PETITIONER: SAKAL PAPERS (P) LTD., AND OTHERS Vs. RESPONDENT: THE UNION OF INDIA DATE OF JUDGMENT: 25/09/1961 BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA CITATION: 1962 AIR 305 1962 SCR (3) 842 CITATOR INFO : MV 1967 SC 1 (19,103) F 1973 SC 106 (12,14,18,23,33,34,42,66,79,83 R 1974 SC1044 (15) E&R 1978 SC 68 (93) R 1978 SC 597 (41,67,77,131,182,202) R 1980 SC 898 (55) R 1986 SC 515 (33,38,64,85,39) R 1986 SC 872 (74,75) RF 1988 SC1136 (27) ACT: Fundamental Right-Freedom of speech-Statute regulating number of pages in newspaper according to price charged-- Constitutionality of--Newspaper (Price and Page) Act, 1956 (45 of 1956)-Daily Newspaper Price and Page) Order, 1960- Constitution of India, Art, 19 (1) (a). HEADNOTE: The Newspaper (Price and Page) Act, 1956, empowered the Central Government to regulate the prices of newspapers in relation to their pages and sizes and to regulate the allocation of space for advertising matter. Under this Act the Central Government made the Daily Newspapers (Price and Page) Order, 1960, thereby fixing the maximum number of pages that might be Published by a newspaper according to the price charged and prescribing the number of supplements that-could be issued. The petitioner challenged the Act and the order as contravening Art. 19 (1) (a) of the Constitu- tion. Held, that the Act and the Order were void as they violated Art. 19(1) (a) of the Constitution and A were not saved by Art. 19(2). The freedom of speech and expression guaranteed by Art. 19(1) (a) included the freedom of the press. For propagating his ideas a citizen had the right to publish them, to disseminate them and to circulate them, either by word of mouth or by writing. The right extended not merely to the matter which he was entitled to circulate but also to the 843 volume of circulation. The impugned Act and Order placed restraints on the latter aspect of the right. But its very object the Act was directed against circulation and thus interfered with the freedom of speech and expression. Article 19(2) did not permit the State to abridge this right in the interests of the general public. Brij Bhushan v. The State of Delhi, [1950] S. C. R. 605 Express Newspapers (p) Ltd. v. The Union of India, [1959] S. C. R. 12, Ramesh Thappar v. State of Madras [1950] S.C.R. 594, State of Madras v. V. G. Row, [1952] S. C. R. 597, Dwarkadas Shrinivas v. The Sholapur & Weaving Co.,Ltd. [1954] S. C. R. 674, Virendra v. The State of Punjab, [1958] S. C. R. 308 and Hamdard Dawakhana (wakf) v. Union of India, [1960] 2 S. C. R. 67 1, referred to. Held, further, that the State could not make a law which directly restricted one guaranteed freedom for securing the better enjoyment of another freedom. Freedom of speech could not be restricted for the purpose of regulating the commercial aspect of the activities of newspapers. JUDGMENT:
ORIGINAL JURISDICTION : Petitions Nos. 331 of 1960 and 67-68
of 1961.
Petitions under Art. 32 of the Constitution of India for
enforcement of Fundamental Rights.
G. S. Pathak, R. Ganapathy Iyer, S. S. Shukla and G.
Gopalakrishnan for the petitioners.
M. C. Setalvad, Attorney-General of India, B. Sen, R. H.
Dhebar and T. M. Sen, for the respondent.
H. P. Nathwani, J. B. Jadachanji, S. N. Andley, Rameshwar
Nath and P. L. Vohra, for the respondent No. 1.
J. B. Dadachanji, S. N. Andley, Rameshwar Nath and P. L.
Vohra, for the interveners Nos. 2 and 6.
K. R. Choudhri, for intervener No. 3.
S. T. Desai, E. Udayarathnam and S. S. Shukla, for
intervener No. 4.
W. S. Barlingay and A. G. Ratnaparkhi, for intervener No.
5.
