Hamdard Dawakhana v. Union of India, where the question of the constitutionality of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, arose for consideration. The Supreme Court in paragraph 17 of the judgment observed that an advertisement is no doubt a form of speech but its true character is reflected by the object of the promotion of which it is employed. It assumes the attributes and elements of the activity under article 19(1)(a) which it seeks to aid by bringing it to the notice of the public. When it takes the form of a commercial advertisement which has an element of trade or commerce, it no longer falls within the concept of freedom of speech for the object is not propagation of ideas - social, political or economic or furtherance of literature or human though, but the commendation of the efficacy value and importance of certain goods. "It cannot be said therefore that every advertisement is a matter dealing with freedom of speech nor can it be said that it is an expression of ideas. In every case, one has to see what is the nature of the advertisement and what activity falling under article 19(1) it seeks to further."
Supreme Court of India
Tata Press Limited vs Mahanagar Telephone-Nigam ... on 3 August, 1995
After the decision in Virginia Board case, it is almost settled law in the United States that "commercial speech" is entitled to the First Amendment protection. The Supreme Court has, however, made it clear that Government was completely free to recall "commercial speech" which is false, misleading, unfair, deceptive and which proposes illegal transactions. A political or social speech and other public- affairs - oriented discussions are entitled to full First Amendment protection whereas a "commercial speech" may be restricted more easily whenever the government can show substantial justification for doing so.
More recent judgments of the Supreme Court of Unites States in Central Hudson Gas & Electric Corp. v. Public Service Commission 447 US 557, Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico 92 L Ed. 2nd 266 and Board of Trustees of the State University of New York vs. Todd Fox 106 L Ed. 388 clearly indicate that in "commercial speech" cases a four-part analysis has developed. At the outset, it must be determined whather the advertising is protected by the First Amendment. For commercial speech to come within that provision it must concern lawful activity and not be misleading. Next it is seen whether the asserted governmental interest is substantial. If both inquiries yield positive answers then it must be determined whether the regulation directly advances the governmental interest asserted and whether it is more extensive than is necessary to serve that interest.
Unlike the First Amendment under the United States Constitution, our Constitution itself lays down in Article 19(2) the restrictions which can be imposed on the fundamental right guaranteed under Article 19(1) (a) of the Constitution. The "Commercial speech" which is deceptive, unfair, misleading and untruthful would be hit by Article 19(2) of the Constitution and can be regulated/prohibited by the State.
The Court in Hamdard Dawakhana's case was dealing with advertising of prohibited drugs and commodities. The Court came to the conclusion that the sale of prohibited drugs was not in the interest of the general public and as such "could not be a speech" within the meaning of freedom of speech and expression under Article 19(1) (a) of the Constitution. The Court further held in the said case that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. Hamdard Dawakhana's case was considered by this Court in Indian Express Newspapers (Bombay) Private Ltd. & Ors. etc. etc. vs. Union of India & Ors. etc.etc. 1985(2) SCR 287. The observations in Hamdard Dawakhana's case to the effect that advertising by itself would not come within Article 19(1) (a) of the Constitution, were explained by this Court in Indian Express Newspapers's case in the following words:
"We have carefully considered the decision in Hamdard Dawakhana's case (supra). The main plank of that decision was that the type of advertisement dealt with there did not carry with it the protection of Article 19(1) (a). On examining the history of the legislation, the surrounding circumstances and the scheme of the Act which had been challenged there namely the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 (21 of 1954) the Court held that the object of that Act was the prevention of self-medication and self-treatment by prohibiting instruments which may be used to advocate the same or which tended to spread the evil.... In the above said case the Court was principally dealing with the right to advertise prohibited drugs, to prevent self-medication and self-treatment. That was the main issue in the case. It is no doubt true that some of the observations referred to above go beyond the needs of the case and tend to affect the right to publish all commercial advertisements. Such broad observations appear to have been made in the light of the decision of the American Court in LEWIS J. Valentine vs. F.J. Chrestensen (supra). But it is worthy of notice that the view expressed in this American case has not been fully approved by the American Supreme Court itself in its subsequent decisions. We shall refer only to two of them. In his concurring judgment in William B. Cammarano v. United States of America Justice Douglas said "Valentine vs. Chrestensen..... held that business of advertisements and commercial matters did not enjoy the protection of the First Amendment, made applicable to the States by the Fourteenth. The ruling was casual, almost off hand. And it has not survived reflection". In Jeffrey Gole Bigelow v. Commonwealth of Virginia the American Supreme Court held that the holding in Lewis J. Valentine v. F.J. Chrestensen (supra) was distinctly a limited one. In view of the foregoing, we feel that the observations made in the Hamdard Dawakhana's case (supra) too broadly stated and the Government cannot draw much support from it. We are of the view that all commercial advertisements cannot be denied the protection of Article 19(1) (a) of the Constitution merely because they are issued by businessmen."
The combined reading of Hamdard Dawakhana's case and the Indian Express Newspapers's case leads us to the conclusion that "commercial speech" cannot be denied the protection of Article 19(1) (a) of the Constitution merely because the same are issued by businessmen.
Advertising is considered to be the cornerstone of our economic system. Low prices for consumers are dependent upon mass production, mass production is dependent upon volume sales, and volume sales are dependent upon advertising. Apart from the lifeline of the free economy in a democratic country, advertising can be viewed as the life blood of free media, paying most of the costs and thus making the media widely available. The newspaper industry obtains 60/80% of its revenue from advertising. Advertising pays a large portion of the costs of supplying the public with newspaper. For a democratic press the advertising "subsidy" is crucial. Without advertising, the resources available for expenditure on the "news" would decline, which may lead to an erosion of quality and quantity. The cost of the "news" to the public would increase, thereby restricting its "democratic" availability.
EFFECT TEST VS SUBJECT MATTER TEST : Supreme Court of India
Maneka Gandhi vs Union Of India on 25 January, 1978
Conflicting approaches for locating the fundamental right violated Direct and Inevitable effect test. We think it would be proper at this stage to consider the approach to be adopted by the Court in adjudging the constitutionality of a statute on the touchstone of fundamental rights. What is the test or yardstick to be applied for determining whether a statute infringes a particular fundamental right ? The law on this point has undergone radical change since the days of A. K. Gopalan's case. That was the earliest' decision of this Court on the subject, following almost immediately upon the commencement of the Constitution. The argument which arose for consideration in this case was that the preventive detention order results in the detention of the applicant in a cell and hence it contravenes the fundamental rights guaranteed under clauses (a), (b), (c), (d), (e) and (g) of Article 19(1). This argument was negatived by Kania, C. J., who pointed out that : "The true approach is only to consider the directness of the legislation and not what will be the result of the detention, otherwise valid, on the mode of the detenu's life-Any other construction put on the article-will be unreasonable". These observations were quoted with approval by Patanjali Sastri, J; speaking on behalf of the majority in Ram Singh and Ors. v. State of Delhi(1). There, the detention of the petitioner was ordered with a view, to preventing him from making. any speeches prejudicial to the maintenance of public order and the argument was that the order of detention was invalid as it infringed the right of free speech and expression guaranteed under Article 19(1) (a). The Court took the view that the direct object of the order was preventive detention and not-the infringement of the right of freedom of speech and expression, which was merely consequential upon the detention of the detenu and upheld the validity of the order. The decision in A. K. Gopalan's case, followed by Ram Singh's case, gave rise to the theory that the object and form of State action determine the extent of protection which may be claimed by an individual and the validity of such action has to be judged by considering whether it is "directly in respect of the subject covered by any particular article of the Constitution or touches the said article only incidentially or indirectly". The test to be applied for determining the constitutional validity of State action with reference to fundamental rights is : what is the object of the authority in taking the action : what is the subject-matter of the action and to which fundamental right does it relate ? This theory that "the extent of protection of important gua- rantees, such as the liberty of person and right to property, depend upon the form and object of the State action and not upon its direct operation upon the individual's freedom" held away for a considerable time and was applied in Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr.(1) to sustain an order made by the High Court in a suit for defamation prohibiting the publication of the evidence of a witness. This Court, after referring to the observation of Kania, C.J., in A. K. Gopalan's case and noting that they were approved by the Full Court in Ram Singh's case, pointed out that the object of the impugned order was to give protection to the witness in order to obtain true evidence in the case with a view to do justice between the parties and it incidentally it operated to prevent the petitioner from reporting the proceedings of the court in the press, it could not be said to contravene Article 19(1) (a).
But it is interesting to note that despite the observations of Kania, C.J., in A. K. Gopalan's case and the approval of these observations in Ram Singh's case, there were two decisions given by this Court prior to Mirajkar's case, which, seemed to deviate and strike, a different note. The first was the decision in Express News Papers (P) Ltd. & Anr. V. The Union of India & Ors.(2) where N. H. Bhagwati, J., speaking on behalf of the Court, referred to the observations of Kania, C.J., in A. K. Gopalan's case and the decision in Rain Singh's case, but ultimately formulated the test of direct and inevitable effect for the purpose of adjudging whether a statute offends a particular fundamental right. The learned Judge pointed out that all the consequences suggested on behalf of the petitioner's as flowing out of the Working Journalists (Conditions of Service) and Miscellaneous Act, 1955, namely, "the tendency to curtail circulation and thereby narrow the scope of dissemination of information, fetters on the petitioners' freedom to choose the means of exercising the right, likelihood of the independence of the press being undermined by having to seek government aid, the imposition of penalty on the petitioners' right to choose the instruments for exercising the freedom or compelling them to seek alternative media etc.", would be remote and depend upon various factors which may or may not come into play. "Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act", said the learned Judge, "it would not be possible to strike down the legislation as having that effect and operation. A possible eventuality of this type would not necessarily be the consequence which could be in the contemplation of the Legislature while enacting a measure of this type for the benefit of the
workmen concerned." Then again, the learned Judge observed the intention or the proximate effect and operation of the Act was such as to bring it within the mischief of Article 19(1) (a), it would certainly be liable to be struck down. The real difficulty, however, in the way of the petitioners is that neither the intention nor the effect and ,operation of the impugned Act is to take away or abridge the right of freedom of speech and expression enjoyed by the petitioners". Here we find the germ of the doctrine of direct and inevitable effect, which necessarily must be effect intended by the legislature, or in other words, 'what may conveniently and appropriately be described as the doctrine of intended and real effect. So also in Sakal Papers (P) Ltd. & Ors. v. The Union of India(1) while considering the constitutional validity of the Newspaper (Price and Page) Act, 1956 and Daily Newspaper (Price and Page) Order, 1960, this Court applied the test of direct and immediate effect. This Court, relying upon the decision in Dwarkadas Shrinivas v. The Sholapur & Weaving Co. Ltd.(2) pointed out that "it is the substance and the practical result of the act of the State that should be considered rather than its purely legal aspect" and "the correct ap- proach in_such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method has been adopted by the State in placing the restriction." Since "the direct and immediate effect of the order" would be to restrain a newspaper from publishing any number of pages for carrying its news and views, which it has a fundamental right under Article 19 (1) (a) to do, unless it raises the selling price as provided in the Schedule to the Order, it was held by this Court that the order was violative of the right of the newspapers guaranteed by Article 19(1) (a). Here again, the emphasis was on the direct and inevitable effect ,of the impugned action of the State rather than on its object and form or subject-matter.
However, it was only R. C. Cooper's case that the doctrine that the ,object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, was finally rejected. It may be pointed out that this doctrine is in sub-stance and reality nothing else than the test of pith and substance which is applied for determining the constitutionality of legislation where there is conflict of legislative powers conferred on Federal and State Legis- latures with reference to legislative Lists. The question which is asked in such cases is : what is the pith and substance of the legislations; if it "is within the express powers, then it is not invalidated if incidentally it effects matters which are outside the authorised field". Here also, ,on the application of this doctrine, the question that is required to be considered is : what is the pith and substance of the action of the State, ,or in other words, what is its true nature and character; if it is in respect of the subject covered by any particular fundamental right, its validity must be judged only by reference to that fundamental right and it is immaterial that it incidentally affects another fundamental right.
But in R. C. Cooper's case, which was a decision given by the Full Court consisting of eleven judges, this doctrine was thrown overboard and it was pointed out by Shah, J.,, speaking on half of the majority :
"-it is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action , but by its direct operation upon the individual's rights.
" we are of the view that the theory that the object and form of the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme-"
"In our judgment, the assumption in A. K. Gopalan's case; that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the indivi- duals in general will be ignored cannot be accepted as correct."
The decision in R. C. Cooper's case thus overturned the view taken in A. K. Gopalan's case and, as pointed out by Ray, J., speaking on behalf of the majority in, Bennett Coleman's case,it laid down two interrelated propositions, namely, "First, it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right. Secondly,, it is the effect of the law and the action upon the right which attracts the jurisdiction of the Court to grant relief. The direct operation of the Act upon the rights forms the real test."
