PETITIONER:
INDIAN EXPRESS NEWSPAPERS (BOMBAY) PRIVATE LTD. & ORS. ETC.E
Vs.
RESPONDENT:
UNION OF INDIA & ORS. ETC. ETC.
DATE OF JUDGMENT06/12/1984
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)
CITATION:
1986 AIR 515 1985 SCR (2) 287
1985 SCC (1) 641 1984 SCALE (2)853
CITATOR INFO :
R 1989 SC 190 (14)
ACT:
Constitution of India 1950 Article 19(I )(a)- Freedom
of speech and expresion- Whether includes Freedom of press-
Restrictions other than those In Article 19(2)-Whether
reasonable-Interference in the name of Public Interest-
Whether justified. D
Roll of Press and Newspapers-Duty of Court to held the
balance even and to strike down any unconstitutional
invasion of press.
Fundamental rights under Article 19(l)(a) and (g)-
Whether different from right conferred by First Amendment to
American Constitution.
Article 13(3)(a)-Notification under section 25 Customs
Act 1962-Contrary to fundamental rights-Whether to be struck
down.
Article 14-Classification of newspapers for levying
customs duty-Whether discriminatory.
Article 4I-Duty of State to encourage education of
masses through media of press-Necessity of. F
Entry 87 and 93 List 1. Seventh Schedule-Newspaper
Industry-Levy of tax-Competency of Parliament to enact laws-
Scrutiny by Courts when arises -Tax transgressing into the
field of freedom of speech and expression and stifles that
freedom-Whether unconstitutional.
Article 32-Validity of tax-Duty of Court-Not to be
burdensome-Newspaper Industry not to be singled out-Custom
Duty on newspaper-Whether tax on knowledge-People's right to
know-Imposition of tax-Government to be more cautious.
Interpretation of statutes:
Constitution of India 1950 Article 19(1)(a)-
Interpretation of-American
288
cases-Whether sole guide-He1p in understanding the basic
principles of freedom of speech and expression.
Statutes Taxing Newsprint-Tests for determining vires
of-Different from other taxing statutes-Grounds of
challenge.
Customs Act. 1962 Section 25-Power to grant exemption-
Whether legislative power-Whether notification a Subordinate
piece of legislation Whether questionable on the ground of
unreasonableness-Power of Government discretionary but not
unrestricted.
Customs Act 1962 Section 25-Notification Substitution
of by another- Whether former notification would revive ff
the latter is held invalid.
Customs Tariff Act 1975 Section 2 and Second Schedule
Heading 48.01/21 -Sub-heading 2-Newsprint-Import duty and
auxiliary levy at a flat rate- Validity of.
HEADNOTE:
Under the Indian Tariff Act 1934, there was a levy of
customs duty on imported paper. Exemption, however, had been
granted for import of white, grey or unglazed newsprint from
the levy of any kind of customs duty in excess of 1.5% ad
valorem but subsequently a specific import duty of Rs. 50
per MT was levied on newsprint imports upto 1966. The
Inquiry Committee on Small Newspapers examined the question
of customs duty on newsprint and submitted its report in
1965 recommending total exemption of newsprint from customs
duty. Pursuant to the said recommendation, the Government
abolished customs duty on newsprint altogether in the year
1966. In 1971, a regulatory duty of 2-1/2% was levied on
newsprint imports. This 2-1/2% regulatory duty was abolished
and was converted into 5% auxiliary duty by the Finance Act
of 1973. On the Customs Tariff Act 1975 coming into force,
the Indian Tariff Act 1934 was repealed. Under section 2
read with Heading No. 48.01/21 of the First Schedule to the
197S Act, a levy of basic customs duty of 40% ad valorem was
imposed on newsprint. However, the 5% auxiliary duty levied
from April 1, 1973 continued to be in operation which was
also totally abolished in July 1977. The total exemption
from customs duty on newsprint continued till March 1, 1981
when notification dated July IS, 1977 granting total
exemption from customs duty superseded by the issue of a
fresh notification under which publishers of newspapers had
to pay 10% ad valorem customs duty on imported newsprint. By
another notification issued at about the same time the
auxiliary duty imposed by the Finance Act of 1981 above 5%
ad valorem was exempted in the case of newsprint. The result
was that a total duty of 15% ad valorem came to be imposed
on newsprint for the year 1981-82, which led to the increase
in the price of newspaper resulting in fall in circulation
of news papers. In the first set of writ petitions this 15%
levy was challenged.
During the pendency of these writ petitions while
Customs Tariff Act, 1975 was amended levying 40% ad valorem
plus Rs. 1000 pet MT as customs duty on newsprint, the
auxiliary duty payable on all goods subject to customs duty
was increased to 50% ad valorem. But by notification dated
February 82.
289
1982 issued under section 25(2) of the Customs Act 1962 the
notification A dated March 1, 1981 was superseded and Rs.
550 per tonne was imposed as customs duty on newsprint and
auxiliary duty was fixed at Rs. 275 per tonne. In all Rs.
825 per tonne of newspaper had to be paid as duty.
Under the newsprint policy of the Government there
were three sources of supply of newsprint-(i) high seas
sales. (ii) sales from the buffer stock built up by the
State Trading Corporation which includes imported newsprint,
and (iii) newsprint manufactured in India. Imported
newsprint is an important component of the total quantity of
newsprint utilised by any newspaper establishment.
The validity of the imposition of import duty on
newsprint imported from abroad under section 12 of the
Customs Act 1962 (Act 52 of 1962) read with section 2 and
Heading No. 48.01/21 Sub-heading No. (2) in the First
Schedule to the Customs Tariff Act, 1975 (Act 51 of 1975)
and the levy of auxiliary duty under the Finance Act, 1981
on newsprint as modified by notifications issued under
section 25 of the Customs Act 1962 with effect from March 1,
1981 was challenged in the writ petitions.
In the writ petitions it was contended (I) that the
imposition of the import duty has the direct effect of
crippling the freedom of speech and expression guaranteed by
the Constitution as it led to the increase in the price of
newspapers and the inevitable consequence of reduction of
their circulation; (2) that with the growth of population
and literacy in the country every newspaper is expected to
register an automatic growth of at least 5% in its
circulation every year but this growth is directly 'impeded
by the increase in the price of newspapers; (3) that the
method adopted by the Customs Act, 1962 and the Customs
Tariff Act, 1975 in determining the rate of import duty has
exposed E the newspaper publishers to Executive
interference; (4) that there was no need to impose customs
duty on newsprint which had enjoyed total exemption from its
payment till March 1, 1981, as the foreign exchange position
was quite comfortable. Under the scheme in force, the State
Trading Corporation of India sells newsprint to small
newspapers with a circulation of less than 15000 at a price
which does not include any . import duty. to medium
newspapers with a circulation between 15000 and 50,000 at a
price which includes 5% ad valorem duty (now Rs. 275 per MT)
and to big newspapers having a Circulation of over 50,000
at a price which includes the levy of 15% ad valorem duty
(now Rs. 825 per MT). This classification of newspapers'
into big, medium and small newspapers is irrational as the
purchases on high seas are sometimes effected by a publisher
owning many newspapers which may belong to different
classes; (5) that the enormous increase in the price of
newsprint subsequent to March 1, 1981 and the inflationary
economic conditions which led to higher cost of production
have made it impossible for the industry to bear the duty
any longer. Since the capacity to bear the duty is an
essential element in determining the reasonableness of the
levy, the continuance of the levy is violative of Article
19(1)(a) and Article 19(1)(g) of the Constitution. The
imposition of the levy on large newspapers by the Executive
is done with a view to stifling circulation of newspapers
which are highly critical of the performance of the adminis-
290
tration. The classification of newspapers into small, medium
and big for purposes of levy of import duty is violative of
Article 14 of the Constitution; and (6) that the power of
the Government to levy taxes of any kind on the newspaper
establishment rings the death-knell of the freedom of press
and would be totally against the spirit of the Constitution.
The Union of India contested the writ petitions
alleging (I) that the Government had levied the duty in the
public interest to augment the revenue of the Government.
When exemption is given from the customs duty, the Executive
has to satisfy itself that there is some other corresponding
public interest justifying such exemption and that in the
absence of any such public interest, there is no power to
exempt but to carry out the mandate of Parliament which has
fixed the rate of duty by the Customs Tariff Act, 1975; (2)
that the classification of newspapers for purposes of
granting exemption is done the public interest having
regard to relevant considerations, and that the levy was not
Malay fide Since every section of the society has to bear
its due share of the economic burden of the state, levy of
customs duty on newsprint cannot be considered to be
violative of Article 19(1) (a). The plea that the burden of
taxation is excessive is an irrelevant factor to the levy of
import duty on newsprint; (3) that the fact that the foreign
exchange position was comfortable was no bar to the
imposition of import duty; and (4) since the duty imposed is
an indirect tax which would be borne by the purchaser of
newspaper, the petitioner could not feel aggrieved by it.
Allowing the Writ Petitions,
^
HELD: 1. The expression 'freedom of press' has not been
used in Article 19 of the Constitution but, as declared by
this Court, it is included in Article 19 (1) (a) which
guarantees freedom of speech and expression. Freedom of
press means freedom from interference from authority which
would have the effect of interference with the content and
circulation of newspapers. [310C; 35I]
2. There could not be any kind of restriction on the
freedom of speech and expression other than those mentioned
in Article 19 (2) and it is clear that there could not be
any interference with that freedom in the name of public
interest, Even when clause (2) of Article 19 was
subsequently substituted under the Constitution (First
Amendment) Act, 1951 by a new clause which permitted the
imposition of reasonable restrictions on the freedom of
speech and expression in the interests of sovereignty and
integrity of India, these urity of the State, friendly
relations with foreign States, public order, decency or
morality in relation to contempt of court, defamation or
incitement to an offence. Parliament did not choose to
include a clause enabling the imposition of reasonable
restrictions in the public interest. [3l2B-C]
3. Freedom of press is the heart of social and
political. intercourse The press has now assumed the role of
the public educator making formal and non-formal education
possible in a large scale particularly in the developing
world, where television and other kinds of modern
communication are not
291
still available for all sections of society. The purpose of
the press is to advance the public interest by publishing
facts and opinions without which a democratic electorate
cannot make responsible judgments. Newspapers being
purveyors of news and views having a bearing on public
administration very often carry material which would not be
palatable to governments and other authorities. With a view
to checking malpractices which interfere with free flow of
information, democratic constitutions all over the world
have made provisions guaranteeing the freedom of speech and
expression laying down the limits of interference with it.
[316B.D; H]
It is the primary duty of all the national courts to
uphold the said freedom and invalidate all laws or
administrative actions which interfere with it, contrary to
the constitutional mandate. [317A]
Brij Bhushan & Anr. v The State of Delhi [1950] S C.R.
605, Bennett Coleman & Co. & ors v. Union of India & ors.
[1973] 2 S.C.R. 757, Romesh Thappar v. The State of Madras;
1950 S.C.R. 594, Express Newspapers (Private) Ltd. & Anr. v.
The Union of lndia & ors. [1959] S.C R. 12 and Sakal Papers
(P Ltd. & Ors v. The Union of India [19621 3 S.C.R. 842,
followed.
1 Annals of Congress (1789-96) p. 141; D.R. Mankekar:
The Press under Pressure (1973) p 25; Article 19 of the
Universal Declaration of Human Rights [1948: Article 19 of
the International Covenant on Civil and Political Rights
1965; Article 10 of the European Convention on Human Rights:
First Amendment to the Constitution of the United States of
America; Article by Frank C. Newman and Karel Vasak on
'Civil and political Rights' in the International Dimensions
of Human Rights (Edited by Karel Vasak) Vo. 1 pp. 155-156;
"Many Voices one World" a publication of UNESCO containing
the Final Report of the International Commission for the
Study of Communication Problems Part V dealing with
'Communication Tomorrow' p. 265; Article entitled 'Toward a
General Theory of the First Amendment' by Thomas 1. Emerson
(The Yale Law Journal Vol. 72 .877 at p. 906; Second Press
Commission Report (Vol.l. pp. 3435). referred to.
5. (i) Excluding small newspaper establishments having
circulation of less than about 10,000 copies a day, all
other bigger newspaper establishments have the
characteristics of a large industry The Government has to
provide many services to them resulting in a big drain on
the financial resources of the State as many of these
services are heavily subsidized. Naturally such big
newspaper organisations have to contribute their due share
to the public exchequer and have to bear the common fiscal
burden like all others. 1324C; E]
(ii) While examining the constitutionality of a law
said to be contravening Article 19 (1) (a) of the
Constitution, the decisions of the Supreme Court of the
United States of America cannot be solely relied upon for
guidance but could be taken into consideration for
understanding the basic principles of freedom of speech and
expressiyn and the need for that freedom in a democratic
country. 1324F-G]
(iii) The pattern of Article 19 (1) (a) and of Article
19 (1) (g) of the Indian Constitution is different from the
pattern of the First Amendment to the American Constitution
which is almost absolute in its terms. The rights guaranteed
under Article 19 (1) (a) and Article 19 (1) (g) of the
Constitution
292
are to be read alongwith clauses (2) and (6) of Article 19
which carve out areas A in respect of which valid
legislation can be made. [324H; 325A]
6. Newspaper industry has not been granted exemption
from taxation in express terms. Entry 92 of List I of the
Seventh Schedule in the Constitution empowers Parliament to
make laws levying taxes on sale or purchase of newspapers
and on advertisements published therein. The power to levy
customs duties on goods imported into the country is also
entrusted to Parliament by Entry 83 in List I of the Seventh
Schedule to the Constitution. [325B; 326G]
7. The First Amendment to the Constitution of the
United States of America is almost in absolute terms and,
therefore, no law abridging the freedom of the press can be
made by the Congress. Yet the American Courts have
recognised the power of the State to levy taxes on
newspapers establishments, subject to judicial review by
courts by the application of the due process of law
principle. [328E-F]
8. The police power, taxation and eminent domain are
all forms of social control which are essential for peace
and good government. In India the power to levy tax on
persons carrying on the business or publishing newspapers
has got to be recognised as it is inherent in the very
concept of government. But the exercise of such power
should. however, be subject to scrutiny by courts. Entry 92
of List I of the Seventh Schedule to the Constitution
expressly suggests the existence of such power. [328G; 329C]
9. It is not necessary for the press to be subservient
to the Government. As long as this Court sits' newspapermen
need not have the fear of their freedom being curtailed by
unconstitutional means. It is not acceptable that merely
because the Government has the power to levy taxes, the
freedom of press would be totally lost. The Court is always
there to hold the balance even and to strike down any
unconstitutional invasion of that freedom. [338G; 339F]
10. Newspaper industry enjoys two of the fundamental
rights, namely, the freedom of speech and expression
guaranteed under Article 19 (1) (a) and the freedom to
engage in any profession, occupation, trade. industry or
business guaranteed under Article 19 (1) (g), While there
can be no tax on the right to exercise freedom of
expression, tax is leviable on profession, occupation,
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. [339G-H; 340A-B]
11. While levying a tax on newspaper industry it must
be kept in mind that it should not be an over-burden on
newspapers which constitute the Fourth Estate of the
country. Nor should it single out newspaper industry for
harsh treatment. Imposition of a tax like the customs duty
on newsprint is an imposition on knowledge and would
virtually amount to a burden imposed on
293
a man for being literate and for being conscious of his duty
as a citizen to inform himself about the would around him.
'The public interest in freedom A of discussion (of which
the freedom of the press is one aspect) stems from the
requirement that members of a democratic society should be
sufficiently informed that they may influence intelligently
the decisions which may affect 'themselves'. [341H; 342A-B]
12. Freedom of expression 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 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
matters concerning newspaper industry than while levying
taxes on other matters. [342C-E]
13. 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, it may be sufficient to show a distinct and
noticeable burdensomeness, clearly and directly attributable
to the tax. [342G-H]
Constituent Assembly Debates. Vol. IX pp. 1l75-1180 dt.
September 9,1949: Corpus Juris Secundum (Vol. 16) p. 1132;
American Jurisprudence 2d (Vol. 16) p. 662; Article on the
First Amendment by Thomas 1. Emerson (The Yale Law journal
Vol. 72 at p. 941); Second Press Commission Report (Vol 1)
p. 35; Essay No. 84 by Alexander Hamilton in 'The
Federalist; Alice Lee Grosjean supervisor of Public Accounts
for the State of Louisiana v. American Press Company 297
U.S. 233: 80 L. ed. 660; Robert Murdock Jr. v. Commonwealth
of Pennsylvania (City of Jeannette). 319 U S 105: 87 Law.
ed. 1292 and Attorney General & Anr. v. Antigua Times Ltd.
[1975] 3 All E. R. 81, referred to
Bennett Coleman & Co. & ors. v. Union of India & ors,
[19731 2 S.C.R. 757 and Sakal Papers (P) Ltd. & Ors. v. The
Union of India [1962] 3 S.C.R. 842, distinguished. G
Attorney General v. rimes Newspapers [1973] 3 All. E.R.
54, followed.
14, In the instant cases, assuming that the power to
grant exemption under section 25 of the Customs Act, 1962 is
a legislative power and a notification issued by the
Government there under amounts to a piece of
294
subordinate legislation, even then the notification is
liable to be questioned on the ground that it is an
unreasonable one. [34SC-D]
15. A piece of subordinate legislation does not carry
the same degree of immunity which is enjoyed by a statute
passed by a competent legislature Subordinate legislation
may be questioned on any of grounds on which plenary
legislation is questioned. In addition it may also be
questioned on the ground that it does not conform to the
statute under which it is made. It may further be questioned
on the ground that it is contrary to some other statute.
That is because subordinate legislation must yield to
plenary legislation. It may also be questioned on the Ground
that it is unreasonable, unreasonable not in the sense of
not being reasonable, but in the sense that it is manifestly
arbitrary.