S. T. Desai, E. Udayarathnam and S. S. Shukla, for the
petitioners (In petitions Nos. 67 and 68 of 1961).
844
1961. September 25 The Judgment of the Court was delivered
by
MUDHOLKAR, J.-A matter of far-reaching importance affecting
the freedom of the press is raised in these three petitions
wherein the constitutionality of the Newspaper (Price and
Page) Act, 1956, and the Daily Newspaper (Price and Page)
Order, 1960, is questioned.
The first petition is by a private limited company carrying
on business inter alia of publishing daily and weekly
newspapers in Marathi named “Sakal” from Poona and by two
persons who are the only shareholders in that company. The
second and third petitions are preferred by two readers of
“Sakal” who also challenge the constitutionality of the Act.
Certain parties were allowed to intervene. They supported
the Union of India, the respondent, in all these petitions
and sought to uphold the validity of the Act and the Order.
In view of the common argument adduced before us it would be
convenient to deal with the first petition only in full.
The newspaper “Sakal” was started in the year 1932 and it
is claimed that it has a net circulation of 52,000 copies on
week days and 56,000 copies on Sundays in Maharashtra and
Karnataka and as such plays a leading part in the
dissemination of news and views and in moulding public
opinion in matters of public interest.
The daily addition of the newspaper contains six pages a day
for five days in a week and four pages on one day. This
edition is priced at 7 nP. The Sunday edition consists of
ten pages and is priced at 12nP. About 40% of the space in
the newspaper is taken up by advertisement matter and the
rest is &voted to news, articles, features, Views etc. It
is claimed on behalf of the petitioners that one of the
special features of the newspaper is coverage of foreign
news and despatches on foreign affairs. It is claimed on
behalf of the petitioners that this
845
paper is not aligned with any political party and that upon
controversial questions the public look up to it for
impartial appraisement of the issues involved and for
guidance.
Briefly stated the effect of the Act and of the impugned
Order is to regulate the number of pages according to the
price charged, prescribe the number of supplements to be
publisher and prohibit the publication and sale of
newspapers in contravention of any Order made under s. 3 of
the Act. The Act also provides for regulating by an Order
under s. 3, the sizes and area of advertising matter in
relation to the other matters contained in a newspaper.
Penalties are also prescribed for contravention of the
provision of the Act or Order.
We may mention here that in the year 1952 the Government of
India appointed a Press Commission for enquiring into a
large number of matters concerning the Press and one of the
recommendations of the Commission was to enact a law such as
the one impugned before us. This law is alleged by the
respondent to have been made to give effect to that
recommendation. Both the sides place reliance upon the
finding of the Press Commission and have invited us to
accept these findings, though not necessarily the
recommendations.
The petitioners point out that since the total number of
pages which “Sakal” gives to its reading public on six days
in a week is 34, and that as a result of the impugned Order
they will either have to raise its price from 7 nP. to 8 nP.
per day or to reduce the total number of pages to 24. They
further point out that while at present all newspapers can
issue any number of supplements as and when they choose,
under the Order they would be prevented from doing so except
with the permission of the Government. According to them
the Order would have the effect of either compelling them to
increase the price or to reduce the number of pages of
practically every newspaper in the country as
846
also of preventing them from publishing supplements without
extraneous restrictions, which they are able to do at
present.
It is the petitioners’ case that the impugned Act and the
impugned Order are pieces of legislation designed to curtail
and which would in effect curtail the freedom of the press
end as such are violative of the right guaranteed under Art.
19(1)(a) of the Constitution. They point out that’ if they
continue to give in their newspaper the same number of pages
as at present, they would have to increase its selling price
and that this will adversely affect its circulation. If, on
the other hand, they reduce the number of pages in order to
conform to the impugned order their right to disseminate
news and, views will be directly interfered with. Thus in
either event there will be an interference with their right
under Art. 19(1)(a) of the Constitution.
The petitioners point out that the impugned Order reserves
to the Central Government the power to permit issue of
supplements, except those on January 26 and August 15, and
that the result of this would be to place them at the mercy
of the Government and thus interfere with their freedom of
expression.