The decision in Bennett Coleman's case, followed upon R. C. Cooper's case and it is' an important and significant decision, since it elaborated and applied the thesis laid down in R. C. Cooper's case. The State action which was impugned in Bennett Coleman's case was newsprint
policy which inter alia imposed a maximum limit of ten pages for every newspaper but without permitting the newspaper to increase the number of pages by reducing circulation to meet its requirement even within the admissible quota. These restrictions were, said to be violative of the right of free speech and expression guaranteed under Article 19(1) (a) since their direct and inevitable consequence was to, limit the number of pages which could be published by a newspaper to ten. The argument of the Government was that the, object of the newsprint policy was rationing and equitable distribution of imported newsprint which was scarce commodity and not abridgement of freedom of speech and expression. The subject-matter of the import policy was "rationing of imported commodity and equitable distribution of newsprint" and the newsprint policy did not directly and immediately deal with the right mentioned in Article 19(1)
(a) and hence there was no violation of that Article. This argument of the Government was negatived by the majority in the following words :
"Mr. Palkhivala said that the tests of pith and substance of the subject matter and of direct and of incidental effect of the legislation are relevant to questions of legislative competence but they are irrelevant to the question of infringement of fundamental rights. In our view this is a sound and correct approach to interpretation of legislative measures and State action in relation to fundamental rights. The true test is whether the effect of the impugned action is to take away or abridge fundamental rights. If it be assumed that the direct object of the law or action has to be direct abridgement of the right of free speech by the impugned law or action it is to be related to the directness of effect and not to the directness of the, subject matter of the impeached law or action. The action may have a direct effect on a fundamental right although its direct subject matter may be different. A law dealing directly with the Defence of India or defamation may yet have a direct effect on the freedom of speech. Article 19(2) could not have such law if the restriction is unreasonable even if it is related to matters mentioned therein. Therefore, the word "direct" would go to the quality or character of the effect and not to the subject matter. The object of the law or executive action is irrelevant when it establishes the petitioner's contention' about fundamental right. In the present case, the object of the newspaper restrictions has nothing to do with the availability of newsprint or foreign exchange because these restrictions come into operation after the grant of quota. Therefore the restrictions are to control the number of pages or circulation of dailies or newspapers. These restrictions are clearly outside the ambit of Article 19(2) of the Constitution. It, therefore, confirms that the right of freedom of speech and expression is abridged by these restrictions".
The majority took the view that it was not the object of the newsprint policy or its subject matter which was determinative but its direct consequence or effect upon the rights of the newspapers and since "the effect and consequence of the impugned policy upon the newspapers" was direct control and restriction of growth and circulation of newspapers, the newsprint policy infringed freedom of speech and expression and was hence violative of Article 19(1) (a). The pith and substance theory was thus negatived in the clearest terms and the test applied was as to what is the direct and inevitable consequence or effect of the impugned State action on the fundamental right of the petitioner. It is possible that in a given case the pith and substance of the State action may deal with a particular fundamental right but its direct and inevitable effect may be on another fundamental right and in that case, the State action would have to meet the challenge of the latter fundamental right. The pith and substance doctrine looks only at the object and subject-matter of the State action, but in testing the validity of the State action with reference to fundamental rights, what the Court must consider is the direct and inevitable consequence of the State action. Otherwise, the protection of the fundamental rights would be subtly but surely eroded.
It may be recalled that the test formulated in R. C. Cooper's case merely refers to 'direct operation' or 'direct consequence and effect' of the State action on the fundamental right of the petitioner and does not use the word 'inevitable' in this connection. But there can be no doubt, on a reading of the relevant observations of Shah, J., that such was the test really intended to be laid down by the Court in that case. If the test were merely of direct or indirect effect, it would be a openended concept and in the absence of operational criteria for judging 'directness', it would give the Court an unquantifiable discretion to decide whether in a given case a consequence or effect is direct or not. Some other concept-vehicle would be needed to quantify the extent of directness or indirectness in order to apply the test. And that is sup- plied by the criterion of 'inevitable' consequence or effect adumbrated in the Express Newspaper's case. This criterion helps to quantify the extent of directness necessary to constitute infringement of a fundamental right is direct and inevitable, then a fortiori it must be presumed to have been intended by the authority taking the action and hence this doctrine of direct and inevitable effect has been described by some jurists as the doctrine of intended and real effect.
Supreme Court of India
In Re: Noise Pollution û ... vs on 18 July, 2005
In P.A. Jacob v. the Superintendent of Police, AIR (1993) Kerala 1, it was said "The right to speech implies, the right to silence. It implies freedom, not to listen, and not to be forced to listen. The right comprehends freedom to be free from what one desires to be free from. Free speech is not to be treated as a promise to everyone with opinions and beliefs, to gather at any place and at any time and express their views in any manner. The right is subordinate to peace and order. A person can decline to read a publication, or switch off a radio or a television set. But, he cannot prevent the sound from a loudspeaker reaching him. He could be forced to hear what, he wishes not, to hear. That will be an invasion of his right to be let alone, to hear what he wants to hear, or not to hear, what he does not wish to hear. One may put his mind or hearing to his own uses, but not that of another. Noone has a right to trespass on the mind or ear of another and commit auricular or visual aggression. A loudspeaker is mechanical device, and it has no mind or thought process in it. Recognition of the right of speech or expression is recognition accorded to a human faculty. A right belongs to human personality, and not to a mechanical device. One may put his faculties to reasonable uses. But, he cannot put his machines to any use he likes. He cannot use his machines to injure others. Intervention with a machine, is not intervention with, or invasion of a human faculty or right. No mechanical device can be upgraded to a human faculty. A computer or a robot cannot be conceded the right under Art. 19 (though they may be useful to man to express his faculties). No more, a loudspeaker. The use of a loudspeaker may be incidental to the exercise of the right. But, its use is not a matter of right, or part of the right".
Those who make noise often take shelter behind Article 19(1)A pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)A cannot be pressed into service for defeating the fundamental right guaranteed by Article
II. Loudspeakers
1. The noise level at the boundary of the public place, where loudspeaker or public address system or any other noise source is being used shall not exceed 10 dB(A) above the ambient noise standards for the area or 75 dB(A) whichever is lower.
2. No one shall beat a drum or tom-tom or blow a trumpet or beat or sound any instrument or use any sound amplifier at night (between 10. 00 p.m. and 6.a.m.) except in public emergencies.
3. The peripheral noise level of privately owned sound system shall not exceed by more than 5 dB(A) than the ambient air quality standard specified for the area in which it is used, at the boundary of the private place.
III. Vehicular Noise No horn should be allowed to be used at night (between 10 p.m. and 6 a.m.) in residential area except in exceptional circumstances.
Supreme Court of India
People'S Union Of Civil Liberties ... vs Union Of India & Anr on 13 March, 2003
V. Conclusions:
Finally, the summary of my conclusions:
1. Securing information on the basic details concerning the candidates contesting for elections to the Parliament or State Legislature promotes freedom of expression and therefore the right to information forms an integral part of Article 19(1)(a). This right to information is, however, qualitatively different from the right to get information about public affairs or the right to receive information through the Press and electronic media, though, to a certain extent, there may be overlapping.
2. The right to vote at the elections to the House of people or Legislative Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.
3. The directives given by this Court in Union of India Vs. Association for Democratic Reforms [(2002) 5 SCC 294] were intended to operate only till the law was made by the Legislature and in that sense 'pro tempore' in nature. Once legislation is made, the Court has to make an independent assessment in order to evaluate whether the items of information statutorily ordained are reasonably adequate to secure the right of information available to the voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced.
4. The Court has to take a holistic view and adopt a balanced approach in examining the legislation providing for right to information and laying down the parameters of that right.
5. Section 33B inserted by the Representation of People (3rd Amendment) Act, 2002 does not pass the test of constitutionality firstly for the reason that it imposes blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate.
6. The right to information provided for by the Parliament under Section 33A in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, there is no good reason for excluding the pending cases in which cognizance has been taken by Court from the ambit of disclosure.
7. The provision made in Section 75A regarding declaration of assets and liabilities of the elected candidates to the Speaker or the Chairman of the House has failed to effectuate the right to information and the freedom of expression of the voters/citizens. Having accepted the need to insist on disclosure of assets and liabilities of the elected candidate together with those of spouse or dependent children, the Parliament ought to have made a provision for furnishing this information at the time of filing the nomination. Failure to do so has resulted in the violation of guarantee under Article 19(1)(a).
8. The failure to provide for disclosure of educational qualification does not, in practical terms, infringe the freedom of expression.
9. The Election Commission has to issue revised instructions to ensure implementation of Section 33A subject to what is laid down in this judgment regarding the cases in which cognizance has been taken. The Election Commission's orders related to disclosure of assets and liabilities will still hold good and continue to be operative. However, direction No.4 of para 14 insofar as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information should not be enforced.
Supreme Court of India
Union Of India vs Naveen Jindal & Anr on 23 January, 2004
We, however, hope and trust that the Parliament, keeping in view the importance of the question involved in this matter, shall make a suitable enactment for the aforementioned purpose. For the aforesaid reason, we hold that- (i) Right to fly the National Flag freely with respect and dignity is a fundamental right of a citizen within the meaning of Article 19(1) (a) of the Constitution of India being an expression and manifestation of his allegiance and feelings and sentiments of pride for the nation; (ii) The fundamental right to fly National Flag is not an absolute right but a qualified one being subject to reasonable restrictions under clause 2 of Article 19 of the Constitution of India; (iii) The Emblems and Names (Prevention of Improper Use) Act, 1950 and the Prevention of Insults to National Honour Act, 1971 regulate the use of the National Flag ;
(iv) Flag Code although is not a law within the meaning of Article 13(3)(a) of the Constitution of India for the purpose of clause (2) of Article 19 thereof, it would not restrictively regulate the free exercise of the right of flying the national flag. However, the Flag Code to the extent it provides for preserving respect and dignity of the National Flag, the same deserves to be followed. (v) For the purpose of interpretation of the constitutional scheme and for the purpose of maintaining a balance between the fundamental/legal rights of a citizen vis-`-vis, the regulatory measures/restrictions, both Parts IV and IVA of the Constitution of India can be taken recourse to. For the reasons aforementioned, we do not find any merit in this appeal which is accordingly dismissed. But in the facts and circumstances of this case, there shall be no order as to costs.
Supreme Court of India
People'S Union For Civil ... vs Union Of India & Anr on 27 September, 2013
31) Right to vote as well as right not to vote have been statutorily recognized under Section 79(d) of the RP Act and Rules 41(2) & (3) and 49-O of the Rules respectively. Whether a voter decides to cast his vote or decides not to cast his vote, in both cases, secrecy has to be maintained. It cannot be said that if a voter decides to cast his vote, secrecy will be maintained under Section 128 of the RP Act read with Rules 39 and 49M of the Rules and if in case a voter decides not to cast his vote, secrecy will not be maintained. Therefore, a part of Rule 49-O read with Form 17-A, which treats a voter who decides not to cast his vote differently and allows the secrecy to be violated, is arbitrary, unreasonable and violative of Article 19 and is also ultra vires Sections 79(d) and 128 of the RP Act.
32) As regards the question as to whether the right of expression under Article 19 stands infringed when secrecy of the poll is not maintained, it is useful to refer S. Raghbir Singh (supra) wherein this Court deliberated on the interpretation of Section 94 of the RP Act which mandates that no elector can be compelled as a witness to disclose his vote. In that case, this Court found that the “secrecy of ballots constitutes a postulate of constitutional democracy…A remote or distinct possibility that the voter at some point of time may under a compulsion of law be forced to disclose for whom he has voted would act as a positive constraint and check on his freedom to exercise his franchise in the manner he freely chooses to exercise”. Secrecy of ballot, thus, was held to be a privilege granted in public interest to an individual. It is pertinent to note that in the said case, the issue of the disclosure by an elector of his vote arose in the first place because there was an allegation that the postal ballot of an MLA was tampered with to secure the victory of one of the candidates to the Rajya Sabha. Therefore, seemingly there was a conflict between the “fair vote” and “secret ballot”.
33) In Kuldip Nayar (supra), this Court held that though secrecy of ballots is a vital principle for ensuring free and fair elections, the higher principle is free and fair elections. However, in the same case, this Court made a copious distinction between “constituency based representation” and “proportional representation”. It was held that while in the former, secrecy is the basis, in the latter the system of open ballot and it would not be violative of “free and fair elections”
35) In Lily Thomas vs. Speaker, Lok Sabha, (1993) 4 SCC 234, this Court held that “voting is a formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question” and that “right to vote means right to exercise the right in favour of or against the motion or resolution. Such a right implies right to remain neutral as well”.
36) In view of the same, this Court also referred to the Practice and Procedure of the Parliament for voting which provides for three buttons: viz., AYES, NOES and ABSTAIN whereby a member can abstain or refuse from expressing his opinion by casting vote in favour or against the motion. The constitutional interpretation given by this Court was based on inherent philosophy of parliamentary sovereignty.
37) A perusal of Section 79(d) of the RP Act, Rules 41(2) & (3) and Rule 49-O of the Rules make it clear that a right not to vote has been recognized both under the RP Act and the Rules. A positive ‘right not to vote’ is a part of expression of a voter in a parliamentary democracy and it has to be recognized and given effect to in the same manner as ‘right to vote’. A voter may refrain from voting at an election for several reasons including the reason that he does not consider any of the candidates in the field worthy of his vote. One of the ways of such expression may be to abstain from voting, which is not an ideal option for a conscientious and responsible citizen. Thus, the only way by which it can be made effectual is by providing a button in the EVMs to express that right. This is the basic requirement if the lasting values in a healthy democracy have to be sustained, which the Election Commission has not only recognized but has also asserted.
