1hty was permitted between different papers of common

ownership unit

or

di!ferent editions of the same paper; ( d) allowance of

20 per cent mcre.ase m page level up to a maximum of 10 had· been given

'<? newspapers with less than 10 pages; (e) a big newspaper was prohi­

b1~ ~.d prevented from .increa~ing the number of pages, page area, and

penod1c!t>: by reducmg circulat1on to meet its requirement even within

its adm1sS1ble quota; (f) there was discrimination in entitlement between

758 SUPREME COURT REPORTS [1973] 2 S.C.R.

newspapers with an avera.ge of more than 10 pages as compared with

newspapers

of

10 or Jess than 10 pages.

Allowing the petitions,

HELD :

Per Majority (Sikri, C.J., Ray and Jaga.runohan Reddy, JJ.)

(1) The Bank Nationalisation case has· established the view that the fun·

damental rights of shareholders as citizens are not Jost 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

reooon 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 maniiested by the newspapers

· owned and controlled by the shareholders through the medium of the Cor­

poration. [773C·Dl

Jn the present case, the individual rights of freedom of speech and

expression

of editors, Directors and

Shaireh~lders ate all expressed through

their newspapers through which they speak. The

locus stand/ 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·FJ

(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 pclicy

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 emanati'Jn of

the previous law which prior executive action or previous

laiw would other­

wise be violative of Art. 19 or be otherwise unconstitutional. (774 F, G, HJ

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 dur­

ing the emergency affecting the f undament21! 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

newsr.rint cannot be

denied

.. The power of the Government to control the

distribution of news­

print cannot equally be denied. This ·eourt cannot adjudicate on such

policy measures unless the policy is alleged to. be ma/a {iae. The Court

could also not

go into . the dispute

a~ to tre quantity of indigenous news·

print available for newspaJ><rs. [776D; 776EJ

(iv) The records with regard to the making and publication

of the

newsprint policy for 1972-73 showed that the pclicy 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

f1<0edom of the

Press, it is the settled view o'f this Court that freedom of speech and

expression includes 'freedom of the Press and circulation. 1be Prca has

the right of free propagation and free circulation without any previous

restraint on publication. 'If a Jaw were to single out the press for laying;

down prohibitive burdens .on it that would reotrict the circulation penalise

its freedom of choice. as to per~nel, prevent newspapers fr~m being

star~d and compel the press to Government aid, this would violate· Art.

J9(1)(a) and would fall outside the protection afforded by Art. 19(2).

[777B-DJ ·

B

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E

F

G

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BENNETT COLEMAN & CO. v. UNION 159

A The concept of regulation of fundamental rights borrowed and extracted

from American decisio~s cannot be accepted. The American First Amend­

ment contains no exceptions like our Art. 19(2) of the Constitution . .This

Court has established freedom of the press to speak and expre~s. That

freedom cannot be abridged and taken away by the manner the ;mpugned

policy has done. [783B; 784C]

B

c

D

F

G

H

(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 circuli:.tion 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 Polley

is found to be newspaper control order in the guise of framing an Import

Control

Policy for newsprint. [780H; 78 IA-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 im11airing the right

of the citizen nor the form of action that determines the mvasion 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 opera­

tion of the Act upon the rights forms the real test. [7810-DJ

An examination of the provisions of the newsprint policy indicates how

the petitioner's fundamental rights had been infringed

by

1tM restrictio•1S

on page limit, prohibition against new newspapers and new editions. The

effect and consequence of the impugned pohcy upon the newspapers is

directly controlling the growth and circulation of newspapers. The direct

effect IS the restriction upon circulation of newspapers.· The direct effeCl

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. [7828-C]

(viii)

It is indisputable that by freedom of the press is meant the right

of all citizens

to speak,

~ublish 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.

[7820]

(ix) In the present case fixation of page limlt

will not only deprive

the petitioners

al 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

a;nrl

views. [7900-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 df their

freed<>m of speech and expression. On the other hand if as .. result of

restriction on page limit the newspapers

will have to sacrifice

advertise-

ments 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 .th• circulation and thereby infringe on freedom of

speech and expression. [790F-GJ

. (x) The impeached policy .violates Art. 14 because it treats newspapers

which are not equal equally m assessing the needs and requirements of

newsprint. The ~ newspapers which were operoting above 10 page level

are placed at a d1S.dvantage by the fixation of I 0 page limit and .entitle"

ment to . quota on that basis.. There ;s no intelligible differentia.

[791H; 797.A-B]

760 SUPREME COURT REFORTS [1973] 2 S.C.R.

The basic entitlement in Remark V to quota for newspapers operating

above 10 page level violates Article 19(1) (ai) because the quota is hedged

in

by direction not increase the page number above

10. The reduction of

page limit to

IO for the aforesaid reasons

vio'atc~ Article 19(1) (a) and

Article

14 of the Const:tution. [792C]

(xi)

Under Remark VJI(c) those newspapers within the ceiling of 10

pages get 20 per cent increase in the number o'f pr~cs. They require

circulation rrtore 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 quot::. for increase but they are denied the

right of circulation. This is not nc\~lsprint: control but newspaper control.

[792F-G] -

(xii) Discrin1ination 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 l 0% 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

Vl!I prohibits increase in

pages by

reducing circulation. In the past adjustability between pages and circula­

tion was permitted. The .individual re,quirements of different dailies

render

it eminently desirable in some cases to increase the number of peiges than circulation. The denial of this fiexibility 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 arc not equal

to them thus

viola.ting Art. 14.

(793&F]

(xiv) The second prohibition in Remark

VIII prevented common

ownership units from adjusting between them the newsprint quota alloted

IO> 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 arc allowed to adjust quota within their

group. r194

B; & DJ

(xv)

Under Remark X a common ownenhip. 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 z, 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

2t 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

applicatioo for a'lotment of

quota in that behalf.

It will be open to the appropriate authorities to deal

with the application in accordance with law. [7940-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

pa.ge limit an<l allowing them to have new editions of

newspapers. [796A-C]

(xvii)

The Press is not exposed to any mischief

elf monopolistic combi­

nation. The newsprint policy is not a n1easurc to comhat monopolies.

c

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A

B

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F

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H

BENNETT COLEMAN &. CO. V. UNION 761

The newsprint policy should allow the newspapers th3ct amount of free-·

dom 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. ;mt! matters needed for free society. [7970-E]

(xix) Clause 3(3A) of the 1962 ·order provides th"'t no consumer of

newsprint other than a publisher of tex_t books of general inter.est shall

use any kind of page other than newsprmt except with the perm1ss1on of

. the Controller. It was therefore wrong to say that it was open to news­

papers to make unrestricted use of any 'form of paper so long as news­

papers did not apply for newsprint. [798F]

(xx)

Jn the result the prov:sions in remarks V, VU(a), VII(c) and

VIII of the j'olicy being violative of Arts. 14 & 19 (l)(a) of the Consti­

tution must be struck down as unconst;tutional. The prohibition in Re~

mark X against common ownership unit from st~rting 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]

fin the circumstances of the case the Court did not

find it necessary

to

express any opinioin on Clause 3(3) and: Clause 3(3A) of the Control

Order] ·

State Trading Corporation of India Ltd. v. The Con1niCrcial Tax Officer,

Vi.mklwpat!Ulm, [1964] 4 S.C.R. 99, Tata Engineering & Locomotive Co.

v. State of Bihar, [1964] 6 S.C.R .. 885, Chiranjit Lal Chaudhuri 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, Sakal Papers

(P) Ltd. & Ors. v. The Union of India, [1962] 3 S.C.R. 842, Ramesh

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.

330, District Collector of Hyderabad & Ors. v. MI 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. Un'ion 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

Azia Aminudin

v. State of Maharashtra, [1964] 1

S.C.R., 830, Dwarka­

das 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 Citi£en Publishing Co. v. United States, [1969] 394 U.S. 131=22

l. Ed. 2 d. 148, referred: to.

Pq Beg J. (concurring)-The ambit of the conditions in a licence can­

not under the provisions of the Imports and Exports Control Act, after news­

print has been imported under a hcence, extend to laying down how it is to•

be µtilized by a newspaper concern for il<j own genuine needs and businesses.

because this would :>mount to control of supply of news by means of

n1>wsprint 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

th~e who run newspapers on the strength

of t~elf needs, assessed on the basis of their past performqnces and future

reqwrements. ~nd other relevant data, but not to warrant an imposition ef

further con_d11tons to be ot;>served by them while ~ey are genuinely using

the ~eo,ysprmt the~selves m the course of carrying on a legitimate ans

penniss1ble occupat10n and business. The impugned restrictive conditions

thus £4>pear to go beyond the scope of the Essential Commodities Act 1955

as well as the Imports & Exports (Control) Act, 1947. Nor could any legal'

762 SUPREME COt'RT REPORTS [1973] 2 s.c.R.

.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. [8330-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

farther restrictions sought to be imposed,

by means of the notified newsprint control p<>licy, on the :.::tual mode of

user of newsprint for publication of irrformation or views by the licensees,

similar to those 'which were held

by this Court in Sakal Papers case to' be

invalid, are not

coveted by any Jaw in existence, had t·o be accepted.

Hence it was not even necessary to consider whether they were reasonr..ble

restricti®S warranted by either Art. 19(2) or Art. 19(6) of the Constitu·

tion. They must first have the authority of some law to support them

before the question

of considering whether they could be reasonable

res­

trictions on fundamental rights of the petitioner could arise. [833H-834B]

Per Mathew J. (dissenting) (i) 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

mis­

conception to say that speech cannot be reguleoted or that every regulation

·Of speech would be an abridgment 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 Cot•rt said in Jn Re the Kera/a Edu­

cation Bill 1957, ([1959) S.C.R. 995), th:it the right is subject to reMon­

able regulation. [803F-O]

(ii) If, on account of scarc;ty 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 cif 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

tb.e process of deciding whether the

pro­

visions in question which work some interference with the freedom cir

speech are essentially regulatory in character. [807C-DJ

(iv) The crucial question today,

as regards Art. 14, is whether the

command implicit in it constitutes merely a bar on the creation of in­

equalities existing without any contribution thereto by

State action. It has

been said that justice

is the effort of man to

mitiga.te 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 fclr the distribu­

tion of newsprint is not for the common good. [816C-FJ

That apart one of the objects o'f the Newsprint policy was to remedy

the inequality created

by the previous policies and to

en~ble the dailies.

having less than JO pages attain a position of equality witli those operat•

ing on a page level of I 0 or more: The allowance of 20 per cent

A

B

c

D

E

F

G

H

BENNETT COLEMAN & CO. V. UNION 763'

A increase for growth in the pa.ge l~vel provided in Remark VII. is base.d l)n

a classification and that classification 1s grounded on an mtell1g1ble d1ffer­

cntia having

a

nexus to the object sought to be achieved. [816G]

8

c

D

E

F

G

H

(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 mtegral

pan of any system of

ra.tioning to tell the consumer that h~ sh?uld mam­

tain the page level wnd circulation of the paper. The prov1S1on m Remark

Vlll does not say that the proprietor or publisher of a newsi)aper 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 spec.k but also the right of the com­

munity 1o hear, a policy for the distribution of nc\vsprint for maintenanci.!

of circulation at its highest possible level as it furthers the right of the

communiry to hear, will only advance and enrich that freedom. [8190)

(vii)

It is difficult to understand how the fixation of a maximum page

level of

10 'for colculation of quota o·f newsprint would offend the funda·

mental right o[ freedom of sp<cch of the petitioners. The freedom of

speech does not mean a right to ohtain or use an unlimili.!<l quantity of

newspnnt. Art. 19(1) (a) is not the "guardian of unlimited talbtivene"."

1814F·GJ

(viii) It is settled by the decision of this Court in lfa11ulard Dawakliana

([1960] 2 S.C.R. 671) that commercial advertisement doc' not come

within the ambit of the freedom of speech guaranteed hy Art.

19(l)(a).

Curtailment of speech occasioned hy rationing of ne\'sprint due to its

scarcity

can only affect 'frccdon1 of speech

indirl.'.'ctly and consequently

there would be no ahridgm,ent of it. [8158-C]

(ix) The Government may under

els. 3 of the

Import.' (control) Order.

1955 totally prohibit the import of newsprint and thus dis~hlc any perwn

from carrying on a business in newsprint, if it is in the general interc.•t

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 educMe 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 news­

paper and increase its page level, as the community has an intcre...;;t in

maint21ining 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 sub·

article. [820B-E]

(x) !he I;'ri~ter or publisher of each newspaper owned by a common

ownership unit IS a sepccate consumer and it is to that consumer that the

qu_ota is. allotte~. The application for quota made by the common owner­

ship

u~1t specifies

the entitlement of each newspaper owned by it, and

quota

IS granted

!o ea~h newspaper on that basis. re it were opened to a

co~mon ownership unit to use the quota allotted for one newspaper owned

by 1t for another newspaper, or for a different edition of the same ~ •ws­

pa~r, that wou!~ frustrate t~e whole scheme of rntioning. Prohibition

of mterchangeab1hty has nothing to do with Art. 19(I)(a). [B22C-D]

7s4 SUPREME COURT REPORTS [ 1973] 2 S.C.R.