[345H ;346A-B]
16. In India arbitrariness is not a separate ground
since it will come within the embargo or Article 14 of the
Constitution. In India any enquiry into the vires of
delegated legislation must be confined to the ground on
which plenary legislation may be questioned to the ground
that it is contrary to other statutory provisions or that it
is so arbitrary that it could not be said to be in
conformity with the statute or that it offends Article 14 of
the Constitution. Subordinate legislation cannot be
questioned on the ground of violation of principles of
natural justice on which administrative action may be
questioned.
[347E-G]
17. A distinction must be made between delegation of a
legislative function in the case of which the question of
reasonableness cannot be enquired into and the investment by
statute to exercise particular discretionary power. In the
latter case the question may be considered on all grounds on
which administrative action may be questioned, such as, non-
application of mind, taking irrelevant matters into
consideration, failure to take relevant matters into
consideration, etc. etc. On the facts and circumstances of a
case, a subordinate legislation may be struck down as
arbitrary or contrary to statute if it fails to take into
account very vital facts which either expressly or by
necessary implication are required to be taken into
consideration by the statute or, say, the Constitution. This
can only be done on the ground that it does not conform to
the statutory or constitutional requirements or that it
offends Article 14 or Article 19 (1) (a) of the
Constitution. It cannot, no doubt, be done merely on the
ground that it is not reasonable or that it has not taken
into account relevant circumstances which the Court
considers relevant. [ 348A-D]
8. In cases where the power vested in the Government
is a power which has got lo be exercised in the public
interest, as it happens to be here, the Court may require
the Government to exercise that power in a reasonable way in
accordance with the spirit of the Constitution. The fact
that a notification issued under section 25 (1) of the
Customs Act, 1962 is required to be laid before Parliament
under section 159 thereof does not make any substantial
difference as regards the jurisdiction of the court to
pronounce on its validity. [348E-F]
19. Section 25 of the Customs Act, 1962 under which the
notifications are issued confers a power on the Central
Government coupled with a duty to examine the whole issue in
the light of public interest. It provides that if the
Central Government is satisfied that it is necessary in the
public interest so to
295
do it may exempt generally either absolutely or subject to
such conditions, A goods of any description, from the whole
or any part of the customs duty leviable thereon. The
Central Government may if it is satisfied that in the public
interest so to do exempt from the payment of duty by a
special order in each case under circumstances of an
exceptional nature to be stated in such order any goods on
which duty is leviable The power exercisable under section
25 of the Customs Act, 1962 is no doubt discretionary but it
is not unrestricted.
[350C-E]
20. Any notification issued under a statute also being
a 'law' as defined under Article 13(3)(a) of the
Constitution is liable to be struck down if it is contrary
of any of the fundamental rights guaranteed under Part III
of the Constitution. [350H; 351A]
Article entitled 'Judicial Control of Delegated
Legislation: The Test of Reasonableness' by Prof. Alan
Wharam, 36 Modern Law Review 611 at pp 622 23; H.W.R Wade:
Administrative Law (5th Edn.) pp. 747-748; Municipal
Corporation of Delhi v. Birla Cotton Spinning and Weaving
Mills Delhi & Anr. [1968] 3 S.C.R 251; Kruse v. Johnson
[1898] 2 Q.B.D. 91; Mixnam Properties Ltd. v. Chertsey
U.D.C. [1964] I Q.B. 214; The Tulsipur Sugar Co. Ltd v. The
Notified Area Committee Tulsipur [1980] 2S.C.R.1111;Ramesh
Chandra Kachardas Porwal & Ors. v. State of Maharashtra &
ors. etc.. [1981] 2 S C.R. 866; Bates v. Lord Hailsham of
St. Marylebone & ors. [1972] 1 W.L.R. 1373 and Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation
[1948] 1 K.B. 223, referred to.
Narinder Chand Hem Raj & ors. v. Lt. Governor
Administrator Union Territory. Himachal Pradesh & Ors.[1972]
1 S.C.R. 940, distinguished E
State of Madras v. V.G. Rao [1952] S.C.R. 597 and Breen
v. Amalgamated Engineering Union [1971] 2 Q.B. 175, relied
upon.
21. If any duty is levied on newsprint by Government it
necessarily has to be passed on to the purchasers of
newspapers, unless the industry is able to absorb it. In
order to pass on the duty to the consumer the price of
newspapers has to be increased. Such increase naturally
affects the circulation of newspapers adversely. [352G]
22. The pattern of the law imposing customs duties and
the manner in which it is operated, to a certain exposes the
citizens who are liable to pay customs duties to the
vagaries of executive discretion. While Parliament has
imposed duties by enacting the Customs Act, 1962 and the
Customs Tariff Act, 1962 the Executive Government is given
wide power by section 25 of the Customs Act, 1962 to grant
exemption from the levy of Customs Duty, it is ordinarily
assumed that while such power to grant exemptions is given
to the Government it will consider all relevant aspects
governing the question whether exemption should be granted
or not. In the instant case, in 1975 when the Customs Tariff
Act, 1975 was enacted, 40% ad valorem was levied on
newsprint even though it had been exempted from payment of
such duty. If the exemption had not been continued,
newspaper publishers had to pay 40% ad valorem customs duty
on the coming into force of the Customs Tariff Act,
296
1975 Then again in 1982 by the Finance Act, 1982 an extra
levy of Rs. 1000 per tonne was imposed in addition to the
original 40% ad valorem duty even though under the exemption
notification the basic duty had been fixed at 10% of the
value of the imported newsprint. Neither any material
justifying the said additional levy was, produced by the
Government nor was it made clear why this futile exercise of
levying an additional duty of Rs. 1000 per tonne was done
when under the notification issued under. section 25 of the
Customs Act, 1962 on March 1, 1981, which was in force then,
customs duty on newsprint above 10% ad valorem had been
exempted. While levying tax on an activity which is
protected also Article l9(1)(a) a greater degree of care
should he exhibited. While it is indisputable that the
newspaper industry should also hear its due share of the
total burden of taxation alongwith the rest of the community
when any tax is specially imposed on newspaper industry, it
should he capable of being justified as a reasonable levy in
court when its validity is challenged. In the absence of
sufficient material. the levy of 40 plus Rs. 1000 per tonne
would become vulnerable to attack. [355E-H;356A-C]
23. The reasons given by the Government to justify the
total customs duty of 15% levied from March 1, 1981 or total
Rs. 825 per tonne as it is currently being levied appear to
be inadequate. In the Finance Minister's speech delivered on
the floor of the Lok Sabha in 1981, the first reason given
for the levy of 15% duty was that it was intended ' to
promote a measure of restraint in the consumption of
imported newsprint and thus help in conserving foreign
exchange." This ground appears to be not tenable for two
reasons. Nobody in Government had ever taken into
consideration the effect of the import of newsprint on the
foreign exchange reserve before issuing the notification
levying 15 duty. Secondly, no newspaper owner can import
newsprint directly. News print import is canalised through
the State Trading Corporation. If excessive import of
newsprint adversely affects foreign exchange reserve, the
State Trading Corporation may reduce the import of newsprint
and allocate lesser quantity of imported newsprint to
newspaper establishments. There is. however, no need to
impose import duty with a view to curbing excessive import
of news print. It is clear that the Government had not
considered vital aspects before Withdrawing the total
exemption which was being enjoyed by newspaper industry till
March 1, 1981 and industry 15 duty on newsprint. [356D-H;
357A-B]
24. Attention was particularly drawn to the statement
of the Finance Minister that one of the considerations which
prevailed upon the Government to levy the customs duty was
that the newspapers contained 'piffles'. A 'piffle' means
foolish nonsense. It appears that one of the reasons for
levying the duty was that certain writings in newspapers
appeared to the Minister as 'piffles'. Such action is not
permissible under the Constitution. [361H; 362A]
25. Matters concerning the intellect and ethics do
undergo fluctuations from era to era. The world of mind is a
changing one. It is not static. The streams of literature
and of taste and judgment in that sphere are not stagnant.
They have a quality of freshness and vigour. They keep on
changing from time to time, from place to place and from
community to community. [868A]
297
26. It is one thing to say that in view of
considerations relevant to A public finance which require
every citizen to contribute a reasonable amount to public
exchequer customs duty is leviable even on newsprint used by
newspaper industry and an entirely different thing to say
that the levy is imposed because the newspapers generally
contain ''piffles''. While the former may be valid if the
circulation of newspapers is not affected prejudicially, the
latter is impermissible under the Constitution as the levy
is being made on a consideration which is wholly outside the
constitutional limitations. The Government cannot arrogate
to itself the power to prejudge the nature of contents of
newspapers even before they are printed. Imposition of a
restriction of the above kind virtually amounts to
conferring on the Government the power to precensor a
newspaper. The above reason given by the Minister to levy
the customs duty is wholly irrelevant. [363B-D]
27 The argument on behalf of the Government that the
effect of the impugned levy i minimal cannot be accepted.
[365C]
28. There are factors indicating that the present levy
is heavy and is perhaps heavy enough to affect circulation.
There appears to be a good ground to direct the Central
Government to reconsider the matter afresh. [366C ;D]
Final Report of the International Commission for the
Study of Communication Problems pp. 100 add 141;
Encyclopaedia Britannica [1962] Vol. 16; p. 339; Second
Press Commission Report(Vol. 11)pp. 182-183; Bennett Coleman
JUDGMENT:
757; Sakal Papers(P) Ltd & Ors. v. The Union of India [1962]
3 S.C.R. 842; William B. Cammarane v. United States of
America 358 US 498; 3 Led 2d 462; Jeffery Sole Bigelow
Commonwealth of Virginia 421 us 809: L ed 2d60O at 610 and
Robert E. Hannegan v. Esquire Inc. 327 U.S. 147: 90 L ed.
586, referred to.
Hamdard Dawakhana (WakS) Lal Kuan Delhi & Anr. v.
Union of India & Ors., [1960] 2 S.C.R. 671; Lews J.
Yelentine v. F. J. Chrestensen 86 Law ed. 1292 and in re Sea
Customs Act [1964] 3 S.C.R 787, distinguished.
Romesh Thapper v. The State of Madras [1950] S.C.R.
564; Honourable Dr. Paul Borg olivier & Anr. v. Honourable
Dr. Anton Buttigieg [1967] A.C. 115 (P.C.); Thomas v.
Collins [1944] 323 U.S. 516 Martin v. City of Struthers
11943] 319 U.S. 141, followed.
29. The classification of the newspapers into small,
medium and big newspapers for purposes of levying customs
duty is not 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 duly 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. There is nothing
sinister in the
298
object nor can it be said that the classification has no
nexus with the object to be achieved. [366F-G]
Bennett Coleman & Co. & Ors v. Union of India & Ors.
[1973] 2 S.C.R. 757. referred to.
30. Quashing of the impugned notification dated March
1, 1981, which had repealed the notification dated July 15,
1977 under which total exemption had been granted would not
revive the notification dated July IS, 1977. Once an old
rule has been substituted by a new rule, it cases to exist
and it does not get revived when the new rule is held
invalid. Since the competence of the Central Government to
repealer annul or supersede the notification dated July 15
1977 is not questioned, its revival on the impugned
notifications being held to be void would not arise and,
therefore, on the quashing of the impugned notification the
petitioners would have to pay customs duty of 40% ad valorem
from March 1, 1981 to February 28 1982 and 40% ad valorem
plus Rs 1000 per MT from March 1, 1982 onwards In addition
to it they would also be liable to pay auxiliary duty of 30%
ad valorem during the fiscal year 1982-83 and auxiliary duty
of 50% ad valorem during the fiscal year 1983-8 i. They
would straightaway be liable lo pay the whole of customs
duty and any other duty levied during the current fiscal
year also. Such a result cannot be allowed to ensue. The
challenge to the validity of the levy prescribed by the
customs Tariffs Act, 1975 itself cannot be allowed to
succeed. [370F-H]
31. The Government has failed to discharge its
statutory obligations While issuing the impugned
notifications. the Government is directed to reexamine the
whole issue after taking into account all relevant
considerations for the period subsequent to March 1, 1981.
The Government cannot be deprived of the legitimate duty
payable on imported newsprint. [371D-E]
32. Having regard to the peculiar features of these
cases and 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
the following order was made: [371D-E]
1. 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 newspapers business shall make available
to the Government all information necessary to decide the
question. [37G-H]
2. If on such reconsideration the Government decides
that there should be any modification in the levy of customs
duty or auxiliary duty with effect from March 1,1981, it
shall take necessary steps to implement its decision. [372A]
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 auxiliary duty and shall not
299
insist upon payment of duty in accordance wish the impugned
notifications. The concessions extended to medium and small
newspapers may, however, A remain in force. [372C]
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. [372D]
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. [372F] C
B.N. Tiwari v. Union of India & ors, [1965] 2 S.C.R.
421, T. Devadasan v. Union of India & Anr. [1964] 4 S.C.R,
680 and Firm A.T.B. Mehtab Majid & Co. v. State of Madras &
Anr. [1963] Supp 2 S.C.R, 435 at 446. relied on.
Mohd. Shaukat Hussain Khan v. State of Andhra Pradesh
[975] I S.C.R. 429, Shri Mulchand Odhavji. Rajkot Borough
Municipality A.I.R. 1970 S.C. 685, Koteswar Vittal Kamath v.
K. Rangappa Baliga & Co. [1969] 3 S.C.R. 40 and The case of
State of Maharashtra etc. v. The Central Provinces Manganese
Ors Co. Ltd.. [1977] I S.C.R. 1000, distinguished.
&
ORIGINAL. JURISDICTION: Writ Petition NOS. 2656-60.
2935-40, 2941-46, 2947-52, 3402, 3467, 3595, 3600-03, 3608,
3632, 3653, 3661, 3821, 3890-93, 4590-93,. 4613-15, 5222,
5576, 5600 02, 5726 27, 7410. 8459-62, 8825, 8944 of 1981,
1325 of 1982, 470-72 of 1984. T C. Nos. 23 of 1983 and 23 of
1984.
AND
Writ Petitions Nos. 3114-17 of 1981
WITH
Writ Petitions Nos. 3393-93 of 1981
WITH
Writ Petitions No. 3853 of 1981
WITH
Writ Petitions Nos. 6446-47 of 1181
(Under Article 32 of the Constitutions of India)
A.K. Sen, A.B. Divan, F.S. Nariman, K.K. Venugopal,
B.R. Agarwala, Miss Vijay Lakshmi Menon, A.K Ganguli P.H.
Parekh, C.S. Vaidyanalingam, D.N. Mishra, Pravin Kumar, KR.
Nambiar, M.C. Dhingra, Miss Sieta Vaidyalingam, P.C. Kapur,
Pramod Dayal, CM
300
Nayar, S.S, Munjral, KK .Jain, S.K. Gupta, A.l). Sangar,
Ranjan Mukherjee, Sudip Sarkar, P.K. Ganguli, Miss Indu
Malhotra, PR. Seetharaman and V. Shekhar for the
petitioners.
K. Parasaran, Attorney General of India, Krishna Iyer,
P.A. Francis, A. Subba Rao, Dalveer Bhandari and R.N. Poddar
for the respondents.
F.S. .Nariman, S. Dholakia, Soli J. Sorabjee, Anil B.
Divan J.B. Dadachandji S. Sukumaran, D.N. Mishra, KP. Dhanda
pani, R.C. Bhatia, P.C. Kapur, A.N. Haksar, O.C.. Mathur,
Miss Meera Mathur, Dr. Roxna Swamy, Arun Jetley, P.H.
Parekh, Miss Divya Bhalla and Pinaki Misra for the
intervener
The Judgment of the Court was delivered by
VENKATARAMIAH, J.
I
Pleadings
The majority of Petitioners in these petitions filed
under Article 32 of the Constitution are certain companies,
their share holders and their employees engaged in the
business of editing, printing and publishing newspapers,
periodicals, magazines etc Some of them are trusts or other
kinds of establishments carrying on the same kind of
business. They consume in the course of their 5 activity
large quantities of newsprint and it is stated that 60% of
the expenditure involved in. the production of a newspaper
is utilised for buying newsprint, a substantial part of
which is import ed from abroad. They challenge in these
petitions the validity of the imposition of import duty on
newsprint imported from abroad under section 12 of the
Customs Act, 1962 (Act 52 of 1962) read with section 2 and
Heading No. 48/01/21 Sub-heading No. (2) in the First
Schedule to the Customs Tariff Act, 1975 (Act 51 of 1975)
and the levy of auxiliary duty under the Finance Act, 1981
on newsprint as modified by notifications issued under
section 25 of the Customs Act, 1962 with effect from March
1, 1981.
The first set of writ petitions challenging the above
levy was filed in May, 1981. At that time under the Customs
Act, 1962 read with the Customs Tariff Act, 1975, customs
duty of 40’% ad valorem was payable on newsprint. Under the
Finance Act, 1981 an auxiliary duty of 30% ad valorem was
payable in addition to the customs duty. But by
notifications issued under section 25 of the Customs Act,
1962, the customs duty had been reduced to 10%
301
ad valorem and auxiliary duty had been reduced to 5% ad
valorem in the case of newsprint used for printing
newspapers, books and A periodicals.
During the pendency of these petitions while the
Customs Tariff Act, 1975 was amended levying 40% ad valorem
plus Rs. 1,000 per MT as customs duty on newsprint, the
auxiliary duty payable on all goods subject to customs duty
was increased to 50% ad valorem. But by reason of
notifications issued under section 25 of the Customs Act,
1962 customs duty at a flat rate of Rs. 550 per MT and
auxiliary duty of Rs. 275 per MT are now being levied on
newsprint i.e. in all Rs. 825 per MT is now being levied.