38) The Law Commission of India, in its 170th Report relating to Reform of the Electoral Laws recommended for implementation of the concept of negative vote and also pointed out its advantages.
39) In India, elections traditionally have been held with ballot papers. As explained by the Election Commission, from 1998 onwards, the Electronic Voting Machines (EVMs) were introduced on a large scale. Formerly, under the ballots paper system, it was possible to secretly cast a neutral/negative vote by going to the polling booth, marking presence and dropping one’s ballot in the ballot box without making any mark on the same. However, under the system of EVMs, such secret neutral voting is not possible, in view of the provision of Rule 49B of the Rules and the design of the EVM and other related voting procedures. Rule 49B of the Rules mandates that the names of the candidates shall be arranged on the balloting unit in the same order in which they appear in the list of contesting candidates and there is no provision for a neutral button.
40) It was further clarified by the Election Commission that EVM comprises of two units, i.e. control and balloting units, which are interconnected by a cable. While the balloting unit is placed in a screened enclosure where an elector may cast his vote in secrecy, the control unit remains under the charge of the Presiding Officer and so placed that all polling agents and others present have an unhindered view of all the operations. The balloting unit, placed inside the screened compartment at the polling station gets activated for recording votes only when the button marked “Ballot” on the control unit is pressed by the presiding officer/polling officer in charge. Once the ballot button is pressed, the Control unit emanates red light while the ballot unit which has been activated to receive the vote emanates green light. Once an elector casts his vote by pressing balloting button against the candidate of his choice, he can see a red light glow against the name and symbol of that candidate and a high-pitched beep sound emanates from the machine. Upon such casting of vote, the balloting unit is blocked, green light emanates on the control unit, which is in public gaze, and the high pitched beep sound is heard by one and all. Thereafter, the EVM has to re-activate for the next elector by pressing “ballot button”. However, should an elector choose not to cast his vote in favour of any of the candidates labeled on the EVM, and consequently, not press any of the labeled button neither will the light on the control unit change from red to green nor will the beep sound emanate. Hence, all present in the poll booth at the relevant time will come to know that a vote has not been cast by the elector.
41) Rule 49-O of the Rules provides that if an elector, after his electoral roll number has been entered in the register of electors in Form 17-A, decides not to record his vote on the EVM, a remark to this effect shall be made against the said entry in Form 17-A by the Presiding Officer and signature/thumb impression of the elector shall be obtained against such remark. As is apparent, mechanism of casting vote through EVM and Rule 49-O compromise on the secrecy of the vote as the elector is not provided any privacy when the fact of the neutral/negative voting goes into record.
42) Rules 49A to 49X of the Rules come under Chapter II of Part IV of the Rules. Chapter II deals with voting by Electronic Voting Machines only. Therefore, Rule 49-O, which talks about Form 17-A, is applicable only in cases of voting by EVMs. The said Chapter was introduced in the Rules by way of an amendment dated 24.03.1992. Voting by ballot papers is governed by Chapter I of Part IV of the Rules. Rule 39 talks about secrecy while voting by ballot and Rule 41 talks about ballot papers. However, as said earlier, in the case of voting by ballot paper, the candidate always had the option of not putting the cross mark against the names of any of the candidates and thereby record his disapproval for all the candidates in the fray. Even though such a ballot paper would be considered as an invalid vote, the voter still had the right not to vote for anybody without compromising on his/her right of secrecy. However, with the introduction of EVMs, the said option of not voting for anybody without compromising the right of secrecy is not available to the voter since the voting machines did not have ‘None of the Above’ (NOTA) button.
43) It is also pointed out that in order to rectify this serious defect, on 10.12.2001, the Election Commission addressed a letter to the Secretary, Ministry of Law and Justice stating, inter alia, that the “electoral right” under Section 79(d) includes a right not to cast vote and sought to provide a panel in the EVMs so that an elector may indicate that he does not wish to vote for any of the aforementioned candidates. The letter also stated that such number of votes expressing dissatisfaction with all the candidates may be recorded in a result sheet. It is also brought to our notice that no action was taken on the said letter dated 10.12.2001.
44) The Election Commission further pointed out that in the larger interest of promoting democracy, a provision for “None of the Above” or “NOTA” button should be made in the EVMs/ ballot papers. It is also highlighted that such an action, apart from promoting free and fair elections in a democracy, will provide an opportunity to the elector to express his dissent/disapproval against the contesting candidates and will have the benefit of reducing bogus voting.
45) Democracy and free elections are part of the basic structure of the Constitution. In Indira Nehru Gandhi vs. Raj Narain, 1975 Supp 1 SCC 198, Khanna, J., held that democracy postulates that there should be periodic elections where the people should be in a position to re-elect their old representatives or change the representatives or elect in their place new representatives. It was also held that democracy can function only when elections are free and fair and the people are free to vote for the candidates of their choice. In the said case, Article 19 was not in issue and the observations were in the context of basic structure of the Constitution. Thereafter, this Court reiterated that democracy is the basic structure of the Constitution in Mohinder Singh Gill and Another vs. Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405 and Kihoto Hollohon vs. Zachillhu and Others, 1992 (Supp) 2 SCC 651.
46) In order to protect the right in terms of Section 79(d) and Rule 49- O, viz., “right not to vote”, we are of the view that this Court is competent/well within its power to issue directions that secrecy of a voter who decides not to cast his vote has to be protected in the same manner as the Statute has protected the right of a voter who decides to cast his vote in favour of a candidate. This Court is also justified in giving such directions in order to give effect to the right of expression under Article 19(1)(a) and to avoid any discrimination by directing the Election Commission to provide NOTA button in the EVMs.
47) With regard to the above, Mr. Malhotra, learned ASG, by drawing our attention to Section 62 of the RP Act, contended that this Section enables a person to cast a vote and it has no scope for negative voting. Section 62(1) of the RP Act reads as under:
“62. Right to vote.(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.”
48) Mr. Malhotra, learned ASG has also pointed out that elections are conducted to fill a seat by electing a person by a positive voting in his favour and there is no concept of negative voting under the RP Act.
According to him, the Act does not envisage that a voter has any right to cast a negative vote if he does not like any of the candidates. Referring to Section 2(d) of the RP Act, he asserted that election is only a means of choice or election between various candidates to fill a seat. Finally, he concluded that negative voting (NOTA) has no legal consequence and there shall be no motivation for the voters to travel to the polling booth and reject all the candidates, which would have the same effect of not going to the polling station at all.
49) However, correspondingly, we should also appreciate that the election is a mechanism, which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Article 19 guarantees all individuals the right to speak, criticize, and disagree on a particular issue. It stands on the spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21 i.e., the right to liberty.
50) Eventually, voters’ participation explains the strength of the democracy. Lesser voter participation is the rejection of commitment to democracy slowly but definitely whereas larger participation is better for the democracy. But, there is no yardstick to determine what the correct and right voter participation is. If introducing a NOTA button can increase the participation of democracy then, in our cogent view, nothing should stop the same. The voters’ participation in the election is indeed the participation in the democracy itself. Non-participation causes frustration and disinterest, which is not a healthy sign of a growing democracy like India.
Conclusion:
51) Democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. The ‘Fair’ denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thus participate in the governance of our country. For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote. Thus in a vibrant democracy, the voter must be given an opportunity to choose none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting.
52) No doubt, the right to vote is a statutory right but it is equally vital to recollect that this statutory right is the essence of democracy. Without this, democracy will fail to thrive. Therefore, even if the right to vote is statutory, the significance attached with the right is massive. Thus, it is necessary to keep in mind these facets while deciding the issue at hand.
53) Democracy is all about choice. This choice can be better expressed by giving the voters an opportunity to verbalize themselves unreservedly and by imposing least restrictions on their ability to make such a choice. By providing NOTA button in the EVMs, it will accelerate the effective political participation in the present state of democratic system and the voters in fact will be empowered. We are of the considered view that in bringing out this right to cast negative vote at a time when electioneering is in full swing, it will foster the purity of the electoral process and also fulfill one of its objective, namely, wide participation of people.
54) Free and fair election is a basic structure of the Constitution and necessarily includes within its ambit the right of an elector to cast his vote without fear of reprisal, duress or coercion. Protection of elector’s identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14. Thus, secrecy is required to be maintained for both categories of persons.
55) Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realize that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity.
56) The direction can also be supported by the fact that in the existing system a dissatisfied voter ordinarily does not turn up for voting which in turn provides a chance to unscrupulous elements to impersonate the dissatisfied voter and cast a vote, be it a negative one. Furthermore, a provision of negative voting would be in the interest of promoting democracy as it would send clear signals to political parties and their candidates as to what the electorate think about them.
57) As mentioned above, the voting machines in the Parliament have three buttons, namely, AYES, NOES, and ABSTAIN. Therefore, it can be seen that an option has been given to the members to press the ABSTAIN button. Similarly, the NOTA button being sought for by the petitioners is exactly similar to the ABSTAIN button since by pressing the NOTA button the voter is in effect saying that he is abstaining from voting since he does not find any of the candidates to be worthy of his vote.
58) The mechanism of negative voting, thus, serves a very fundamental and essential part of a vibrant democracy
59) The Election Commission also brought to the notice of this Court that the present electronic voting machines can be used in a constituency where the number of contesting candidates is up to 64. However, in the event of there being more than 64 candidates in the poll fray, the conventional system of ballot paper is resorted to. Learned counsel appearing for the Election Commission also asserted through supplementary written submission that the Election Commission of India is presently exploring the possibility of developing balloting unit with 200 panels. Therefore, it was submitted that if in case this Court decides to uphold the prayers of the petitioners herein, the additional panel on the balloting unit after the last panel containing the name and election symbol of the last contesting candidate can be utilized as the NOTA button. Further, it was explicitly asserted in the written submission that the provision for the above facility for a negative or neutral vote can be provided in the existing electronic voting machines without any additional cost or administrative effort or change in design or technology of the existing machines. For illustration, if there are 12 candidates contesting an election, the 13th panel on the balloting unit will contain the words like “None of the above” and the ballot button against this panel will be kept open and the elector who does not wish to vote for any of the abovementioned 12 contesting candidates, can press the button against the 13th panel and his vote will be accordingly recorded by the control unit. At the time of the counting, the votes recorded against serial number 13 will indicate as to how many electors have decided not to vote for any candidate.
60) Taking note of the submissions of Election Commission, we are of the view that the implementation of the NOTA button will not require much effort except for allotting the last panel in the EVM for the same.
61) In the light of the above discussion, we hold that Rules 41(2) & (3) and 49-O of the Rules are ultra vires Section 128 of the RP Act and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting. In view of our conclusion, we direct the Election Commission to provide necessary provision in the ballot papers/EVMs and another button called “None of the Above” (NOTA) may be provided in EVMs so that the voters, who come to the polling booth and decide not to vote for any of the candidates in the fray, are able to exercise their right not to vote while maintaining their right of secrecy. Inasmuch as the Election Commission itself is in favour of the provision for NOTA in EVMs, we direct the Election Commission to implement the same either in a phased manner or at a time with the assistance of the Government of India. We also direct the Government of India to provide necessary help for implementation of the above direction. Besides, we also direct the Election Commission to undertake awareness programmes to educate the masses.
Supreme Court of India
Union Of India And Ors vs Motion Picture Association And ... on 15 July, 1999
It is contended that just as a restraint on free speech is a violation of Article 19(1) [except as permitted under article 19(2)] compelled speech, often known as a "must carry" provision in a statute, rule or regulation, is equally an infringement of the right to free speech, except to the extent permitted under Article 19(2). However, whether compelled speech will or will not amount to a violation of the freedom of speech and expression, will depend on the nature of a "must carry" provision. If a "must carry" provision furthers informed decision-making which is the essence of the fight to free speech and expression, it will not amount to any violation of the fundamental freedom of speech and expression. If, however, such a provision compels a person to carry out propaganda or project a partisan or distorted point of view, contrary to his wish, it may amount to a restraint on his freedom of speech and expression. To give an example, at times a statute imposes an obligation to print certain information in public interest. Any food product must tarry on its package the list of ingredients used in its preparation, or must print its weight. These are beneficial "must carry" provisions meant to inform the public about the correct quantity and contents of the product it buys. It enables the public to decide on a correct basis whether a particular product should or should not be used. Cigarettes cartons are required to carry a statutory warning that cigarette smoking is harmful to health. This is undoubtedly a "must carry" provision or compelled speech. Nevertheless, it is meant to further the basic purpose of imparting relevant information which will enable a user to make a correct decision as to whether he should smoke a cigarette or not Such mandatory provisions although they compel speech cannot be viewed as a restraint on the freedom of speech and expression.