They further point out that the Act and the Order are
violative of the provisions of Art. 14 of the Constitution
inasmuch as their avowed object is to promote arbitrarily
the interests of some newspaper at the expense of others.
They contend that inequality is writ large in the provisions
of the Act and of the Order and that there is no reasonable
classification or basis or any rational relationship between
the restrictions imposed and the objects sought to be
achieved. According to them, while the established
newspapers will be hardly affected by these provisions those
that are endeavouring to come up will be hampered in their
progress.
847
On behalf of the respondent, the Union of India, in the
Ministry of Information and Broadcasting, while it is
admitted that the object of the Act is to regulate the
prices charged for newspapers in relation to their pages, it
is pointed out that this is being done to prevent unfair
competition amongst newspapers as also to prevent the rise
of monopolistic combines so that newspapers may have fair
opportunities of freer discussion. The effect of the
provisions of the Act is said to be to provide for the
maximum matter which a newspaper could make available to the
public at a certain price and that this does not in any way
restrict the rights of the petitioners to propagate their
ideas. The respondent, while admitting that by the
operation of the impugned Order a limitation is placed on
the space which a newspaper would be able to devote to the
propagation of its ideas and to news, says that it would be
open to those newspapers to increase the space by raising
the price. According to the respondent the circulation of a
newspaper will not be adversely affected by raising its
price. It is then contended that even if the circulation is
adversely affected thereby the fundamental rights of the
newspaper propritors guaranteed by Art. 19(1)(a) of the
Constitution will not be infringed. It is also contended
that the legislation in question does not directly or
indirectly deal with the subject of freedom of speech and
expression and that consequently no question of the
violation of the provisions of Art. 19(1)(a) at all arises.
The effect of the Act and the Order, according to the
respondent, would be to promote further the right of news-
papers in general to exercise the freedom of speech and
expression. Thus, according to the respondent, neither the
intention nor the effect of the operation of the law is to
take away or abridge the freedom of speech and expression of
the petitioners.
It is further pointed out that all newspapers publish
advertisements and that this is a trading activity. It is,
therefore, necessary to differentiate
848
between this activity and an activity which would fall under
Art. 19(1)(a). The impugned Act and the Order according to
the respondent provide in the public interest for
restrictions on the trading activity of newspapers. It is
pointed out that the space allocated to advertisements by
newspapers varies from 46% to 59% and that these advertise-
ments bring in a substantial revenue which enables the
newspapers to be sold at a price below the cost of
production. Placing reliance upon the statement contained
in the Report of the Press Commission it is contended on
behalf of the respondent that newspapers of long standing
which have built up a large and stable advertisement revenue
being in a more advantageous Position than newcomers in the
field of journalism are in a position to squeeze out such
newcomers with the result that they are able to destroy the
freedom of expression of others. A free press, it is said,
cannot mean a press composed of a few powerful combines and
that in order to ensure freedom of press it is necessary to
secure full scope for the full development of smaller news-
papers.
It is further pointed out on behalf of the respondent that
the diminution of advertisement revenue which would result
from the operation of the Price Page Schedule cannot be
regarded as an infringement of the right under Art. 19(1)(a)
According to the respondent the economies of newspapers and
the maximum number of pages that a paper can give with a
reasonable margin for advertisement space was worked out by
the Press Commission which also suggested a tentative Price
Page Schedule. In formulating the schedule the Press
Commission took into account various factors such as cost of
(1) newsprint, (2) composing and printing, (3) distribution
(4) commission payable, (5) editorial and managerial
expenses and (6) general overhead charges. The present Price
Page Schedule is said to be based upon the one formulated by
the Press Commission.
849
It is further stated that the present measures have been
adopted upon the recommendation of the Press Commission
which after stating that the proper functioning of democracy
requires that every individual should have equal opportunity
to put forward his opinions suggested that measures should
be adopted to reduce the differences due to economic
advantages and other causes to enable newcomers to start
with a fair chance of success. It is with this end in view
that the present rates are stated to have been prescribed.