The petitioners inter alia contend that the imposition
of the import duty has the direct effect of crippling the
freedom of speech and expression guaranteed by the
Constitution as it has led to the increase in the price of
newspapers and the inevitable consequence of reduction of
their circulation. It is urged by them that with the growth
of population and literacy in the country every newspaper is
expected to register an automatic growth of at least 5% in
its circulation every year but this growth is directly
impeded by the increase in the price of newspapers. It is
further urged that the method adopted by the Customs Act,
1962 and the Customs Tariff Act, 1975 in determining the
rate of import duty has exposed the newspaper publishers to
the Executive interference. The petitioners contend that
there was no need to impose customs duty on news- print
which had enjoyed total exemption from its payment till
March 1, 1981, as the foreign exchange position was quite
comfortable. Under the scheme in force, the State Trading
Corporation of India sells newsprint to small newspapers
with a circulation of less than 15,000 at a price which does
not include any import duty, to medium newspapers with a
circulation between 15,000 and 50,000 at a price which
includes 5% ad valorem duty (now Rs. 275 per MT) and to big
newspapers having a circulation of over 50,000 at a price
which includes the levy of 15% ad valorem duty (now Rs. 825
per MT). It is stated that the classification of newspapers
into big, medium and small newspapers is irrational as the
purchases on high seas are sometimes effected by a publisher
owning many newspapers which may belong to different
classes. The petitioners state that the enormous increase in
the price of newsprint subsequent to March 1, 1981 and the
inflationary economic conditions which have led to higher
cost of production have made it impossible for the industry
to bear the duty any longer. Since the capacity to bear the
duty is an essential element in determining the
reasonableness
302
Of the levy, it is urged, that the continuance of the levy
is violative of Article 19(1)(a) and Article 19(1)(g) of the
Constitution. It is suggested that the imposition of the
levy on large newspapers by the Executive is done with a
view to stifling circulation of news. papers which are
highly critical of the performance of the administration.
Incidentally the petitioners have contended that the
classification of newspapers into small, medium and big for
purposes of levy of import duty is violative of Article 14
of the Constitution. The petitioners have appended to their
petitions a number of annexures in support of their pleas.
On behalf of the Union Government a counter-affidavit
is filed. The deponent of the counter-affidavit is R. S.
Sidhu, Under Secretary to the Government of India, Ministry
of Finance, Department of Revenue. In paragraph 5 of the
counter-affidavit it is claimed that the Government had
levied the duty in the public interest to augment the
revenue of the Government. It is stated that when exemption
is given from the customs duty, the Executive has to satisfy
itself that there is some other corresponding public
interest justifying such exemption and that in the absence
of any such public interest, the Executive has Do power to
exempt and that it has to carry out the mandate of
Parliament which has fixed the rate of duty by the Customs
Tariff Act, 1975. It is also claimed that the classification
of newspapers for purposes of granting exemption is done in
the public interest having regard to the relevant
considerations. It is denied that the levy suffers from any
malafides. It is pleaded that since every section of the
society has to bear its due share of the economic burden of
the State, levy of customs duty on newsprint cannot be
considered to be violative of Article 19 (1) (a) of the
Constitution. But regarding the plea of P the petitioners
that the burden of taxation is excessive, the counter
affidavit states that the said fact is irrelevant to the
levy of import duty on newsprint. In reply to the allegation
of the petitioners that there was no valid reason for
imposing the duty as the foreign exchange position was quite
comfortable, the Union Government has stated that the fact
that the foreign exchange position was quite comfortable was
no bar to the imposition of import duty. It is further
pleaded that since the duty imposed is an indirect tax which
would be borne by the purchaser of newspaper, the
petitioners cannot feel aggrieved by it.
II
A Brief History of the levy of Customs Duty on
Newsprint
In order to appreciate the various contentions of
the parties
303
it is necessary to set out briefly the history of the levy
of customs A duty on newsprint in India.
Even though originally under the Indian Tariff Act,
1934, there was a levy of customs duty on imported paper,
exemption had been granted for import of white, grey or
unglazed newsprint from the levy of any kind of customs duty
in excess of 1.57 per cent ad valorem but subsequently a
specific import duty of Rs. 50 per MT used to be levied on
newsprint imports upto 1966. The question of levy of customs
duty on newsprint was examined by the Inquiry Committee on
Small Newspapers. In its Report submitted in 1965 that
Committee recommended total exemption of newsprint from
customs duty because in 90x/Q of the countries in the world
no such levy was being imposed because newspapers played a
vital role in a democracy. On the basis of the said
recommendation, the Government of India abolished customs
duty on newsprint altogether in the year 1966 in exercise of
its power under section 25 of the Customs Act, 1962. The
price of newsprint was Rs. 725 per MT during the year 1965-
66 but there was a sudden spurt in its price in 1966-67 when
it rose to Rs. 1155 per MT. During the period 1966-71
although almost all imported goods suffered basic regulatory
and auxiliary customs duty, there was no such levy on
newsprint in spite of severe foreign exchange crisis which
arose on the devaluation of the Indian Rupee in 1966. But on
account of the financial difficulties which the country had
to face as a consequence of the Bangladesh war in 1971, a
regulatory duty of 2 1.2% was levied on newsprint imports to
meet the difficult situation by the Finance Act of 1972. The
price of newsprint in the year 1971-72 was Rs. 1134 per MT.
The above 2 1/2% ad valorem regulatory duty was abolished by
the Finance Act of 1973 P and was converted into 5%
auxiliary duty by the said Act. This levy of 5% was on all
goods including newsprint imported into India. On April 1,
1974 under the Import Control order issued under section 3
of the Imports and Exports Control Act, 1947, import of
newsprint by private parties was banned and its import was
canalised through the State Trading Corporation of India. In
1975, the Customs Tariff Act, 1975 came into force. By this
Act the Indian Tariff Act, 1934 was repealed. Under section
2 read with Heading No. 48.01/ 21 of the First Schedule to
the Customs Tariff Act, 1975, a levy of basic customs duty
of 40% ad valorem was imposed on newsprint. But in view of
the exemption granted in the year 1966 which remained in
force, the imposition made by
304
the Customs Tariff Act, 1975 did not come into force. Only
5% auxiliary duty which was levied from April 1, 1973
continued to be in operation. In the budget proposals of
July, 1977, the 5% auxiliary duty was reduced to 2 1/2% but
it was totally abolished by a notification issued under
section 25 of the Customs Act on July 15, 1977. The
notification dated July IS, 1977 read as follows:
“NOTIFICATION
CUSTOMS
GSR No. In exercise of the powers conferred by
sub section (1) of section 25 of the Customs Act, 1962
(52 of 1962) and in supersession of the notification of
the Government of lndia in the Department of Revenue
and Banking No. 72-Customs dated the 18th June 1977,
the Central Government, being satisfied that it is
necessary in the public interest so to do, hereby
exempts newsprint, falling under sub heading (2) of
Heading No. 48.01 21 of the First Schedule to the
Customs Tariff Act, 1975 (51 of 1975), when imported
into India, from the whole of that portion of the duty
of customs leviable thereon, which is specified in the
said First Schedule.
sd/–
(Joseph Dominic)
Under. Secretary to the Government of India.”
The price of newsprint during the year 1975-76 was Rs.
3676 per MT. The total exemption from customs duty imposed
on newsprint was in force till March 1, 1981. In the
meanwhile the Central Government notified increased salaries
and wages to k employees of newspaper establishments in
December, 1980 on the recommendations contained in the
Palekar Award. On March 1, 1981, the notification dated July
15, 1977 issued under section 25 (1) of the Customs Act,
1962 granting total exemption from customs duty was
superseded by the issue of a fresh notification which stated
that the Central Government had in the public interest
exempted newsprint imported into India for printing of
newspapers, books and periodicals from so much of that
portion of the duty of customs leviable thereon as was in
excess of 10 per cent ad valorem. The effect of the said
notification was that publishers of newspapers had to pay
ten per cent ad valorem customs duty on imported newsprint.
By another notification issued at about the same time
auxiliary
305
duty imposed by the Finance Act of 1981 above 5 per cent ad
valorem was exempted in the case of newsprint. The net
result . was that a total duty of IS per cent ad valorem
came to be imposed on newsprint for the year 1981-82.
The explanation given by the Government in support of
the above notification was as follows:
“Customs duty on newsprint:
Originally, import of newsprint did not attract
any customs duty. The Government of India abolished the
-. customs duty on newsprint after the devaluation of
the rupee on the recommendation of the Inquiry
Committee on Small Newspapers (1965). The Committee had
mentioned in its report that 80% of the newsprint in
international trade was free from customs duty and had
recommended complete abolition of customs duty on
newsprint. However, during the Bangladesh crisis in
1971, a2.1/2% ad valorem regulatory duty was imposed on
newsprint imports. Subsequently, this was abolished on
April 1,1973 and in its place a 5% auxiliary customs
duty on newsprint imports was proposed in the Union
Budget Proposals for 1973-74. While no customs duty was
levied on newsprint because of the exemption granted by
Customs Notification No. 235/F.No.527/1/76-CUS (TU)
dated August 2,1976 of the Department of Revenue and
Banking, 5% auxiliary duty was continued to be levied
on imported newsprint till July 15,1977 when the
Ministry of Finance, Department of Revenue by its
Notification No. 148/F.No. Bud (2) Cus/77 dated July
l5,1977 exempted newsprint from the whole of duty of
customs. Prior to this the Ministry of Finance,
Department of Revenue vide its Customs Notification No.
72/F. No. Bud. (2) Cus/77 dated June 18,1977 had
reduced the auxiliary duty to 2 1/2%.
In the Budget proposals for the current year,
the Minister of Finance has proposed a customs duty of
15% on newsprint imports which has become effective
from March 1,1981 because of the Customs Notification
No. 24/F. No. Bud (Cus)/81 dated March 1,1981. This 15%
customs duty constitutes 10% basic duty and 5%
auxiliary duty.”
306
The price of imported newsprint in March 1,1981
was A Rs. 4,560 per MT. The extract from the speech of
the Finance Minister in support of the imposition of a
total 15% of duty (10% basic duty and 5% auxiliary
duty) on newsprint is given below;
“The levy of 15 per cent customs duty on
newsprint has understandably attracted a good deal of
comment both within the House and outside. As it has
been explained in the Budget speech, this levy is
intended to promote a measure of restraint in the
consumption of imported newsprint and thus help in
conserving foreign exchange. In the light of the
observations made by the Hon. Members in the course of
the General Debate on the Budget I had assured the
House that I would try to work out a scheme of
providing relief to small and medium newspapers about
which Members had voiced their special concern. We have
now worked out the modalities of a scheme for affording
relief to small and medium newspapers. Under this
Scheme, the State Trading Corporation would sell
imported newsprint to small newspapers at a price which
would not ! include any amount relatable to import
duty. Medium newspapers will get their newsprint at a
price which, would include an amount relatable to
import duty ‘of S per cent ad valorem. Big newspapers
would, however, pay a price which will reflect the full
duty burden of 15 per cent ad valorem. There is a
definition of small, medium and big newspapers in the
Press Council. At the moment the present definition is
that these which have a circulation of 15,000 or less
are classified as small, those with a circulation of
more than 15,000 but less than 50,000 are classified as
medium and those with a circulation of over 50,000 are
called big newspapers. Therefore, the small newspapers
with a circulation of 15,000 and less will not pay any
customs duty those with a circulation between 15,000
and 50,000 will pay customs duty of 5 per cent and with
a circulation of over 50,000 will pay 15 per cent.
Suitable financial arrangements will be worked out as
between’ Government and the State Trading Corporation
to enable the STC to give effect to these concessions.
As Hon. Members are aware, the categorisation of
newspapers as small, medium and big in
307
terms of circulation is already well understood
in the A industry and is being followed by the Ministry
of Information and Broadcasting for purposes of
determining initial allocation of newsprint and for
setting the rates of growth of consumption of newsprint
by various newspapers from year to year. The State
Trading Corporation will, for purposes of the present
scheme, follow, the same categorisation of newspapers
into small, medium and big. These arrangements will. in
effect, provide a relief of about Rs. 5.86 crores to
small and medium newspapers. “
The relevant provisions of the laws imposing customs
duty and auxiliary duty on newsprint which arise for
consideration are these:
Section 12 of the Customs Act, 1962 reads:
“12. Dutiable goods.-(1) Except as otherwise
provided n in this Act, or any other law for the time
being in force, duties of customs shall be levied at
such rates as may be specified under the Customs Tariff
Act, 1975 (5l of 1975), or any other law for the time
being in force, on goods imported into or exported from
India.
(2)………. ,
Section 2 of the Customs Tariff Act, 1975 reads:
“2. Duties specified in the Schedules to
levied.-The rates at which duties of customs shall be
levied under the Customs Act, 1962, are specified in
the First and Second Schedules.”
The relevant part of Chapter 48 of the First Schedule
to the Customs Tariff Act, 1975 which deals with import
tariff read in 1981 thus:
“Heading Sub-heading No. Rate of duty Duration
No. and description Standard Preferential when
of article Areas rates of
duty are
protective
308
——————————————————-
(1) (2) (3) (4) (5)
——————————————————-
48.01/21……………………………………………
(2) Newsprint containing
mechanical wood pulp
amounting to not less
than 70 per cent of
the fibre content 40% - -
(excluding chrome,
marble, flint, poster,
stereo and art paper)
………………………………………………”
Newsprint used by the petitioners falls under Sub-
heading (2) of Heading No. 48.O1/21 by Which 40% ad valorem
customs duty is levied on it. By the Finance Act of 1982 in
sub-heading No. (2) of Heading No. 48.O1/21, for the entry
in column (3), the entry “40% plus Rs. 1,000 per tonne was
substituted.
The relevant part of section 44 of the Finance Act,
1982 which levied an auxiliary duty of customs read thus:
“44. (1) In the case of goods mentioned in the
First Schedule to the Customs Tariff Act, or in that
Schedule, as amended from time to time, there shall be
levied and collected as an auxiliary duty of customs an
amount equal] to thirty per cent of the value of the
goods as determined in accordance with the provisions
of section 14 of the Customs Act, 1962 (hereinafter
referred to as the Customs Act).
………………………………………………”
The above rate of auxiliary duty was to be in force
during the financial year 1982-83 and it was open to the
Government to grant exemption from the whole or any part of
it under section 25 of the Customs Act, 1962.
Section 45 of the Finance Act, 1983 imposed fifty per
cent of the value of the goods as auxiliary duty in the
place of thirty per cent imposed by the Finance Act, 1982.
309
But by notifications issued on February 28,1982 under
section A 25 (2) of the Customs Act, 1962, which were issued
in supersession of the notification dated March 1, 1981, Rs.
550 per tonne was imposed as customs duty on newsprint and
auxiliary duty was fixed at Rs. 275 per tonne. In all Rs.
825 per tonne of newspaper has to be paid as duty. The high
sale price of newsprint had by that time gone up above Rs.
5,600 per tonne.
What is of significance is that when the Government
was of the view that the total customs duty on newsprint in
the public interest should be not more than 15 per cent and
when these writ petitions questioning even that 15 per cent
levy were pending in a this Court, Parliament was moved by
the Government specifically to increase the basic customs
duty on newsprint by Rs. 1,000 per tonne by the Finance Act,
1982. Hence today if the Executive Government withdraws the
notifications issued under section 25 of the Customs Act, a
total duty of 90 per cent plus Rs. 1000 per tonne would get
clamped on imported newsprint. D
The effect of the imposition of 15 per cent duty may
to some extent have led to the increase in the price of
newspapers in 1981 and it resulted in the fall in
circulation of newspapers. On this point the Second Press
Commission has made the following observations in its Report
(Vol. 1 page 18): E
“Fall in circulation during 1981.
94. To examine recent trends in, circulation
and their relationship to recent trends in the economic
environment, the Commission’s office undertook an
analysis of the Audit Bureau of Circulations (ABC)
certificates for the period July 1980 to June 1981. It
was found that there was a decline in circulation in
the period January-June 1981 compared to the previous
six-month period in the case of dailies and
periodicals.”
The two important events which had taken place during
the period between July, 1980 to June, 1981 were the
enforcement of the Palekar Award regarding the wages and
salaries payable in the newspaper industry and the
imposition of the customs duty of 15% on the imported
newsprint. Under the newsprint policy of the Government
there are three sources of supply of newsprint-(i) high
310
seas sales, (ii) sales from the buffer stock built up by the
State A Trading Corporation which includes imported
newsprint and (iii) newsprint manufactured in India.
Imported newsprint is an important component of the total
quantity of newsprint utilised by any newspaper
establishment.
III
The Importance of Freedom of Press in a Democratic
society and the Role of Courts.
Our Constitution does not use the expression ‘freedom
of press’ in Article 19 but it is declared by this Court
that it is included in Article 19(1)(a) which guarantees
freedom of speech and expression. (See Brij Bhushan & Anr.
v. The State of Delhi(l) and Bennett coleman & Co. & Ors. v.
Union of lndia & ors.(2)
. The material part of Article 19 of the Constitution
reads:
“19. (1) All citizens shall have the right-
(a) to freedom of speech and expression;
…………………………………………………
(g) to practise any profession, or to carry on
any occupation, trade or business,
(2) Nothing in sub-clause (a) of clause (1) shall
affect the operation of any existing law, or prevent the
State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of the
sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court,
defamation or incitement to an offence.
……………………………….
(6) Nothing in sub-clause (g)of the said said clause
shall affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law impos-
(1) (1950) S.C.R. 605.