In Neal R Wooley, etc. v. George Maynard, [1977] 430 US 70S, the United States Supreme Court considered a New Hampshire state (aw which compelled the state motto "Live Free or Die," to be embossed on car licence plates. A follower of Jehovah's Witnesses objected to carrying the motto on his car licence plate, the Court held that the state's requirement that non- commercial vehicles licence plates be embossed with the state motto invaded First Amendment rights and could not be justified as facilitating the identification of passenger vehicles or as promoting an appreciation of history, individualism, arid state pride. In the more recent case of Turner Broadcasting system, Inc. v. Federal Communications Commission, [1997] 512 US 622, the US Supreme Court examined Sections 4 and 5 of the Cable Television Consumer protection and Competition Act of 1992 which required cable operators to carry the signals of specified numbers based on cable system size of local commercial television stations and local non- commercial educational television stations. On the basis of the material brought on record after remand, the majority came to the conclusion that the "must carry" provisions were consistent with the First Amendment, because the purpose of the "must carry" provision was to preserve the benefits: of free over-the-air local broadcast television, promoting wide- spread dissemination of information from a multiplicity of sources and promoting fair competition in the television programme market. Breyer J. in his partly concurring judgment balanced the restraints which such a compulsory carriage clause would impose because it would interfere with the protected interests of the cable operators to choose their own programming, against an important First Amendment interest in favour of the provision viz. promoting the widest possible dissemination of information from diverse and antagonistic sources to facilitate public discussion and informed deliberation. The latter being basic democratic government purposes which the First Amendment Seeks to achieve, they outweighed objections relating to interference with the cable operators' right to choose their own programme.
Although the First Amendment right under the U.S. Constitution is not subject to reasonable restraint as in Article 1.9(2), the raison de'tre of a constitutional guarantee of free speech is the same. We have to examine whether the purpose of compulsory speech in the impugned provisions is to promote the fundamental freedom of speech and expression and dissemination of ideas, or whether it is to restrain this freedom, the social context of any such legislation cannot be ignored. When a substantially significant population body is illiterate or does not have easy access to ideas or information, it is important that all available means of communication, particularly audiovisual communication, are utilised not just for entertainment but also for education, information, propagation of scientific ideas and the like. The best way by which ideas can reach this large body of uneducated people is through the entertainment channel which is watched by all-literate and illiterate alike; To earmark a small portion of time of this entertainment medium for the purpose of showing scientific, educational or documentary films, or for showing news films has to be looked at in this context of promoting dissemination of ideas, information and knowledge to the masses so that there may be an informed debate and decision making on public issues. Clearly, the impugned provisions are designed to further free speech and expression and not to curtail it. None of these statutory provisions require the exhibitor to show a propaganda film or a film conveying views which he objects to. In fact, the exhibitors have not raised any objection to the contents of the films which they are required to show. They, however, contend that one of the important requirements for upholding such compulsory speech in the United States is that such speech should be content-neutral. While in the present case, the contents of the compulsory films are specified in the legislation concerned. In the context of Article 19(1) what we have to examine is whether the categories of films so required to be carried promote dissemination of information and education or whether they are meant to be propaganda or false or biased information. The statute quite clearly specifies the kinds of films which promote dissemination of knowledge and information.
Supreme Court of India
People'S Union Of Civil Liberties ... vs Union Of India (Uoi) And Anr. on 18 December, 199618. We have, therefore, no hesitation in holding that right to privacy is a part of the right to "life" and "personal liberty" enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed "except according to procedure established by law".
19. The right to privacy-by itself-has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as "right to privacy". Conversations on the telephone are often of an intimate and confidential character. Telephone-conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.
20. Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one's convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution.
21. India is a signatory to the International Covenant on Civil and Political Rights, 1966. Article 17 of the said covenant is as under:
Article 17
1. No one shall be subject to arbitrary or unlawful interference with his privacy, family, human or correspondence, nor to lawful attacks on his honour and reputation.
2. Every one has the right to the protection of the law against such interference or attacks.
Article 12 of the Universal Declaration of Human Rights, 1948 is almost in similar terms.
22. International law today is not confined to regulating the relations between the States. Scope continues to extend. Today matters of social concern, such as health, education and economics apart from human rights fall within the ambit of International Regulations. International law is more than ever aimed at individuals.
23. It is almost an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law.
24. Article 51 of the Constitution directs that the State shall endeavour to inter alia, foster respect for international law and treaty obligations in the dealings of organised peoples with one another. Relying upon the said Article, Sikri, C.J in Kesavananda Bharathi v. State of Kerala [1973] Supp. SCR 1, observed as under:
It seems to me that, in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the right of the United Nations Charter and the solemn declaration subscribed to by India.
35. We, therefore, order and direct as under:
1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department of the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one week of the passing of the order.
2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.
3. The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.
4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses, specified in the order, being an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises specified or described in the order.
5. The order under Section 5(2) of the Act shall, unless renewed, cease to have effect at the end of the period of two months from the date of issue. The authority which issued the order may, at. any time before the end of two month period renew the order if it considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.
6. The authority which issued the order shall maintain the following records:
(a) the intercepted communications,
(b) the extent to which the material is disclosed,
(c) the number of persons and their identity to whom any of the material is disclosed.
(d) the extent to which the material is copied and
(e) the number of copies made of any of the material.
7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.
8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.
9.There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government.
(a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act.
(b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.
(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section 5(2) of the Act, it shall record the finding to that effect.
LOCUS CLASSICUS ON FREEDOM OF PRESS:
Supreme Court of India
Sakal Papers (P) Ltd., And Others vs The Union Of India on 25 September, 1961
A matter of far-reaching importance affecting the freedom of the press is raised in these three petitions wherein the constitutionality of the Newspaper (Price and Page) Act, 1956, and the Daily Newspaper (Price and Page) Order, 1960, is questioned.
Briefly stated the effect of the Act and of the impugned Order is to regulate the number of pages according to the price charged, prescribe the number of supplements to be publisher and prohibit the publication and sale of newspapers in contravention of any Order made under s. 3 of the Act. The Act also provides for regulating by an Order under s. 3, the sizes and area of advertising matter in relation to the other matters contained in a newspaper. Penalties are also prescribed for contravention of the provision of the Act or Order.
It was, however, contended on behalf of the State that there are two aspects of the activities of newspapers-the dissemination of news and views and the commercial aspect. These two aspects, it is said fare different from one another and under cl. (6) of Art. 19 restrictions can be placed on the latter right in the interest of the general public. So far as it is relevant for the purpose of the argument el. (6) reads thus:
"Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of the general public, reasonable'restrictions on the exercise of the right conferred by the said sub- clause . . . . . . . . . . . . .
It may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgement on the same grounds as are Bet out in cl. (6) of Art. 19. Therefore, the right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen. Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting it is challenged it is no answer that the restrictions enacted by it are justifiable under cls. (3) to (6). For, the scheme of Art. is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and el. (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for scouring the better enjoyment of another freedom. All the greater reason, therefore for holding that the State cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom.
Viewing the question from this angle it would be seen that the reference to the Press being a business and to the restriction imposed by the impugned Act being referable or justified as a proper restriction on the right to carry on the business of publishing a, newspaper would be wholly irrelevant for considering whether the impugned Act infringes or does not infringe the freedom guaranteed by Art. 19(1)(a).
The only question that would then remain would be whether the impugned enactment directly impinges on the guarantee of freedom of speech and expression. It would directly impinge on this freedom either by placing restraint upon it or by placing restraint upon something which is an essential part of that freedom. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons is each an integral part of the freedom of speech and expression. A restraint placed upon either of them would be a direct infringement of the right of freedom of speech and expression. Perhaps an illustration would make the point clear. Let us suppose that the enactment had said that newspaper "A' or newspaper "B' (ignoring for the moment the objection to the illustration based upon Art. 14 shall not have more than a specified number of subscribers. Could such a law be valid in the face of the guarantee under Art. 19(1)(a)? The answer must unhesitatingly be no, because such a law would be recognized as directly impinging upon the freedom of expression which encompasses freedom of circulation and to restrain the citizen from propagating his views to any other beyond the limit or number prescribed by the statute. If this were so, the fact that the legislation achieves the same result by means of the schedule of rates makes no difference and the impact on the freedom would still be direct notwithstanding that it does not appear so on its face.
Here the Act by enacting As. 4 and 5 directly prohibits a newspaper from exercising that right, should the newspaper fail to comply with the requirement of an order made under s. 3. This is a direct invasion of the right under Art. 19(1)(a) and not an incidental or problematic effect thereon as was found in the. Express Newspapers case(1). In that case the challenge to certain provisions of the Working Journalists (Conditions. of Service) and Miscellaneous Provisions Act, 1955 on the round that it infringes the right guaranteed by Art. 19 ,(1)(&) of the Constitution. That challenge failed because the object of that enactment was to secure the amelioration of the condition of working journalists and also because the law did not have the effect of directly interfering with the right of the newspaper proprietors guaranteed under Art. 19 (1)(a) of the Constitution. The distinction between direct and indirect effect of 'a law upon the freedom of press has been adverted to in that case. At p. 135, Bhagwati, J., who spoke for the Court has said :
"All the consequences which have been visualised in this behalf by the petitioners, viz., the tendency to curtail circulation and thereby narrow the scope of dissemination of information, fetters on the petitioners'freedom to choose the means of exercising the right, likelihood of the independence of the press being undermined by having to seek government aid;......... etc. would be remote and depend upon various factors which may or may not come into play. Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act, it would not be possible to strike down the legislation as having that effect and operation."
That the impugned Act was intended to effect circulation and thus directly affect the freedom of speech is discernible also from the preamble which we way here quote. It runs thus:
"An Act to provide for the regulation of the prices charged for newspapers in relation to their pages and of matters connected therewith for the purpose of preventing unfair (1) (1959) S.C..R. 12 competition among newspapers so that news. papers may have fuller opportunities of freedom of expression."
Its object thus is to regulate something which, as already stated, is directly related to the circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom of speech the Act must be regarded as one directed against the freedom of speech. It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech viz., the right to circulate one's views to all whom one can reach or care to reach for the imposition of a restriction. It seeks to achieve its object of enabling what are termed the smaller newspapers to secure larger circulation by provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it seeks to achieve the and by purporting to regulate the business aspect of a newspaper. Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved. No doubt, the law in question was made upon the recommendation of the Press Commission but since its object is to affect directly the right of circulation of newspapers which would necessarily undermine their power to influence public opinion it cannot. but be regarded as a dangerous weapon which is capable of being used against democracy itself. In these circumstances the Act and the Order cannot be sustain d upon the ground that it merely implements a recommendation of the Press Commission and was thus not made with an ulterior object. The decision in Hamdard Dawakhana (Wakf) v. Union of India (1) upon which reliance was placed by the respondent in support of the contention that where an enactment is challenged on the ground of violation of fundamental rights it is legitimate to take into consideration several factors including the purpose of the legislation, the mischief intended to be suppressed, the remedy purposed by the legislature and the true reason for that remedy does not, therefore, arise for consideration. Similarly since the Act taken in conjunction with the order made thereunder operates as a restraint on the freedom of Speech and expression of newspapers the mere fact that its object was to suppress unfair practices by newspapers would not validate them. Carrying on unfair practices may be a matter for condemnation. But that would be no ground for placing restrictions on the right of circulation.
It was argued that the object of the Act was to prevent monopolies and that monopolies are obnoxious. We will assume that monopolies are always against public interest and deserve to be suppressed. Even so, upon the view we have taken that the intendment of the Act and the direct and immediate effect of the Act taken along with the impugned order was to interfere with the freedom of circulation of newspapers the circumstance that its object was to suppress monopolies and prevent unfair practices is of no assistance. The legitimacy of the result intended to be "achieved does not necessarily imply that every means to achieve it is permissible; for even if the end is desirable and permissible, the means employed must not transgress the limits laid down by the Constitution, if they directly impinge on any of the fundamental rights guaranteed by the Constitution it is no answer when the constitutionality (1) [1960] 2 S.C. R. 671.
of the measure is challenged that apart from the fundamental right infringed the provision is otherwise legal. Finally it was said that one of its objects is to give some kind of protection to small or newly started newspapers and, therefore, the Act is good. Such an object may be desirable but for attaining it the State cannot make inroads on the right of, other newspapers which Art. 19(1)(a) guarantees to them. There may be other ways of helping them and it is for or the State to search for them but the one they have chosen falls foul of the Constitution.
To repeat, the only restrictions which may be imposed on the, rights of an individual under Art. 19(1)(a) are those which cl. (2) of Art. 19 permits and no other. Coming to Writ Petitions 67 and 68 of 1961, considering that the relief granted by us in the main petition will redress the grievance of the petitioners in these two petitions it will be only of academic interest to decide whether they, as readers of newspapers, can complain of an interference with their right under Art. (19) (1) (a). We, therefore, refrain from making any Order on their petitions.
Upon the view we take it would follow that s. 3(1) of the Act, which is its pivotal provision, is unconstitutional and therefore, the Daily newspaper (Price and Page) Order, 1960 made thereunder is also unconstitutional. If a. 3(1) is struck down as bad, nothing remains in the Act itself. Accordingly we allow this petition with costs. 'The petitioners in W. Ps. 67 and 68 of 1961 as well as the interveners will bear their respective costs.