"(xi) That there is a valid classification between a person owning no

newspaper and a common ownership unit owning two or more newspa~rs

.cannot be denied. Any person desiring to express kimself 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

,,spec!. A,

.common ownership unit has already been given the opportunity to expres.s

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

cl~'m 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

news­

print 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. Tite newsprint Policy

was issued by the Chief Controller of Imports & Exports and the Additional

Secretary to Government, had auth~nticated it. The newsprint Policy was

placed before both the Houses of Parlia.ment. Even if it was administra­

tive in character it

was

capable of founding rights and duties. [823F; 824BI

(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 2{;sumed that Government or the

Chief Controller of Imports and .Exports has no power under cl. 5(1){iJ

of the Imports (Control) Ordet 1955 to issue directions as regards the

mode of utilization of nc\vsprint after its import, it is clear that the Gov­

ernment 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" u.11dcr s. :!(vii}' Of

that Act. [824F; 825C-DJ

(xiv) Clauses

3(3) and 3(3A) of that newsprint

order were not viola­

tive of Art. 14 of the Const•tution. [826F]

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m.ain­

tainability of the writ petitions on the ground that consumers of news.print

in qu<Stion were not citizens. [826G] F

ORIGINAL JURISDICTION : Writ Petitions Nos. 334 of 1971,

175, 186 aind 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. 0. Chenai, S. Swarup, G

Ravinder Narain, O. C. Mathur and J. B. Dadachanii for the peti-

tioners (in W.P. No. 334 of 1971.) '

C. K. Dap/ztary, M. C. Bhandare, Lie/a Seth, 0. P. Khaitan

and N. C. Shaf., for the Petitioner On W.P. No. 175 of 1972).

S. !. Sorabjee, Ramanathan, J. B. Dadachanji, Ravinder H

Narain and 0. C. Mathur, for the Petitioners (in W.P. No. 186 of

1972).

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BENNETT COLEMAN "' co. v. UNION (Ra,v, J.) 765

M. K. Nambyar, K. K. Venugopal, J.B. Dadachanji, Ravinder

Narain and O. C. Mathur, for the peti'tiooers (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, 0. C. Mathur and Ravinder Narain, for the

Interveners Nos. 1 and 2.

0. P. Khaitan, for Intervener No. 3.

The majority judgment of Sikri, C.J. and Ray and Jagamnohan

Reddy,

JJ. was delivered by Ray, J. Beg, J. delivered a separate

concarring opinion. Mathew, J. delivered

a separate dissenting

opinion.

RAY, J. These petitions challenge the Import Policy for

Newsprinc for the year April 1972 to March 1973. The News­

print Pnlicy is impeached as an infringement of fundamental rights

to freedom of speech and expression in Article 19 (I ) (a) and right

to equality in Article I 4 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, 194 7 (refer­

red to as the 194 7 Act). Section 3 of the 194 7 Act, speaks of powers

of the Central Government to prohibit, restrict or otherwise

control imports and exports. Section 4A of the 1947 Act con­

templates 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

703 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 ti1e

restriction of imoort 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 3 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 commo­

dities or for securing their equitable distribution and availability

766 . SUPREME COURT REPORTS (1973] 2 S.C.R.

at fair prices, it may, by order, provide for regulating or prohibit­

ing production, supply and distribution and trade and commerce

therein. Section 2 of the 1955 Act defines "essential commodity".

Papt>r including newsprint, paper board and straw board is defined

in section 2

(a) (vii) of the 1955 Act to be an essential

commo­

dity.

The 1962 Newsprint Order in clause 3 mentions restrictions

on acquisition, sale and consumption of newsprin~. ·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 news­

print 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 writ -

ing, of the Controller. Sub-clause 5 of clause 3 of the J 962

News­

print 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

in.fringe Article 19 (I) (a) of the Constitution. The

restric­

tion:; mentioned in these sub-clauses of clause 3 of the 1962

Newsryrint 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

Con­

troller 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 arc said to be not rea•on­

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 newsprin~ 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

othe_r 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.

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BENNETT

COLEMAN & CO. v. UNION (Ra;y, J.) 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 t,he 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

inFluding 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 al speech and expression guaranteed in Article

19 (I) (a) of the Constitution. First, no new paper or new edition

can

be started by a common ownership

unit even within the autho·

rised 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 di\Tercnt

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 I 0 has been given to newspaper~ 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 197i-72 and the earlier p~riods 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 !rrational, ~rbitrary and unreasonable. Big daily newspapers

havmg large cuculation contend tha~ this discrimination is bound

to have :1dwrse effects· on the big daily newspapers.

Th7 Newsprint Policy is said to be discriminatory and violative

o'. Article 14 bec.ause common ownership units alone arc pro­

h1b1t~d fr?m startmg a new paper or a new edition of the same

paper wlule other .n~'_\'spaper.s wi.th only one daily are permitted

to do so. The proh1b1tion ag~mst mter-changeability between diffe­

rent papers. of the same. umt and different editions of the said

paper

is said

to ~e ar?llrary and irrational, because it treats all

c?mm?n ownership umts as equal and ignores pertinent and mate­

nal differences between some common ownershio units as com­

pare~ to others. The 10 page limit imposed by the policy is sa'd

to vwlate Article. 14 because it equates newspapers which. · a~e

unequal a~d provides t~e same pe~missible page limit for news­

papers which are essentially local m their character and

I · h h I . news-

papers w 11c reac arger sections of people b· giving world news

14-L499Sup.Clj73 " •

768 SUPREME COURT REPORTS [J 973] 2 S.C.R.

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 discrimiJ!ating against

newspapers having more than 10 pages. The difference in entitle­

ment between newspapers with an average of more than 10 pages

as ccn1pared with newspapers of 10 or less than 10 pages is said

to be discrirninatory because the differentia is not based on raiional

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

basi~ of percentage of pages calcu­

lated on circulation and allowance of page increase of not more

than 2 pages at a time subject

to a maximum of 12 pages. The

hulk 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 pub­

lishers of text books were considered,in that behalf. After 1971-72

printing and writing paper was

in short supply. According to the Government 1his was adversely affecting the requirements of the

publishe~s of text books. The loss to newsprint consumer from

the non-availability of white printing paper was made good in

addilional quantity of imported newsprint. The import quota of

ne1\sprint was increased from 1,40,000 tonnes in 1970-71 to

L80,\JOO tonnes in 1971-72.

From l 972-73 with regard

to daily newspapers three principal

changes were effected. First, the base year for circulation

was

!aken at 1970-71. Second, the page level was taken at the maxi­

mum of 10 pages instead of the previously operating 10 page level.

Those operating at a page

level of over

I 0 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.

fo 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 I 0 pages was

permitted ..

The Add.1lion~1l Solicitor General raised two pleas in demurrer ..

First, it was said that the petitioners were companies and there­

fore, they could not invoke fundamental rights. Secondly, it was

said that Article 358 of the Constitution is a bat to any challenge

by the petitioners of violation of fundamental rights.

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BENNETT COLEMAN &

CO. V. UNION (Ray, J.) 769

This Court in State Trading Corporation of India Ltd. v. The

Commercial Tax Officer, Visakhapatnam(')

and Tata Engineering

& Locomotive Co. v.

State of Bihar(

2

)

expressed the view

that ~

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 con­

cepts. The

view of this Court was that the word

"citizen" in

Part II and in Article 19 of the Constitution meant the same·

thing. The result was that an incorporated coinpa1i.y could not

be a citizen

so as to invoke fundamental rights. In the

State

Trading Corporation(') case (supra) the Court was illOt invited

to "tear the corporate veil": In the Tata Engineering & Loco~

motive Co. (') case (supra) this Court said that a company was·

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 Chaudhuri

v. 7 ne

Union of India & Ors.(') expressed the mi_nority view that

an incorporated company can

come up to this Court for

enforce•

ment 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 I11dia

& Ors.(') and Sakal Papers (P) Ltd. & Ors. v: The Unio11 of

India(•).

In Express Newspapers(') 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 peti­

tioner 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 'Yrit petition. The Saura­

shtra Trust was petitioner for a chain of newspapers in another

writ petition. The Hindustan Times Limited was another peti­

tioner. These petitions

in the Express

Newspapers(') case

(supra) challenged the vires of the Working Journalists (Condi­

tions

of Service) and Miscellaneous Provisions

Act, 1955 .. The

petitioners contended that the provisions of the Act violated

Articles

19(l)(a), 19(1)(g) and 14 of the Constitution.

In

Sakal Papers(') case (supra) the petitiOillers were a Pri­

vate limited company carrying on business of publishing daily

and weekly newspapers in Marathi and two shareholders in the

{I) [19641 4 S.C.R. 99. (2) [1964] 6 S.C.R. 885,

(l) [1950] S.C.R. 869. (4) [1959] S.C.R. 12.

(5) [1962] 3 S.C.R. 842.

770 SUPREME COURT REPORTS [1973] 2 s.c.R.

company. There were two other petitions by readers of "Sak.al"

newspaper. The reader petitioners also challenged the consl!~u­

tionality of the Act. The petitioners there challenged the D~y

Newspapers (Price and Page). o.rder, 1960 as contraverung

Article

19(l)(a) of the

Conslitulion.

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) ~his Court held

that freedom of speech and expression iincludes 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("). Romesh Thappar's case

(supra) related to a ban on the entry and circulation of Thapper's

. journal in the State of Madras Wlder .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, ·r. 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 free­

dom 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

~ase (supra) as a lll!)asure which could be legitimately character­

ised

i:o

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 woulJ certain­

ly be liable to be struck down. But the Court found in the

Express Newspapers case (supra) that the impugned .. meas­

ures were enacted for the benefit of the working journalists and

it

was, therefore, neither the intention nor the effect and operation

(l)

[1950] S.C.R. 594 (2) fl950J s.c.R. 60S

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BBNNBTT COLBMAN &: CO, v. UNION (Ray, /,) 771

of the impugned Act to take away or abridge the right of free­

dom of speach and expression enjoyed by the ·petitioners. There

are

\ample observations of

this Court m 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(l)(a) it would be struck down. This obser­

vation is an illustration of the manner in which· the truth an:d

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 th!) share­

holders and the company. The Court thought it unnecessary

to express

any opinion on the right of the readers to

cornplain­

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

~s one shareholder, a reader

E

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

F 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 share­

holder, 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, claim-

('; ed by them for freedom 0f 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

exer­

cised through their editorial staff and through the medium of

pLblications

is infringed. The

petitioners also challenge the fixa­

tion of 10 page ceiling and the restriction on circulation and

H 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, indivi­

dually and in association with one another represent the medium

..

772 SUPREME COURT REPORTS [1973] 2 S.C.R.

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 o; India(') which is referred to

as the Bank Nationalisation(') 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

in!erfered with the guarantee of freedom of trad.e. They were

not made in public interest. The President had . no power to

promulgate the Ordinance.

In consequence of hostile

discrimi­

nation practised by the State the value of the petitioner's invest­

ment 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

ai;ency 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 share­

holders; 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 acti9n 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 sharehold11r's right is impaired is not formal; it is essen­

tially qualitative; if the St~ate action impairs the right

of the shareholders

as well as of

th~ Company. the

C~utt will not, concentrating merely upon the technical

operation of the action, deny itself jurisdiction to grant

relief." ·

(1) [t970J 3 s.c.R. sJo.

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BENNETT COLEMAN & co. v. UNION (Ra,v, ], ) 17 3

In the Bank Nationalisation case (supra) this Court held

the statute to

be void

fo:-infringing the rights under Articles

19(l)(f) and 19(l)(g) of the Constitution. In the Bank

Nationalisation

case (supra) the

pctitioner 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 share­

holder. 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 righ,s as shareholders .

are impaired by State action their rights as shareholders are pro­

tected. The reason is that the shareholders' rights are equally

and necessarily affected if the ri,ghts 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 protectio.n 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) aim support the competence or 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 5hall restrict the power of

the State to make any Jaw or ·to take any executive adion which

the State· \\JU]d but for the p•ovisions contained in that P<irt be

competent to make or to take. 11 was, therefore, said on behalf of

the Go1·crnment 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

mapplicable because it has no application to the law or ~xecutive

774 SUPREME COURT REPORTS [1973] 2 s.c.R.

action taken prior to the proclamation of emergency. The News­

print Policy was said by the petitioners to. be a continuation of the

old newsprint policy wbich 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 be­

fore 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.(') 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. 'fhe Sugar Control

OrJcr 1963 was made· in exercise of powers conferred by section

3 of the Essential Commodities Act. The order placed restric­

tions on sale and delivery by the producers. The Order also con­

trolled the production, distribution of sugar by producers or recog­

nised deniers. 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

em<-rgency

the State is, for the duration of the emergency, competent to

enacc 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

pro­

clamation of emergency which the State would for the provisions

contained

in Article 19 of, the Constitution be competent to make.

