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TMI Blog1961 (9) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... ewspaper Sakal was started in the year 1932 and it is claimed that it has a net circulation of 52,000 copies on week days and 56,000 copies on Sundays in Maharashtra and Karnataka and as such plays a leading part in the dissemination of news and views and in moulding public opinion in matters of public interest. The daily addition of the newspaper contains six pages a day for five days in a week and four pages on one day. This edition is priced at 7 nP. The Sunday edition consists of ten pages and is priced at 12nP. About 40% of the space in the newspaper is taken up by advertisement matter and the rest is voted to news, articles, features, Views etc. It is claimed on behalf of the petitioners that one of the special features of the newspaper is coverage of foreign news and despatches on foreign affairs. It is claimed on behalf of the petitioners that this paper is not aligned with any political party and that upon controversial questions the public look up to it for impartial appraisement of the issues involved and for guidance. 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in either event there will be an interference with their right under Art. 19(1)(a) of the Constitution. The petitioners point out that the impugned Order reserves to the Central Government the power to permit issue of supplements, except those on January 26 and August 15, and that the result of this would be to place them at the mercy of the Government and thus interfere with their freedom of expression. They further point out that the Act and the Order are violative of the provisions of Art. 14 of the Constitution inasmuch as their avowed object is to promote arbitrarily the interests of some newspaper at the expense of others. They contend that inequality is writ large in the provisions of the Act and of the Order and that there is no reasonable classification or basis or any rational relationship between the restrictions imposed and the objects sought to be achieved. According to them, while the established newspapers will be hardly affected by these provisions those that are endeavouring to come up will be hampered in their progress. On behalf of the respondent, the Union of India, in the Ministry of Information and Broadcasting, while it is admitted that the object of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance upon the statement contained in the Report of the Press Commission it is contended on behalf of the respondent that newspapers of long standing which have built up a large and stable advertisement revenue being in a more advantageous Position than newcomers in the field of journalism are in a position to squeeze out such newcomers with the result that they are able to destroy the freedom of expression of others. A free press, it is said, cannot mean a press composed of a few powerful combines and that in order to ensure freedom of press it is necessary to secure full scope for the full development of smaller news- papers. It is further pointed out on behalf of the respondent that the diminution of advertisement revenue which would result from the operation of the Price Page Schedule cannot be regarded as an infringement of the right under Art. 19(1)(a) According to the respondent the economies of newspapers and the maximum number of pages that a paper can give with a reasonable margin for advertisement space was worked out by the Press Commission which also suggested a tentative Price Page Schedule. In formulating the schedule the Press Commission took into account various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing newspapers, this legislation cannot be said to infringe the right of freedom of expression of a newspaper but on the other hand said to be one which promotes and encourages healhty journalism. The impugned provisions will, according to the respondent, affect only those classes of newspapers which unfairly compete with the smaller one-a, kind of competition which is considered by the Press Commission as unhealthy and against the interests of healthy journalism in a growing democracy. It is then said that it is necessary to avoid unfair competition and even to promote healthy competition that papers have to be put on a criteria of equality and that this could only be done by directly restricting the publication of large number of pages as against the price charged. Then it is contended that what is aimed at by the impugned legislation is the avoidance of concentration of ownership without interfering with healthy competition between equals equally situated. It is further stated that not only was the statute enacted on the recommendation of the Press Commission but that the Price Page Schedule itself was introduced in response to the demand pressed by the Indian Language Newspa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for advertising matter. Sub-section (2) of that section provides for an order under sub-s. (1) to be made in relation to newspapers generally or in relation to any class of newspapers and further provides for the making of different provisions for daily newspapers and newspapers appearing at other periodical intervals as ,well as for different classes of newspapers. Sub-seotion (3) provides that the Central Government, in making the Order, shall have due regard to a reasonable flexibility with respect to the fall of news and flow of advertisements and other matters connected with the normal working of newspapers. Sub- section (4) makes it obligatory upon the Central Goverment to consult associations of publishers and such publishers as are likely to be affected by the Order as it may think fit with respect to the action proposed to be taken. Section 4 prohibits publication or sale of newspapers in the territories to which the Act extends in contravention of any of the provisions of an order made under s. 3. Section 5 provides for furnishing returns by newspapers to the Press Registrar. Sub-section (1)of s. 6 provides penalties for publication and sale of newspapers in contraventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also once in every quarter