Supreme Court of India
Bennett Coleman & Co. & Ors vs Union Of India & Ors on 30 October, 1972
Equivalent citations: 1973 AIR 106, 1973 SCR (2) 757
The Newsprint Policy of 1972-73 referred to as the Newsprint Policy deals with white printing paper (including water lined newsprint which contained mechanical wood pulp amounting to not less than 70 per cent of the fibre content). Licences are issued for newsprint. The validity of licences is for 12 months. The Newsprint Policy defines "common ownership unit" to mean newspaper establishment or concern owning two or more news interest newspapers including at least one daily irrespective of the centre of publication and language of such newspapers. Four features of the Newsprint Policy are called in question. These restrictions imposed by the Newsprint Policy are said to infringe rights of freedom of speech and expression guaranteed in Article 19 (1)(a) of the Constitution. First, no new paper or new edition can be started by a common ownership unit even within the authorised quota of newsprint. Secondly, there is a limitation on the maximum number of pages to 10. No adjustment is permitted between circulation and the pages so as to increase the pages. Thirdly, no inter-changeability is permitted between different papers of common ownership unit or different editions of the same paper. Fourthly, allowance of 20 per cent increase in page level up to a maximum of 10 has been given to newspapers, with less than 10 pages. It is said that the objectionable and irrational feature of the Newsprint Policy is that a big daily newspaper is prohibited and prevented from increasing the number of pages, page area and periodicity by reducing circulation to meet its requirement even within its admissible quota. In the Newsprint Policy for the year 1971-72 and the earlier periods the newspapers and periodicals were permitted to increase the number of pages, page area and periodicity by reducing circulation. The current policy prohibits the same. The restrictions are, therefore, said to be irrational, arbitrary and unreasonable. Big daily newspapers having large circulation contend that this discrimination is bound to have adverse effects on the big daily newspapers.
The Newsprint Policy is said to be discriminatory and violative of Article 14 because common ownership units alone are prohibited from starting a new paper or a new edition of the same paper while other newspapers with only one daily are permitted to do so. The prohibition against inter- changeability between different papers of the same unit and different editions of the said paper is said to be arbitrary and irrational, because it treats all common ownership units as equal and ignores pertinent and material differences between some common ownership units as compared to others. The 10 page limit imposed by the policy is said to violate Article 14 because it equates newspapers which are unequal and provides the same permissible page limit for newspapers which are essentially local in their character and news- papers which reach larger sections of people by giving world news 14-L499Sup.CI/73 and covering larger fields. The 20 per cent increase allowed for newspapers, whose number of pages was less than 10 is also challenged as violative of Article 14 by discriminating against newspapers having more than 10 pages. The difference in entitlement between newspapers with an average of more than 10 pages as compared with newspapers of 10 or less than 10 pages is said to be discriminatory because the differentia is not based on rational incidence of classification.
The import policy for newsprint has a history. From 1963-64 quota of newsprint for dailies has been calculated on the basis of page level of 1957 and circulation of 1961-62 with ad hoc increases for growth on the basis of percentage of pages calculated on circulation and allowance of page increase of not more than 2 pages at a time subject to a maximum of 12 pages. The bulk of newsprint was imported in the past. Indigenous newsprint was limited in supply. From 1963-64 till 1970-71 printing and writing paper available in our country was taken into account for framing the import policy. The quantity which could be made available to consumers of newsprint for the requirements of publishers of text books were considered in that behalf. After 1971-72 printing and writing paper was in short supply. According to the Government this was adversely affecting the requirements of the publishers of text books. The loss to newsprint consumer from the non-availability of white printing paper was made good in additional quantity of imported newsprint. The import quota of newsprint was increased from 1,40,000 tonnes in 1970-71 to 1.80,000 tonnes in 1971-72.
From 1972-73 with regard to daily newspapers three principal changes were effected. First, the base year for circulation was taken at 1970-71. Second, the page level was taken at the maximum of 10 pages instead of the previously operating 10 page level. Those operating at a page level of over 10 pages were given the facility of basing their required quota either on actual circulation for 1970-71 or admissible or calculated circulation for 1971-72 whichever is more. Third, the increase in quota for growth was allowed as in the past, In the case of circulation growth it was stipulated in terms of percentage of circulation over the previous year. In the case of page growth the maximum of 10 pages was permitted.
The question to be asked and answered, according to counsel is, what is the direct effect of the Newsprint Control Order and the Newsprint Policy ?
If, on account of scarcity of newsprint, it is not possible,, on an equitable distribution, to allot to the petitioners, newsprint to the extent necessary to maintain the present circulation of the newspapers owned by them with same page level and, as a result, the circulation of the newspapers or their page level has to be reduced, could it be contended that there has been abridgment of the freedom of speech ? Surely, the reduction in page level or circulation is the direct result of the diminished supply of newsprint. Yet, I do not think that anybody Will say that there is an abridgement of the freedom of speech of the petitioners. There might be an abridgement of speech, but not an abridgment of the, freedom of speech. The pith and substance test, although not strictly appropriate, might serve a useful purpose in the process of deciding whether the provisions in question which work some interference with the freedom of speech are essentially regulatory in character (see the observation of Lord Porter in Commonwealth of Australia v.Bank of New South Wales(.')). With this background, let me proceed to consider more speci- fically the arguments of the petitioners. It was contended for the petitioners that the newsprint policy which fixes a 10-page ceiling for calculation of newsprint quota for their dailies which had a page level above ten directly abridges their fundamental right of free speech and that the provision of the Newsprint Policy_ which provides for 20 per cent increase in the number of pages to daily newspapers within the ceiling of 10 pages off-.ends Art. 14.
Before 1972-73, the newsprint, allocation policy was based on the page level of 1957 coupled with the circulation figures of 1961-62, and all entitlements were calculated, with allowable increases and adjustments, from year to year on that basis. As a result, the newspapers which entered the field after 1962-63 were at a disadvantage and were pegged to their own lower page and circulation level. There were many papers specially in the Indian Languages group where the actual circulation even during 1970-71 exceeded the notional circulation figure which was arrived at cumulatively based on the 1961-62 figures. The result of the previous policies was that some news papers which had already a very large circulation at the time of introduction of newsprint rationing and were not interested in in- creasing circulation substantially were able to use the newsprint allotted to them so as to increase the number of pages. On the other hand, the newspapers which were at a lower level of circulation but had the potential to increase the readership were restricted to the ad hoc percentage (1) [1950] A.C. 235, 312-3.
increase allowed under those policies but were unable, at the same time to increase the number of their pages as they could not afford to cut down the existing circulation. The growth of such newspapers was, therefore, affected by the prior newsprint allocation policies. The Newsprint Policy in question seeks to remedy this situation. It recognises the circulation of all newspapers big and small as of 1970- 71 and provides for a small growth rate. 1970-71 is taken as the base year because, with the events in Bangla Desh, Indo- Pak hostilities and the State elections, the circulation figures for 1971-72 would not represent the circulation figures of a normal year.
The fixation of 10-page ceiling for the calculation of newsprint quota has, among the big newspapers, affected 22 newspapers which , prior to the policy for 1972-73, were actually operating on a page-level above 10. The Union of India justifies the reduction in the page level of these papers to 10 on three principal grounds : (1) that these papers devote proportionately high percentage of space for advertisements at high rates and that the cut in pages 'imposed would not be felt by them if they rationalise their working and adjust their advertisement space; (2) that the imposition of cut in the pages was necessary on account of the short supply of 11,000 tonnes of newsprint due to suspension of U.S. Aid and (3) that the cut was necessary to have fair and equitable distribution of newsprint amongst all newspapers and periodicals.
The objectives sought to be achieved. by. the Newsprint Policy are : (1) to correct the inequity of the previous newsprint allocation policies as a result of which the newspapers which had high page level in 1957 got unfair advantage over the newspapers which were started thereafter and (2) to help the newspapers operating below 10 pages to achieve, a 10 page level by 20 per cent increase in growth rate so as to enable them to attain a position of equality with those which were operating above 10-page level in 1970-
71. It may be recalled that the Newsprint Policy provides for fixation of basic entitlement for newspapers whose actual number of pages was more than 10 during 1970-71 and 1971-72 on the basis of (1) an average of 10 pages, and (2) either the average circulation in 1970 or admissible circulation in 1971-72, plus, increase admissible under the policy of 1971-
72. whichever is greater. Fixation of page level for calculating the entitlement of quota for a newspaper is not a new feature.. The previous policies provided inter alia that, a location would be calculated on the basis of a page level upto 12 pages and restricted to an increase of not more than 2 pages at a time. Therefore, even under the prior policies, the newsprint allocation was calculated on the basis of a maximum page level which was 12 pages as mentioned above, except in the case of six newspapers whose page level in 1957 was more than 12 pages.
Dailies are classified as 'big', 'medium' and 'small'. A newspaper With a circulation of over 50,000 is 'big', that with a circulation ranging from 15,000 to 50,000 is 'medium' and that with a circulation below 15,000 is 'small'. The average page number of big dailies was 10.3. Out of the 45 big dailies, 23 operated on a page level of less than 10 pages and 22 operated on a page level of more than 10. The average page level of all the dailies was 5.8. Out of the 45 big dailies, 30 are language, and 15 English. All the 15 big dailies in English operated on an average page level over 10 and their average page level was 13.45. Even the medium English dailies operated on a page level over 10 and the average of their page level was 11. 08.
The Government contended that the effect of the policy of allowing page increase and circulation increase from time to time has been to help the growth of press; that this is how papers like Anand Bazar Patrika Jugantar and Deccan Herald (English) have come to the present level of circulation and that newspaper proprietors in India including the petitioners have unanimously recommended to the Government in January, 1969, that a page level of 8 should be the national minimum requirement for a medium of information and that it should be permitted to reach as wide a public as possible.
To examine the question whether Newsprint Policy is directed against the big dailies and is calculated to strangle them and whether it would offend their fundamental rights under Art. 14 and 19 (1) (a), it is necessary to have an idea as to what are the objects sought to be achieved by the freedom of speech and how they could be achieved. It is also necessary to have some notion about the concept of equality in the distribution of a scare commodity like newsprint.
This Court held in Hamdard Dawakhana case that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. In Sakal Papers case (Supra) this Court held that if the space for advertisement is reduced earnings would decline and if the price is raised that would affect circulation. It appears to us that in the present case, 'fixation of page limit will not only deprive the petitioners of their economic viability but also restrict the freedom of expression by reason of the compulsive re- duction of page level entailing reduction of circulation and denuding the area of coverage for news and views. The estimated loss on account of reduction of page limit is Rs. 39 lakhs in the case of Bennett Coleman group, Rs. 44 lakhs in the case of Hindustan Times and Rs. 38 lakhs in the case of the Hindu. If as a result of reduction in pages the newspapers will have to depend on advertisements as their main source of income, they will be denied dissemination of news and views. That will also deprive them of their freedom of speech and expression. On the other hand, if as a result of restriction on page limit the newspaper will have to sacrifice advertisements 'and thus weaken the link of financial strength, the organisation may crumble. The loss on advertisements may not only entail the closing down but also affect the circulation and thereby impinge on free- dom of speech and expression.
The reason given by the Government that the entitlement on the basic of the previous year has caused only a marginal loss in' allotment is controverted by the petitioners. it is said that if the total quantity of newsprint available is 2,15,000 tonnes in 1972-73 the shortfall is only 10,000 tonnes because in the previous year the quantity available was 2,25,000 tonnes. The Bennett Coleman group alleges that the actual circulation of Times of India Bombay in 1971-72 was of 1,58,700 copies though the quota for that year was calculated on the basis of a circulation of 2,02,825 copies and a page level of 13 and adjustability between paces and circulation were permissible. It is, therefore, said that though the Times of India under the impeached policy would have an allowable circulation of 2,08,920 and a page level of 10 it would not under the new policy have any permission to adjust between pages and cir- culation. In fact, it is said that if the pages are reduced to 10, its circulation would fall even below that of last year by reason of the fact that owing to reduction in pages the quality will suffer and the consequence will be downfall in circulation. The petitioners therefore rightly emphasise that to equate the big English dailies which are in a class by themselves with other dailies which need less than 10 pages indicates negation of an equitable distribution and proves irrational treating of dailies.
The justification pleaded by the Government is that big dailies chose. to increase pages rather than circulation in the past. In the past the newsprint allocation was based on the page level of 1957 and the circulation figures of 1961-
62. The Government says that newspapers which started after 1961-62 were unable to increase their pages. Therefore, the present policy is intended to remove that position. In our judgment it will depend on each paper as to how it will grow. Those who are growing should not be restricted if they can grow within their quota. In the past dailies having less than 10 pages were given increases and were allowed to come up to 10 pages from 4 pages in 1961-62 and 6 pages in 1962-63. Most of them could not even fully utilize the page increase allowed. The present impeached policy seeks to remove iniquities created by previous policies. It depends upon facts as to how much more newsprint a group of newspapers started after 1961-62 will require and secondly whether they are in a position to increase the page number. It also appears that 19 language dailies reduced their page numbers on the basis of which the quota was calculated in order to increase their circulation. Therefore, there appears to be no justification for giving them additional quota for increasing page numbers by reducing the quota of the big dailies by imposing upon them the 10 page ceiling. The 10 page ceiling imposed affecting 22 big newspapers operating above 10 page level with approximate circulation of over 23 lakhs i.e. more than 25% of the total circulation is arbitrary and treats them equally with others who, are unequal irrespective of the needs and requirements of the big dailies and thus violates Article 14 of the Constitution.