In

Jbrah;'m's case

(supra)· the State made an executive order. It

was said "the executive action of the State Governmer.t which is

otherwise invalid is not immune fronr· attack, merely because a

proclamation of emergency is in operati'on when it is taken". The

Order of the State Government in that case was held to be con­

trary 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 News­

print Policy for I 971-72. The petitions were amenc!.ed. 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

oi' 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

administra­

tive action is unsound Executive action which is unconstitutional

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

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BENNETT COLEMAN & CO. v. UNION (Ray, J.) 775

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

ArHcle 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(') 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 tha~ he was to reside in a named town.

The Order was made QI) 24 April, 1963. The Government con­

tended in the

Madhya Pradesh case (supra), that Article 358 pro­

tected legislative and executive action taken after the proclama­

tion

of emergency which was declared on

20 October, 1962. This

Court rejected the contention

of the

State that the Order was pro­

tected by Article 358. This Court held that if the power confer­

red by the 1959 Act to impose unreasonable restrictions offended

Article 13 by taking away

or abridging the rights conferred by Part ill of the Constitution the law in contravention of Article J 3

would be void. Article 358 suspends the provisions of Article 19

durin~ an emergency. This Court said that all executive action

which operates 1o the prejudice of any person must have the

authority of law

to support it, and the

t~rms of Article 358 do

not detract from that mle. Article 358 expressly authorises

the S·tate 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 35 8 does not invest 1he State with

arbitrary authority to take action to the prejudice of citizens, and

others; it merely provides that

so Jong as the proclamation of emer­

gency 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

bv the Government or by its officers must, if it is to operate to

the prejudice of any person, be supported by -some JegislQtive

authority. The Madhya Pradesh was (supra) is a_n authority

for the proposition !hat Article 358 does not operate to validate

any lc.E?islative provision which is invalid because of the constitu­

tional prohibition. In the present case. the impugned newsprint

policy

is continuation of prior executive action and of previous

Jaw. Therefore, in our

judgment there is no merit in this prelimi­

nary objection.

The Additional Solicitor General contended that the ri<>ht to

import and utilise newsprint

was not

a common law right. It was

said to be a special right covered by several statutes. The Impcrts

(I) [1967] 2 S.C.R. 454,

776 SUPREME COURT REPORTS [1973] 2 S.C.R.

and Exports Act 1947, the Imports Control Order, 1955, the

Essential Commodities Act 1955 and the Newsprint Control Order

1962 were referred to in supjlort of the proposition that if the

petitioners asked for a quota of newsprint they had to abide the

conditions prescribed. It was alsq said that the Press would have

no special fundamental right under Article

19 (1 )(a). The

legis­

lative measures were, therefore, said by the Government to be

regulation of newspaper business even ·though there might be the

incidental result of

cu_rtailing circulation. Reliance was placed on

the decisions in

Express Newspapers case (supra) and Hamdard

Dm1•akha11a (Wakf) Lal Kuan. Delhi & Apr. v. Union of India

& Ors. (

1

), in support of the contention that there would te no

abridgement of fundamental right of the press if as a result of

regulation of newspaper business there

was the incidental effect of

courtailing circulation. The Newsprint Policy

was defended by the

Government t0 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.

Jn the present case, there was some dispute raised as to whether

there should

be more import of newsprint. That

i~ a matter of

Government policy. This Court canpot 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

t;:, be newspaper control with

degre~s of subtlety and sophistication. Rationing of newsprint is

newsprint control. That is where quota is fixed. Newspaper con­

trol can be said to be post-quota restrictions. The post-quota

re~trictions are described by Mr. Palkhivala to be ne}"spa:per

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 commCl!l ownership

unrts are not allowed to bring out new papers of new edit!.ons of

their d~ilies. These are nat to have interchangeability of quota

within their unit. In addition large papers are not allowed to have

more than 1 O pages. It was said that in the past several years

Newsprint Control Policy worked remarkably without any

challenge.

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(1) (196~] 2 S.C.R. 671.

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BENNETT COLEMAN & CO. V. UNION (Ray,/;) 777

Article 19(l)(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 (I) shall affect the operation

of any existing

Jaw, or prevent the

State from making any Jaw, in

so far as such

Jaw 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 ( I )

(a) does not mention the freedom of the Press, it is the settled

view of this Court that freedom of speech and expreswn includes

freedom of the Press and circulation.

In the Express Newspapers case (supra) it is said that there

cal be no doubt that liberty of the Press is an essential part of the

freedom of speech and expression guaranteed by Article 19 (I) (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 freedorp of choice as

to personnel, prevent newspapers from being started and compel

the press to Government aid. This would violate Article 19 (l )(a)

and would

fall

outside the protection afforded by Article 19 (2).

Iii 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

mout~ or by writing. This

right extends not mer~ly 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 empowered

the Government to regulate

the prices

of newspapers in relation

ro their pages and sizes and to regulate the allocation of space

for advertisement matter.

fhe Government fixed the maximum

number of pages

that' might be published by a newpaper accord­

ing to the price charged. The Government prescribed the number

of supplements that would

be issued. This Court held

tha~ 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

not be restricted for the p1Jrpose of regulating the commercial

aspects of activi\ies of the newspapers.

Publication means dissemination and circulation. The press has

to carry on its activity bv keeping in view the class of readers, the

conditions of labour, price of material, availability of advertise­

ments,

size of paper and the different

kindS of news comments and

views and advertisements which are to be published and circu­

lated. The law which Jays excessive. and prohibitive burden Which·

would restrict the circulation of a newspaper will not be saved by

178 SUPllBME COURT llBPORTS (1973] 2 S.C.R.

Article 19 (2). If the area of advertisement is restricted, price o~

.paper goes up. If the price goes up circulation will go down. This

was held in Sakal Papers case (supra) to be the direct conse­

quence of curtailmen_t C)f advertisement. The freedom of a news­

paper fo publish any number of pages or to circulate i~ 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

someihing which

is an essential part of that freedom. A

restrain~

·on the number of pages, a restraint on circulation and a restraint

.on advertisements would affect the fundamental rights under

Article

19 (l )(a) on the aspects of propagation, publication and

circulation.

This Court in

Hamdard Dawakhana case (supra)

con­

sidered the effect of Drugs and Magic Remedies (Objectionable

Advertisement) Act, 1954 in relation to Articles 19 (l)(a), 19

(l) (r), 19 (l)(g) and 19(6). The Act in that case was to control the

advertisement of drugs in certain cases to prohibit the advertise­

ment

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

a.'l

advertisement is considered with the expression or r>ropa­

gation of idea that it can be said to relate to freed<m• of speech.

The right

to publish commercial advertisements is not a part of frceciom of speech.

The Additional Solicitor General contended that the news­

print policy did not violate Article 19 (l)(a). The reasons advanced

were

these. The newsprint policy does not directly and

imme­

diately deal with the right' mentioned in Article 19 (1 )(a). The

tesi 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

(l)(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 bene­

ficient 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

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BENNETT

COLEMAN & CO. v. UNION (Ray,/.) 779-

present case was rationing of imported commodity and eq111table­

distribution of newsprint. The restrictions ln fixing the page level

and circulation were permissible as directions, which were con­

sidered necessary in order to see that the imported newsprint was.

properly utilised for the purpose for which the import was con­

sidered necessary, Article 369 of the Constitution shows that·

ratiouing of and distribution of guota of newsprint and regulation

of supply

is not

a. direct infringement of Article 19 (l)(a). The

scarcity of newspapers justifies the regulation and the direction in,

the manner of use. The American decision in Red Lion BroadcllSt­

ing Co. 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 col rol

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(') was

relied on as an authoritv for such regulation and control of the

content of speech. Any incidental limitation or incidental restric­

tion on the freedom of speech is permissible if the same is essen­

tial to the furtherance of important governmental interest in regu­

lating 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 Maha­

rashtra (

3

)

was

reierred to indicate that the scope of control of

import extended to every stage at which the Government felt it

nec~ssary 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 II of the Government of India Act, 1935

corresponding

to Entry 27 of

List II in the Constitution. It was

said that

even if there was any trenching on Entry 29 List II

of

the J 935 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,

justi­

fied bty the Government under clause 5 of the 1955 Import Con­

trol Order read wit:h section 3(1) of the 1947 Import and Ex­

port Act and they are also justified under the provisions of clause·

3 of the. Newsprint Control Order· 1962.

(I) [1969] 393 US 367-23L Ed. 2d. 371. (2) [1968J 39l US 367-20 L Ed. 2d. 672 ..

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

.78 0 SUPREME COURT REPORTS [1973] 2 S.C.R.

The Newsprint Control Order 1962 was saio to give suffici~nt

.guidance with regard to exercise of powers. Clause 3(5) of the

Control Order of 1962 indicated that the Cont;roller 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

news­

print policy was given to the public as in.formation regarding

principles governing issue of ·import licences. The import policy

was eyolved 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 legis­

lation are relevant tq 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 interpre­

tation 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 Jaw or action has to

be direct abridgment of the right of free speech by the impu_gned

law or action it is to be related to the directness 'Jf effect and

not to the directness of-the sub.iect matter of the impeached law

or action. The action !)lay have a direct effect on a fundamental

right although its direct subject matter may be different. A Jaw

,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

at is related to matters · mentiqned therein. Therefore, the word

"direct" would go to the quality or character of the effect and

not to the subject matter. The obiect of the law or executive action

js 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 th~ Constitution. It, therefore, confirms that the right of free­

-dom 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' I of the 1935 Act

could empower Parliament to control imports. Both the State

legislature and Parliament have pcwer to legislate upon newspapers

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BENNETT

COLEMAN & CO. v. UNION (Ray, J.) i81

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 newspaper~. The

machin~ry of the Import Control cannot be utilised to curb or

control circulation

of growth or freedom of newspapers in India. Tke pi)h 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 p,Jlicy is found to be newspaper control order in the

guise of framing an Import Control Policy for newsprint.

This Court in the Bank Natio11alisation case (supra) laid down

two t~sts. First it is not the object of the authority making the law

impairing the right of the citizen nor the form of action that deter­

mines the invasion of the right. Secondly, it is the effect of the

law and the action upon the right which attracts the .iurisdiction 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.(

1

)'

that it is the substance and the practical result of the ac~ 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 Joss or injury caused to the citizen and not merely what man­

ner and method has lJ!:en adopt.ed by the State in placing the

restrictions. In Sakal Papers case (supra) raising the price affec­

ted 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 infringe­

ment 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

di<ect 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(') also referred to the test, as 10

whether the Act directly restricted inter-State business of banking,

in order to ascertain whether the Banking Act 1947 in that case

(I) [1954] S.C.R. 674. (2) [1950] A.C. 235.

782 SUPREME COURT REPORTS [1973] 2 s.c.it.

is aimed or directed at, and the purpose, object and intention of A

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, prohi­

bition

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 adver­

tisement. The direct effect

is

that they are exposed to financial · c

loss. The direct effect is that freedom of speech and expr~ssion is

infringed.

The Additional Solicitor General contended that a law which

merely regulates even directly the freedom of the press is permis­

sible 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 e;>(pression is of all citizens speaking, publishing and print-·

ing in all languages and the grave concern for freedom of expres­

sion which permitted the inclusion of Article 19 (I )(a) is not to

be read

as a command that the Government of Parliament is with-

out 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 emphasised on behalf of the Oov­

err.ment 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 expres& 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

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Article 13 of our Constitution states that the State is prohi­

bitej 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 expressim1. Our Constitution does not speak of laws ff'

regulating fundamental rights. But there is no bar on legislating

on the subject of newspapers

as long as

legislatfon does not impose

unreasonable restrictions within the meaning of Article 19(2).

It

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BENNETT COLEMAN & CO. v. UNION (Rtzy, J,) 7 8 3

is also important to notice as was done in earlier decisions of this

Court that our Article

19(l)(a) and the First Amendment of the

American

Consfaution are different. The First Amendment of the

American Constitution enacts that the Congress shall make no

law. . . . . . abridging the freedom of speech or o! 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 cqncept of regulation of fundamental rights was borrowed

and extracted

by the Additional Solicitor General from American

decisions. In

Citizen Publishing Co. v.