on such special occasion as the publisher thinks fit. Paragraph 8 empowers the Central Government to permit the publication of additional supplem nts or special editions in excess of those referred to in paragraph 7 and prescribes the number of pages which could be. published. Paragraph 9 relaxes to a certain extent the rigour of the provisions of paragraphs 4 to 6, in that it provides that the daily newspaper shall not be deemed to have contravened the provisions of the Order unless the number of pages of all the issues of that newspaper published during any period of twelve consecutive weeks exceeds the quota assigned to such newspaper during that period. A bare perusal of the Act and the Order thus makes it abundantly clear that the right of a news-, paper to publish news and views and to utilise as many pages as it likes for that purpose is made to depend upon the price charged to the readers. Prior to the promulgation of the Order every news- paper was free to charge whatever price it chose, and thus had a right unhampered by State regulation to publish news and views. This liberty is obviously interfered with by the Order which provides for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng such newspapers. It it; not disputed that every newspaper evolves a plan of its own for carrying on its activities.. Bearing in mind factors such as the place of publication, the class of the reading public which may be excepted to subscribe to the paper, the conditions of labour, the price of material, the, availability of advertisements and so on it decides upon its size, the proportion of different kinds of matter published in the newspaper, such as news, comments, views of readers, advertisements etc., and the price to be charged.. The plan evolved by it is sought to be rudely shaken if not completely Upset by an order which it is open to the Central Government to make under s. 3(1) with a view to curtailment of circulation of newspapers. No doubt, under s. 3(4) the Government is required to consult associations of publishers. Apart from the fact that the Government is not bound by the opinion of the associations, the mere circumstance that consultation with them is made obligatory, the action of the Government in formulating an order does not cease to be a direct interference with the freedom of speech and expression of a citizen. After the schedule comes into force i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mately imposed under cl. (2) of Art. 19. The first decision of this Court in which this was recognized is Romesh Thapar v. State of Madras ([1950] S.C.R. 594). There., this Court held that freedom of speech and expression includes freedom of propagation of ideas and that this freedom is ensured by the freedom of circulation. In that case this Court has also pointed out that freedom of speech and expression are tie foundation of all democratic organisations and are essential for the proper functioning of the processes of democracy. There and in other cases this Court pointed out that very narrow and stringent limits have been set to permissible legislative abridgment of the right of freedom of speech and expression. In State of Madras v. V. G. Row ([1952] S.C.R. 597) the question of the reasonableness of restrictions which could be posed upon a fundamental right has been considered. This Court has pointed out that the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and scope of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at that time should all enter into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in' paragraph 165 it is observed There is another instance illustrating the ,effect of selling price on the circulation. The two leading Tamil papers Swadesamitran and Dinamani in Madras, anticipating towards the end of 1950 a steep rise in the price of news- print, came to an understanding and raised the price of their papers from ₹ 0-1-0 to ₹ 0-1-6. (These papers normally carried 30 to 36 pages per week). The increase in price from ₹ 0- 1 -0 per copy to ₹ 0-1-6 was brought into effect from 1st January, 1951. The result was a drastic fall in circulation in both their cases. Subsequently in view of this fall in circulation they agreed to reduce their prices to the old figure. While the original fall in circulation came about in three months duration one paper took more than 9 months to recover its old circulation while the other had not done so......... It may be mentioned in this connection that th e circulation of a competing paper, Thanthi......... did not rise during the three months when the two leading papers had increased the price .......nor did it fall when the prices of the leading papers were lowered again. The conclusion, therefore, appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect of the Order and As such would be violative of the right of newspapers guaranteed by Art. 19(1)(a). Again, s. 3(1) of the Act in so far as it permits the allocation of space to advertisements also directly affects freedom of circulation. If the area for advertisements is curtailed the price of the newspaper will be forced up. If that happens, the circulation will inevitably go down. This would be no remote, but a direct consequence of curtailment of advertisements. We would consider this matter in another way also. The advertisement revenue of a newspaper is proportionate to its circulation. Thus the higher the circulation of a newspaper the larger would be its advertisement revenue. So if a newspaper with a high circulation were to raise its price its circulation would go down and this in turn would bring down also the advertisement revenue. That would force the newspaper either to close down or to raise its price. Raising the price further would affect the circulation still more and thus a vicious cycle would set in which would ultimately end in the closure of the newspaper. If, on the other hand, the space for advertisement is reduced the earnings of a newspaper would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ([1960] 2 S.C. R. 671.) 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 ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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