(2) [1973] 2 S.C.R. 757
311
ing, in the interests of the general public,
reasonable restrictions on the exercise of the right
conferred by the said sub-clause……………… ”
The freedom of press, as one of the members of the
Constituent Assembly said, is one of the items around which
the greatest and the bitterest of constitutional struggles
have been waged in all countries where liberal constitutions
prevail. The said freedom is attained at considerable
sacrifice and suffering and ultimately it has come to be
incorporated in the various written constitutions. James
Madison when he offered the Bill of Rights to the Congress
in 1789 is reported as having said: ‘The right of freedom of
speech is secured, the liberty of the press is expressly
declared to be beyond the reach of this Government’. ‘(See 1
Annals of Congress (1789-96) p. 141). Even where there are
no written constitutions, there are well established
constitutional conventions or judicial pronouncements
securing the said freedom for the people The basic documents
of the United Nations and of some other international bodies
to which reference will be made hereafter give prominence to
the said right. The leaders of the Indian independence
movement attached special significance to the freedom of
speech and expression which included freedom of press apart
from other freedoms. During their struggle for freedom they
were moved by the American Bill of Rights containing the
First Amendment to the Constitution of the United States of
America which guarnteed the freedom of the press. Pandit
Jawaharlal Nehru in his historic resolution containing the
aims and objects of the Constitution to be enacted by the
Constituent Assembly said that the Constitutions should
guarantee and secure to all the people of India among others
freedom of thought and expression. He also stated elsewhere
that “I would rather have a completely free press with all
the dangers involved in the wrong use of that freedom than a
suppressed or regulated press” (See D.R. Mankekar: The Press
under Pressure (1973) p. 25). The Constituent Assembly and
its various committees and sub-committees considered freedom
of speech and expression which included freedom of press
also as a precious right. The Preamble to the Constitution
says that it is intended to secure to all citizens among
others liberty of thought, expression, and belief. It is
significant that in the kinds of restrictions that may be
imposed on the freedom of speech and expression any
reasonable restriction impossible in the public interest is
not one enumerated in clause (2)
312
of Article 19. In Romesh Thappar v. The State of Madras and
Brij Bhushan’s case (supra) this Court firmly expressed its
view that there could not be any kind of restriction on the
freedom of speech and expression other than those mentioned
in Article 19(2) and thereby made it clear that there could
not be any interference with that freedom in the name of
public interest. Even when clause (2) of Article 19 was
subsequently substituted under the Constitution (First
Amendment) Act, 1951 by a new clause which permitted the
imposition of reasonable restrictions on the freedom of
speech and expression in the interests of sovereignty and
integrity of India, the security of the State, friendly
relations with foreign states, public order, decency or
morality in relation to contempt of court, defamation or
incitement to an offence, Parliament did not choose to
include a clause enabling the imposition of reasonable
restrictions in the public interest.
Article 19 of the Universal Declaration of Human
Rights,
1948 declares very one has the right to freedom of opinion
and expression; this right includes freedom to hold opinions
without interference and to seek, receive and impart
information and ideas through any media and regardless of
frontiers’.
Article 19 of the International Covenant on Civil and
Political Rights, 1966 reads:
“Article 19
1. Everyone shall have the right to hold opinions
without interference.
2. Everyone shall have the right to freedom of
expression; this right shall include freedom to
seek, receive and impart information and ideas of
all kinds, regardless of frontiers, either orally,
in writing or in print, in the form of art,
through any other media of his choice.
3. The exercise of the rights provided for in
Paragraph 2 of this Article carries with it
special duties and responsibilities. It may
therefore be subject to certain restrictions, but
these shall only be such as are provided by law
and are necessary:
313
(a) For respect of the rights or reputations of
others;
(b) For the protection of national security or of
public order (order public), or of public health
or morals.”
Article 10 of the European Convention on Human Rights
reads:
“Article 10
1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions
and to receive and impart information and ideas
without interference by public authority and
regardless of frontiers. This Article shall not
prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be
subject to such formalities, conditions,
restrictions or penalities as are prescribed by
law and are necessary in a democratic society, in
the interests of national security, territorial
integrity or public safety, for the prevention of
disorder or crime, for the protection of health or
morals, for the protection of the reputation or
rights of others, for preventing the disclosure of
information received in confidence, or for
maintaining the authority and impartiality of the
judiciary.”
The First Amendment to the Constitution of the
United States of America declares:
“Amendment I
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech or
of the press, or the right of the people peaceably to
assemble, and to petition the government for a redress
of grievances.”
Frank C. Newman and Karel Vasak in their
article on ‘Civil
314
and Political Rights’ in the International Dimensions of
Human Rights (Edited by Karel Vasak) Vol. I state at pages
155-156 thus:
“(ii) Freedom of opinion, expression, information
and communication. A pre-eminent human right,
insofar as it allows everyone to have both an
intellectual and political activity, freedom of
expression in the broad sense actually includes
several specific rights, all linked together in a
“continuum” made increasingly perceptible by
modern technological advance. What is primarily
involved is the classic notion of freedom of
opinion, that is to say, the right to say what one
thinks and not to be harassed for one’s opinions.
This is followed by freedom of expression, in the
limited sense of the term, which includes the
right to seek, receive and impart information and
ideas, regardless of frontiers, either orally, in
writing or in print, in the form of art, or
through any other media of one’s choice When
freedom of expression is put to use by the mass
media, it acquires an additional dimension and
becomes freedom of information. A new freedom is
being recognised which is such as to encompass the
multiform requirements of these various elements,
while incorporating their at once individual and
collective character, their implications in terms
of both “rights” and “responsibilities”: this is
the right to communication, in connection with
which Unesco has recently undertaken considerable
work with a view to its further elaboration and
implementation.”
“Many Voices, One World” a publication of UNESCO which
contains the Final Report of the International
Commission for the study of Communication Problems,
presided over by Sean Mac Bride, in part V thereof
dealing with ‘Communication Tomorrow’ at page 265
emphasizes the importance of freedom of speech and
press in the preservation of human rights in the
following terms:
“IV. Democratization of Communication.
Human Rights
Freedom of speech, of the press, of information and of
assembly are vital for the realization of human rights
315
Extension of these communication freedoms to a broader
individual and collective right to communicate is an
evolving principle in, the democratization process.
Among the human rights to be emphasized are those of
equality for women and between races. Defence of all
human rights is one of the media’s most vital tasks. We
recommend:
52. All those working in the mass media should
contribute to the fulfilment of human rights, both
individual and collective, in the spirit of the Unesco
Declaration on the mass media and the Helsinki Final
Act, and the International Bill of human Rights. The
contribution of the media in this regard is not Only to
foster these principles but also to expose all
infringements, wherever they occur, and to support
those whose rights have been neglected or violated.
Professional associations and public opinion should
support journalists subjected to pressure or who suffer
adverse consequences from their dedication to the
defence of human rights.
53. The media should contribute to promoting
the just cause of peoples struggling for freedom and
independence and their right to live in peace and
equality without foreign interference. This is
especially important for all oppressed peoples who,
while struggling against colonialism, religious and
racial discrimination, are deprived of opportunity to
make their voices heard within their own countries.
54. Communication needs in a democratic society
should be met by the extension of specific rights such
as the right to be informed, the right to infrom, the
right to privacy, the right to practicipate in public
communication-all elements of a new concept, the right
to communicate. In developing what might be called a
new era of social rights we suggest all the
implications of the right to communicate to further
explored.
Removal of Obstacles
Communication, with its immense possibilities
for influencing the minds and behaviour of people, can
be a powerful means of promoting democratization of
society and of widening public participation in the
decision-making
316
process. This depends on the structures and practices
of the media and their management and to what extent
they facilitate broader access and open the
communication process to a free interchange of ideas,
information and experience among equals, without
dominance of discrimination.”
In today’s free world freedom of press is the heart of
social and political intercourse. The press has now assumed
the role of the public educator making formal and non-formal
education possible in a large scale particularly in the
developing world, where television and other kinds of modern
communication are not still available for all sections of
society. The purpose of the press is to advance the public
interest by publishing facts and opinions without which a
democratic electorate cannot make responsible judgments.
Newspaper being surveyors of news and views having a bearing
on public administration very often carry material which
would not be palatable to governments and other authorities.
The authors of the articles which are published in
newspapers have to be critical of the action of government
in order to expose its weaknesses. Such articles tend to
become an irritant or even a threat to power. Governments
naturally take recourse to suppress newspapers publishing
such articles in different ways. Over the years, the
governments in different parts of the world have used
diverse methods to keep press under control. They have
followed carrotstick methods. Secret payments of money, open
monetary grants and subventions, grants of lands, postal
concessions, Government advertisements, conferment of titles
on editors and proprietors of newspapers, inclusion of press
barons in cabinet and inner political councils etc.
constitute one method of influencing the press. The other
kind of pressure is one of using force against the press.
Enactment of laws providing for precensorship, seizures,
interference with the transit of newspapers and demanding
security deposit, imposition of restriction on the price of
newspapers, on the number of pages of newspapers and the
area that can be devoted for advertisements, withholding of
Government advertisements, increase of postal rates,
imposition of taxes on newsprint, canalisation of import of
newsprint with the object of making it unjustly costlier
etc. are some of the ways in which Governments have tried to
interfere with freedom of press. It is with a view to
checking such malpractices which interfere with free flow of
information, democratic constitutions all over the world
have made provisions guaran
317
teeing the freedom of speech and expression laying down the
limits of interference with it. lt is, therefore, the
primary duty Of all the national courts to uphold the said
freedom and invalidate all laws or administrative actions
which interfere with it, contrary to the constitutional
mandate.
Thomas 1. Emerson in his article entitled ‘Toward a
General Theory of the First Amendment’ (The Yale Law
Journal, Vol. 72,877 at p. 906) while dealing with the role
of the Judicial institutions in a democratic society and in
particular of the apex court of U.S.A. in upholding the
freedom of speech and expression writes:
“The objection that our judicial institutions
lack the political power and prestige to perform an
active role in protecting freedom of expression against
the will of the majority raises more difficult
questions. Certainly judicial institutions must reflect
the traditions, ideals and assumptions, and in the end
must respond to the needs, claims and expectiations, of
the social order in which they operate. They must not,
and ultimately can not, move too far ahead or lag too
far behind. The problem for the Supreme Court is one of
finding the proper degree of responsiveness and
leadership, or perhaps better, of short-term and long
term responsiveness. Yet in seeking out this position
the Court should not under estimate the authority and
prestige it has achieved over the years. Representing
the “con science of the community” it has come to
possess a very real power to keep alive and vital the
higher values and goals towards which our society
imperfectly strives Given its prestige, it would appear
that the power of the Court to protect freedom of
expression is unlikely to be substantially curtailed
unless the whole structure of our democratic
institutions is threatened.”
What is stated above applies to the Indian courts with
equal force-. In Romesh Thappar’s case (supra) Brij
Bhushan’s case (supra), Express Newspapers (Private) Ltd. &
Anr. v. The Union of India & Ors.,(l) Sakal Papers (P) Ltd.
&. Ors. v. The Union of India(2) and Bennett Coleman’s case
(supra) this Court has very strongly pronoun-
(1) [1959] S.C.R. 12.
(2) [1962] 3 S.C.R. 842.
318
ced in favour of the freedom of press. Of these, we shall
refer to some observations made by this Court in some of
them.
In Romesh Thappar’s case (supra) this Court said at
page 602:
“(The freedom).. .lay at the foundation of all
democratic organisations, for without free political
discussion on no public education, so essential for the
proper functioning of the processes of popular
government, is possible. A freedom of such amplitude
might involve risks of abuse ……………… C'(nut)
it is better to leave a few of its noxious branches to
their luxuriant growth, than, by pruning them away, to
injure the vigour of those yielding the proper
fruits”.”
In Bennett Coleman’s case (supra) A.N. Ray, C.J. On
behalf of the majority said at page 796 thus:
“The faith of 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 ‘Ask of the Covenant’
in very democracy-…. The newspapers give ideas., The
newspaper `give the people the freedom to find out what
ideas are correct.”
In the very same case, Methew, J, observed at
page 818:
“The constitutional guarantee of the freedom of speech
is not so much for the benefit of the press as it is
for the benefit of the public. The freedom of speech
includes within its compass the right of all citizens
to read and be informed. In Time v. Hill (385 U.S. 374)
the U.S. Supreme Court said:
“The constitutional guarantee of freedom of
speech and press are not for the benefit of the press
so much as for the benefit of all the people.”
In Griswold v. Connecticut (381 U.S. 479, 482) the U.S.
Supreme Court was of the opinion that the right of
freedom of speech and press includes not only the right
to utter or to print, but the right to read.”
319
Justice Mathew proceeded to observe (at pp. 819-820):
“Under Art. 41 of the Constitution the State has a duty
to A take effective steps to educate the people within
limits of its available economic resources. That
includes political education also.
Public discussion of public issues together with the
spreading of information and any opinion on these
issues is supposed to be the main function of
newspaper. The highest and lowest in the scale of
intelligence resort to its columns for information.
Newspapers is the most potent means for educating the
people as it is read by those who read nothing else
and, in politics, the common man gets his education
mostly from newspaper.
The affirmative obligation of the Government to permit
the import of newsprint by expanding foreign exchange
in that behalf is not only because press has a
fundamental right to express itself, but also because
the 1 community has a right to be supplied with
information and the Government a duty to educate the
people within the limits of its resources. The
Government may, under cl. 3 of the Imports (Control)
Order, 1955 totally prohibit the import of newsprint
and thus disable any person from carrying on a business
in newsprint, if it is in the general interest of the
public not to expend any foreign exchange on that
score. If the affirmative obligation to expend foreign
exchange and permit the import of newsprint stems from
the need of the community for information and the
fundamental duty of Government of educate the people as
also to satisfy the individual need for self exression,
it is not for the proprietor of a newspaper alone to
say that he will reduce the circulation of the
newspaper and increase its page level, as the community
has an interest in maintaining or increasing
circulation of the newspapers. It is said that a
proprietor of a newspaper has the freedom to cator to
the needs of intellectual highbrows who may choose to
browse in rich pastures and for that he would require
more pages for a newspaper and that it would be a
denial of his fundamental right if he were told that he
cannot curtail the circulation and increase the pages.
A claim to enlarge the volume of speech by diminishing
the circulation
320
raises the problem of reconciling the citizens’ right
to unfettered exercise of speech in volume with the
community’s right to undiminished circulation. Both
rights fall within the ambit of the concept of freedom
of speech as explained above.”
The Second Press Commission has explained the concept
of freedom of press in its Report (Vol. I pp. 34-35) thus:
“The expression ‘freedom of the press’ carries
different meanings to different people. Individuals,
whether professional Journalists or not, assert their
right to address the public through the medium of the
press. Some people stress the freedom of the editor to
decide what shall be published in his paper. Some
others emphasize the right of the owners to market
their publication. To Justice Holmes, the main purpose
of the freedom was to prevent all prior restraint on
publication.
16. The theory is that in a democracy freedom
of expression is indispensable as all men are entitled
to participate in the process of formulation of common
decisions. Indeed, freedom of expression is the first
condition of liberty. It occupies a preferred position
in the hierarchy of liberties giving succour and
protection to other liberties. It has been truly said
that it is the mother of all other liberties. The press
as a medium of communication is a modern phenomenon. It
has immense power to advance or thwart the progress of
civilization. Its freedom can be used to create a brave
new world or to bring about universal catastrophe.
17. Freedom of speech presupposes that right
conclusions are more likely to be gathered out of a
multitude of tongues than through any kind of
authoritative selection. It rests on the assumption
that the widest possible dissemination of information
from as many diverse and antagonistic sources as
possible is essential to the welfare of the public. It
is the function of the Press to disseminate news from
as many different sources and with as many different
facts and colours as possible. A citizen is entirely
dependent on the Press for the quality, proportion and
321
extent of his news supply. In such a situation, the
exclusive and continuous advocacy of one point of view
through the medium of a newspaper which holds
monopolistic position is not conducive to the formation
of healthy public opinion. If the newspaper industry is
concentrated in a few hands, the chance of an idea
antagonistic to the idea of the owners getting access
to the market becomes very remote. But our
constitutional law has been in different to the reality
and implication of non-governmental restraint on
exercise of freedom of speech by citizens. The
indifference becomes critical when comparatively a few
persons are in a position to determine not only the
content of information but also its very availability.
The assumption in a democratic set-up is that the
freedom of the press will produce a sufficiently
diverse Press not only to satisfy the public interest
by throwing up a broad spectrum of views but also to
fulfill the individual interest by enabling virtually
everyone with a distinctive opinion to find some place
to express it.” D
The petitioners have heavily relied upon the decision
of this Court in sakal’s case (supra) in which the
constitutionality of the Newspaper (Price and Page) Act,
1956 and the Daily Newspaper (Price and Page) Order, 1960
arose for consideration. The petitioner in that petition was
a private limited company engaged in the business inter alia
of publishing daily and weekly newspapers in Marathi named
‘Sakal’ from Poona. The newspaper ‘Sakal” had a net
circulation of 52,000 copies on week days and 56,000 copies
on Sundays. The daily edition contained six pages a day for
five days in a week and four pages on one day. This edition
was priced at 7 paise. The Sunday edition consisted of ten
pages and was priced at 12 paise. About 40% of the space in
the newspaper was taken up by the advertisements and the
rest by news, views and other usual features. The newspaper
(price and page) Act, 1956 regulated the number of pages
according to the price charged, prescribed the number of
supplements to be published and prohibited the publication
and sale of newspapers in contravention of the Act. It also
provided for the regulation of the size and area of
advertising matter contained in a newspaper. Penalties were
prescribed for contravention of that Act or the Order made
thereunder. As a result of the enforcement of that Act, in
order to publish 34 pages on six days in a week as it was
doing
322
then, the petitioner had to raise the price from 7 paise to
8 paise per day and if it did not wish to increase the
price, it had to reduce the total number of pages to 24- The
petitioner which could publish any number of supplements as
and when it desire to do so before the Order impugned in
that case was passed could do so thereafter only with
permission of the Government. The contention of the
petitioner in that case was that the impugned Act and the
impugned Order were pieces of legislation designed to
curtail the circulation of the newspaper as the increase in
the price of the paper would adversely affect its
circulation and they directly interfered with the freedom of
the press. The validity of these pieces of legislation was
challenged on the ground that they violated Article 19 (1)
(a) of the Constitution. The Union Government contested the
petition. It pleaded that the impugned Act and the Order
had been passed with a view to preventing unfair competition
among newspapers and also with a view to preventing the rise
of monopolistic combines so that newspapers might have fair
opportunities of free discussion. It was also con tended
that the impugned Act and the impugned Order had been passed
in the public interest and the petitioner’s business being a
trading activity falling under Article 19 (1) (g) of the
Constitution any restriction imposed by the said Act and the
Order was protected by Article 19 (6) of the Constitution.