United States(') 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 enter­

ed into an agreement to end business or commercial competition

between th~m. Three types of control were imposed by the agree­

ment. One was with ~egard to price fixation. The second was profit

pooling. The third

was market control. The Government

comp·

lained that the agreement was an unreasonable restraint on trade

or commerce in violation of Sherman Act. The Citizen Publish­

ing Co.(') case (supra) held that the First Amendment in the

American Constit.ution 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 dissemina­

tion of information from diverse and antagonistic sources is essen­

tial to the welfare of the public. The Sherman Act was invoked in

that

case to prevent non-governmental combinations which tended

to impose restraints

UT}On 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 offenpe. It was contended in O'Brien's case (supra) that

whenever the person engaging in the conduct of burning the certi­

ficate intends thereby to express an idea the idea of both "speech"

and "non-speech" elements were combined to the same course

(1) [1969] 394 U.S. !3!=22L.Ed.2d. 148

15-1A99Sup.C. I. /73

784 SUPREME COURT REPORTS [1973] 2 s.c.R.

of conduct. It was held tha~ there was a sufficiently important A

governmental interest in regulating the non-speech element. The

Court noticed there that such incidental limitation on First Amend­

ment freedom ias justified because an imponant 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 free-

n

doms involved was no greater than absolutely essential Jn the

furtherance

of the governmental interest.

These American decisions establish that a government

regu­

lation is justified in America as an important or essential govern­

ment interest which is unrelated to the suppression of free expres-

sion. This Cour~ has established freedom of the press to speak and C

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

(l)(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 1970-7.1 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

Tim~s and Economic Times.

The average circulation of these three publications in

1971-72

was higher than the average circulation in 1970-71. It is,

there­

fore, 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

T ndo-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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BENNETT COLEMAN & CO. V. UNION (Ray,/,) 785

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 will

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 circufation in 1970-71 or the

admissible circulation

in

term.• of 1971·72 Newsprint Pol.icy 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

rthe Times of India Ahmed­

abad had 13.13, 13.99 and 17.83 as the average number of pages

in 1971-72. The average number. of pa~.• 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 opera·

ting 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.

786 SUPREME COURT. REPORTS [1973] 2 s.c.R.

The Government advances these six reasons in support of

their policy. First, there

is

~hortage of newsprint. Seconq, the

average page number of big dailies is 10.3. Out of 45 big dailies

23 operate on· a page Jeveh of Jess than 10 apd 22 ·operate on

a· page level of more than 10. Therefore, the Govern­

ment 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. l 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: Newpri~t has to be equitably rationed. Allowing

some dailies 11).0re than 10 pages will adversely effect those dailies

with

less than

10 pages. ·

In our view shortage of newsprint can stop ;.vith 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 10 '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 10,0C'OX l00=4t%

2.25.000

If the reduction is only 4t% the cut in the Hindu was calculated

by Mr. Nambiar to be 16-10=6 viz. 6Xl00=37t per cent.

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In other words, the cut worked out to much higher proportion.

Mr. Palkhivala for the Bennett Coleman gl'oup, 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

dispute& of figures. The reduction is established by Mr. Nam-

biar to

be disproportionate to shortfall. Particularly in the past, H

in the year 1962 there

wa~ a shortage. There wa~ 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 7t per

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BENNETT COLEMAN & CO. V. UNION (Ray,/,) 787

cent for those whose quota was 1000 tonnes and above. Later,

the cut

was reduced to

2t 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 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 I

0 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 maxi­

mum 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

!n 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 Jess

than I 0 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 cir adjusted against increase in circula­

tion. Similarly any quota for increase in circulation, could be

used for or adjusted against increase in number of pages. It i~

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 per­

n1itted to do so.

788 SUPREME COURT REPORTS [1973] 2 S,C.R.

In the past, newspapers which had 12 page limit were

allowed to increas~ the page number. This is said to be the

justifi~ation on the part of the Government to wipe out any

~neqmty. It appears that 19 l,anguage dailies reduced their page

numbers on the basis gf which their quota was fixed in order

to increase their circulation.

If .that is so, there is no reason

for

~iving them a~ditional quota for increasing page number

specially

by reducmg 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 cir­

culation. 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 Samacbar, 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 d~.ilies. Bombay

Samachar is a Gujarati daily. The maximum page level fixed

at 10 and the prohibition against th.e adjustability between pages

ar.d circulation are strongly impeaclied 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 peti­

tioners, not only adversely affect their profits but also deprive

them

cf expressing and publishing the quality of writings

. and

fulfilment

of the role to

re 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

com­

pulsory 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

Govern­

ment 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 t~e medium

and the small dailies. The difference in pages coupled with the

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BENNETT COLEMAN & CO. V. UNION (Ray, J.) 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.

J.he 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

percent~ge of allocation for the big dailies reflects really the

large number of pages they publish. The big da:ilies therefore

have not only larger requirements but also they render larger ser­

vices

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 mini­

mum 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 h;t

the big dailies and to prevent the newspapers from rising above mediocrily. It is true that the Government relied on an

historical reason. It

is said to prevent big newspapers from get­

ting any unfair advantage over newspapers

which are infant in

Nigin. It is also said that the Government policy is to help news­

papers 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

strangu­

late the freedom of speech and expression of the big dailies.

The Government has sought to justify

the reduction in the

page

level to I

0 not only on the ground of shortage of newsprint

but also on

the grounds that these big dailies devote high percen-

·

1

tage 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 SUPREME COURT REPORTS [1973] 'f. S.C.R.

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

ac­

quired a higher page level in 1957. The main source of income

for the newspapers

is from advertisements. The Joss 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.

J'his

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 circula­

tion. 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

~h.aracter is reflected by the object for the promotion of which it

is employed. In Sakal Papers case (SU.Qra) this Court held

that if the space for advertisement

is reduced earnings would

de­

cline 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 denu­

ding the area of coverage for news and views.

The estimate'd 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

newspap~rs 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

expres­

sion. 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 m'!Y ~rum­

ble. The Joss 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 Be.nnett Coleman

group alleges that the actual circulation of Times of India Bombay

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BENNETT COLEMAN & co. v. UNION (Ra.v, /.) 7 91

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 pages and circulation

were permissible.

It is, therefore, said that though the Times of

India under the impeached policy would have an allowable

circu­

lation 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

fo 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 l

O 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

pa,st dailies having less

than

IO pages were given increases and were

allowed to come up

to 10 pages from 4 pages in 1961-62 and 6 pag.es 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

re·

quire 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 bv imposing

upon them the 10 p~.ge ceiling. The 10 page ceiling iniposed

affecting 22 big newspapers operating above l 0 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 tr.eats

new~papers which are n?t equal equally in assessing the neetls and

requirements of newspnnt. The Government case

is that our of

792 SUPREME COURT REPORTS [1973] 2 S.C.R.

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. The impeached

policy also offends Article

19 (l)(a) of the Constitution. News­

papers like 1

<l language dailies reduced their p!lges in odrer to

increase circulation though such language dailies had prior to

I 972-73 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 (I )(a) because

lhe 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 (I) (a) and Article 14 of the Constitu­

tion.

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 entitleme,nt is

fixed under Remark

V. In other words, dailies with less than

I 0 pages are prevented from adjusting the ·quota for 20 per cent

increase for increase in circulation. The Bennett Coleman group

mys that their Nav Bharat Times, Maharashtra Times and Eco­

nomic 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 indi­

cates 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 peti­

tioners 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. Free­

dom 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 19.72-73 ~poses t~o

types of restrictions. First a d~y is _not penmtt~ t~ 1~crease its

number of pages by reducing c1rculauon to meet Its md1v1dual £7·

quirements. Secondly, dailies belongi~i; to a common ownership

unit are not permitted interchangeab1hty between them of the

quota allotted to each even w~en the publi.cations are different

editions of the same daily published from ddferent 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

correctlv 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

191 l)(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 pennits dailies with large circulation to increase their

circulation. Dailies operating below

IO 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

q_uantity for circ~lation growth. In our view counsel for the peti­

lloners nghtly said that the Government could not detennine 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 quotai

".794 SUPREME COURT REPORTS [1973] 2 S.C.R.

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

prohibi­

tion in Remark VIII in the Newsprint Policy prevented common

ownership units from adjusting between them the newsprint quota

aJlotted 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 ,ame

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 periodi:als

was permitted.

In 1969-

70 and 1970-71 the total entitlement

was givfol'J 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

news­

paper 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 sin;;le

newspaper will suffer if common ownership units are allowed to

adjust quota .vithin their group.

The petitioners impeach Remark X in the Newsprint Policy

for 1971-72 on the ground that a common ownership unit ·, annot

bring out a new newspaper or start a new edition of an exi>ting

newspaper even from their allotted quota. Counsel ·on behalf of

the petitioners rightly characterised 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.

Simi­

larly, it was said that there was no rea~on 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 allow­

ed 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 ~tart 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 th~ same

paper.

It is made clear that newspapers cannot be permitted

!O

use allotted quota for starting a new newspaper. Newspapers will

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bENNETT COLEMAN & CO. V. UNION (Rtiy; /.) 795

A 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.

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D

E

F

G

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 i.nd given

a lesser increase than those with a circulation of 50,000 to 1,00,000

copie' though both are· big dailies. The policy of the Govern­

ment is to level all papers at 10 pages. It tends to treat unequa!s

as equals. It discriminates against those who by virtue of their

standin" status and .service on all India basis acquired a higher

page le~el in the past. The discrimination is apparent .from Re­

mark' VII in the newsprint Policy for 1972-73 by which news­

papers with less than 1,00,000 circulatio~ have been given 10%

increase in circulation whereas those with more than 1,00,000·

cir.:ulation have been given only 3o/c increase in circulation.

~Ir. Palkhivala said the policy worked admirably in the past

because adjustability between pages and circulation was pern1itted.

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

new;print. 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 out­

put 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

Govern­

ment. Patna jali Sastri, J. speaking for this Court in Ramcs/1

Thappar's case (supra) said that "Thus. every narrow and

stringent limits have been set to permissible legi,lativ~ abridg·

ment 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 democqctic organisation, for

without free political discussion no public education.

so essential

for the proper functioning of the processes of popular

Govern­

ment. is possible". It is appropriate to refer to what Williain

Blackstone said in his commentaries :

"Every free man has a undoubted right to lay what

ff 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."

796 SUPREME COURT REPORTS [1973] 2 s.c.R.

T~e faith of a citizen is that political wisdom and virtue will sus­

tam themselves. in the free market of ideas so long as the channels

of communication are left open. The faith in the popular Gov­

ernment rests on the . old

di.ctum

"let the people ha.ve the truth

and the freedom

.to

d1scyss 1t and all will go well". The liberty

of the press. re~a1~s an "Art" of the Covenant" in every demo-

. cracy. S~. will yield products of steel. Newsprint will manifest

whatever

1s thought of by man. The newspapers give ideas. The newspr.pers give the people the freedom to find out what ideas

are correct. Therefore, the freedom of the press

is to be enriched

by removing.

t_he restrictions on page limit and allowing them to

have new

ed1uons

ur new papers. It need not be stressed that if

the quantity of newsprint available does not permit grant of addi­

tional quota for new papers that

is a

-different matter. The restric­

tions 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 fahly.

Clauses 3 and 3A

oi the 1962 Newsprint Order prevent the

petitioners from using white paper and writing paper. The addi­

tional 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

whiW printing p.aper. 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 pennitted the use of white printing

paper.

That is because of Public Notice No. 4-ITC(PN)/63

dated 11 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

answ7r to the violatio~ of fundamental rig~t~ in

Article

19 (I) (a) or tnf.raction of Arttcle 14 by the provmons

of the impeached Newsprint

Policy.

In the present case. it cannot be said that the newsprint policy

is a reasonable restriction within the ambit ?f Article 19(~): The

A

B

c

D

E

F

G

newsprint

palicy abridges the fundamental nghts of the petitioners

in regard to freedom of speech and expression. The newspapers ."

are not allowed their right of circulation. The newspa'!ers a.re

not allowed right of page growth. The common owne.r~h1p umts H

of newspapers cannot bring out newspapers

or new

editions. The

newspapers operating above 10 page level and newspapers o~ra-

ting below 1 O page level have been treated equally for assessmg

A

'

l

B

G

B

BENNETT COLEMAN & CO. v. UNION (RCly, J.) 797

the needs a.nd _requirements of newspapers with newspapers which

are not the!l equal, Once the quota is fixed and direction to use

the quota i!l accordance with the newsprint policy is made appli­

cable the big newspapers are prevented any increase in page

number. Both page numbers and circulation are relevant for

calculating the basic quota and al!owance for increases

In

the

garb of distribution of newsprint the Govewment has i~nded to

control th_e growth ~d ?irculation ot newspapers; Freedom of

!he press ~s both ~uahtal!ve and quantitative. Freedom lies both

m ctrcula~on an_d m contei;it. T~e newsprint policy' which pennits

newspapers to mcrease c1rculat10n by reducing the number of

pages, page area and periodicity, prohibits them to increase the

~umber of pages, _p~ge area an_d periodicity by reducing circula­

tion. These restrictions constnct 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

pub­

lic affairs but also upon the vast range of views and matters need­

ed for free society.