The impeached policy violates Article 14 because it treats newspapers which are not equal equally in assessing the needs and requirements of newsprint. The Government case is that out of 35 newspapers which were operating on a quota calculated on a higher page level than 10 pages 28 newspapers will benefit by the impeached policy of 1972-73. But 7 newspapers out of 22 which were operating above 10 page level are placed at a disadvantage by the fixation of 10 page limit and entitlement to quota on that basis. There is no intelligible differentia. Nor has this distinction any relation to equitable distribution of newsprint. The impeached policy also offends Article 19 (1) (a) of the Constitution. Newspapers like 19 language dailies reduced their pages in order to increase circulation though such language dailies had prior to 1972-73 been given quota to increase pages. Under the impeached policy these language dailies are given additional quota to increase their pages against to 10.
The basic entitlement in Remark V to quota for newspapers operating above 10 page level violates Article 19(1)(a) because the quota is hedged in by direction not to increase the page number above 10. The reduction of page limit to 10 for the aforesaid reasons violates Article 19 (1) (a) and Article 14 of the Constitution.
The other features in the newsprint policy complained of are those in Remark VII (c) read with Remark VIII of the impeached policy. Remark VII (c) allows 20 per cent increase to daily newspapers in the number of pages within the ceiling of 10 over the average number of pages on which the basic entitlement is fixed under Remark V. In other words, dailies with less than 10 pages are prevented from adjusting the quota for 20 per cent increase for increase in circulation. The Bennett Coleman group says that their Nav Bharat Times, Maharashtra Times and Economic Times would prefer to increase their circulation. Under Remark V they are entitled to quota on the basis of consumption in 1970-71 or 1971-72 whichever is less. This feature also indicates that the newsprint policy is not based on circulation. Under Remark VII (c) these newspapers within the ceiling of 10 can get 20 per cent increase in the number of pages. They require circulation more than the number of pages. They are denied circulation as a result of this policy._ The big English dailies which need to increase their pages are not permitted to do so. Other dailies which do not need increase in pages are permitted quota for increase but they are denied the right of circulation. In, our view, these features were rightly said by counsel for the petitioners to be not newsprint control but newspaper control in the guise of equitable distribution of newsprint. The object of the impeached policy is on the one hand said to increase circulation and on the other to provide for growth in pages for others. Freedom of speech and expression is not only in the volume of circulation but also in the volume of news and views.
Remark VIII in the Newsprint Policy of 1972-73 imposes two types of restrictions. First a daily is not permitted to increase its number of pages by reducing circulation to meet its individual requirements. Secondly, dailies belonging to a common ownership unit are not permitted interchangeability between them of the quota allotted to each even when the publications are different editions of the same daily published from different places.
The first prohibition in Remark VIII against increase in pages, by reducing circulation has been introduced for the first time in the policy for 1972-73. The reason given by the Government for this feature is that newspapers would obtain a quota on the basis, of a certain stated circulation and they should not be allowed to, reduce circulation. The petitioners say that quota is not granted on the basis of actual circulation but is granted on the basis of notional circulation which means the actual circulation of 1961-62 with permissible increases year after year even though the actual circulation does not correspond to the permissible circulation on which the quota was based year after year. The Times of India Bombay in 1971-72 demanded quota on the basis of 20 pages and a circulation of 1,70,000. 'the Times of India was, allowed quota on the basis of 13.13 pages and a circulation of 2,02,817. The actual performance was average page number of 18.25 and circulation of 1,54,904. In the past, adjustability between pages and circulation was permitted. In our judgment, the petitioners correctly say that the individual requirements of the different dailies render it eminently desirable in some cases to increase the number of pages than circulation. Such adjustment is necessary to maintain the quality and the range of the readers in question. The denial of this flexibility or adjustment is in our view rightly said to hamper the quality, range and standard of the dailies and to affect the freedom of the press.
The restriction on the petitioners that they can use their quota, to increase circulation but not the page number violates Articles 19 (1) (a) as also Article 14. Big dailies are treated to be equal with newspapers who are not equal to them. Again, the policy of 1972-73 permits dailies with large circulation to increase their circulation. Dailies operating below 10 page level are allowed increase in pages. This page increase quota cannot be used for- circulation increase. Previously, the big dailies were allowed quota for circulation growth. The present policy has decreased the quantity for circulation growth. In our view counsel for the petitioners rightly said that the Government could not determine thus which newspapers should grow in page and circulation and which newspapers should grow only in circulation and not in pages. Freedom of press entitles newspapers to achieve any volume of circulation. Though requirements of newspapers as to page, circulation are both taken into consideration for fixing their quota but the newspapers should be thereafter left free to adjust their page number and circulation as they wish in accordance with the dictates of Article 19 (1)(a) of the Constitution. Counsel for the petitioners contended that the second prohibition in Remark VIII in the Newsprint Policy prevented common ownership units from adjusting between them the newsprint quota allotted to each of them. The prohibition is to use the newsprint quota of one newspaper belonging to a common ownership unit for another newspaper belonging to that unit. On behalf of the petitioners it was said that from 1963-64 till 1966-67 inter,changeability was permitted between different editions of the same publication to the extent of 20 per cent. In 1967-68 and 1968-69 complete interchangeability between different editions of the same newspaper and between different newspapers and periodicals was permitted. In 1969-70 and 1970-71 the total entitlement was give" as an aggregate quota, though there was a separate calculation made for each newspaper. The present policy does not permit interchangeability. Interchangeability by using the quota for a new newspaper or a new edition or for another newspaper of the same unit will put common ownership unit in an advantageous position. Newsprint is allotted to each news; paper. The newspaper is considered to be the recipient. A single newspaper will suffer if common ownership units are allowed to adjust quota within their group.
The petitioners impeach Remark X in the Newsprint Policy for 1971-72 on the ground that a common ownership unit cannot bring out a new newspaper or start a new edition of an existing newspaper even from their allotted quota. Counsel on behalf of the petitioners rightly characterized this feature as irrational and irrelevant to the availability of newsprint. By way of illustration it was said that the Economic Times is sent by air to Calcutta and Delhi but the common ownership unit is not permitted to reduce the number of copies printed at Bombay and print copies out of the authorised quota for circulation at Calcutta and Delhi. Similarly, it was said that there was no reason to support the policy in Remark X preventing a common ownership unit from publishing a new daily though a person who brought out one daily was allowed to start a second daily. This was challenged as discriminatory. It is an abridgment of the freedom of expression to prevent a common ownership unit from starting a new edition or a new newspaper. A common ownership unit should be free to start a new edition out of their allotted quota and it would be logical to say that such a unit can use its allotted quota for changing the page structure and circulation of different editions of the same paper. It is made clear that newspapers cannot be permitted to use allotted quota for starting a new newspaper. Newspapers will have to make necessary application for allotment of quota in that behalf. It will be open to the appropriate authorities to deal with, the application in accordance with law. Until 1968-69 big dailies were treated alike but thereafter from 1970-71 onwards dailies with circulation of more than 1,00,000 copies have been put in a different category and given a lesser increase than those with a circulation of 50,000 to 1,00,000 copies though both are big dailies. The policy of the Government is to level all papers at 10 pages. It tends to treat unequals. as equals. It discriminates against those who by virtue of their standing status and service on all India basis acquired a higher page level in the past. The discrimination is apparent from Remark VII in the newsprint Policy for 1972-73 by which newspapers with less than 1,00,000 circulation have been given 10% increase in circulation whereas those with more than 1,00,000 circulation have been given only 3% increase in circulation. Mr. Palkhivala said the policy worked admirably in the past because adjustability between pages and circulation was permitted. In our view the Newsprint Control has now been subverted to newspaper control. The growth of circulation does not mean that there should not be growth in pages. A newspaper "expands with the news and views. A newspaper reaches different sections. It has to be left to the newspapers as to how they will adjust their newsprint. At one stage the Additional Solicitor General said that if a certain quantity of steel was allotted the Government could insist as to how it was going to be used. It was said that the output could be controlled. In our view, newsprint does not stand on the same footing as steel. It has been said that freedom of the press is indispensable to proper working of popular Government. Patna jali Sastri, J. speaking for this Court in Ramesh Thappar's case (supra) said that "Thus, every narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic Organization, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible". It is appropriate to refer to what William Blackstone said in his commentaries :
"Every free man has a undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press-, but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity."
The faith of a citizen is that political wisdom and virtue will sustain themselves in the free market of ideas so long as the channels of communication are left open. The faith in the popular Government rests on the old dictum "let the people have the truth and the freedom to discuss it and all will go well". The liberty of the press remains an "Art" of the Covenant" in every democracy. Steel will yield products of steel. Newsprint will manifest whatever is thought of by man. The newspapers give ideas. The newspapers give the people the freedom to find out what ideas are correct. Therefore, the freedom of the press is to be enriched by removing the restrictions on page limit and allowing them to have new editions or new papers. It need not be stressed that if the quantity of newsprint available does not permit grant of additional quota for new papers that is a different matter. The restrictions are to be removed. Newspapers have to be left free, to determine their pages, their circulation and their new editions within their quota of what has been fixed fairly.
Clauses 3 and 3A of the 1962 Newsprint Order prevent the petitioners from using white paper and writing paper. The additional Solicitor General at one stage said that it was open to any newspaper to an unrestricted use of any form of paper so long as newspapers do not apply for newsprint. This argument exposes grave errors. In the first place, it shows that there is no shortage' of white printing paper. Secondly, it will show that there is no justification for rationing of newsprint. The cost of indigenous white paper is double the cost of the imported newsprint. This high price of white printing paper is a deterrent to any newspaper to use it. The periodicals are permitted the use of white printing paper. That is because of Public Notice No. 4-ITC(PN)/63 dated 1 1 January, 1963. That may be one of the reasons why periodicals have not complained of the Policy. The periodicals can supplement their newsprint quota. Further, the clientele of the periodicals is different. The Prices of periodicals are also different. In any event, it cannot be said that the newspapers can buy white printing paper to meet their requirements. Nor can such plea be an answer to the violation of fundamental rights in Article 19 (1) (a) or infraction of Article 14 by the provisions of the impeached Newsprint Policy. In the present case, it cannot be said that the newsprint policy is a reasonable restriction within the ambit of Article 19(2). The newsprint policy abridges the fundamental rightS of the petitioners in regard to freedom of speech and expression. The newspapers are not allowed their right of circulation- The newspapers are not allowed right of page growth. The common ownership units of newspapers cannot bring out newspapers or new editions. The newspapers operating above 10 page level and newspapers Operating below 10 page level have been treated equally for assessing the needs and requirements of newspapers with newspapers which are not their equal, Once the quota is fixed and direction to use the quota in accordance with the newsprint policy is made applicable the big newspapers are prevented any increase in page number. Both page numbers and circulation are relevant for calculating the basic quota and allowance for increases. In the garb of distribution of newsprint the Government has tended to control the growth and circulation of newspapers. Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content. The newsprint policy which permits newspapers to increase circulation by reducing the number of pages, page area and periodicity, prohibits them to increase the number of pages, page area and periodicity by reducing circulation. These restrictions constrict the newspapers in adjusting their page number and circulation. The Additional Solicitor General relied on the American decision in Red Lion Broadcasting Co. v. Federal Communica- tions Com. (supra) in support of the contention that there should be an uninhibited marketplace of idea in which truth will ultimately prevail and there should not be monopolization of that market whether it be by the government itself or by a private licensee- The press is not exposed to any mischief of monopolistic combination. The newsprint policy is not a measure to combat monopolies. The newsprint policy should allow the newspapers that amount of freedom of discussion and information which is needed or will appropriately enable the Members of the society to preserve their political expression of comment not only upon public affairs but also upon the vast range of views and matters needed for free society.
This Court in Sakai Papers case (supra) dealt with measures empowering the government to regulate allocation of space to be allotted for advertising matter. This Court held that the measure had the direct effect of curtailing the circulation of the newspaper and thus to be violation of Article 19 (1) (a). It was said on behalf of the Government that regulation of space for advertisement was to prevent unfair competition. This Court held that the State could help or protect newly started newspapers but there could not be an abridgment of the right in Article 19(1)(a) on the ground of conferring right on the public in general or upon a section of the public.
The Additional Solicitor General contended that the business aspect of the press had no special immunity and the incidental curtailment in the circulation could not be freedom of speech and expression of the press. This Court in Sakai Papers case (supra) dealt with the measures for the fixation of price in relation to pages and the regulation of allotment of space for adver-tisement by each paper. These measures were said to be com- mercial activities of newspapers. This Court said that restrictions could be put upon the freedom to carry on business but the fundamental right of speech and expression could not be abridged or taken away. There could be reasonable restrictions on that right only as contemplated under Article 19(2).
Mr. Nambiar contended that the Newsprint Policy did not fall within clause 5(1) of the Import Control Order 1955 and it was not validly made by the Central Government. The records with regard to the making and publication of the newsprint policy for 1972-73 were looked into by this Court. It appears that the policy was published under the authority of the Cabinet decision. The policy was therefore validly brought into existence. The various restrictions of the newsprint policy have been examined earlier. The various restrictions imposed by the newsprint policy are found to be unconstitutional.