This Court negativing the contention of the Union Government
observed at page 866 thus:
“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 pro
visions which without disguise are aimed at restricting
the circulation of what are termed the larger papers
with better financial strength- The impugned law for
from being one, which merely interferes with the right
of freedom speech incidentally, does so directly
though it
323
seeks to achieve the end 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 news papers which would necessarily undermine their
power to influence public opinion it cannot stat be
regarded as a dangerous weapon which is capable of
being used against democracy itself.”
Continuing further the Court observed at pages 867 and
868 thus:
“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 of the measure is challenged that
apart from the fundamental right infringed the
provision is otherwise legal.”
324
We have so far seen the importance of the freedom of
speech and expression which includes the freedom of press.
We shall now proceed to consider whether it is open to the
Government to levy any tax on any of the aspects of the
press industry.
IV
Do newspapers have immunity from taxation ?
Leaving aside small newspaper establishments whose
circulation may be less than about 10,000 copies a day, all
other bigger newspaper establishments have the
characteristics of a large industry. Such bigger newspaper
concerns are mostly situated in urban areas occupying large
buildings which have to be
provided with all the services rendered by municipal
authorities. They employ hundreds of employees. Capital
investment in many of them is in the order of millions of
rupees. Large quantities of printing machinery are utilised
by them, a large part of which is imported from abroad. They
have to be provided with telephones, teleprinters, postal
and telegraphic services, wireless communication systems
etc. Their newspapers have to be transported by roads,
railways and air services. Arrangements for security of
their property have to be made. The Government has to
provide many other services to them. All these result in a
big drain on the financial resources of the State as many of
these
services are heavily subsidized. Naturally such big
newspaper organisations have to contribute their due share
to the public exchequer. They have to bear the common fiscal
burden like all others.
While examining the constitutionality of a law which
is alleged to contravene Article 19 (1) (a) of the
Constitution, we cannot, no doubt, be solely guided by the
decisions of the Supreme Court of the United States of
America. But in order to understand the basic principles of
freedom of speech and expression and the need for that
freedom in a democratic country, we may take them into
consideration. The pattern of Article 19 (1) (a) and of
Article 19 (1) (g) of our constitution is different from the
pattern of the First Amendment to the American Constitution
which is almost absolute in its terms. The rights guaranteed
under Article 19 (1) (a) and Article 19 (1) (g) of the
Constitution are to be read along with clauses (2) and (6)
of Article 19
325
which carve out areas in respect of which valid legislation
can be A made. It may be noticed that the newspaper industry
has not been granted exemption from taxation in express
terms. On the other hand Entry 92 of List I of the Seventh
Schedule to the Constitution empowers Parliament to make
laws levying taxes on sale or purchase of newspapers and on
advertisements published therein.
It is relevant to refer here to a few extracts from
the speech of Shri Deshbandhu Gupta on the floor of the
Constituent Assembly opposing the provisions in the Draft
Constitution which authorised the State Legislatures to levy
sales tax on sale of newspapers and tax on advertisements in
newspapers. He said: C
“…… No one would be happier than myself and
my friends belonging to the press, if the House were to
decide today that newspapers will be free from all such
taxes. Of course that is what it should be because in
no free country with a democratic Government we have
any such taxes as the sales tax or the advertisement
tax ………………………… I claim that
newspapers do deserve a distinctive treatment. They are
not an industry in the sense that other industries are.
This has been recognised all over the world. They have
a mission to perform. And I am glad to say that the
newspapers in India have performed that mission of
public service very creditably and we have reason to
feel proud of it. I would, there. fore, expect this
House and my friend Mr. Sidhva to bear it in mind at
the time when God forbid any proposal comes before the
Parliament for taxation. That would be the time for
them to oppose it.
Sit, after all, this is an enabling clause. It
does not say that there shall be sales and
advertisement tax imposed on newspapers. It does not
commit the House today to the imposition of a tax on
the sales of or a tax on advertisements published in
newspapers, All that we have emphasised is that
newspapers as such should be taken away from the
purview of the provincial Governments and brought to
the Central List so that if at all at any time a tax is
to be imposed on newspapers it should be done by the
representatives of whole country realising the full
326
implications of their action. It should not be an
isolated A act on the part of some Ministry of some
province. That was the fundamental basis of our amendment
……………………………………………… If
today all news papers including those published from Delhi
are opposing the imposition of these taxes with one voice
and demanding their inclusion in the Central List, they do
so, not because it is a question of saving some money, but
be cause the fundamental question of the liberty of the
press is involved. By advocating their transfer to the
Central List we are prepared to run the risk of having these
takes imposed in Delhi, and in other provinces which have
not sought to impose such taxes so far. But we do not want
to leave it to the Provinces so that the liberty of the
press remains unimpaired. We have faith in the Parliament:
we have faith in the collective wisdom of the country and we
have no doubt that when this matter is viewed in the correct
perspective, there will be no such taxes imposed on the
newspapers, but we have not got that much faith in the
Provincial Ministries. It is in that hope and having a full
realisation of the situation that we have agreed, as a
matter of compromise, or should I say as a lesser evil, to
have these two taxes transferred from the Provincial to the
Central List.” (Vide Constituent Assembly Debates .Vol. IX,
pp. 1175-1180 dated September 9, 1949).
Ultimately the power to levy taxes on the sale or
purchase of newspapers and on advertisement published
therein was conferred on Parliament by Entry 92 of List I of
the Seventh Schedule to the Constitution. This shows the
anxiety on the part of the framers of our Constitution to
protect the newspapers against local pressures. But they,
however, did not agree to provide any constitutional
immunity against such taxation. The power to levy customs
duties on goods imported into the country is also entrusted
to Parliament by Entry 83 in List I of the Seventh Schedule
to the Constitution.
On the power of t e Government in the United States of
America to levy taxes on and to provide for the licensing of
news papers, Corpus Juris Sequndum (Vol. 16) says at page
1132 as follows:
327
“213. (13), Taxing and Licensing
“The Constitutional guaranties of freedom of
speech and of the press are subject to the proper
exercise of the government s power of taxation, and
reasonable license fees may be imposed on trades or
occupations concerned with the dissemination of
literature or ideas.
As a general rule, the constitutional guaranties of
freedom of speech and of the press are subject to the proper
exercise of the government’s power of taxation, so that the
imposition of uniform and non-discriminatory taxes is not
invalid as applied to persons or organisations engaged in
the dissemination of ideas through the publication or
distribution of writing. The guaranty of freedom of the
press does not forbid the taxation of money or property
employed in the publishing business, or the imposition of
reasonable licenses and license fees on trades or
occupations concerned with the dissemination of literature
or ideas.
A license or license tax to permit the enjoyment of
freedom of speech and freedom of press may not, however, be
required as a form of censorship, and where the purpose of
the tax or license is not for revenue, or for reasonable
regulation, but is a deliberate and calculated device to
prevent, or to curtail the opportunity for, the acquisition
of knowledge by the people in respect of their governmental
affairs, the statute or ordinance violates the
constitutional guaranties, and particularly the Fourteenth
Amendment to the federal Constitution. While an ordinance
imposing a tax on, and requiring a license for, the
privilege of advertising by distributing books, circulars,
or pamphlets has been held valid, an ordinance requiring the
payment of a license tax by street vendors or peddlers is
invalid as applied to members of a religious group
distributing religious literature as part of their
activities, at least where the fee is not merely a nominal
one imposed to defray the cost of regulation,
notwithstanding the ordinance is non-discriminatory. A
governmental regulation requiring a license to solicit, for
compensation, memberships in organizations requiring the
payment of dues is invalid,
328
where it fixes indefinite standards for the granting of
a license to an applicant. A provision of a retail sales tax
act providing that a retailer shall not advertise as to the
non-collection of sales tax from purchasers does not deprive
retailers of the constitutional right of free speech.”
The above subject is summarised in American
Jurisprudence 2d (Vol. 16) at page 662 thus:
“Speech can be effectively limited by the
exercise of that taxing power. Where the constitutional
right to speak is sought to be deterred by a state’s
general taxing program; due process demands that the
speech be unencumbered until the state comes forward
with sufficient proof to justify its inhibition. But
constitutional guaranties are not violated by a statute
the controlling purpose of which is to raise revenue to
help defray the current expenses of state government
and state obligations, and which shows no hostility to
the press nor exhibits any purpose or design to
restrain the press.”
It may be mentioned here that the First Amendment to
the Constitution of the United States of America is almost
in absolute terms. It says that the Congress shall make no
law abridging the freedom of the press. Yet the American
Courts have recognised the power of the State to levy taxes
on newspaper establishments, of course, subject to judicial
review by courts by the application of the due process of
law principle. “Due process of law does not forbid all
social control; but it protects personal liberty against
social control, unless such social control is reasonable
either because of a constitutional exercise of the police
power, or of the power of taxation or of the power of
eminent domain”. If any legislation delimiting personal
liberty is held to be outside of all three of these
categories, it is taking away of personal liberty without
due process of law and is unconstitutional. The police
power, taxation and eminent. domain are all forms of social
control which are essential for peace and good government.
‘The police power is the legal capacity of the severeignty
or one of its governmental agents, to delimit the personal
liberty of persons by means which bear a substantial
relation to the end to be accomplished for the protection of
social interests which reasonably need protection. Taxation
is the legal capacity of sovereignty or one of its govern
329
mental agents to exact or impose a charge upon persons or
their property for the support of the government and for the
payment for any other Public purposes which it may
constitutionally carry out. Eminent domain is the legal
capacity of sovereignty or one of its governmental agents,
to take private property for public use upon the payment of
just compensation.’ It is under the above said sovereign
power of taxation the government is able to levy taxes on
the publishers of newspapers too, subject to judicial review
by courts notwithstanding the language of the First
Amendment which is absolute in terms. In India too the power
to levy tax even on persons carrying on the business of
publishing newspapers has got to be recongnised as it is
inherent in the very concept of government. But the exercise
of such power should, however, be subject to scrutiny by
courts. Entry 92 of List I of the Seventh Schedule to the
Constitution expressly suggests the existence of such power.
Thomas I. Emerson in his article on the First
Amendment (The Yale Law Journal, Vol. 72 at p. 941, has made
certain relevant observations on the power of the State to
impose taxes and economic regulations on newspaper industry.
He says:
“(a) Taxation and Economic Regulation.
Regular tax measures, economic regulations,
social welfare legislation and similar provisions may,
of course, have some effect upon freedom of expression
when applied to persons or organisations engaged in
various forms of communication. But where the burden is
the same as that borne by others engaged in different
forms of activity, the similar impact on expression
seems clearly insufficient to constitute an “abridging”
of freedom of expression. Hence a general corporate
tax, wage and hour or collective bargaining
legislation, factory laws and the like are as
applicable to a corporation engaged in newspaper
publishing as to other business organisations. On the
other hand, the use of such measures as a sanction to
diminish the volume Of expression or control its
content would clearly be as impermissible an
“abridgment” as direct criminal prohibitions. The line
may sometimes be difficult to draw, the more so as the
scope of the regulation is narrowed.
Two principles for delineating the bounds of
“abridg-
330
ing” may be stated. First, as a general proposition
the validity of the measure may be tested by the rule that
it must be equally applicable to a substantially larger
group than that engaged in expression. Thus a special tax on
the press alone, or a tax exemption available only to those
with particular political views or associations, would not
be permitted. second, neither the substantive nor procedural
provisions of the measure, even though framed in general
terms, may place any substantial burden on expression
because of their peculiar impact in that area. Thus the
enforcement of a tax or corporate registration statute by
requiring disclosure of membership in an association, where
such disclosure would substantially impair freedom of
expression, should be found to violate first amendment
protection. (Underlining by us).
This view appears to have been accepted by our Second
Press Commission in its Report (Vol. I) at page 35. The
Commission observes:
“21. Economic and tax measures, legislation
relating to social welfare and wages, factory laws,
etc., may have some effect upon freedom of the Press
when applied to persons or institutions engaged in
various forms of communication. But where the burden
placed on them is the same as that borne by other
engaged in different forms of activity, it does not
constitute abridgment of freedom of the Press. The use
of such measures, however, to control the content’ of
expression would be clearly impermissible.”
In Alice Lee Grosjean, Supervisor of Public Accounts
for the State of Louisiana v. American Press Company(l) in
which the appellants had questioned the constitutional
validity of an Act of Louisiana which required every person
engaged in the business of selling or making any charge for,
advertising or for advertisements, printed or published in
any newspaper, periodical etc. having a circulation of more
than 20,000 copies per week to pay, in addition to all other
taxes, a license tax for privilege of engaging in such
business in the State of Louisiana of two per cent (2%) of
the gross receipts of such business, the Supreme Court of
the United States observed at pages 668-669:
—————————————-
(1) 297 U.S. 233: 80 L. ed. 660.
331
“In the light of all that has now been said, it
is evident that the restricted rules of the English law
in respect of the A freedom of the press in force when
the Constitution was adopted were never accepted by the
American colonists, and that by the First Amendment it
was meant to preclude the national government, and by
the Fourteenth Amendment to preclude the states, from
adopting any form of previous restraint upon printed
publications, or their circulation, including that
which had theretofore been effected by these two well
known and odious methods
It is not intended by anything we have said to
suggest that the owners of newspapers are immune from
any of the ordinary forms of taxation for support of
the government. But this is not an ordinary form of
tax, but one single in kind, with a long history of
hostile misuse against the freedom of the press.
The predominant purpose of the grant of
immunity here invoked was to preserve an untrammelled
press as a vital source of public information. The
newspapers, magazines and other journals of the
country, it is safe to say, have shed and continue to
shed, more light on the public and business. affairs of
the nation than any other instrumentality of publicity;
and since informed public opinion is the most potent of
all restraints upon misgovernment, the suppression or
abridgment of the publicity afforded by a free press
cannot be regarded otherwise than with grave concern.
The tax here involved is bad not because it takes money
from the pockets of the appellees. If that were all, a
wholly different question would be presented. It is bad
because, in the light of its history and of its present
setting, it is seen to be a deliberate and calculated
device in the guise of a tax to limit the circulation
of information to which the public is entitled in
virtue of the constitutional guaranties. A free press
stands as one of the great interpreters between the
government and the people. To allow it to be fettered
is to fetter ourselves.” (Underlining by us)
The levy imposed by Louisiana was quashed by
the Supreme
332
Court of the United States of America in the above case on
the ground that it violated the First Amendment to the
Constitution of the United States of America since it was of
the view that the tax levied in this case was a device to
limit the circulation of information. The Court, however,
did not say that no tax could be levied on the press in any
event.
In Robert Murdock, Jr. v. Commonwealth of Pennsylvania (City
of Jeannette)(1) the Supreme Court of the United States of
America declared as unconstitutional and violative of the
First Amendment to the Constitution of the United States of
America which guaranteed freedom of speech and expression,
an ordinance which imposed a licence tax on persons
canvassing for and soliciting within the city of Jeannette
orders for goods, paintings, pictures, wares or merchandise
of any kind or persons delivering such articles under orders
so obtained or solicited. The petitioners in that case were
‘Jehovah’s witnesses’ who went about from door to door in
the city of Jeannette distributing literature and soliciting
people to purchase certain religious books and pamphlets.
None of them obtained a licence by paying the prescribed fee
and they were convicted for violating the Ordinance by the
Superior Court of Pennsylvania. The Supreme Court of the
United States of America quashed the conviction holding that
the Ordinance violated the First Amendment. Douglas, J. who
wrote the majority opinion observed at pages 1299 and 1300
thus:
“In all of these cases the issuance of the
permit or license is dependent on the payment of a
license tax. And the license tax is fixed in amount and
unrelated to the scope of the activities of petitioners
or to their realized revenues. It is not a nominal fee
imposed as a regulatory measure to defray the expenses
of policing the activities in question. It is in no way
apportioned. It is a flat license tax levied and
collected as a condition to the pursuit of activities
whose enjoyment is guaranteed by the first Amendment.
Accordingly, it restrains in advance those
constitutional liberties of press and religion and
inevitably tends to suppress their exercise. That is
almost uniformly recognised as the inherent vice and
evil of this flat license tax………….
(1) 319 U.S. 105: 87 Law. ed. 1292.
333
The fact that the ordinance is
”nondiscriminatory” A is immaterial. The protection
afforded by the First Amendment is not so restricted. A
license tax certainly does not acquire constitutional
validity because it classifies the privileges protected
by the First Amendment along with the wares and
merchandise of hucksters and peddlers and treats them
all alike. Such equality in treatment does not save the
ordinance. Freedom of press, freedom of speech, freedom
of religion are in a preferred position.” (Underlining
by us).
Justice Reed who dissented from the majority
observed at page 1306 thus:
“It will be observed that there is no
suggestion of freedom from taxation, and this statement
is equally true of the other State constitutional
provisions. It may be concluded that neither in the
state or the federal constitutions was general taxation
of church or press interdicted.
Is there anything in the decisions of this Court which
indicates that church or press is free from the financial
burdens of government ? We find nothing. Religious societies
depend for their exemptions from taxation upon state
constitutions or general statutes, not upon the Federal
Constitution. Gibbons v. District of Columbia, 116 US 404,
29 L ed 680, 6 S Ct 427. This Court has held that the chief
purpose of the free press guarantee was to prevent previous
restraints upon publication. Near v. Minuesota 283 US 697,
713, 75 L ed 1357, 1366, 51 S Ct 625. In Grosjean v.
American Press Co., 297 US 233, 250, 80 L ed 660, 668, 56 S
Ct 444, it was., said that the predominant purpose was to
preserve “an untrammelled press as a vital source of public
information.” In that case, a gross receipts tax Oil
advertisements in papers with a circulation of more than
twenty thousand copies per week was held invalid because a
deliberate and calculated device in the guise of a tax to
limit the circulation…..”.