This Court in Sakal 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

(I )(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 Adcttional Solicitor General contended that the business

aspect of the press had no special immunity and the inciden!al cur­

tailment in the circulation could not be freedom of speech and

expression of the press. This Court fo ~akal Pqper~ case

(supra) dealt with the measures for the fixation of p11ce tn rP,la­

tion to pages and the regulation of allotment of space for adver-

..

798 SUPREME COURT REPORTS [1973] 2 s.c.R.

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 funda·

mental right of speech and expression could pot be abridged or

taken away. There could be reasonable restrictions on that right

only

as contemplated under Article 19 ( 2).

Mr. NambiaJ 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

ithe newsprint policy have been examined

earlier. The various restrictions imposed by the newsprint policy

are found

to be unconstitutional.

Clause 3 of the

Newspriat Control Order 1962 was contended

to confer unfettered and unregulated power on an executive offi­

cer. Clause (3A) of the Order of 1962 was also said to confer

naked and arbitrary power. The disability imposeC: on news­

papers from using printing and writing paper was said to be dis­

criminatory. 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 f0r newsprint. This wuuld 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(Pi) /63 dated 11

January 1963 unrestricted use of white printing paper to supple­

ment their quota of newsprint. That again shows that the 'Gov­

ernment contention is wrong because there is restriction with re­

gard to use of white printing paper. The cost of white printing

paper

is high. It is said tha!

t\le cost is Rs. 2, 750 per metric

tonne for white printing paper compared

to Rs.

1,27+ of imoort­

ed 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 ;;eneral interest shall use

any kind of paper other th~n 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

alw to ooin• out that text books and books of gen­

eral mlerest require facilities for using white nrinting paper. Such

measures with regard to rationing are defensible. It is true that

no guidelines are

to be found in clause 3(3A) as to

the-Circums­

tances under which a narlicular consumer of newsorint or dass of

consumers of newsnrint other than a oublisher of text books

or bonlcs of 11~neral intere<t shnulcl or should not be allowed to use

white printing paper.

The

Public Notice allowing periodicals

A

B

c

D

•

E

G

II.

t

A

B

c

D

E

F

G

BENNETT COLEMA'N & co. v. UNION (Mathew, J.) 799

permission to use white printing paper is not challenged. Periodi­

cals were not before this Court. It is therefore not necessary to

<1xpress any opinion on clause 3(3) and clause 3(3A) of the Con­

trol Order.

For the foregoing reasons the newsprint policy for 1972-73

violates Articles

19(1) (a) and 14 of the Constitution. The res­

trictions

by fixing

10 page limit in Remarks V and VIII of the

policy infringe Articles

19(l)(a) and 14 of the Constitution and a~e, 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

\[own.

The r.easures in Remark VII ( c) read with Remark VIII are

violative of Articles 19

(1) (a) and 14 of the

Cons1itution and

are struck down. The prohibition in Remark X against common

ownership unit from starting a

new newspa2er /periodical or a

new edition

is declared unconstitutional and struck down as viola­

tive 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 th~

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

ther<ewsprint Control Order

and the provisions of the Newsprint Policy on the ground that they

are violative of their fundamental right under Arts. 14 anu 19 ( 1 )­

(a) of the Constitution.

Newsprint, which

is a variety of printing paper,

is the principal

raw material required for newspJpers and periodicals. Until 1957,

the newsprint required in the country

was being imported. In or

about

the year 1957, a mill called the National Newsprint and

Paper Mills Ltd. wqs 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.

H The production, supply

and distribution of newsprint has been

controlled ever since 1939. Art. 369

cf the Constitution vests the

control

of

,rro~u~ti~n" supply and distribution of newsprint within

the exclusive 1unsd1ct1on of Parhament for a period of five years

I 6-L499Sup. CI 173

•

800 SUPREME COURT REPORTS (1973] 2 S.C.R.

from the commencement of the Constitution. Newsprint is an

'essential commodity' under the Essential Commodities Act, !955

(see s, 2(a) (vii) of the Act).

The bulk of newsprint has to be imported from foreign coun-

A

tries and the Central Government has a restricted system of import

from the year 1943.

The Central Government

promulga•ed the B

Import (Control) Order, 1955, in the exercise of the powers con­

ferred by seetions 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 I, except under, and in accordance with, a

licence

or a customs clearance permit granted by the

Central Government or by any officer specified in Sche-

dule

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 Tracfe 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 Govern­

ment promulgated the newsprint Control Order, 1962. Clause 3

and Schedule I of the Order are

as follows :

c

D

E

"3. kestrictions on acquisition, sale ;ind consumption of news-

print:- F

(1)

(2)

(3)

No person other that) 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.

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.

No consumer of newsprint shall, in any licens­

ing period, consume or use newsprint in excess

of the quantity authorised by the Controller from

time to time.

G

H

A

ll

BENNETT COLEMAN & co. v. UNION (Mathew, I.) 801

SCHEDULE-I

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. Indigenous 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

:-

c "(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 writing, 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

D Policy (Red Books). The Registrar of Newspapers determines

the newsprint and printing and writing paper entitlement of publi­

shers of each of the new~papers in accordance with the aforesaid

policy and

the Chief Controller of Imports

and Exports issues

licences for import of newsprint in accordance with the determi-

E

F

G

H

nation 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 adm.issible under the Policy of 1971-72 which­

ever is more (Remark V),

2. (i) Reduction in increases from 5 per cent to 3 per

cent 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 SUPREME COURT REPORTS [19.73] 2 S.C.R.

pages within the ceiling of 10 pages provided

this increase

is not ntilised for the increase of

circulation (Remarks VII(c) and VIII).

(ii) Prohibition to increase the number of pages,

page area and periodicity by reducing circula­

tion within the authorised

quota \jut they are per­

mitted

to reduce the number of pages, page area

and periodicity for increasing circulation (Re­

mark 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 (Re­

mark

VIII); and

(ii)

Prol}ibition to start a new newspaper/periodi­

cal 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

(RemarkX).

A

B

c

D

5. Prohibition to cse white printing paper by the news- E

papers which have been alloHed newsprint (Cl. 3-

( 3AJ

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 shouJd have accorded greater

priority to the import of newsprint to supply the need of all news-F

paper proprietors to the maximum extent is a

maMer relating to the

policy

of import and this

Court cannot be propelled into the un­

chartered 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.

G

The freedom of ~he press is no higher than the freedom of

speech of a citizen under Art. 19(1 )(a). Art. 19 does not specifi­

cally provide for the freedom of the press as the First Amendment

of the Comtitution 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 H

v. Shri Sri Krishna Sinha and Others(')).

--------

It) [1959] Sur.'. t S.C.R. 806.

'

8

c

D

E

F

G

BENNETT COLEMAN & co. v. UNION (Mathew, J.) 803

The res;iondents contended that the Newsprint Control Order

and the Newsprint Policy are concerned with regulating the dis­

tribution of newsprint as a scarce commodity, and, if, in regulat­

ing the distribution of the commodity, the fundamental right of

•the freedom of speech is indirectly affected, that is not an abridg­

ment of the freedom of speech, but only an abridgment of speech

which

is not prohibited by Art. 13(2). In other words, the

con­

tention is that the provisions of the Newsprint Control Order'as well

as those of the Newsprint Policy relate to the regulation and distri­

bution of newsprint as a conunodity 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 ab_ridges the rights conferred by Part III and

any

law made in contravention of

this clause shall, to the extent

of the contravention, b_e void. In the centext, what is prohibited

by Art. 13(2)

is, the making of any law which takes away or

abridges the right conferred

by Art. l 9(1)(a). What Dr.

Meikle­

john 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(l)(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 mis-conception

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 con-

cept of the freedom of speech unless the regulation amounts to

abridgment of tha.t freedom: No freedom, however absolute. can

be free. from regulation. Though the right under Art. 30(1) is

in tefll)s absolute, this Court said In Re the Kera/a Ed11cafit,n

Bill, 1957 (

1

), that the right is subject to reasonable regulation.

Tht-Privy Council said in Commonwealth of Australia v. Bank

-of New South Wa/es(2) that regulation of trade and commerce

H

is compatible with the absolute freedom of trade and commerce. ·fo fact, the very essence of freedom in an ord~red society is regu-

(1 l [1959] S.C.R. 995. (2) [1950j A.C. 235, JIO.

804 SUPREME COURT REPORTS [1973] 2 S.C.R.

lation. The application of the tenp. "abridge' is not difficult in

many Cltses but the problem arises in certain types of situations.

The important OJ!es ~re where a regulation is not a direct restric­

tion of expression but

is designed to accomplish another objective

and the impact upon the expression

is secondary or indirect. This

problem may appropriately be forma]jzed in terms of defining the

key

elements, namely, "freedom of speech" "abridge" and "l~11w''.

These delir.itions must be functional in character, derived from

the basic considerations underlying a. system of freedom of ex­

pressicn (See Thomas l Emerson, Toward a General Theory of

First Amendment('). As I said, measures which are directed at

other forms

of activity

bu~ 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 ex­

pression 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

,iudgment, like the ,iudgment in defining "free speech" must be

made in tbe light of the affirmative theory underlying freedom of

expression

to

\·hich I shall come in a moment, an~ the various

conditions essential _to maintaining a workable system. In fact,

regular tax measures, economic regulations, social welfare legisla­

tion 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 imp~ct 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,

Tov;arrl r.

General Theory of First Amendment('). So also a special '····

on press alone, or, a tax exemption available only to those. » >"

particular political views or associations would not be permiltc,'

(see Alice Lee Gorsjean v. American Press Company(

2

) ar. '

Robert Murdock v. Commonwealth of Pennsylvania('). "In other

words, though the speech itself be under the First Amendment,

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

(3) 319 U.S. 105.

A

B

c

D

E

F

G

J

A

B

c

D

BENNETT COLEMAN & co. v. UNION (Mathew, J.) 805

the manner of its exercise or its collateral aspects may fall beyond

the scope of the amendment" (

1

). This principle is illustrated by

the case of Naresh Shridhar Miraikar and Others v. The State of

Maharashtra and Another(') 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

impugn­

ed order invalid under Article 19(l)(a) .... Any inci­

dental consequence which may flow from the order will

not introduce any constitutional infirmity in it".

It was said that this dictum of the learned Chief Justice was made

under the radiating influence of

A. K. Gopa/an

v· State of Mad­

ras(

3

)

and that the decision has been practically overruled

by Bank

Nationalization

Case('). I do not wish to enter the controvercial

thicket

as to the extent to which the principle laid down in

E · Gopalan's case(') has been eroded by the Bank Nationa/'sation

case ('). I need only say that in the area of' free speech, the

principle I have stated

is well established. The principle

w~s ap­

plied by this Court in Express Newspapers Private Ltd. and An­

other v. The Union of India and others(•). There the question

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was, whether the provisions of the Working Journalists (Condi­

tions of Service) and Miscellaneous Provisions Act, 1955, violat·

ed the fundamental right of· the petitioner under Art. 19(1 )(a).

The argument was ~at the decision of the Wage Board in fixing

the rates and scales of wages without any consideration whatso·

ever as to the capacity of the newspaper industry to· pay the same,

imposed too heavy a financial burdel) on the industry and had,

disabled it from exercising. its fundamental rieht 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 intendt-.d

to rep:ulate the conditions of service of the working jour­

nalists .md the consequences aforesaid coul1 not be the

(l) William J. BreMan, Jr., "The Supreme Court and the Meiklejohn Interpre­

tation of the First Amendment," Harvard Law Review, Vol. 79, No. 1, p, J.

(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..

806 SUPREME COURT REPORTS [1973] 2 s.c.R.

direct ~nd 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.

J 9(2), it had not the effect of taking away or abridging

the freedom of speech and expression of the petitioner

and did hot, 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 in~ play the

freedom of speech, it combines both 'speech' and 'non-speech'

'ele.ucnts, and when speech and non-speech elements are combin­

ed

in the same course of conduct, a sufficiently important govern­

mental interest

in regulating the non-speech

elemen~ 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

greal/ef than is essen­

tial to the furtherance of tha~ interest.

In Sakal Papers (P) Ltd. and others v. Union of India(')

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 subjec~ matter fell directly under

Art 19(l)(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 refer­

ring 10 the Express Newspaper case(') said that the impugned

law, far from being one, which merely interfered with the right

of freedom

of speech incidentally, did so directly.

Mr. Palkhiw.ala, appearing for the petitioners in Writ Petition

No. 334 of 197

! ,

$Ubmitted 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,

accorcl'mg to counsel is, what is the

direct effect

of the Newsprint Control

Order and the Newsprint

Policy?