The respondent further points out that the bulk of the
Indian language newspapers priced at 7nP. will not find any
difficulty whatsoever in conforming to the requirements of
the order because they give five or less than five pages on
week days. Only a few newspapers will be remotely affected
by the order but in their case the issue of large number of
pages is due to factors not connected with the functioning
of the freedom of speech and expression but for reasons
connected with their business activities. Newspapers,
according to the respondent, are able to give more pages
because of their large advertisement revenue or because they
belong to a group or chain of newspapers which do not
entirely depend upon the individual income of each
newspaper.
It is said that the petitioners in particular are able to
give additional number of pages because they devote a larger
volume of space to advertisements than others and that this
is not something done ‘in the lawful exercise of their right
of freedom of speech and expression or of the right of
dissemination of news and views. It is, however, as already
stated, admitted on behalf of the respondent that a
newspaper is a product sold below the’ cost of production.
The conclusion suggested by the respondent is that it is
only by increasing the revenue from advertisement that a
newspaper can increase the number of its pages.
According to the respondent, the true purpose of the
impugned legislation being the prevention
850
of unfair competition which has resulted in denying to
others a right of propagation of ideas by publishing
newspapers, this legislation cannot be said to infringe the
right of freedom of expression of a newspaper but on the
other hand said to be one which promotes and encourages
healhty journalism. The impugned provisions will, according
to the respondent, affect only those classes of newspapers
which unfairly compete with the smaller one-a, kind of
competition which is considered by the Press Commission as
unhealthy and against the interests of healthy journalism in
a growing democracy. It is then said that “it is necessary
to avoid unfair competition and even to promote healthy
competition that papers have to be put on a criteria of
equality and that this could only be done by directly
restricting the publication of large number of pages as
against the price charged.” Then it is contended that what
is aimed at by the impugned legislation is the avoidance of
concentration of ownership without interfering with healthy
competition between equals equally situated.
It is further stated that not only was the statute enacted
on the recommendation of the Press Commission but that the
Price Page Schedule itself was introduced in response to the
demand pressed by the Indian Language Newspapers
Association. It is pointed out on behalf of the respondent
that the quantity of import of newsprint is based on the
average number of pages of newspapers published in 1957 and
that, therefore, no newspaper has the unrestricted right to
increase the number of pages over the 1957 figure. It is
also pointed out that the draft Price Page Schedule has been
approved by the Indian Language Newspapers Association and
that this Association has recommended that the life of the
Price Page Act and Order should be extended by another five
to ten years. It is denied that the provisions of the Act
infringe the rights conferred by Art. 14 of the
Constitution.
851
We have already indicated earlier, briefly, the effect of
the impugned Act and the Order. In order to appreciate
fully the contentions raised before us it would be useful to
give in brief a summary of the provisions of the Act and of
the impugned Order.
First, there is the preamble which says that the object of
the Act is to secure to newspapers fuller opportunities of
freedom or expression by preventing unfair competition.
This is sought to be achieved by the regulation of prices
charged for newspapers in relation to their pages. In this
manner the legislature expects to prevent unfair competition
among newspapers.
Sub-section 3 of s. 1 provides that the Act shall cease to
have effect on the expiration of a period of five years from
its commencement except as respects things done or omitted
to be done before the expiration. The Act came into force
on September 7, 1956 and was thus due to expire on September
6, 1961. The Attorney-General, however, told us that it was
proposed to extend to the life of the Act by a further
period of five years and we understand that its life has now
been extended for an indefinite period. Section 2 defines
“daily newspaper” and “newspaper”.