There was this further comment:
“It is not intended by anything we have said to
suggest
334
that the owners of newspapers are immune from any of the
ordinary forms of taxation for support of the government.
But this is not an ordinary form of tax, but one single in
kind, with a long history of hostile misuse against the
freedom of the press.” Id. 297 Us 250, 80 L ed 668. 56 S Ct
444.
It may be said, however, that ours is a too narrow,
technical and legalistic approach to the problem of state
taxation of the activities of church and press; that we
should look not to the expressed or historical meaning of
the First Amendment but to the broad principles of free
speech and free exercise of religion which pervade our
national way of life. It may be that the Fourteenth
Amendment guarantees these principles rather than the more
definite concept expressed in the First Amendment. This
would mean that as a Court, we should determine what sort of
liberty it is that the due process clause of the Fourteenth
Amendment guarantees against state restrictions on speech
and church……
Nor do we understand that the Court now maintains that
the Federal Constitution frees press or religion of any tax
except such occupational taxes as those here levied. Income
taxes, ad valorem taxes, even occupational taxes are
presumably valid, save only a license tax on sales of
religious books. Can it be that the Constitution permits a
tax on the printing presses and the gross income of a
metropolitan newspaper but denies the right to lay an
occupational tax on the distributors of the same papers ?
Does the exemption apply to book sellers or distributors of
magazines or only to religious publications ? And, if the
latter, to what distributors ? Or to what books ? Or is this
Court saying that a religious practice of book distribution
is free from taxation because a state cannot prohibit the
“free exercise thereof” and a newspaper is subject to the
same tax even though the same Constitutional Amendment says
the state cannot abridge the freedom of the press ? It has
never been thought before that freedom from taxation was a
perquisite attaching to the privileges of the First
Amendment.”
Justice Reed added at pages 1307 and 1308 thus:
335
“It is urged that such a tax as this may be
used readily to restrict the dissemination of ideas,
This must be conceded but the possibility of misuse
does not make a tax unconstitutional. No abuse is
claimed here. The ordinances in some of these cases are
the general occupation license type covering many
businesses. In the Jeannette prosecutions, the
ordinance involved lays the usual tax on canvassing or
soliciting sales of goods, wares and merchandise. It
was passed in 1898. Every power of taxation or
regulation is capable of abuse. Each one, to some
extent, prohibits the free exercise of religion and
abridges the freedom of the press, but that is hardly a
reason for denying the power. If the tax is used
oppressively the law will protect the victims of` such
action.” (Underlining by us.)
Justice Frankfurter who also dissented from the
majority observed at pages 1310 and 1311 thus:
“It cannot be said that the petitioners are
constitutionally exempt from taxation merely because
they may be engaged in religious activities or because
such activities may constitute an exercise of a
constitutional right…..
Nor can a tax be-invalidated merely because it falls
upon activities which constitute an exercise of a
constitutional right. The First Amendment of course protects
the right to publish a newspaper or a magazine or a book.
But the crucial question is-how much protection does the
Amendment give, and against what is the right protected ? It
is certainly true that the protection afforded the freedom
of the press by the First Amendment does not include
exemption from all taxation. A tax upon newspaper publishing
is not invalid simply because it falls upon the exeacise of
a constitutional right. Such a tax might be invalid if it
invidiously singled out newspapers publishing, for bearing
the burdens of taxation or imposed upon them in such ways as
to encroach on the essential scope of a free press. If the
Court could justifiably hold that the tax measures in these
cases were Vulnerable on that ground, I would unreservedly
agree. But the
336
Court has not done so, and indeed could not.”
(Under lining by us)
In the above case it may be noticed that Douglas, J.
who gave the majority opinion did not say that no tax could
be levied at all on a press, but he did not approve of a
uniform license tax unrelated to the scope of the activities
of the persons who had to beat it. The dissenting opinions
have clearly stated that the press does not enjoy any
immunity from taxation. They, however, say that the taxation
should not encroach upon the essential scope of a free
press.
We may usefully refer here to a passage in the foot
note given below the Essay No 84 by Alexander Hemilton in
‘The Federalist’. it reads:
“It cannot certainly be pretended that any
degree of duties, however low, would be an abridgment
of the liberty of the press. We know that newspapers
are taxed in Great Britain, and yet it is notorious
that the press nowhere enjoys greater liberty than in
that country. And if duties of any kind may be laid
without a violation of that liberty, it is evident
that the extent must depend on legislative discretion,
regulated by public opinion ;”
At this stage we find it useful to refer to a decision
of the Privy Council in Attorney General & Anr. v. Antigua
Times Ltd.( Where the Judicial Committee of the Privy
Council was called upon to decide about the validity of the
imposition of a licence fee of p S 600 annually on the
publisher of a newspaper under the News papers Registration
(Amendment) Act, 1971. Section 10 of the Constitution of
Antigua read as follows:
“10. (1) Except with his own consent, no person
shall be hindered in the enjoyment of his freedom of
expression, and for the purposes of this section the
said freedom includes the freedom to hold opinions and
to receive and impart ideas and information without
interference, and freedom from interference with his
correspondence and other means of communication
(1). [1975] 3 All E.R. 81
337
(2) Nothing contained in or done under the
authority of any law shall be held to be inconsistent
with or in contravention of this section to the extent
that the law in question makes provision-(a) that is
reasonably required-(i) in the interests of defence,
public safety, public order, public morality or public
health; or (ii) for the purpose of protecting the
reputations, rights and freedoms of other persons, or
the private lives of persons concerned in legal
proceedings, preventing the disclosure of information
received in confidence, maintaining the authority and
independence of the courts, or regulating telephony,
telegraphy, posts, wireless, broadcasting, television
or other means of communication, public exhibitions or
public entertainments; or (b) that imposes restrictions
upon public officers.”
Lord Fraser who delivered the judgment of the Privy
Council upheld the levy of the licence fee as being
reasonably required in the interests of defence and for
securing public safety etc. referred to in section 10 (2)
(a) (i) of the Constitution of Antigua, The learned Lord
observed in that connection thus:
Revenue requires to be raised in the interests
of defence and for securing public safety, public
order, public morality and public health and if this
tax was reasonably required to raise revenue for these
purposes or for any of them, then S. IB is not to be
treated as contravening the Constitution.
In some cases it may be possible for a court to
decide from a mere perusal of an Act whether it was or
was not reasonably required. In other cases the Act
will not provide the answer to that question. In such
cases has evidence to be brought before the court of
the reasons for the Act and to show that it was
reasonably required ? Their Lordships think that the
proper approach to the question is to presume, until
the contrary appears or is shown, that all Acts passed
by the Parliament of Antigua were reasonably required.
This presumption will be rebutted if the statutory
provisions in question are, to use the words of Louisy
J, ‘so arbitrary as to compel the conclusion that it
does not involve an exertion of the
338
taxing power but constitutes in substance and
effect the direct execution of a different and
forbidden power.’ y the amount of the licence fee was
so manifestly excessive its to lead to the conclusion
that the real reason for its imposition was not the
raising of revenue but the preventing of the
publication of newspapers, then that would justify the
conclusion that the law was not reasonably required the
raising of revenue.
In there Lordships’ opinion the presumption
that the newspapers Registration (Amendment) Act, 1971
was reasonably required has not been reputed and they
do not regard the amount of the licence fee as
manifestly excessive and of such a character as to lead
to the conclusion that S. IB was not enacted to raise
revenue but for some other Purpose.” (Underlining by
us)
Here again it is seen that the Privy council was of
the view that the law did not forbid the levy of fee on the
publisher of a newspaper but it would be open to challenge
if the real reason for its imposition was not the raising of
revenue but the preventing of the publication of newspaper.
At this stage it is necessary to refer to a forceful
argument addressed before us. It was urged on behalf of the
petitioners that the recognition of the power of the
Government to levy taxes of any kind on the newspaper
establishments would ring in the death-knell of the freedom
of press and would be totally against
the spirit of the Constitution. It is contended that the
Government is likely to use it to make the press subservient
to the Government. It is argued that when once this power is
conceded, newspapermen will have to run after the Government
and hence it ought not to be done. This raises a
philosophical question Pressversus Government- We do not
think it is necessary for the press to be subservient to the
Government. As long as ‘this Court sits’ newspapermen need
not have the fear of their freedom being curtailed by
unconstitutional means. It is, however, good to remember
some statements made in the past by some wise men connected
with newspapers in order to develop the culture of an
independent press. Hazlitt advised editors to stay in their
garrets and avoid exposing themselves to the sub-leties of
power. Walter Lippman in his address to the International
Press Institute some
339
years ago said that the danger to the independence and
integrity of journalists did not come from the pressures
that might A be put on them; it was that they might be
captured and capitivated by the company they keep. Arthur
Krock after 60 years of experience said that it ‘is true
that in most cases, the price of friendship with a
politician is so great for any newspaperman to pay’. A. P.
Wadsworth of the Manchester Guardian said “that no editor
should ever be on personal terms with our leaders for fear
of creating a false sense of relation of confidence.” James
Margach says that ‘when leading media figures see too much
rather than too little of Prime Minister that the freedom of
press is endangered.’ Lord Salisbury told Buckle a famous
editor in England “you are the first person who has not come
to see me in the last few days who is not wanting something
at my handsplace or decoration or peerage. You only want
information.” Charles Mitchell wrote in ‘Newspaper
Directory’. The Press has row so great and so extensive an
influence on public opinion…that…. its conductors should
be GENTLEMAN in the true sense of the word. They should be
equally above corruption and intimidation incapable of
being warped by personal considerations from the broad path
of truth and honour, superior to all attempts at
misrepresenting or mystifying public events’. If the press
ceases to be independent the healthy influence of the press
and public opinion will soon be substituted by the
traditional influences of landlordism and feudalism. The
press lords should endeavour to see that their interest do
not come into conflict with their duties. All this is said
only to show that Government alone may not always be the
culprit in destroying the independence of the press. Be that
as it may, it is difficult to grant that merely because the
Government has the power to levy taxes the freedom of press
would be totally lost. As stated earlier, the court is
always there to hold the balance even and to strike down any
unconstitutional invasion of that freedom.
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
340
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. They have drawn our attention to the
following passage in the decision in Sakal’s case (supra)
which is at page 863:
” 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 set 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. 19 is to enumerate
different freedoms separately and then to specify the
extent of restrictions to which they may be subjects
and the object for securing which this could be done.
A citizen
341
is entitled to enjoy each and every one of the
freedoms together and cl. (1) does not prefer one
freedom to A 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
securing 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 another freedom. “
In Bennett Coleman’s case (supra) the question which
arose for consideration related to the validity of a
restriction imposed under the newsprint policy which had
certain objectionable features such as (i) that no newspaper
or new edition could be started by a common owner-ship unit
even within the authorised quota of newsprint (ii) that
there was a limitation on the maximum number of pages, no
adjustment being permitted between circulation and pages so
as to increase pages, (iii) that a big newspaper was
prohibited and prevented from increasing the number of
pages, page area, and periodicity by reducing circulation to
meet the requirement even within its admissible quota etc..
The majority held that the fixation of page limit had not
only deprived the petitioners of their economic vitality but
also restricted their freedom of expression. It also held
that such restriction of pages resulted in reduction of
advertisement, revenue and thus adversely affected the
capacity of a newspaper to carry on its activity which is
protected by Article 19(1)(a) of the Constitution.
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
342
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
343
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
344
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.” (Underlining by us)
345
The above decision does not in fact support the
contention of the Government in the cases before us. It is
noteworthy that the Court in the passage extracted above has
made a distinction between the amendment of the Schedule to
the Punjab General Sales Tax Act by the issue of a
notification by the Government of Himachal Pradesh in
exercise of its power delegation by the legislature and the
power of that Government to grant exemption under a power to
grant K exemption. In the present cases we are concerned
with a power to grant exemption conferred on Government by
section 25 of the Customs Act, 1962 and not with a power to
amend the Act by means of a notification. Moreover this was
just a case relating to business in liquor.
We shall assume for purposes of these cases that the
power to grant exemption under section 25 of the Customs
Act, 1962 is a legislative power and a notification issued
by the Government thereunder amounts to a piece of
subordinate legislation. Even then the notification is
liable to be questioned On the ground that it is an
unreasonable one. The decision of this Court in Municipal
Corporation of Delhi v. Birla Cotton, Spinning and Weaving
Mills, Delhi & Anr.(l) has laid down the above principle. In
that case Wanchoo, C.J. while upholding certain taxes levied
by the Corporation of Delhi under section 150 of the Delhi
Municipal Corporation Act, 1957 observed thus:
“Finally there is – another check on the power
of the Corporation which is inherent in the matter of
exercise of power by subordinate public representative
bodies such as municipal boards. In such cases if the
act of such a body in the exercise of the power
conferred on it by the law is unreasonable, the courts
can hold that such exercise is void for the
unreasonableness. This principle was laid down as far
back as 1898 in Kruse v. Johnson [1898] 2 Q.B.D. 91”
But it appears that the principle enunciated in Kruse
v. Johnson (2) is not being applied so stringently in
England now.
A piece of subordinate legislation does not carry the
same degree of immunity which is enjoyed by a statute passed
by a com-
(1) [1968] 3 S.C.R. 251.
(2) [1898] 2 Q.B.D. 91.
346
petent legislature. Subordinate legislation may be
questioned on any of the grounds on which plenary
legislation is questioned. In addition it may also be
questioned on the ground that it does not conform to the
statute under which it is made. It may further be questioned
on the ground that it is contrary to some other statute.
That is because subordinate legislation must yield to
plenary legislation. It may also be questioned on the ground
that it is unreasonable, unreasonable not in the sense of
not being reasonable, but in the sense that it is manifestly
arbitrary. In England, the judges would say “Parliament
never intended authority to make such rules. They are
unreasonable and ultra vires”. The present position of law
bearing on the above point is stated by Diplock, L.J. in
Mixnam Properties Ltd. v. Chertsey U.D.C.(1) thus:
‘The various grounds upon which subordinate
legislation has sometimes been said to be void -…- –
can, I think, today be properly regarded as being
particular applications of the general rule that
subordinate legislation, to be valid must be shown to
be within the powers conferred by the statute. Thus the
kind of unreasonableness which invalid dates a by-law
is not the antonym of ‘reasonableness’ in the sense of
which that expression is used in the common law, but
such mainfest arbitrariness, injustice or partiality
that a court would say: ‘Parliament never intended to
give authority to make such rules: they are
unreasonable and ultra vires.. -‘ If the courts can
declare subordinate legislation to be invalid for
‘uncertainty,’ as distinct from unenforceable-this must
be because Parliament is to be presumed not to have
intended to authorise the subordinate legislative
authority to make changes in the existing law which are
uncertain. ”
Prof. Alan Wharam in his Article entitled
‘Judicial Control of Delegated Legislation: The Test of
Resonableness’ in 36 modern Law Review 611 at pages
622-23 has summarised the present position in England
as follows:
“(i) It is possible that the courts might
invalidate statutory instrument on the grounds of
unreasonableness or uncertainty, vagueness or
aribitrariness; but the writer’s
(1) [1964] 1 Q.B.. 214.
347
view is that for all practical purposes such
instruments must be read as forming part of the parent
statute, subject only to the ultra vires test.
(ii) The courts are prepared to invalidate by-
laws, or any other form of legislation, emanating from
an elected, representative authority, on the grounds of
unreasonableness uncertainty or repugnance to the
ordinary law; but they are reluctant to do so and will
exercise their power only in clear cases.
(iii) The courts may be readier to invalidate
by-laws passed by commercial undertakings under
statutory power, although cases reported during the
present century suggest that the distinction between
elected authorities and commercial undertakings, as
explained in Kruse v. Johnson, might not now be applied
so stringently.
(iv) As far as subordinate legislation of non-
statutory origin is concerned, this is virtually
obsolete, but it is clear from In re French Protestant
Hospital [1951] ch. 567 that it would be subject to
strict control.”
(See also H.W.R. Wade: Administrative Law (5th
Edn.) pp. 747-748).
In India arbitrariness is not a separate ground since
it will come within the embargo of Article 14 of the
Constitution. In India any enquiry into the vires of
delegated legislation must be confined to the grounds on
which plenary legislation may be questioned, to the ground
that it is contrary to the statute under which it is made,
to the ground that it is contrary to other statutory
provisions or that it is so arbitrary that it could not be
said to be in conformity with the statute or that it offends
Article 14 of the Constitution.
That subordinate legislation cannot be questioned on
the ground of violation of principles of natural justice on
which administrative action may be questioned has been held
by this Court in The Tulsipur Sugar Co. Ltd. v. The Notified
Area Committee, Tulsipur(l), Rameshchandra Kachardas Porwal
& Ors. v. State of
(1) [1980] 2 S.C.R- 1111.
348
Maharashtra & Ors. etc(1). and in Bates v. Lord Hailsham of
St Marylebone & Ors(2). A distinction must be made between
delegation of a legislative function in the case of which
the question of reasonableness cannot be enquired into and
the investment by statute to exercise particular
discretionary powers. In the latter case the question may be
considered on all grounds on
which administrative action may be questioned, such as,
nonapplication of mind, taking irrelevant matters into
consideration, failure to take relevant matters into
consideration, etc. etc. On the facts and circumstances of a
case, a subordinate legislation be may struck down as
arbitrary or contrary to statute if it fails to take into
account very vital facts which either expressly or by
necessary implication are required to be taken into
consideration by the statute or, say, the Constitution. This
can only be done on the ground that it doe- not conform to
the statutory or constitutional requirements or that it
offends Article 14 or Article 19 (1) (a) of the
Constitution. It cannot, no doubt, be done merely on the
ground that it is not reasonable or that it has not taken n
into account relevant circumstances which the Court
considers relevant.