Clause 3 of the Newsprint Control Order 1962 was contended to confer unfettered and unregulated power on an executive officer. Clause (3A) of the Order of 1962 was also said to confer naked and arbitrary power. The disability imposed on newspapers from using printing and writing paper was said to be discriminatory. The Additional Solicitor General contended that it is open to an unrestricted use of any form of paper so long as newspapers do not apply for newsprint. This would establish that there is no shortage of white printing paper. The error in the Government contention is thereby exposed. The periodicals were permitted in terms of public Notice 4-ITC(PN)/63 dated 11 January 1963 unrestricted use of white printing paper to supplement their quota of newsprint. That again shows that the Government contention is wrong because there is restriction with regard to use of white printing paper. The cost of white printing paper is high. It is said that the cost is Rs. 2,750 per metric tonne for white printing paper compared to Rs. 1,274 of imported newsprint and Rs. 1,362 of Nepa newsprint. Clause 3 (3A) of the Order provides that no consumer of newsprint other than a publisher of text books or books of general interest shall use any kind of paper other than newsprint except with the permission in writing of the Controller. White printing paper like newsprint can be rationed. The distribution is to be fair and equitable. It is necessary also to point out that text books and books of general interest require facilities for using white printing paper. Such measures with regard to rationing are defensible. It is true that no guidelines are to be found in clause 3 (3 Al) as to the circumstances under which a particular consumer of newsprint or class of consumers of newsprint other than a publisher of text books or books of general interest should or should not be allowed to use white printing paper. The Public Notice allowing periodicals permission to use white printing paper is not challenged. Periodicals were not before this Court. It is therefore not necessary to express any opinion on clause 3 (3) and clause 3 (3A) of the Control Order.
For the foregoing reasons the newsprint policy for 1972-73 violates Articles 19 (1) (a) and 14 of the Constitution. The restrictions by fixing 10 page limit in Remarks V and VIII of the policy infringe Articles 19 (1)(a) and 14 of the Constitution and are therefore, declared unconstitutional and struck down. The policy of basic entitlement to quota in Remark V is violative of Articles 19(1)(a) and 14 of the Constitution and is therefore struck down. The measure in Remark VII(a) is violative of Articles 14 and 19 (1) (a) of the Constitution and is struck down.
The measures in Remark VII(C) read with Remark VIII are violative of Articles 19(1)(a) and 14 of the Constitution and are struck down. The prohibition in Remark X against common ownership unit from starting a new newspaper/periodical or a new edition is declared unconstitutional and struck down as violative of Article 19(1)(a) of the Constitution.
For these reasons the petitioners succeed. The import policy for newsprint for the year 1972-73 in regard to Remarks V, VII(a), VII(c), VIII and X as indicated above is struck down.
Supreme Court of India
Indian Express Newspapers ... vs Union Of India & Ors. Etc. Etc on 6 December, 1984
Equivalent citations: 1986 AIR 515, 1985 SCR (2) 287
Newspaper industry enjoys two of the fundamental rights, namely the freedom of speech and expression guaranteed under Article 19 (l) (a) and the freedom to engage in any profession, occupation, trade, industry or business guaranteed under Article 19 (1) (g) of the Constitution, the first because it is concerned with the field of expression and communication and the second because communication has become an occupation or profession and because there is on invasion of trade, business and industry into that field where freedom of expression is being exercised. While there can be no tax on the right to exercise freedom of expression, tax is leviable on profession, occupations trade, business and industry. Hence tax is leviable on newspaper industry. But when such tax transgresses into the field of freedom of expression and stifles that freedom, it becomes unconstitutional. As long as it is within reasonable limits and does not impede freedom of expression it will not be contravening the limitations of Article 19 (2). The delicate task of determining when it crosses from the area of profession, occupation, trade, business or industry into the area of freedom of expression and interferes with that freedom is entrusted to the courts.
The petitioners, however, have placed strong reliance on the Sakal's case (supra) and the Bennett Coleman's case (supra) in support of their case that any tax on newsprint which is the most important component of a newspaper is unconstitutional.
We have carefully considered the above two decisions. In the first case the Court was concerned with the newspaper price-page policy and in the second the newsprint policy imposed by the Government had been challenged. Neither of them was concerned with the power of Parliament to levy tax on any goods used by the newspaper industry As we have observed earlier taxes have to be levied for the support of the Government and newspapers which derive benefit from the public expenditure cannot disclaim their liability to contribute a fair and reasonable amount to the public exchequer. What may, however, have to be observed in levying a tax on newspaper industry is that it should not be a over- burden on newspapers which constitute the Fourth Estate of the country. Nor should it single out newspaper industry for harsh treatment. A wise administrator should realise that the imposition of a tax like the customs duty on new newsprint is an imposition on knowledge and would virtually amount to a burden imposed on a man for being literate and for being conscious of his duty as a citizen to inform himself about the world around him. 'The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement t that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves'. (Per Lord Simon of Glaisdale in Attorney General v. Times Newspapers(l). Freedom of expression, as learned writers have observed, has four broad social purposes to serve: (i) it helps an individual to attain self fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration. It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on other matters concerning newspapers industry than while levying taxes on matters. It is true that this Court has adopted a liberal approach while dealing with fiscal measures and has upheld different kinds of taxes levied on property, business, trade and industry as they were found to be in the public interest. But in the cases before us the Court is called upon to reconcile the social interest involved in the freedom of speech and expression with the public interest involved in the fiscal levies imposed by the Government specially because newsprint constitutes the body, if expression happens to be the soul.
In view of the intimate connection of newsprint with the freedom of the press, the tests for determining the vires of a statute taxing newsprint have, therefore, to be different from the tests usually adopted for testing the vires of other taxing statutes. In the case of ordinary taxing statutes, the laws may be questioned only if they are either openly confiscatory or a colourable device to confiscate. On the other hand, in the case of a tax on newsprint, (1) [1973] 3 All. E.R. 54 it may be sufficient to show a distinct and noticeable burdensomeness, clearly and directly attributable to the tax. A While we, therefore, cannot agree with the contention that no tax can be levied on newspaper industry, we hold that any such levy is subject to review by courts in the light of the provisions of the V Are the impugned notifications issued under section 25 of the Customs Act. 1962 beyond the reach of the Administrative Law.
It is argued on behalf of the Government that a notification issued under section 25(1) of the Customs Act granting, modifying or withdrawing an exemption from duty being in the nature of a piece of subordinate legislation, its validity cannot be tested by the Court by applying the standards applicable to an administrative action. Reliance is placed on the decision of this Court in Narinder Chand Hem Raj & Ors. v. Lt.. Governor, Administrator. Union Territory, Himachal Pradesh & Ors. (1) in support of the above contention. In that case the appellants were wine merchants carrying on business in Simla. At the auction held for the purpose of granting the privileges to sell the Indian made foreign liquor the appellants were the highest bidders. It appears that before the auction was held the Collector of Excise and Taxation had announced that no sales tax would be liable to be paid on the sale of liquor and despite this assurance the Government had levied and collected from the appellants a certain amount by way of sales tax. The appellants prayed for the issue of a writ to the Governments restraining them from levying any sales tax and to refund what had been recovered from them by way of sales tax already. It was contended on behalf of the Government of Himachal Pradesh that non-collection of sales Tax possible only on the issue of a notification by the Government pursuant to its statutory power under the Punjab General Sales Tax Act, which was in force in the area in question shifting 'liquor' which was in Schedule 'A' to Schedule 'B' to the Punjab General Sales Tax Act, and that such a notification could not be issued because the Central Government had not given its requisite approval. Hence it was urged by the Government that since sales tax had been imposed by law on all items in Schedule 'A' it could not disobey the mandate of law. It further contended that the Court could not issue a mandamus to the Government to issue a notification to amend the Schedules to the statute as the act of issuing such a notification was a legislative act and no writ could be issued to a legislative body or a subordinate Legislative body to a make a law or to issue a notification, as the case may be, which would have the effect of amending a law in force. This Court upheld the contention of the Government. The Court said:
"Our attention has not been drawn to any provision in that, Act empowering the Government to exempt any assessee from payment of tax. Therefore it is clear that appellant was liable to pay the tax imposed under the law. What the appellant really wants is a mandate from the court to the competent authority to delete the concerned entry from Schedule A and include the same in Schedule B. We shall not go into the question whether the Government of Himachal Pradesh on its own authority was competent to make the alteration in question or not. We shall assume for our present purpose that it had such a power. The power to impose a tax is undoubtedly a legislative power. That power can be exercised by the legislature directly or subject to certain conditions, the legislature may delegate the power to some other authority. But the exercise of that power whether by the legislature or by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No Court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. The relief as framed by the appellant in his writ petition does not bring out the real issue calling for determination. In reality he wants this Court to direct the Government to delete the entry in question from Schedule A and include the same in Schedule B. Art. 265 of the Constitution lays down that no tax can be levied and collected except by authority of law.
Hence the levy of a tax can only be done by the authority of law and not by any executive order. Unless the executive is specially empowered by law to give any exemption it cannot say that it will not enforce the law as against a particular person . No court can give a direction to a Government to refrain from enforcing a provision of law. Under these circumstances, we must held that the relief asked for by the appellant cannot be granted.
The question in the present cases is whether the tax has been shown to be so burdensome as to warrant its being struck down ? The petitioners have succeeded in showing a fall in circulation but whether it is a direct consequence, of the customs levy and the increase in price has not been duly established. It may be due to various circumstances. The fall in circulation may be due to the general rise in cost of living and the' reluctance of people to buy as many newspapers as they used to buy before. It may be due to bad management. It may be due to change of editorial policy. It may be due to the absence of certain feature writers. It may be due to other circumstances which it is not possible to enumerate. Except the synchronizing of time, there is nothing to indicate that the slight fall in circulation is directly due to the levy of customs duty. One curious feature of the case is that the petitioners have made no efforts to produce their balance sheets or profit and loss statements to give us a true idea of how burdensome the customs levy really is. On the other hand, the Government also has made no efforts to show the effect of the impact of the levy on the newspaper industry as a whole. All these years, the very exemption which they granted was an indication that the levy was likely to have a serious impact on the newspaper industry. Even now the exemption given to the small and medium newspapers shows that there is bound to be an impact. No effort has been made on the part of the Government to show the precise nature of the impact. On the other hand, the case of the Government appears to be that such considerations are entirely irrelevant, though the outstanding fact remains that for several years, the Government itself thought that the newsprint deserved total exemption. On the material now available to us, while it is not possible to come to the conclusion that the effect of the levy is indeed so burdensome as to affect freedom of the press, we are also not able to come to the conclusion that it will not be burdensome. This a matter which touches the freedom of the press which is, as we said, the very soul of democracy. This is certainly not a question which should be decided on the mere question of burden of proof. There are factors indicating that the present levy is heavy and is perhaps heavy enough to affect circulation. On such a vital issue, we cannot merely say that the petitioners have not placed sufficient material to establish the drop in circulation is directly linked to increase of the levy when, on the side of the Government the entire exercise is thought to be irrelevant. Hence there appears to be a good ground to direct the Central Government to reconsider the matter afresh in the light of what has been said here. Is the classification of newspapers made for the purpose of exemption violative of Article 14 7 We do not, however, see much substance in the contention of some of the petitioners that the classification of the newspapers into small, medium and big newspapers for purposes of levying customs duty is violative of Article 14 of the Constitution. The object of exempting small newspapers from the payment of customs duty and levying 5% ad valorem (now Rs. 275 per MT) on medium newspapers while levying full customs duty on big newspapers is to assist the small and medium newspapers in bringing down their cost of production. Such papers do not command large advertisement revenue. Their area of circulation is limited and majority of them are in Indian languages catering to rural sector. We do not find anything sinister in the object nor can it be said that the classification has no nexus with the object to be achieved.
It is no doubt true that so me of the petitioners have also questioned the validity of the levy prescribed by the Customs Tariff Act, 1975 itself. But we are of the view the it is unnecessary to quash it because of the pattern of the legislative provisions levying customs duty which authorise the Government in appropriate cases either to reduce the duty or to grant total exemption under section 25 of the Customs Act, 1962 having regard to the prevailing circumstances and to very such concessions from time to time. The Governmental practice in the matter of customs duties has made the law imposing customs virtually a hovering legislation. Parliament expects the Government to review the situation in each case periodically and to decide what duty should be levied within the limit prescribed by the Customs Tariff Act, 1975. Hence the validity of the provision in the Customs Tariff Act, 1975 need not be examined now. Since it is established that the Government has failed to discharge its statutory obligations in accordance with law while issuing the impugned notifications issued under section 25 of the Custom Act, 1962 on and after March 1, 1981, the Government should be directed to re- examine the whole issue relating to the extant of exemption that should be granted in respect of imports of newsprint after taking into account all relevant considerations for the period subsequent to March 1,1981- We adopt this course since we do not also wish that the Government should be deprived of the legitimate duty which the petitioners would have to pay on the imported newsprint during the relevant period.