(1) 391

U.S. 367.

(l) [1959) S.C.R. 12.

(2) [t962) 3 S.C.R. 842, 866.

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BEN)'IETT COLEMAN & co. v. UNION (Mathew, J.) 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 reduc.tion in page level or

circulation is the direct result of the diminished supply of news­

print. Yet. I do not think tha~ 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 calculat,ion 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 offends Art. 14.

Before

J

972· 73, the newsprint allocation policy was based on

the page level of 1957 coupled with the circulation figures of

196 I -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 speeially in the

Indian Languages group where the actual circulation even during

1970-71 exceeded the notional circulation figure which was arrived

at curimlatively based on the 1961-62 figures. The result of the

previous policies was that some news papers which had alread:I'. a

very large circulation at the time of introduction of newspnnt

rationing and were not interested in iiicreasin~ circulation substan­

tially were able to use the newsprint allotted to them so as to in·

crease 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

(t)

(1950] A.C. 235, 312-3.

sos SUPREME COURT REPORTS (1973} 2 S.C.R.

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 news­

papers 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 growtli rate. 1970-71

is taken as the base year because, with the events in Bangla Desh,

lndo-Pak hostilities and the State elections, the circulation figures

for 1971-72 would not represent the circulation figures of a nor-

mal year.

The fixation of I 0-page ceiling for the calculation of newsprint

quota has, among the

big newspapers,

affeC!ed 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 Jevel of

these papers

to I

0 on three principal grounds : ( 1) that these

papers devote proportionately high percentage of space for adver­

tisements 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 ol 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 ahd periodicals.

The objectives sought

to be achieved by the Newsprint

Policy

are : ( I ) to correct the inequity of the previous newsprint alloca-

tion policies

as a result of which the newspapers which had high

page level in 1957 got unfair advantage over the newspapers

wh!ch

were started thereafter and (2) to help the newspapers operating

below I 0 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 JO-page level in 1970-71.

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It may be recalled that the Newsprint Policy provides for fixa-

tion

of basic entitlement for newspapers whose actual number

'!f

pages was more than 10 during 1970-71 and 1971-72 on the basis G

of (I) an average of 10 pages, and (2) either the average circula-

tion in 1970 or admissible circulation in 1971-72, plus, increase

admissible under the policy of 1971-72 whichever is greater. Fixa-

tion of page level for calculating the. entitlement of quota for a

newspaper

is not a new feature. The previous

polici~s provided

inter alia that allocation would be calculated on the basis of a page H

level upto 12· pages and restricted to an increll,'ie o~ not ~o~e than

2 pages at a tim~. Therefore, even under the !'.mor pohcie~, the

newsprint allocat1on

was calculated on the basis of a maximum

BENNETT COLEMAN & co. v. UNION (Mathew, J.) 809

A ·page !eve_! which was 12 pages as mentioned above, except in the

case of six newspapers whose page level in 1957 was more than

12 pages.

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Dailies are classified as 'big', 'medium' and 'small'. A news­

paper with a circulation of over

50,000 is 'big", that with a circu-

1:111on 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.

p;1gc level of less than I 0 pages and 22 operated on a page level

of more than I 0. 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 lev,I

over·

10

and their average page level was 13.45. Even the medium

English dailies operated on a page level over IO 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 jiress; that this is how papers like

A11a111/ Ba~ar Patrika, Jug,mtar and Deccan Herald (English) have

come to the present level oLcirculation and that newspaper pro­

prietors

in India including the petitioners have unanimously recom­

mended to the Governmentln January, 1969, that a page level of

8 should

be the national minimum requirement for a medit1m of

information and that it·-should be per111itted to reach as wide a

public as possible.

To examine the question whether Newsprint Policy is djrected

against the big dailies and is calculated to strangle them and

whether

it would offend their fundamental rights under Art. 14

and I 9(1 )(a), it is necessary to have an idea as to what

are the

F · 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 com­

modity like newsprint.

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The freedom of speech is a concept which

·was transplanted

into our Constitution from the First Amendment to the Constitu­

tion of U.S.A. In Express, Newspapers cilse(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 provi­

sions in Am~ndment I of the Constitution of the United

States ·of America ....... "

(t} [1959] S.C.R. 12.

810 SUPREME COURT REPORTS [1973] 2 S.C.R.

As to what the 'freedom of speech' means there is no unanimity A

among the jurists. Writing in the

Federalist Papers('), Alexander

Hamilton observed :

"On the subject of the liberty of the press, as much

as has been said, I cannot forbear adding a remark

or

two. . . . I contend that

whatever has been said aboi.t

it. . . . amounts to nothing. What signifies a de.clara- D

tion that "the liberty of the press shall be inviolably

preserved" ? What is the liberty of the Press ? Who can

give

it any definition which would not leave the utmost

latitude for evasion

? I hold it to be impracticable ..

, . "

Professor Chafee said(') :

"The truth is, I think, that the framers had no very C

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 : D

"The world has never had a good definition of [it]".

Justice Holmes gave at different times opposite interpretations

of the his1oric meaning of the First Amendment. Speaking for

himself and Justice Brandeis, he observed :

(')

"History seems to me against the notion (that) the E

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 provi­

sions '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 main­

tained that its Blackstonian outlook "has been followed by

American commentators· of standard authority as embodying cor­

rectly the idea incorporated in the constitutional law of the coun­

try 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 : (I) for individual fulfilment, (2) for

attainment of truth. (

3) for participation by members of the

society

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

(2) Chafee, Book Review, 62, Harvard Law Review, 891, 898.

(3) Abrams '" U.S .. 250 U.S. 616, 630.

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

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BENNETT COLEMAN & co. v. UNION (Mathew, 1.) 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 gocd, but

a social good. It

is 'the best process for advancing knowiedge and

discovering truth. The theory contemplates more than a process

of individua1 judgment.

It asserts that the process is also the best

method

to reach a ge'neral 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 thai freedom of expression is politically useful but

that it is

indispensable to the operation of a democratic system. In a demo­

cracy the basic premise is that the people are both the governors

and the governed.

In order that governed may form intelligent and

wise

judgm~nt 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 ha_ve realized tliat time has upset

many fighting faiths, they may come to believe eyen more

than

they believe the very foundations of their own

con­

duct that the ultimate good desired is better reached oy

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 m.:ist 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

pre­

supposes 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. As.wciated Press).(

1

)

The same

sentiment

was echoed bv Justice Black when he said that

the free­

dom of soeech rests on the assunmtion that· the widest possible

dissemination of information from diverse and antagonistic sources

is essential to the welfare of the oublic (Associated Press v.

United·

States).(') But this fundamental presuoposition is seriously weak­

ened by concentration of nower. Instead of several views of the

facts and several conflicting opinions. newspaper readers

in many cities, or. still worse. in wide re.gions. may get only a single set of

facts and a single bodv of ooinion. all emanating from one or two

owners. (

8

)

Our Constitutional law has been singularly indifferent

m 52 Fodecal Supplemont )62. 372. (So Dist. N.Y. (194)).

(2) J26 U.S. Roport<. 1. 20 (19451.

(~) See Zechariah Chafce, Jr., Governn1cnt and Mass Communications,

Vol. T, rp. 24-25.

812 SUPREME COURT REPORTS [1973] 2 S.C.R.

to the reality and implications of non-govenunental obstructions ·to A

the spread of political truth: This indifference becomes critical

when a comparatively few private hands are 1.n a position to deter­

mine 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 ~ 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 com;ietition becomes limiled and the ~hance

of all the ideas coming to the market is removed. There ~an 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 advertise.

ment.

The Mahalanobic Committee on Distribution of Income and

Levels of Living, in its report has; after st{lting that economic power

is exercised also through controI over mass media of communica­

tion, said : (2)

"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

th11t

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

dTrectors. . 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 concen­

tration of economic power in India, one must tak~ into

account this link between industry and newspapers whic~

exists in our country to a much iarg~r extent. th.an 1~

found in any of the other democratic countnes in the

world."

(!) Harvard Law Review, Vol. 80 •. 1~41, .1643. . .·

f2) Report of the Committee on D1stnbut1on of Income and levels of L1Hng,

Part I, pp. 51-52.

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BENNETT COLEMAN & co. v. UNION (Mathew, I.) 813

lf ever there was a self-operating market of ideas, as Justice

Holmes assumed, it has long since ceased

to exist with the concen­

tration of mass ·media in few bands. Protection. against govern­

ment is not enough to guarantee that a

man who has something to

say will have a chance to say it.

Th~ owners and the managers of

the press determine which persons, whi_ch facts, which version of

facts, which ideas shall reach the public. Through concentration

of ownership, the variety

of sources of news and opinion has be­

come 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 I, p.

310) 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 ncit condu­

cive 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 unreafistic. 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 ff it' can be ·exercised only on

the sufferance of the managers of the leading newspapers. Tue

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 everything 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

G

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 govern-

ff

mental restraint. It is only the new media of communication that

can lay sentiments before the oublic and it is they rather than the

government who can most effectively abridge exoression by nulli-

fying the opportunity for

an idea to win acceptance. As

a con­

stitutional theory for communication

of ideas,

laissez faire is mani­

festly irrelevant (see Barren, Access to Press).(

2

) What is, there-

fore, required is

an interpretation of Art. 19

(I )(a) which focuses

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

814 SUPREME COURT REPORTS [1973] 2 s.c.R.

on the .idea th~H:estraining the hand o~ the government is quite

useless m assurmg free speech, if a restraint on access is effectively

secured

by private. gmups. A constitutional prohibition against

governmental restnchon on the expression

is effective only if tho

Constitution ensures an adequate opportunity for discussion,

Any scheme of distribution of newsprint which would make

tne

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

distri­

bution 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

th~t the scheme invoives a regulation of the press

which would amount to an abridgment of the

fre.edom 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

characteri2ed as a

scheme to advance the freedom. One can.not promote °Competition

by making the strong among the competitors stronger or the tall

taller but

by making the weak among

tbe·m strong and the short

tall. So, even if the· scheme of distribution aims at making dailies

with smaller page-level and Jess 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 µot,

in any way, be open to objection on the ground of violation of

Art.

19( I) (a). I am unable to

,mderstand how the fixation of a

maximum page level of I 0 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 shouJd

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 ne1-·sprint.

Art. 19(1) (a) .is no• " "guardian of unlimited talkativeness". T~e

average page level of all the dailies was 5.8~ The Union of ~ndta

contends that the petit;oriers themselves recommended I' n~!Ion~l

minimum page level• of 8 for dailies and that, but for the mordt­

nate space devoted to ~ommercial advertisement, 10 pages for a

(!) 394 U.S. 131.

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BENNETT COLEMAN & co. v. UN'lON (Mathew, /.) 815

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 froni commercial advertise­

ment.

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 conie. within the

ambit of the freedom of speech guaranteed by Art.

19(l)(a). I

have already indicated that any curtailment of speech

6cca8ioned

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 News­

print Policy violates Art. 14 orthe Constitution. To decide this

question regard lllUSLbeJt!!(I to· t_i)e Criteria to be adopted in dis­

tributing the material resources ·of a community. Arguments about

equality in this· sphere ·are really_ arguments about the criteria of

relevance.

The dilllclilties involved in

developing such criteria

have occupied philOsophers for centuries. Despite the refinements

that distinguish

the. theories

of various philosophers, most siicb.

theories represent variations on two bjasic notions of equality :

numerical equaEty and proportional equality. The contra~t be·

tween the two notions is illumated .bY the difference between the

right to an equal distribution of things and the equaf right with

respect to a distribution of such things. A;cording to !he former,

each individual is to receive numerically idenncal amounts of the

benefit being distributed

or the burden imposed in the

public sector,

w)lereas the latter means only that all will receive the same con­

sideration in the distributional decision, ·oat that the numerical

amounts distributed may differ. Proportional equality means

equality in the distribution according to merit

or distribution

ac­

cording to need (see DevelopmentJ"-Equal Protection). (

2

) But

the Supreme Court of U.S.A. has departed from this traditional

aproach in the matter of equality and has adopted a more dynamic

concept as illustrated ·:iv tne decision in Griffin v. l/linois(

8

)

and

Douglas v. California.(') In these cases it was held that ithe State

has an affirmative duty to make compensatory legislation in order

to make men equal who are realiy unequal has undergone radical

other words, the traditional doctrine that the Court is orily con­

cerned with formal equality bel'ore the law and is not concerned

to make men equal who are really unequal has tiiidergoile rildical

(1) 11960] 2 S.C.R. 671, 688-90 (2)Hatvard Law Review, Vol. 82, p. 116S.

(3) 351 U.S. !2; (4) 372 U.S. 353.