We do not, therefore, find much substance in the
contention that the courts cannot at all exercise judicial
control over the impugned notifications. In cases where the
power vested in the Government is a power which has got to
be exercised in the public interest, as it happens to be
here, the Court may require the Government to exercise that
power in a reasonable way in accordance with the spirit of
the Constitution. The fact that a notification issued under
section 25 (1) of the Customs Act, 1962
is required to be laid before Parliament under section 159
thereof does not make any substantial difference as regards
the jurisdiction of the court to pronounce on its validity.
The power to grant exemption should, however, be
exercised in a reasonable way. Lord Greene M.R. has
explained in
Associated Provincial Picture Houses Ltd. v. Wednesbury
Corporation(U) what a ‘reasonable way’ means as follows:
“It is true that discretion must be exercised
reason ably. Now what does that mean ? Lawyers familiar
with
(1) [1981] 2 S.C.R. 866.
(2) [1972] 1 WLR 1373.
(3) [1948] 1 K.B. 223.
349
the phraseology used in relation to exercise of
statutory A discretions often use the word
‘unreasonable’ in a rather comprehensive sense. It has
frequently been used and is frequently used as a
general description of the things that must not be
done. For instance, a person entrusted with a
discretion must, so to speak, direct himself properly
in law. He must call his own attention to the matters
which he is bound to consider. He must exclude from his
consideration matters which are irrelevant to what he
has to consider. If he does not obey those rules, he
may truly be said, and often is said to be acting
‘unreasonably’. Similarly, there may be some- thing so
absurd that no sensible person could ever dream that it
lay within the powers of the authority. Warrlngton L.J.
in short Y, Poole Corporation [1926] Ch. 66 gave the
example of the red-haired teacher, dismissed because
she had red hair. This is unreasonable in one sense. In
another it is so unreasonable that it might almost be
described as being done in bad faith; and, in fact, all
these things run into one another.”
Hence the claim made on behalf of the Government that
the impugned notifications are beyond the reach of the
administrative law cannot be accepted without qualification
even though all the grounds that may be urged against an
administrative order may not be available against them.
Now, the notifications issued on March 1, 1981 and
February 28, 1982 under section 25 of the Customs Act, 1962
which grant exemptions from payment of certain duty beyond
what is mentioned in them are issued by the executive
Government. They were issued in substitution of earlier
notifications which had granted total exemption. Such
notifications have to be issued by the Government after
taking into consideration all relevant factors which bear on
the reasonableness of the levy on the news- print. The
Government should strike a just- and reasonable balance
between the need for ensuring the right of people to freedom
of speech and expression on the one hand and the need to
impose social control on the business of publication of a
newspaper on the other. In other words, the Government must
at all material times be conscious of the fact that it is
dealing with an activity protected by Article 19 (1) (a) of
the Constitution
350
which is vital to our democratic existence. In deciding the
reasonableness of restrictions imposed on any fundamental
right the court should take into consideration the nature of
the right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the disproportion of
the imposition and the prevailing conditions at the relevant
time including the social values whose needs are sought to
be satisfied by means of the restrictions. (See the State of
Madras v. V.G. Rao(l)). The restriction in question is the
burden of import duty imposed on newsprint. Section 25 of
the Customs Act, 1962 under which the notifications are
issued confers a power on the Central Government coupled
with a duty to examine the whole issue in the light of the
public interest. It provides that if the Central Government
is satisfied that it is necessary in the public interest so
to do it may exempt generally either absolutely or subject
to such conditions goods of any description from the whole
or any part of the customs duty leviable thereon. The
Central Government may if it is satisfied that in the public
interest so to do exempt from the payment of duty by a
special order in each case under circumstances of an
exceptional nature to be stated in such order any goods on
which duty is leviable. The power exercisable under section
25 of the Customs Act, 1962 is no doubt discretionary but it
is not unrestricted, It is useful to refer here to the
observations of Lord Denning M.R, in Breen v. Amalgamated
Engineering Union(2) at page 190 read thus:
“The discretion of a statutory body is never
unfet -tered. It is a discretion which is to be
exercised according to law. That means at least this:
the statutory body must be guided by relevant
considerations and not by irrelevant. If its decision
is influenced by extraneous considerations which it
ought not to have taken into account then the decision
cannot stand. No matter that the statutory body may
have acted in good faith nevertheless the decision will
be set aside. That is established by Pad-field v.
Minister of Agriculture Fisheries and Food [1968] A.C.
997 which is a landmark in modern administrative law.”
In any event any notification issued under a
statute also
(1) [1952] S.C.R. 597.
(2) [1971] 2 Q.B. 175.
351
being a ‘law’ as defined under Article 13 (3) (a) of the
Constitution is liable to) be struck down if it is contrary
to any of the fundamental rights guaranteed under Part III
of the Constitution.
VI
Has there been proper exercise of power under
section 25 (1) of the, Customs Act 1962 ?
Freedom of press as the petitioners rightly assert
means freedom from interference from authority which would
have the effect of interference with the content and
circulation of newspapers. The most important raw material
in the production of a newspaper is the newsprint. The cost
and availability of newsprint determine the price, size and
volume of the publication and also the quantum of news,
views and advertisements appearing therein. It is not
disputed that the cost of newsprint works out to nearly 60%
of the cost of production of newspaper. In the case of a big
newspaper the realisation by the sale of newspaper is just
about 40% of its total cost of production. The remaining
cost is met by advertisements revenue which is about 40%, by
revenue from waste sales and job work which comes to about
5% and revenue from other sources such as the income from
properties and other investments of the newspaper
establishment. These figures have been derived from the
statement furnished by one of the big newspapers. The case
of all other big newspapers may be more or less the same.
The financial and other difficulties felt by the newspaper
press in securing newsprint in recent years which have
become an international phenomenon are set out in the Final
Report of the International Commission for the Study of
Communication Problems referred to above at page 141 thus:
“Extremely serious on an international scale
has been the effect of high costs of important
materials or facilities.. -… -.-.-.-Paper is a
material consumed in vast quantities whose price in
recent years has spiralled out of proportion to the
general world-wide inflation… -… -As for newsprint,
its price on world markets rose from a datum figure of
100 in 1970 to 329 in May 1977, and has continued to
rise since. A sad by-product of this situation has been
the intro-
352
duction of a covert form of censorship, as some
Governments limit the import of newsprint, distribute
it by official allocation schemes, and use these
schemes to discriminate against the opposition
newspapers.”
In Chapter 4 of the same Report at page 100 the Inter-
national Commission has observed thus:
“While newspapers which are commercial
enterprises expect to sustain themselves by sales and
advertising, they are not always viable on this
traditional basis. Capital and profits from other media
and from business in general are often injected into
the newspaper industry. In many cases, the financing,
or at least the deficits are covered by governments or
political bodies. Assistance from the State has taken
various forms, including tax concessions not enjoyed by
other industries, reduced postal and telephone rates,
guaranteed Government advertising, and subsidies to the
price of newsprint. Although the press is suspicious of
Government involvement in its affairs, a desire to
preserve variety by keeping the weaker papers alive has
led to consideration of various schemes. Direct grants
to papers in need are made in seven European nations.
Smaller newspapers and some parts of the
“quality” or “specialized” press have experienced
difficulties from a contraction of operations and size,
which has led to limitations on the variety of
information sources. This has induced many governments
to examine the possibility of subsidies to help keep
newspapers alive or to establish new ones, in monopoly
circulation areas and to promote plurality and variety
in general.
If any duty is levied on newsprint by Government, It
necessarily has to be passed on to the purchasers of
newspapers” unless the industry is able to absorb it. In
order to pass on the duty to the consumer the price of
newspapers has to be increased. Such increase naturally
affects the circulation of newspapers adversely.
In Sakal’s case (supra), this Court has observed thus;
353
“The effect of raising the selling price of
newspaper A has been considered by the Press
Commission. In Paragraph 164 of the Report it is
observed:
“The selling price of a paper would
naturally have an important effect on its
circulation. In this connection we have examined
the effect of price cuts adopted by two English
papers at Bombay on the circulation of those two
papers as well as of the leading paper which did
not reduce its price. Prior to 27th October 1952,
Times of India which had the highest circulation
at Bombay was being sold at Re. 0-2-6 while Free
Press Journal and National Standard which rank
next in circulation were being sold for Re. 0-2-0.
On 27th October, 1952, Free Press Journal reduced
its price to Rs. 0-1.0 and within a year had
claimed to have doubled its circulation. On 1st
July, 1953, the National Standard was converted
into a Bombay edition of Indian Express with a
selling price of Rs. 0-1-6. Within six months it
too claimed to have doubled its circulation During
this period the Times of India which did not
reduce its selling price continued to retain its
readership. Thus it would appear that Free Press
Journal and Indian Express by reducing their price
have been able to tap new readership which was
latent in the market but which could not pay the
higher prices prevailing earlier.”
” Though the prices of newspapers appear to be on the
low side it is a fact that even so many people find it
difficult to pay that small price. This is what has been
pointed out by the Press Commission in Paragraph 52 of its
report. According to it the most common reason for people in
not purchasing newspapers is the cost of the newspaper and
the inability of the household to spare the necessary
amount. This conclusion is based upon the evidence of a very
large number of individuals and representatives of
Associations. We would, therefore, be justified in relying
upon it and holding that raising the price of newspaper even
by a small amount such as one
354
nP. in order that its present size be maintained would
adversely affect its circulation.”
This is not a novel phenomenon. A stamp tax on
newspapers came to be levied in England in 1712. It
virtually crippled the growth of the English press and thus
became unpopular. There was a lot of agitation against the
said tax. But on its abolition in 1861, the circulation of
newspapers increased enormously. The following account found
in the Encyclopaedia Britannica (1962) Vol. 16 at page 339
is quite instructive:
“Abolition of “Taxes on knowledge”.-The
development of the press was enormously assisted by the
gradual abolition of the “taxes on knowledge,” and also
by the introduction of a cheap postal system……..
To Lord Lytton, the novelist and politician,
and subsequently to Milner Gibson and Richard Cobden,
is chiefly due the credit of grappling with this
question in Parliament to secure first the reduction of
the tax to a penny in 1836, and then its total
abolition in 1855. The number of news papers
established from the early part of 1855, when the
repeal of the duty had become a certainty, and
continuing in existence at the beginning of 1857,
amounted to 107; 26 were metropolitan and 81
provincial. The duties on paper itself were finally
abolished in 1861.
The abolition of the stamp taxes brought about
such reductions in the prices of newspapers that they
speedily began to reach the many instead of the few.
Some idea of the extent of the tax on knowledge imposed
in the early 19th century may be gathered from the fact
that the number of stamps issued in 1820 was nearly
29,400,000, and the incidence of the advertisement tax,
fixed at 3s. 6d. in 1804, made it impossible for the
newspaper owner to pass on the stamp tax to the
advertiser. In 1828 the proprietors of the Times had to
pay the state more than 68,000 in stamp and
advertisement taxes and paper duty. But after the
reduction of the stamp tax in 1836 from four pence to
one penny, the circulation of English news papers,
based on the stamp returns, rose from 39,000,000 to
122,000,000 in 1854.”
355
The Second Press Commission in its Report (Vol. II) at
pages 182-183 has stated that the figures of circulation of
newspaper A compiled by the Audit Bereau of Circulation
(ABC) for the period January to June 1981 indicated that the
circulation of newspapers in the period January to June 1981
was 1.9% lower than in the previous six months period The
decline in the circulation of dailies was more in the case
of very big newspapers with circulation of one lakh and
above than in the case of smaller papers. The Commission
said that the decline in circulation would appear to be
attributable mainly to two factors-increase in the retail
price of newspapers in September-October, 1980 and again in
April-May, 1981 and that the increase in retail prices
appeared to have become necessary following continuing
increase in newsprint prices in the last few years including
levy of import duty in 1981 and increase in wages and
salaries cost on account of Palekar Award. Of these factors
which were responsible for increase in prices, the
imposition of import duty on newsprint was on account of
State action. This aspect of the matter is not seriously
disputed by the Government.
The pattern of the law imposing customs duties and the
manner in which it is operated to a certain extent exposes
the citizens who are liable to pay customs duties to the
vagaries of executive discretion. While parliament has
imposed duties by enacting the Customs Act, 1962 and the
Customs Tariff Act, 1975, the Executive Government is given
wide power by section 25 of the Customs Act, 1962 to grant
exemptions from the levy of Customs duty. It is ordinarily
assumed that while such power to grant exemptions is given
to the Government it will consider all relevant aspects
governing the question whether exemption should be granted
or not. In the instant case in 1975 when the Customs Tariff
Act, 1975 was enacted, 40% ad valorem was levied on
newsprint even though it had been exempted from payment of
such duty. If the exemption had not been continued,
newspaper publishers had to pay 40×6 ad valorem customs duty
on the coming into force of the Customs Tariff Act, 1975.
Then again in 1982 by the Finance Act, 1982 an extra levy of
Rs. 1,000 per tonne was G imposed in addition to the
original 40% ad valorem duty even though under the exemption
notification the basic duty had been fixed at 10% of the
value of the imported newsprint. No information is
forthcoming from the Government as to whether there was any
material which justified the said additional levy. It is
also not clear why this futile exercise of levying an
additional duty of
356
Rs. 1,000 per tonne was done when under the notification
issued under section 25 of the Customs Act, 1962 on March 1,
1981 which was in force then, customs duty on newsprint
above 10% ad valorem had been exempted. As mentioned
elsewhere in the course of this judgment while levying tax
on an activity which is protected
is also by Article 19(1)(a) a greater degree of care should
be exhibited. While it is indisputable that the newspaper
industry should also bear its due share of the total burden
of taxation alongwith the rest of the community when any tax
is specially imposed on newspaper industry, it should be
capable of being justified as a reasonable levy in court
when its validity is challenged. In the absence of
sufficient material, the levy of 40% plus Rs. 1,000 per
tonne would become vulnerable to attack. If the levy imposed
by the statute itself fails, there would be no need to
question the notifications issued under section 25 of the
Customs Act, 1962. But having regard to the prevailing
legislative practice let us assume that in order to
determine the actual levy we should take into consideration
not merely the rate of duty mentioned in the Customs Tariff
Act, 1975 but also any notification issued under section 25
of the Customs Act, 1962 which is in force. Even then the
reasons given by the Government to justify the total customs
duty of 15% levied from March 1, 1981 or Rs. 825 per tonne
as it is currently being levied appear to be inadequate. In
the Finance Minister’s speech delivered on the floor of the
Lok Sabha in 1981, the first reason given for the levy of
15% duty was that it was intended “to promote a measure of
restraint in the consumption of imported newsprint and thus
help in conserving foreign exchange”. This ground appears to
be not tenable for two reasons. In the counter-affidavit
filed on behalf of the Government, it is stated that the
allegation that the position of foreign exchange reserve is
comfortable is irrelevant, it. This shows that nobody in
Government had over taken into consideration the effect of
the import of newsprint on the foreign exchange reserve
before issuing the notifications levying 15% duty. Secondly
no newspaper owner can import newsprint directly- newsprint
import is canalised through the State (Trading Corporation.
If excessive import of newsprint adversely affects foreign
exchange reserve, the State Trading Corporation may reduce
the import of newsprint and allocate lesser quantity of
imported newsprint to newspaper establishments. There is
however, no need to impose import duty with a view to
curbing excessive import of newsprint. In the Finance
Minister’s speech there is no reference to the capacity of
the newspaper industry to bear the levy 15% of
357
duty. In the counter-affidavit it is asserted that the
extent of A burden faced by the newspaper industry in India
is irrelevant to the levy of import duty on newsprint. This
clearly shows again that the Government had not also
considered a vital aspect of the question before withdrawing
the total exemption which was being enjoyed by newspaper
industry till March 1,1981 and imposing 15% duty on
newsprint.
The petitioners have alleged that the imposition of
customs duty has compelled them to reduce the extent of the
area of the newspapers for advertisements which supply a
major part of the sinews of a newspaper and consequently has
adversely affected their revenue from advertisements. It is
argued by them relying upon the ruling in Bennett Coleman’s
case (supra) that Article 19(1) (a) is infringed thereby.
Our attention is drawn to the following passages in Bennett
Coleman’s case (supra) which are at pages 777778 and at page
782:
“Publications means dissemination and
circulation The press has to carry on its activity by
keeping in view the class of readers, the conditions of
labour, price of material, availability of
advertisements, size of paper and the different kinds
of news comments and views and advertisements which are
to be published and circulated The law which lays
excessive and prohibitive burden which would restrict
the circulation of a newspaper will not be saved by
Article 19(2). If the area of advertisement is
restricted. price of paper goes up. In 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……..
The various provisions of the newsprint import
policy have been examined to indicate as to how the
petitioners’ II
358
fundamental rights have been infringed by the
restrictions on page limit, prohibition against new
newspapers and new editions. The effect and
consequences 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.”
In meeting the above contention the Government relying
on the decision in Hamdard Dawakhana ( Wakf ) Lal Kuan,
Delhi & Anr. v. Union of India & Ors.(1) has pleaded in
defence of its action that the right to publish commercial
advertisement is not part of freedom of speech and
expression. 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 Advertisements) 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. The Court relying on the decision
of the American Supreme Court in Lewis J. Valentine v. F.J.
Chresten sen (2) observed at pages 687-689 thus:
“It cannot be said that the right to publish
and distribute commercial advertisements advertising an
individual’s personal business is a part of freedom of
speech guaranteed by the Constitution. In Lewis
Valentine v. F.). Chrestensen it was held that the
constitutional right of free speech is not infringed by
prohibiting the distribution in city streets of
handbills bearing on one side a protest against action
taken by public officials and on the other advertising
matter. The object of affixing of the protest to the
(1) [1960] 2 S.C.R. 671.
(2) 86 Law ED. 1262.
359
advertising circular was the evasion of the prohibition of a
city Ordinance forbidding the distribution in the city
streets of commercial and business advertising matter. Mr.