Section 3 is the most important provision in the Act. It is
this provision which empowers the Central Government to
regulate prices and pages of newspapers. Sub-section (1) of
s. 3 empowers the Central Government to regulate the prices
of newspapers in relation to their pages and sizes if it is
of opinion that it is necessary to do so for the purpose of
preventing unfair competition among newspapers and in
particular those published in Indian languages. It also
empowers the Government to regulate the allocation of space
to be allotted for advertising matter. Sub-section (2) of
that section provides for an order under sub-s. (1) to be
made in relation to newspapers generally or in relation to
852
any class of newspapers and further provides for the making
of different provisions for daily newspapers and newspapers
appearing at other periodical intervals as “,well as for
different classes of newspapers. Sub-seotion (3) provides
that the Central Government, in making the Order, shall have
due regard to a reasonable flexibility with respect to the
fall of news and flow of advertisements and other matters
connected with the normal working of newspapers. Sub-
section (4) makes it obligatory upon the Central Goverment
to consult associations of publishers and such publishers as
are likely to be affected by the Order as it may think fit
with respect to the action proposed to be taken. Section 4
prohibits publication or sale of newspapers in the
territories to which the Act extends in contravention of any
of the provisions of an order made under s. 3.
Section 5 provides for furnishing returns by newspapers to
the Press Registrar. Sub-section (1)of s. 6 provides
penalties for publication and sale of newspapers in
contravention of the provisions of s. 4. Sub-section (2)
of s. 6 provides penalties for some other contraventions
with which we are not concerned. Section 7, which is the
last section, prohibits the Court from taking cognizance of
offences under the Act except upon a complaint in writing by
the Press Registrar or by an officer authorised by him.
It will thus be seen that the Act can be brought into
practical operation only after the Central Government has
taken action under sub-s. (1) of s. 3 and made an order
regulating any of the matters referred to in that section.
On October 24, 1960 in exercise of the powers conferred by
s. 3 the Central Government, after
consultationwiththe.Association of Newspapers and Publishers
likely to be affected thereunder, made the Daily Newspapers
(Price and Page) Order, 1960. This Order came into force on
December 12, 1960. It contains a schedule to the Act which
is in two
853
Parts, Part I and Part II. Part I applies to daily
newspapers published on six days in a week and Part II
applies to weeklies. Paragraph 3 of the Order provides that
where the price charged for daily newspapers is any of the
prices specified in col. I of Part I of the Schedule the
total number of pages of all the issues of that newspaper
published during six days in a week shall not exceed the
maximum number of pages shown against that price in that
part. Paragraph 4 deals with weekly editions of daily
newspapers. Paragraph 5 provides that the total number of
pages of all the issues of a daily newspaper published shall
not exceed the maximum number of pages assigned under para-
graphs 3 and 4 or under paragraph 3, according as the
newspaper is published on seven days in a week or on six
days. Then there is a proviso to this paragraph which runs
thus :
“Provided that where there is a weekly edition
of any newspaper referred to in clause (b) and
the price charged therefor is different from
that charged on other days, the total number
of pages of all the issues of that newspaper
published during a week shall not exceed the
maximum number of pares assigned to such
newspaper under paragraph 4 and five-sixths of
the maximum number of pages assigned to it
under paragraph 3.”
Paragraph 6 permits the publication of additional number of
pages during the week not exceeding six. Paragraph 7
permits the publication of supplements on January 26 and
August 15 each year and also once in every quarter on such
special occasion as the publisher thinks fit. Paragraph 8
empowers the Central Government to permit the publication of
additional supplem nts or special editions in excess of
those referred to in paragraph 7 and prescribes the number
of pages which could be. published. Paragraph 9 relaxes to
a certain extent the rigour of the provisions of paragraphs
4 to 6,
854
in that it provides that the daily newspaper shall not be
deemed to have contravened the provisions of the Order
unless the number of pages of all the issues of that
newspaper published during any period of twelve consecutive
weeks exceeds the quota assigned to such newspaper during
that period.