17-IA99Sup. CI/73

816 SUPREME COURT REPORTS [1973] 2 S.C.R.

change in the recent ye!lrS as illustrated by these cases. Justice A

I:J;arlan. disse~te.d b~th in Griffin's case and Douglas' case and his

d1ssentmg opm1on m 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

c~iminal appeals, the Eq~al Protection Clause imposes

on tht;. States an affirmative duty to lift the handicaps

flowing from differences in economic circumstances.

That holding produces the anomalous result that a con­

stitutional· 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."

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The crucial question today, as regards Art. 14, is whether the

command implicit

in it constitutes merely a

"bal! 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 E

of -their basic. rights. It has been said that justice is the effort of

man to mitigate the inequality of men. The w_hole drive of the

directive principles of the Constitution

is toward this goal and it

D

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)]. I do not

think I can say that the principle

adopted for the distrib11tiori of newsprint is not for the common

good.

That apart, one of the objec~ of the Newsprint Policy was

F·.

to !'emedy the inequality created by the previous policies. and to

enable the dailies having less than 10 pages attain a position of G

equalitywith those operating on ·a page level of 10 or more. I think

the allowance of 20 per cent increase for growth in page-level pro­

vided in Remark VII is based on a classification and that the classi­

fication is grounded on an intelligible differentia. having a nexus

to the object sought to be achieved.

By far the· most fundamental attack made by counsel for the H

petitioners was that levelled against the provision

in Remark VIII

which provides that within the quantity of newsprint authorised

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BENNETT COLEMAN & co. v. UNION (Mathew, J.) 817

for the licensing period, each newspaper

I 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 circula1;ion, to meet its

individual requirements. H was contended that this is. direct inroad

upon the freedom of speech and that by .no stretch of imagination

can h be characterized as newsprint control. The argument was

that when once the quota has been determined and allotted, further

directions as regards circulation or page number is nothing but

brazen-faced trespass into the domain of the guaranteed freedom.

It was

s~id that once the quota has been fixed and allotted, the

control over newsprint

as a commodity was over and any

stipula­

tion 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

calcu­

lated 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 cir­

culation 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

aC'tion upon

freedom of speech. Legislation which abridges that freedon: iY

forbidden, but not legislation to enlarge and enrich it."(') These

remarks apply with equal force

to Art. 19 (1 )(

") 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

pro­

vision in question does not say that the proprietor or publisher of

a newspaper should reduce its circulation. If the provision had

said that the iJroprietor or publisher must reduee 1;he 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

1,1ewspaper : "maintain

the circulation at the present levo.l or increase if it you like by

reducing tho page level". Would this amount to an abridgment of

the freedom of speech? I think not. The freedom of speech is only

enriched and enlarged.

lt

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

tha~ if the pr-0visio1l.in

question had not insisted upon maintaining the circulation at the

present level, the publisher could have reduced the circuiation of

the newspaper and increased the number of hs pages and, increas-

(1) S...., Political Freedom, p: 19.

818 SUPREME COURT REPORTS [1973] 2 S.C.R.

ing the number of pages at the expense of circulation is a matter

of freedom included within the concept of the freedom of ~peech.

I cannot agree. Suppose, the provision in the Newsprint Policy

had simply said that t,he proprietor of a nmvspaper is no~ allowed

· to reduce its present circulation and stopped there ? What wou Id

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 cir­

culation or increase it would be to tell the proprietor

or publisher

not 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

abiidgment of the freedom of speech as i~ is an implied conse­

quence 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 free­

dom

of speech includes within its compass the right of all citizens

to

r~ad and be informed. In Time v. Hill(') 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(") 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 attain­

ment of

trufh 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,

bu~ the minds of hearers ..... The welfare

of th~. community requires that those who decide issues shall

understand them"(

8

). "The general principles underlying first

amendment safeguards may, for present purpases, be reduced to

three judicially recognized specifics. First, Professor Alexander

(l) 385

U.S. 374. (2) 381 U.S. 479. 482.

(3) Meiklejohn, Political Freedom p. 26. ·

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BENNETT COLEMAN & co. v. UNION (Mathew, J.) 819

Meiklejohn"s assertion tilat 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('), Lanwnt v. Postmaster General(")"

Roth v. United States(

8

), Stromberg v. California(')"(see Paul

Goddstein, Copyright and the First Amend111ent('). That the

right of the public

to hear is within the concept of

the freooom of

speech is also clear from the pioneering opinion of Justice

Burge~, as he then was, .in Of/ice of Commllnication of United

Church of Christ v. F.C.C.(

8

). The learned judge emphasised

principally the primary status of "the right of the public to be

infonned, rather than any right of the Government, any broacl­

casting licencee or aliy individual member of the public to broad­

cast his own particlllar views on any niatter."

If the right of the public to hear and be informe<l is also with­

in the concept of the freedom of speech, the government, when it

insists upon,

the newspapers concerned maintaining their

prt;sent

level of circulation dCJ.5!5 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 th~ distribution of newsprint for maintenance of circula­

tion at its higher possible level, as it furthers the rigl)t of the com­

nmnity to hear, will only advance and enrich that freedom .

At ::iresent, our circulation is only 1.3 copies for ::very 100

people and 4.6 copie.' for every JOO literates in the country. Cir­

culation mlist 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

:n short supply must be used

so as to help to achieve the widest possible dissemination of

new.; and nt· 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 stcos to educate the people within limits of its available

economic resources. That includes µolitical education nlso.

Public discussion of public issues together with the spreading

of it!forrnation and any opi!lion on these issues is supposed to be

the main function of newspaper. The highest

and lowest in the .'Cale of intelligence resort to its colunms for information. News­

paper

is the most potent means for educating

·the people as it is

read by those who read nothing else and, in politics, the common

man gets his education mostly from newspaper.

(I) 383 U.S. 74, 94-95. (2) 381 U.S. 301.

(3) 354 U.S. 476, 484. (4) 283 U.S. 359, '69.

(5) Columbia Law Review, Vol. · o, 983, 989.

(6) Federal Reporter, 359, 2nd series, 994.

820 SUPREME COURT REPORTS [1973] 2 S.C.R.

The affirmative o_!>Jigation 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, ,Put also because the community has a right to be supplied with

inforination 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, if

it is in the general interest of the

publil:

not to expend any foreign exchange on that score. If the affirma­

tive obligation to exP.<cnd foreign exchange and permit the import

of newsprint stems from the need of the community for inforn1a­

tion and the fundamental duty 9f Government to educate the

people

as also to

sati~fy 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 ;

ncreas­

ing circulation of the newspapers. It is said that a proprietor of a

newspaper has the freeQom to cater to the needs of intellectual

highbrows

who may ch.oose to browse in rich pastures

:ind for

that he would require more pages for a newspaper :md 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 un·

diminished 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

guarante­

ed by Art. 19(l)(a) but for commercial advertisement for revenue

which will not fall within the ambit ol 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

n·Jt· the sole aim of the good society. As the private right of the

individual,

freedom of

~xpression 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 socie~y. But it is not through this process

alone that a democratic society will at1ain its ultimate ends" (1).

(I) See Thoma~ r. Emerson. Toward a General Theory o .. lhc First Amendn1enl, -

\'<ile L1w Jo:.irn1l

1 Vof. 72, 196~·63, 877, 907.

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BENNETT COLEMAN & co. v. UNION (Mathew, J.) 821

Therefore, any theory of freedom of expression must take into

account other values such

as justice, equality, moral progress, the rigM of the 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 Jaws restricting or abridging the

free­

dom 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

cal­

culated 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

propri~tor 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 un­

fettered exercise will not be regarded as an abridgment of the

freedom of spe~h, 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 :

" .......• On the other hand, gen,eral regulatory

statutes, not mtended

to control the content of speech

but incidentally limiting its unfettered exercise, have not

been regarded as the type of

Jaw the First Fourteenth

Amendment forbade Congress or the

State to pass, when

they have been found justified by subordinating valid

governmentd interests, a pre-requisite to constitutiona­

lity 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: Am,.rican Communica­

tions Assn. v. Douds, 339 U.S. 382.; Breard v. Alexand­

ria 341 U.S. 622."

It was contended on behalf of the petitioners that prohibition

of interchangeability of quota between different newspapers

(I) C',riminal Appeal No. IS2 of 1970 decided on 15-9·1972.

(2) 366 U.S. 36, 50. .

822 SUPREME COURT REPOR"fS [1973] 2 S.C.R.

owned by a common ownership unit. or differenc editions of the

same newspaper owned by that unit is an abridgment of their

fundamental right under Art. I 9(1)(a). A common ownership

unit

is

det·n~d to mean a newspaper establishment or concern

owning

two or

more newspapers including at least one daily irres­

pr,ctive of th~ ceP.tres of publication and language of such papers.

The re;:·· 'fl'"'; is allotte<' to a newspaper. In other words, the

unit .,, ,1iloli\1Lnt is a newspaper. Clause 2(a) of the Newsprint

Control Order defines "consumer of newsprint":

'\onsumer of newsprint means a printer or pub­

lisher of newspapers, periodicals, text books or books

of gcnc~al interest who uses newsprint."

The printer or publisher of each newspaper owned by a conunon

owm:rship unit

is a separate consumer and it is to that consumer

that

th.: qucta is allotted. The application for quota made by the

common ownership umt specifics the entitlement of each news­

paper 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

news­

paper, 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, 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

n newspaper and to say that it is open to a common ownership

unit to use the quota for a different newspaper owned hy it or

a different edition of the same newspaper would be tantamount

to saying that since the common ownership unit gets· the owner­

ship of the quota, it can use the quota for a newspaper owned

even

by a different proprietor. I do not think that the

prohitiition

against interchangeability of quota among different newspapers

owned

by a common ownership unit is violative of Art. 19 ( 1 )(a).

Jn 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 anv 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 newsoaoer can start a

newspaper and obtain a

auota for the same, and that this offends

the fundamental right under Art. l 9(1)(a) of the common owner­

ship units. That there is a valid classification between a person

ownin~ no newspaper and a common ownership unit owning two

pr more newspapers cannot be denied. Any person desirin.<.: to

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BENNETT COLEMAN & co. \'. UNION (Mathew, J.) sz:i

cxpress,himself by the medium of a newspaper cannot be denied

an opportunity for :he same. The right guaranteed under Art. 19

(l)(a) has an essentially individual aspect. A common ownership

unit has already been given the opportunity to e.<press itself by the

media of

two

o: more newspapers. If a c9mrnon ownership unit

were

.to go on acquiring or

sponsorin.s; new newspapers and if

the claim for quota fer •~ll the newspapers is admitted, that would

result in concentration of newspaper ownership and will accele­

rate the tendency toward monopoly in the ncwspaoer industry.

\Vhen the prohibition ,agaimt interchangeahility of newsprinc

quota between or among the ntwspap~rs owned by a common

nwnership unit is found vaiid. the ;~,triction imposed on com­

mon ownership tmit to bring .. Jill a new newspaper from its

ai.thorised quota mu;t be held to be valid :ind not offending Art.

19(1.)(a). If the quota allotted for a newspaper owned by the

rnmmo•1 ownership unit cannot be used for any other newspaper,

it stands to reason to hold that the prohibition against bringing out

a new newspaper cann'ot be challenged as violative of Art. 19 (I)

la). No doubt, if the system of rationing were not there, it wculd

he open to any person to own or conduct any number of news­

papers but, since the quantity of newsprint available for distribu­

tion i~ 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. Mis. Ami11-

chand Mutha, etc. (

1

)

this Court said :

" ...... .In order however to guide the licensing

authorities in the matter of granting import licences, the

Central Government issued certain administrative ins­

tructfons 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("): Shah, J. speaking for the Court in Unio11

of India a11d Others v. M/s. lndo Afghan Agencies Ltd.(

3

)

said:

(I) [1966] l S.C.R. 262. 266-68.

12) [1963] .1 S.C.R .. 138, 371-2. (3) (1968) 2 S.C.R. 366, 377.

824 SUPREME COURT REPORTS [1973] 2 s.c.R.

" ....... Granting that it is executive in character, :·

this Court has held that Courts have the power in appro-·

priate cases to compel perfonnance of the obligations

imposed by the schemes upon the departmental autho­

rities .... "

Even if the Newsprint Policy is administrative in character, it is

capable of founding rights and liabilities. Generally. speaking, it

is

true that an

adminislT.!l~ive order can confer no justiciable rights

or impose duties enforceable in a Court. But it can confer right~

and impose duties. T~e limit within which such rights and duties

will be recognised and enforced has been stated by an eminent

lluthor : (').

"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

KinJ!"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

10 consider and apply

this regulation and, whatever its effect may be, that

effect

will be given to it by the court

exacHy as effect

will be given to a statute providing that murderers shall

be hanged, or that last wills must have two witnesses."

. It wa·s 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 11/tra vires the

powers of the licensing authority issuing the same. It is said that

:1fter newsprint has been imported, there was no longer any p:>wer

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:

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"5.