Justice Roberts, delivering the opinion of the court said:
“This Court has unequivocally held that the streets
are proper places for the exercise of the freedom of
communicating information and disseminating opinion and
that, though the states and municipalities may appropriately
regulate the privilege in the public interest, they may not
unduly burden or prescribe its employment in these public
thoroughfares. We are equally clear that the Constitution
imposed no such restraint on government as respects purely
commercial advertising y-.. -If the respondent was
attempting to use the streets of New York by distributing
commercial advertising the prohibition of the Code
provisions was lawfully invoked against such conduct.”
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 Art. 19(I) it seeks to further. The
advertisements in the instant case relate to commerce or
trade and not to propagating of ideas; and advertising of
prohibited drugs or commodities of which the sale is not in
the interest of the general public cannot be speech within
the meaning of freedom of speech and would not fall within
Art. 19(1)(a). The main purpose and true intent and aim,
object and scope of the Act is to prevent self-medication or
self-treatment and for that purpose advertisement commending
certain drugs and medicines have been prohibited. Can it be
said that this is an abridgement of the petitioners right of
free speech ? In our opinion it is not. Just as in
Chamarbaugwalla’s case 1957 S.C.R. 930 it was said that
activities undertaken and carried on with a view to earning
profits e.g. the business of betting and gambling will not
be protected as falling within the guaranteed right of
carrying on business or trade, so it cannot be said that an
advertisement commending drugs and substances an
360
appropriate cure for certain discases is an
exercise of the right of freedom of speech.”
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 v. 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(1) Justice Douglas
said ” Valentine v. 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(2) 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) are too broadly stated’ and
the Government cannot draw much support from it. We ate 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. In any event
the Government cannot derive any assistance from this case
to sustain the impugned notifications.
It was next urged on behalf of the Government that the
levy of customs duty on newsprint was not strictly a levy on
newsprint as such since though customs duties were levied
with reference to goods, the taxable event was the import of
goods within the customs barrier and hence there could be no
direct effect on the freedom of speech end expression by
virtue of the levy of customs duty on newsprint. Reliance
was placed in support of the above contention
(1) 358 US 498: 3 L ed 2d 462
(2) 421 US 809: 44 L ed 2d 600 at 610
361
On the decision in In re Sea Customs Act.(l) That decision
was A rendered on a reference made by the President under
Article 143 of the Constitution requesting this Court to
record its opinion on the question whether the Central
Government could levy customs duty on goods imported by a
State. The contention of the majority of the States in that
case was that the goods imported by them being their
property no tax by way of customs could be levied by reason
of Article 289 (t) of the Constitution which exempted the
property of a State from taxation by the Union. This Court
(majority 5, minority 4) held that in view of clause (1) of
Article 289 which was distinct from clause (2) thereof which
provided that nothing in clause (1) of Article 289 would
prevent the Union from imposing or authorising the
imposition of any tax to such extent, if any, as Parliament
might by law provide in respect of a trade or business of
any kind carried on by or on behalf of a State or any
operations connected therewith or any property used or
occupied for the purposes of such trade or business or any
income accruing or arising in connection therewith and the
other provisions of the Constitution which enabled the Union
to levy different kinds of taxes, customs duty levied on the
importation of goods was only a to levied on international
trade and not on property. The Court further held that the
immunity granted under Article 289 (1) in favor of States
had to be restricted to taxes levied directly on property
and even though customs duties had reference to goods and
commodities they were not taxes on property and hence not
within the exemption in Article 289 (1). The above decision
is again of very little assistance to the Government since
it cannot be denied that the levy of customs duty on
newsprint used in the production of newspapers is a
restriction on the activity of publishing a newspaper and
the levy of customs duties had a direct effect on that
activity. There exists no analogy between Article 289 (l)
and Article 19 (1) (a) and (2) of the Constitution. Hence
the levy cannot be justified merely on the ground that it
was not on any property of the publishers of newspapers.
Our attention has been particularly drawn to the
statement of the Finance Minister that one of the
considerations which prevailed upon the Government to levy
the customs duty was that the newspapers contained
‘piffles’. A ‘piffle’ means foolish nonsense. It appears
(1) [1964] 3 S.C.R. 787.
362
that one of the reasons for levying the duty was that
certain writings in newspapers appeared to the Minister as
piffles’. Such action is not permissible under our
Constitution for two reasons-(i) that the judgment of the
Minister about the nature of writings cannot be a true
description of the writings and (ii) that even if the
writings are piffles it cannot be a ground for imposing a
duty will whiohhinder circulation of newspapers. In this
connection it is useful to refer to the decision of the
American Supreme Court in Robert E. Hannegan v. Esquire,
Inc.(l) in which it was held that a publication could not be
deprived of the benefit of second class mailing rates
accorded to publications disseminating “information of a
public character, or devoted literature, the sciences, arts,
or some special industry” because its contents might seem to
the Postmaster General by reason of vulgarity or poor taste,
not to contribute to the public good. Justice Douglas
observed in that decision thus:
“It is plain, as we have said, that the
favorable second class rates were granted to
periodicals meeting the requirements of the Fourth
condition, so that the public good might be served
through a dissemination of the class of periodicals
described. But that is a far cry from assuming that
Congress had any idea that each applicant for the
second-class rate must convince the Postmaster General
that his publication positively contributes to the
public good or public welfare. Under our system of
government there is an accommodation for the widest
varieties of tastes and ideas. What is good literature,
what has educational value, what is refined public
information, what is good art, varies with individuals
as it does from one generation to another. There
doubtless would be a contrariety of views concerning
Cervantes’ Don Quixote, Shakespeare’s Venus & Adonis,
or Zola’s Nana. But a requirement that literature or
art conform to some norm prescribed by an official
smacks of an ideology foreign to our system. The basic
Values implicit in the requirements of the Fourth
condition can be served only by uncensored distribution
of literature. From the multitude of competing
offerings the public will pick and choose. What seems
to one to be trash may have for others fleeting or even
enduring values.”
(1) 327 U.S. 146: 90 L. Ed. 586
363
Matters concerning the intellect and ethics do undergo
fluctuations from era to era. The world of mind is a
changing one. A It is not static. The streams of literature
and of taste and judgment in that sphere are not stagnant.
They have a quality of freshness and vigour. They keep on
changing from time to time, from place to place and from
community to community.
It is one thing to say that in view of considerations
relevant to public finance which require every citizen to
contribute a reasonable amount to public exchequer customs
duty is leviable even on newsprint used by newspaper
industry and an entirely different thing to say that the
levy is imposed because the newspapers generally contain
‘piffles’. While the former may be valid if the circulation
of newspapers is not affected prejudicially, the latter is
impermissible under the Constitution as the levy is being
made on a consideration which is wholly outside the
constitutional limitations. The Government cannot arrogate
to itself the power to prejudge the nature of contents of
newspapers even before they are printed. Imposition of a
restriction of the above kind virtually amounts to
conferring on the Government the power to precensor a
newspaper. The above reason given by the Minister to levy
the custom duty is wholly irrelevant.
To sum up, the counter-affidavit filed on behalf of
the Government in these cases does not show whether the
Government ever considered the relevant matters. It says
that the extent of burden on the newspaper industry imposed
by the impugned levy is irrelevant. It says that the
position that foreign exchange reserve is comfortable is not
relevant. It does not say that the increasing cost of
imported newsprint was taken into consideration. The Finance
Minister says that the levy was imposed because he found
piffles’ in some newspapers. There is no reference to the
effect of the implementation of the Palekar Award on the
newspaper industry. It does not also state what effect it
will have on the members of the public who read newspapers
and how far it will reduce the circulation of newspapers.
It is argued on behalf of the Government that the
effect of the impugned levy being minimal, there is no need
to consider the contentions urged by the petitioners. As
observed by Lord Morris of Borth-Y-Gest in Honourable Dr.
Paul Borg Olivier & Anr v. Honourable Dr. Anton Buttigieg(l)
a case from Malta, that where
(1) 11967] A.C. 115 (P.C.)
364
fundamental rights and freedom of the individual are being
considered, a court should be cautious before accepting the
view that some particular disregard of them is of minimal
account. The learned Lord observed in the above case that
there was always the likelihood of the violation being
vastly widened and extended with impunity. He also referred
to the words of Portia-‘Twill be recorded for a precedent,
and many an error by the same example will rush into the
state’, and the following passage from the American case i e
Thomas v. Collins (I)
“The restraint is not small when it is
considered what was restrained. The right is a national
right, federally guaranteed. There is some modicum of
freedom of thought, speech and assembly which all
citizens of the republic may exercise throughout its
length and breadth, which no state, nor all together,
not the nation itself, can prohibit, restrain or
impede. If the restraint were smaller than it is, it is
from petty tyrannies that large ones take root and
grow. This fact can be more plain than when they are
imposed on the most basic right of all. Seedlings
planted in that soil grow great and, growing, break
down the foundations of liberty.”
In the above decision the Privy Council cited with
approval the view expressed by this Court in Romesh
Thappar’s case (supra) and in Martin v. City of Struthers(2)
The Privy Council observed thus:
“A measure of interference with the free
handling of the newspaper and its free circulation was
involved in the prohibition which the circular imposed.
It was said in an Indian case Romesh Thappey v. State
of Madras):
“There can be no doubt that freedom of speech
and expression includes freedom of prepagation of ideas
and that freedom is secured by freedom of circulation.
‘Liberty of circulation is as essential to that freedom
as the liberty of publication. Indeed without
circulation the publication would be of little value.”
(2) [1944] 323 U.S. 516
(3)[1943] 319 U.S. 141
365
Similar thoughts were expressed by Black J. in his
judgment in Martain v. City of Struthers when he said:
“Freedom to distribute information to every
citizen wherever he desires to receive it is so clearly
vital to the preservation of a free society that,
putting aside reasonable police and health regulations
of time and manner of distribution, it must be fully
preserved”.
We respectfully endorse the high principle expounded
by the Privy Council in the above case. Moreover in the
absence of a proper examination of all relevant matters, it
is not possible to hold that the effect of the levy is
minimal. In fact the impact of the impugned levy in these
cases is not minimal at all. For example, The Tribune Trust
has to pay Rs. 18.7 lacs and The Statesman Ltd. has to pay
Rs. 35.9 lacs by way of customs duty on newsprint imported
during 1983-84. Other big newspapers have also to pay large
sums by way of customs duty annually.
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
366
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. As observed by
Mathew, J. in the Bennett Coleman’s case (supra) it is the
duty of the State to encourage education of the masses
through the medium of the press under Article 41 of the
Constitution. We? therefore, reject this contention.
367
VIII
Relief
Now arises the question relating to the nature of
relief that may be granted in these petitions. These cases
present a peculiar difficulty which arises out of the
pattern of legislation under consideration. If the impugned
notifications ale merely quashed, they being notifications
granting exemptions, the exemptions granted under them will
cease. Will such quashing revive the notification dated July
15,1977 which was in force prior to March 1,1981 under which
total exemption had been granted ? We do not think so. The
impugned notification dated March 1, 1981 was issued in
supersession of the notification dated July 15,1977 and
thereby it achieved two objects-the notification dated July
15,1977 came to be repealed and 10% ad valorem. customs duty
was imposed on newsprint. Since the notification dated July
15,1977 had been repealed by the Government of India itself,
it cannot he revived on the quashing of the notification of
March 1,1981. The effect of such quashing of a subsequent
notification on an earlier notification in whose place the
subsequent notification was issued has been considered by
this Court in B.N. Tiwari v. Union of India and Ors.(1) In
that case the facts were these: in 1952, a ‘carry forward’
rule governing the Central Service was introduced whereby
the unfilled reserved vacancies of a particular year would
be carried forward for one year only. In 1955 the above rule
was substituted by another providing that the unfilled
reserved vacancies of a particular year would be carried
forward for two years. In T. Devadasan v. The Union of India
& Anr.(2) the 1955 rule was declared unconstitutional. One
of the questions which arose for consideration in this case
‘Tiwari’s case (supra) was whether the 1952 rule had revived
after the 1955 rule was struck down. This Court held that it
could not revive. The following are the observations of this
Court on the above question:
“We shall first consider the question whether
the carry forward rule of 1952 still exists. It is true
that in Devadasan’s case, the final order of this Court
was in these terms:-
“In the result the petition succeeds partially and
(1) [1965] 2 S.C.R. 421
(2) [1964] 4 S.C.R, 680
368
the carry forward rule as modified in 1955 is declared
invalid.”
That however does not mean that this Court held
that the 1952-rule must be deemed to exist because this
Court said that the carry forward rule as modified in
1955 was declared invalid. The carry forward rule of
1952 was substituted the carry forward by rule of 1955.
On this substitution the carry forward rule of 1952
clearly ceased to exist because its place was taken by
the carry forward rule of 1955. Thus by promulgating
the new carry forward rule in 1955, the Government of
India itself canceled the carry forward rule of 1952.
When therefore this Court struck down the carry forward
rule as modified in 1955 that did not mean that the
carry forward rule of 1952 which had already ceased to
exist, because the Government of India itself canceled
it and had substituted a modified rule in 1955 in its
place, could revive. We are therefore of opinion that
after the judgment of this Court in Devadasan’s case
there is no carry forward rule at all, for the carry
forward rule of 1955 was struck down by this Court
while the carry forward rule of 1952 had ceased to
exist when the Government of India substituted the
carry forward rule Of 1955 in its place.”
In Firm A.T.B. Mehtab Majid & Co. v. State of Madras &
Anr.(1) also this Court has taken the view that once an old
rule has been substituted by a new rule, it ceases to exist
and it does not get revived when the new rule is held
invalid.
The rule in Mohd. Shaukat Hussain Khan v. State of
Andhra Pradesh(2) is inapplicable to these cases. In that
case the subsequent law which modified the earlier one and
which was held to be void was one which according to the
Court could not have been passed at all by the State
Legislature. In such a case the earlier law could be deemed
to have never been modified or repealed and would,
therefore, continue to be in force. It was strictly not a
case of revival of an earlier law which had been repealed or
modified on
(1) [19631 Supp. 2 S.C.R. 435 at 446.
(2) [1975] 1 S.C.R, 429
369
the striking down of a later law which purported to modify
or repeal A the earlier one. It was a case where the earlier
law had not been either modified or repealed effectively.
The decision of this Court in Shri Mulchand Odhavji v.
Rojkot Borough Municipality is also distinguishable. In that
case the State Government had been empowered by section 3 of
the Saurashtra Terminal Tax and Octroi Ordinance (47 of
1949) to impose octroi duty in towns and cities specified in
Schedule I thereof and section 4 authorised the Government
to make rules for the imposition and collection of octroi
duty. These rules were to be in force until the City
Municipalities made their own rules. The rules framed by the
Municipality concerned were held to be inoperative. Then the
question arose whether the rules of the Government continued
to be in force. The Court held a
“The Government rules, however, were to cease to
operate as the notification provided “from the date the
said Municipality put into force their independent by
laws.” It is clear beyond doubt that the Government
rules would cease to apply from the time the
respondent-Municipality brought into force its own bye-
laws and rules under which it could validly impose,
levy and recover the octroi duty. The said notification
did not intend any hiatus when neither the Government
rules nor the municipal rules would be in the field.
Therefore,- it is clear that if the bye-laws made by
the respondent-Municipality could not be legally in
force some reason or the other, for instance, for not
having been validly made, the Government rules would
continue to operate as it cannot be said that the
Municipality had ‘put into force their independent bye-
laws”. The Trial Court, as also the District Court,
were therefore, perfectly right in holding that the
respondent-Municipality could levy and collect octroi
duty from the appellant-firm under the Government
rules. There was no question of the Government rules
being revived, as in the absence of valid rules of the
respondent-Municipality they continued to operate. The
submission of counsel in this behalf, therefore, cannot
be sustained.”
In the cases before us we do not have rules made by two
(1 ) A.l.R. 1970 S.C. 685
370
different authorities as in Mulchand’s case (supra) and no
intention on the part of the Central Government to keep
alive the exemption in the event of the subsequent
notification being struck down is also established. The
decision of this court in Koteswar Vittal Kamath v. K
Rangappa Baliga & Co.(1) does not also support the
petitioners. In that case again the question was whether a
subsequent legislation which was passed by a legislature
without competence would have the effect of reviving an
earlier rule which it professed to supersede. This case
again belongs to the category of Mohd. Shaukat Hussain
Khan’s case (supra). It may also be noticed that in Koteswar
Vittal Kamath’s case (supra) the ruling in the case of Firm
A.T.B. Mehtab Majid & Co. (supra) has been distinguished.
The case of State of Maharashtra etc. v. The Central
Provinces Manganese Ore Co. Ltd.(2) is again
distinguishable. In this case the whole legislative process
termed substitution was abortive, because, it did not take
effect for want of the assent to the Governor-General all
the Court distinguished that case from Tiwari’s case
(supra). We may also state that the legal effect on an
earlier law when the later law enacted in its place is
declared invalid does not depend merely upon the use of
words like, ‘substitution’, or ‘supersession’. It depends
upon the totality of circumstances and the context in which
they are used.
In the cases before us the competence of the
Central Government to repeal or annul or supersede the
notification dated July 15, 1977 is not questioned- Hence
its revival on the impugned notifications being held to be
void would not arise. The present cases are governed by the
rule laid down in Tiwari’s case (supra)
Hence if the notification dated July 15, 1977 cannot
revive on the quashing of the impugned notifications, the
result would be disastrous to the petitioners as they would
have to pay customs duty of 40% ad valorem from March 1,
1981 to February 28, 1982 and 40% ad valorem plus Rs. 1,000
per MT from March 1, 1982 onwards. In addition to it they
would also be liable to pay auxiliary duty of 30% ad valorem
during the fiscal year 1983-84 and auxiliary duty of 50% ad
valorem during the fiscal year 1982-83. They would
straigtaway be liable to pay the whole of customs duty and
any other duty levied during the current fiscal year also.
Such a result cannot be allowed to ‘ensue.
(1) [1969] 3 S.C.R. 40.
(2) [1977] I S.C.R. 1002.
371
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
372
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.
The petitions are accordingly allowed.
A.P.J.
Petitions allowed..
373