In the result, in view of the peculiar features of these cases and having regard to Article 32 of the Constitution which imposes an obligation on this Court to enforce the fundamental rights and Article 142 of the Constitution which enables this Court in the exercise of its jurisdiction to make such order as is necessary for doing complete justice in any cause or matter pending before it, we make the following order is these cases:
The Government of India shall reconsider within six months the entire question of levy of import duty or auxiliary duty payable by the petitioners and others on newsprint used for printing newspapers, periodicals etc. with effect from March 1, 1981. The petitioners and others who are engaged in newspaper business shall make available to the Government all information necessary to decide the question.
2. If on such reconsideration the Government decides that there should be any modification in the levy of customs duty or A auxiliary duty with effect from March 1, 1981, it shall take necessary steps to implement its decision.
3. Until such redetermination of the liability of the petitioners and others is made, the Government shall recover only Rs. 550 per MT on imported newsprint towards customs duty and auuiliary duty and shall not insist upon payment of duty in accordance with the impunged notifications. The concessions extended to medium and small newspapers. may, however, remain in force.
4. If, after such redetermination, it is found that any of the petitioners is liable to pay any deficit amount by way of duty, such deficit amount shall be paid by such petitioner within four months from the date on which a notice of demand is served on such petitioner by the concerned authority. Any bank guarantee or security given by the petitioners shall be available for recovery of such deficit amounts.
5. If, after such redetermination, it is found that any of the petitioners is entitled to any refund-such refund shall be made by the Government within four months from the date of such redetermination.
6. A writ shall issue to the respondents accordingly in these cases. Parties shall, however, bear their own costs.
Supreme Court of India
Express Newspapers (Private) ... vs The Union Of India And Others(And ... on 8 January, 1958
Author: B P Sastri
Bench: Bhagwati, Natwarlal H., Sinha, Bhuvneshwar P., Imam, Syed Jaffer, Kapur, J.L., Gajendragadkar, P.B.
It was legitimate and proper to refer in this connection to
the decisions of the Supreme Court of the United States of
America, since Art. 19(1)(a) of the Constitution was based
on Amendment 1 of the Constitution of that country, and the
rules that could be deduced therefrom made it clear that
although freedom of the press included freedom from
restriction in respect of employment in the editorial staff,
the press was not immune from ordinary forms of taxation or
from the application of general laws relating to industrial
relations or laws regulating payment of wages.
Case law reviewed.
But if a law were to single out the press for laying
prohibitive burdens on it that would restrict the
circulation, penalise its freedom of choice as to personnel,
prevent newspapers from being started and compel the press
to seek Government aid, it would be violative of Art.
19(1)(a) and would fall outside the protection afforded by
Art. 19(2) of the Constitution.
The impugned Act, judged by its provisions, was not such a
law but was a beneficent legislation intended to regulate
the conditions of service of the working journalists and the
consequences aforesaid could not be the direct and
inevitable result of it. Although there could be no doubt
that it directly affected the press and fell outside the
categories of protection mentioned in Art. 19(2), it had not
the effect of taking away or abridging the freedom of speech
and expression of the petitioners and did not, therefore,
infringe Art. 19(1)(a) of the Constitution. Nor could the impugned Act be held to be violative of Art.
19(1)(g) of the Constitution in view of the test of reason-
ableness laid down by this Court.
Chintaman Rao v. The State of Madhya Pradesh, [1950] S.C.R.
759, The State of Madras v. V. G. Rao, [1952] S.C.R. 597, a
State of West Bengal v. Subodh Gopal Bose, [1954] S. C. R.
587 and Virendra v. State of Punjab, [1958] S.C.R. 308,
referred to.
It was not correct to say that s. 9(i) of the Act did not
lay down the relevant criteria for the fixation of rates of
wages. On a true construction of that section it must be
held that the criterion of prevalent rates of wages for
comparable employment could be consistent only with the
wages higher than the bare subsistence or minimum wages and,
since rates of wages must be held to include scales of wages
as well, it was essential that the Wage Board should take
into consideration the capacity of the newspaper industry to
pay before it could fix the rates of wages. Although the
Act did not specifically say so, it was possible to hold
that the third criterion laid down by the section, namely,
the circumstances relating to the newspaper industry in
different regions of the country, included such a
consideration. The provisions of the section were not,
therefore, unreasonable and violative of Art. 19(1)(g) of
the Constitution.
The provisions of s. 9(1) of the impugned Act did not vest
uncontrolled power in the Wage Board. The last criterion of
that section which empowered the Board to take into
consideration any other circumstances that it might think
relevant, must be read ejusdem generis with the other
criteria that preceded it and as they laid down with
sufficient clarity and particularity the principles for the
guidance of the Board, the Legislature was perfectly
justified in leaving such considerations as might arise in
course of the enquiry to the subjective satisfaction of the
Board constituted, as it was, of equal number of
representatives of both the employers and employees.The impugned Act was not discriminatory in character and did
not violate Art. 14 of the Constitution. Working
journalists formed a separate class by themselves and could
be classified apart from the rest of the newspaper employees
on a perfectly intelligible differentia rationally related
to the object which the Act had in view. Nor could the
provisions of either s. 12 or s. 17 of the Act, therefore,
be said to be discriminatory in character.
Supreme Court of India
Hindustan Times & Ors vs State Of U.P. & Anr on 1 November, 2002
In Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. & Ors. [(1995) 5 SCC 139], it was held as under :-
"20. Advertising is considered to be the cornerstone of our economic system. Low prices for consumers are dependent upon mass production, mass production is dependent upon volume sales, and volume sales are dependent upon advertising. Apart from the lifeline of the free economy in a democratic country, advertising can be viewed as the lifeblood of free media, paying most of the costs and thus making the media widely available. The newspaper industry obtains 60%/80% of its revenue from advertising. Advertising pays a large portion of the costs of supplying the public with newspaper. For a democratic press the advertising 'subsidy' in crucial. Without advertising, the resources available for expenditure on the 'news' would decline, which may lead to an erosion of quality and quantity. The cost of the 'news' to the public would increase, thereby restricting its 'democratic' availability."
It is not in dispute that advertisements play important roll in the matter of revenue of the newspapers.
This Court in Bennett Coleman & Co. & Ors. etc. v. Union of India & Ors. etc. [(1972) 2 SCC 788] observed as under :- "34. Publication means dissemination and circulation. The press has to carry on its activity by keeping in view the class of readers, the conditions of labour, price of material, availability of advertisements, size of paper and the different kinds of news comments and views and advertisements which are to be published and circulated. The law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will be saved by Article 19(2). If the area of advertisement is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakal Papers case (supra) to be the direct consequence of curtailment of advertisement. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 19(1)(a) on the aspects of propagation, publication and circulation.
43. The various provisions of the newsprint import policy have been examined to indicate as to how the petitioners' fundamental rights have been infringed by the restrictions on page limit, prohibition against new newspapers and new editions. The effect and consequence of the impugned policy upon the newspapers is directly controlling the growth and circulation of newspapers. The direct effect is the restriction upon circulation of newspapers. The direct effect is upon growth of newspapers through pages. The direct effect is that newspapers are deprived of their area of advertisement. The direct effect is that they are exposed to financial loss. The direct effect is that freedom of speech and expression is infringed.
45. It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express."
It is neither in doubt nor in dispute that for the purpose of meeting the costs of the newsprint as also for meeting other financial liabilities which would include the liability to pay wages, allowances and gratuity etc to the working journalists as also liability to pay a reasonable profit to the shareholders vis--vis making the newspapers available to the readers at a price at which they can afford to purchase it, the petitioners have no other option but to collect more funds by publishing commercial and other advertisements in the newspaper. The respondents being a State, cannot in view of the equality doctrine contained in Article 14 of the Constitution of India, resort to the theory of "take it or leave it". The bargaining power of the State and the newspapers in matters of release of advertisements is unequal. Any unjust condition thrust upon the petitioners by the State in such matters, in our considered opinion, would attract the wrath of Article 14 of the Constitution of India as also Section 23 of the Indian Contract Act. See Central Inland Water Transport Corporation Limited & Anr. v. Brojo Nath Ganguly & Ors. etc. [(1986) 3 SCC 156] and Delhi Transport Corporation v. D.T.C. Mazdoor Congress & Ors. [AIR 1991 SC 101]. It is trite that the state in all it activities must not act arbitrarily. Equity and good conscience should be at the core of all governmental functions. It is now well- settled that every executive action which operates to the prejudice of any person must have the sanction of law. The executive cannot interfere with the rights and liabilities of any person unless the legality thereof is supportable in any court of law. The impugned action of the State does not fulfill the aforementioned criteria.
We are, therefore, of the considered view that the impugned orders dated 24th September, 1991 and 16th October, 1991 are unconstitutional and void and must be declared as such.
Supreme Court of India
R. Rajagopal vs State Of T.N on 7 October, 1994
We may now consider whether the State or its officials have the authority in law to impose a prior restraint upon publication of material defamatory of the State or of the officials, as the case may be? We think not. No law empowering them to do so is brought to our notice. As observed in New York Times v. United States , popularly known as the Pentagon papers case, "any system of prior restraints of (freedom of) expression comes to this Court bearing a heavy presumption against its constitutional validity" and that in such cases, the Government "carries a heavy burden of showing justification for the imposition of such a restraint". We must accordingly hold that no such prior restraint or prohibition of publication can be imposed by the respondents upon the proposed publication of the alleged autobiography of "Auto Shankar" by the petitioners. This cannot be done either by the State or by its officials. In other words, neither the Government nor the officials who apprehend that they may be defamed, have the right to impose a prior restraint upon the publication of the alleged autobiography of Auto Shankar. The remedy of public officials/public figures, if any, will arise only after the publication and will be governed by the principles indicated herein.
It is not stated in the counter-affidavit that Auto Shankar had requested or authorised the prison officials or the Inspector General of Prisons, as the case may be, to adopt appropriate proceedings to protect his right to privacy. If so, the respondents cannot take upon themselves the obligation of protecting his right to privacy. No prison rule is brought to our notice which empowers the prison officials to do so. Moreover, the occasion for any such action arises only after the publication and not before, as indicated hereinabove.
We may now summarise the broad principles flowing from the above discussion:
(1)The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
(2)The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media. (3)There is yet another exception to the rule in (1) above
- indeed, this is not an exception but an independent rule. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles 105 and 104 respectively of the Constitution of India, represent exceptions to this rule.
(4)So far as the Government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain a suit for damages for defaming them.
(5)Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not bind the press or media.
(6)There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.
27.We may hasten to add that the principles above mentioned are only the broad principles. They are neither exhaustive nor all-comprehending; indeed no such enunciation is possible or advisable. As rightly pointed out by Mathew, J., this right has to go through a case-by-case development. The concepts dealt with herein are still in the process of evolution.
29.Applying the above principles, it must be held that the petitioners have a right to publish, what they allege to be the life story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorisation. But if they go beyond that and publish his life story, they may be invading his right to privacy and will be liable for the consequences in accordance with law. Similarly, the State or its officials cannot prevent or restrain the said publication. The remedy of the affected public officials/public figures, if any, is after the publication, as explained hereinabove.
Supreme Court of India
Brij Bhushan And Another vs The State Of Delhi on 26 May, 1950
-This is an application under arti- cle 32 of the Constitution praying for the issue of writs of certiorari and prohibition to the respondent, the Chief Commissioner of Delhi, with a view to examine the legality of and quash the order made by him in regard to an English weekly of Delhi called the Organizer of which the first applicant is the printer and publisher, and the second is the editor. On 2nd March, 1950, the respondent, in exercise of powers conferred on him by section 7 (1) (c) of the East Punjab Public Safety Act, 1949, which has been extended to the Delhi Province and is hereinafter referred to as the impugned Act, issued the following order:
"Whereas the Chief Commissioner, Delhi, is satisfied that Organizer, an English weekly of Delhi, has been pub- lishing highly objectionable matter constituting a threat to public law and order and that action as is hereinafter mentioned is necessary for the purpose of preventing or combating activities prejudicial to the public safety or the maintenance of public order.
The only point argued before us relates to the consti- tutional validity of section 7 (1) (c) of the impugned Act which, as appears from its preamble, was passed "to provide special measures to ensure public safety and maintenance of public order." Section 7 (1) (c) under which the aforesaid order purports to have been made reads (so far as material here) as follows :--
"The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is neces- sary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a print- er, publisher or editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny."
The petitioners claim that this provision infringes the fundamental right to the freedom of speech and expression conferred upon them by article 19 (1) (a) of the Constitu- tion inasmuch as it authorises the imposition of a restric- tion on the publication of the journal which is not justi- fied under clause (2) of that article.
There can be little doubt that the imposition of precen- sorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). As pointed out by Blackstone in his Commentaries "the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press(1). The only question therefore is whether section 7 (1)(c) which authorises the imposition-of such a restriction falls within the reservation of clause (2) of article 19. As this question turns on considerations which are essentially the same as those on which our decision in Petition No. XVI of 1950(2) was based, our judgment in that case concludes the present case also. Accordingly, for the reasons indicated in that judgment, we allow this petition and hereby quash the impugned order of the Chief Commission- er, Delhi, dated the 2nd March, 1950.