Conditions of Licenses : (I) The licensing autho­

rity issuing a licence under this Order may issue the

same subject

to one or more of the conditions stated

below:-- G

(i)

that the goods covered by the licence shall not

be disposed of, except in the manner prescribed

by the

licensinl( authority, or otherwise dealt

with, without the written permission of the

licensing authority or any person duly all'thorised

b'y it;"

-rn·-JohTI.Chlffipman Gray, 1-hc Nature and Source<; or the La,v, Second Edilinn

(1948), 111-1~.

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BENNETT COLEMAN & co. v. UNION (Mathew, !.) . 825

In Abdul Aziz Aminuddin v. State of Maharashtra('), this Court

said that

the

powe1 conferred under s. 3(1) of the Act (Imports

and Exports (Control) Act, 194

7) is not restricted merely

to pro­

hibiting or restricting imports at _the point of entry but extends also

to controlling the subsequent disposal of the goods-1mported and

that

the person licensed to

impol't goods would be amenable to

the orders of the licensing authorjty 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. Moti/al Kanorz'a(

2

). See

also the observation of Sarkar, J. in East India Commercial Co.

Ltd., Calcutta and Another v. The Collector of Customs

Calcutta('), at p. 348. Even if it be assumed that Government

or the Chief Controller of Imports and Exports has no power

under

cl. 5(l)(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 theEssential

Commodities Act; 1955, to pass

an Order

as regards the utillzation of newsprint, as newsprint is an

'essential commodity' under that Act (see

s. 2(vii) of the Act).

The

on;y otter point which remains for consideration is

whether clauses 3 (3) and· 3(A) of the Newsprint Control Order

violate Art. i 4 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 Aci, 1955. Sections 3 and 4 of this

Act are in

pari

inateria ·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 Bag/a and Another v. The

State of Madhya Pradesh('). But this Court said that the pre­

amble ~lll<l the body of. the sections sufficiently formulate the legis­

lative policy, that

the ambit and character of the Act is such

tha~

the details of that policy can on~y be worked out by delegating

them to a subordinal!e authority within the frame work of that

policy and that s. 3 was valid. And as regard~ 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 Gm·ern­

men~ and it is not correct to say that the instrumentalities have not

been selecte<l 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

Govern­

ment 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

(I) [1964]

I S.C,R. 830, 837-8. (2) [1966] 3 S.C.R. 933.

(3) [1963] 3 S.C.R. 338. 371·72. (4) [1955] I S.C.R. 380, 388-9.

,

826. SUPREME COURT REPORTS [1973] 2 S.C.R.

any such duties. It was, therefore, open to the Government to con­

fer such powers upon ~he "controller" as defined in the Newsprint

Control Ord_er, 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, ic was considered necessary by the

Government to restrict its use by consumers of newsprint who were

getting qoota of imported newsprint. In fact, for ,newspapers and

periodicals, newsp1int 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, ~hereby causing gteat 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 siiuation that restriction on its use by a con­

sumer 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 preambk

and the provisions of the Essential Commodities Ace furnish suffi­

cien_t guidance for the exercise of the powers conferred. It is impos­

sible, in the nature of things, to specify with greater particularity

the guidelines for the exercise of the powers conferred under ~hese

clauses. If the confennent of the power upon the Government

under

s. 3 is valid and is not open to attack under Art. 14, I

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 con­

sumers of the newsprint in question are not citizens and I do not

express any opiniori.

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 men­

tion

the provision of law under which it was issued, we have to

scrutinise its contents to discover the authority for its promulga­

tion. 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

A

B

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D

E

H

A

B

c

D

E

F

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BENNETT COLEMAN &

CO. V. UNION (Beg, J.) 827

;ix columns of the Schedule gives the serial number of the item

involved which is 44/V of the ITC 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 11-4-

J 972

shows that identically worded terms were to be applicable to

the period from April, 1972 to March, 1973, and these are also

a'5ai!ed 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

licence~ 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 ihe 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, how­

ever, these terms and conditions do not fall under any provision of

Jaw 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 guid­

ance 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

tc have acquired the force of "law". Mr. Nambiar, appear­

ing for the Hindu Newspaper, has, therefore, assailed the impugned

items of the news print control policy on the ground, in(er-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 inrtended 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 SUPREME COURT REPORTS (1973) 2 S.C.R.

those who run the ne~spapers and want to either express their

opinions freely or

to carry on their businesses without let or

hindrance. Jt

seems to me that this Court should not hesitate to

remove such restrictions

if

they purport to liave 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 cert:-iinly have had and will have unless they arc removed

by

us. According to the petitioners, their observance has entailed

such heavy

losses to them

th:it they may have to stop doing their

busiuess if the restrictions continue.

Jt 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". J may quote what Lord Bryce

said iu 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

unmistabble in their utterances*"'"

The pre>s, and particularly the newspaper press, stand;

by common consent first among the organs of opinion"*''

The conscience and commonsense 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 dis­

agreeable results, ·but the wholesome ones are greater

and more numerous. Selfishness, injustice, cruelty, tricks

and jobs of

all

so!'ls, shun the light; to expose them is to

defeat them.

No

seriou:i evils, no rankling sort in the

body politic, can remain long concealed, and, when dis­

closed, 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 finnly established by

what may be called the 'dialectical' process of a struggle with

wrong ones which exposes errors. Milton. in his "Areopagitica"

(1644) said:

"Though all the winds of doctrine were let loose

to play upon the earth, so Tn!th be in the field, we do

injuriously by licensing and prohibiting to misdoubt her

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BENNETT COLEMAN & CO. l'. UNION (Beg, J.) 829'

A strength. Let her and Falsehood grapple; whoever knew

Tntth put to the worse, in a free and open encounter '?

...... Who knows not that Truth is strong, next to the

Almighty; she needs no policies, no stratage~1s, no

licensings to make her victorious; those are the shifts ~.nd

defences that error makes against her power ..... .

B

c

D

E

F

G

H

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, poli:ical democracy is based on the assumption that suclt

freedom must be jealously guarded. Voltaire expressed a demo-

crat's faith when

he told an adversary

in argument : "I do not

agrte 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 expre>­

sion and opinion contained in Article. 19(1 )(a) of the Consti­

tution, yet. it

is well recognised that the

Press provides the princi­

pal 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 essen'lial to the workinj!:

of its ins·titutions. Never has criticism been more necessary than

today. when the weapons of propaganda arc

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 fonda­

mental law of th.e land. To that law all Governmental policies.

rules and. regulahons, orders and directions. must confom1

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'"

shoul~. restric~ freedom of expression and opinion reasonably

only 111 _the mt~rests of th~ sovereignty and integrity of India.

the ~ecunty of the State. friendly relations with foreign states.

nubhc order, decency

or morality, or in relation to contempt of

court, defamation

or incitement to an offence.'' Althouoh, the

:lmbit of restrictions which ca11 be imposed by "law" on f~eedom

to carry on any occupation, trade. or business. guaranteed by

Article

19 ( 1 )( g) of

the Constitution. is wid~r than that of res-

830 SUPREME COURT REPORTS (1973] 2 S.C.R.

trictions on freedom of speech and expression, yet, these restric­

t10ns 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, m 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 rcgu!at~d is ge11era!ly speaking the extent to which per­

nuss1ble restnctJons may go in order to satisfy the test of reason­

ableness. The term ''regulate" has come up for interpretation

on several occasions before American Courts which have held

that t~e 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 . .S87 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 impugn­

ed 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 actio_qs binding upon the petitioners or of "law". He

sought

to justify them, in so far as they affect freedom of

sJY.!ech

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 w;dely

spread freedom of expression by

striking at monopoJisation of

opinion by large newspaper concerns. I am unable to see .how

these restrictions, after quotas have been allotted on the basis of

past perfonuance and respective needs ofeach ne.wspaper co_ncern,

could fall within the objects of dny import policy found m any

statutory provision or order. And,

so far as any

atten;pt to control

any monopolistic tendencies in the newspaper world is concerfl:ed,

no material was placed before us to enable us to sc;e how the llll­

pugned conditions of import licences, sou~t to be imposed by the

entries in the remarks columns of the notified .Import Trad~ C.on­

trol Policy, are related to any Jaw d!rected agams~ monopohsall?n.

The impugned items in the declaration ?f neY"spnnt policy, whic~

are meant to bind those who had obtamed import h~ences, wer"'

not imposed under any law made to check monopolies. ~t .was

also not possible-for me to see the relevance of these restnctions

A

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A

c

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E

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BENNETT COLEMAN &

CO. V. UNION (Beg, J.) 831

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

me.iltionect above, which were

relied upvn on behalf of the Union, are fairly clear and well de­

fined.

No doubt clause 3 of the Newsprint Control Order, 1962,.

issued

in exercise of powers conferred by Section 3 of the

Essen­

tial Commodities Act 1955 lays down certain restrictions "on ac­

quisition, sale and consumption of newsprint". The clause runs

~s follows :-

"( 1) No person other than an importer shall ac­

quire newsprint except under and in accordance with

the terms

an<l 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

ex,ess of the quan­

tity authorised by the Controller from time to time.

(3A) No consumer of newsprint, other than a pub­

lisher of text books or books of general interest, sliall

use any kind of paper other than newsprint except with

the permission, in writing, of the Controller.

(

4) An authorisation under this clause sha!l 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

news­

print 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 esseniial commodity or for

securing their

equitable. dist;ibution

~nd availabi!ity at

fair prices,

er for secunng any

~senual commod1~ for

the defence of India or the efficient conduct of military

S32 SUPREME COURT REPORTS (1973) 2 s.c.R.

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 subs. (1),

an order made thereunder

may provide'',

inter alia :

~a) "for regulating by licences, p<>rmits

or otherwise the production or manufacture of any essential com­

modity;" and (b) "for regulating by licences, pennits 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 indi­

cating 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, I wnture 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

un­

posed upon competing claimants for quotas of a limited amount

of n,e~s print to their needs and to the requiremer;ts of a Jaw

which is meant to ensure an "equitable distribution", is provid~

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

as­

pect, refrain from deciding the question of t1ie validity of Its pro­

visions in the cases before us.

Section 3(1) of the Imports & Exports (Controi) Act, 1947,

restricts the power of the Central Government, "by order publish­

ed 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 coastwise or

ship­

ment in ships stores of goods of any specified descrip­

tion;

( b) the bringing into any port or place in India of

goods of any specified description intended

to be

~aken

out of India without being removed from the ship or

conveyance in which they are being carried''.

B

c

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BENNETT COLEMAN & CO. V. UNION (Beg, J.) 833

A Clause 3.of the Imports (Control) Order, 1955, made in exercise

of powers conferred by Sections 3 and 4A of the Imports & Ex·

porl'i (Control) Act, 1947, says : -

B

·C

0

E

F

G

II

"3. Restriction of Import of certain goods:-

(I) Save as otherwise provided in tl~s. order, 1:10

person shall import any goods of the_ descnpllon spec!fi·

ed in Schedule I, except under, and m accordance, with

a licence or a customs clearance permit granted by the

Central Government or

by any

officer specified in

Schedule II".

It seems to me that the ambit of the conditions in a licence can­

not under the provisions of the Imports and Exports Control Ac1,

af~r newsprint has been imported under a licence, extend to l~y­

ing down how it is to be utilised by a newspaper concern for its

own genuine needs and businesses because this. w~uld amount to

control of supply of news by means of newspnnt rnstead of only

' • • I

regulatmg 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

restric­

tive conditions thus appear to me to go beyond the scope of the

Essential Commodities Ad, 1955, as well as of the fmports 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 RuJes), 1956,

'and Press Council Act, 1965, as parts of a possibly desparate attempt

to justify the impugned items of newsprint control policy and to

show that they are covered by some provision of law. I am unabk

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 on behalf of

the petitioners that.

after the allocation of

quotas of newspdnt

to each set of petitioners, on legally relevant

material,

the

farther restrictions sought to be imposed, by meJn'

of the notified newsprint control policy. on the actual mode of

user of newsprint for publication of inforination or

views by

the

licensees, s!milar to those which were held by this Court, in Sakal

834 SUPREME COURT REPORTS (1973] 2 S.C.R.

P11pers (P.) Ltd. & Ors. Vs. The Union of India('), 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-reason­

able restrictions warranted by either Article 19(2) or Article 19-

(

6) of the Constitution. They must first have the authority

of

ome law to support them before the question of. considering

whether they could

be reasonable restrictions on fundamental

rights

of the petitioners could

ai:ise.

I, therefore, concur with the conclusions reached and the orders

proposed by

my learned brother Ray.

G.C.

(I) [t962J 1 s.c.R. 842.

· 499 Sup. Cl/73-2,SOO-IS-4-74--0JPF.

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