A bare perusal of the Act and the Order thus makes it
abundantly clear that the right of a news-, paper to publish
news and views and to utilise as many pages as it likes for
that purpose is made to depend upon the price charged to the
readers. Prior to the promulgation of the Order every news-
paper was free to charge whatever price it chose, and thus
had a right unhampered by State regulation to publish news
and views. This liberty is obviously interfered with by the
Order which provides for the maximum number of pages for the
particular price charged. The question is whether this
amounts to any abridgment of the right of a newspaper to
freedom of expression. Our Constitution does not expressly
provide for the freedom of press but it has been held by
this Court that this freedom is included in “freedom of
speech and expression” guaranteed by cl. (1)(a) of Art. 19,
vide Brij Bhushan v. The State of Delhi(1). This freedom is
not absolute for, cl. (2) of Art. 19 permits restrictions
being placed upon it in certain circumstances. That clause
runs thus
“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 restric-
tions on the exercise of the right conferred
by the said sub-clause in the interests of the
security of the State, friendly relations with
foreign States, public order, decency or
morality, or in relation to contempt of court,
defamation or incitement to an offence.”
(1) [1950] S.C.R. 605. 610.
855
It is not claimed on behalf of the State that either the Act
or the Order made thereunder can be justified by any of the
circumstances set out in this clause. The right to
propagate one’s ideas is inherent in the conception of
freedom of speech and expression. For the purpose of
propagating his ideas every citizen has a right to publish
them, to disseminate them and to circulate them. He is
entitled to do so either by word of mouth or by writing.
The right garanteed thus extends, subject to any law
competent under Art. 19(2), not merely to the matter which
he is entitled to circulate, but also to the volume of
circulation. In other words, the citizen is entitled to
propagate his views and reach any class and number of
readers as he choses subject of course to the limitations
permissible under a law competent under Art. 19(2). It
cannot be gainsaid that the impugned order seeks to place a
restraint on the latter aspect of the right by prescribing a
price page schedule. We may add that the fixation of a
minimum price for the number of pages which a newspaper is
entitled to publish is obviously not for ensuring a
reasonable price to the buyers of newspapers but for
expressly cutting down the volume of circulation of some
newspapers by making the price so unattractively high for a
class of its readers as is likely to deter it from pur-
chasing such newspapers.
It it; not disputed that every newspaper evolves a plan of
its own for carrying on its activities.. Bearing in mind
factors such as the place of publication, the class of the
reading public which may be excepted to subscribe to the
paper, the conditions of labour, the price of material, the,
availability of advertisements and so on it decides upon its
size, the proportion of different kinds of matter published
in the newspaper, such as news, comments, views of readers,
advertisements etc., and the price to be charged.. The plan
evolved by it is sought to be rudely shaken if not
completely Upset by an order which it is open to the Central
856
Government to make under s. 3(1) with a view to curtailment
of circulation of newspapers. No doubt, under s. 3(4) the
Government is required to consult associations of
publishers. Apart from the fact that the Government is not
bound by the opinion of the associations, the mere
circumstance that consultation with them is made obligatory,
the action of the Government in formulating an order does
not cease to be a direct interference with the freedom of
speech and expression of a citizen.
After the schedule comes into force it will not be open to a
newspaper proprietor to charge less than a certain minimum
price if he wants to give a particular number of pages in
his newspaper. If he should contravene this order he will
incur a penalty. Similarly he cannot publish supplements in
excess of four as and when he chooses, except with the
permission of Government. The Order does not indicate the
circumstances which would entitle a newspaper proprietor to
secure the special permission of Government. Apparently,
whether to allow an additional supplement or not would be
dependent on the sweet will and pleasure of the Government
and this would necessarily strike at the root of the
independence of the press.
In Express Newspapers (Private) Ltd., v. The Union of
India(,) this Court has laid down that while there is no
immunity to the press from the operation of the general laws
it would not be legitimate to subject the press to laws
which take away or abridge the freedom of speech and expres-
sion or adopt measures calculated and intended to curtail
circulation and thereby narrow the scope of dissemination of
information, or fetter its freedom to choose its means of
exercising the right or would undermine its independence by
driving it to seek Government aid. This Court further
pointed out` that a law which lays upon the Press excessive
and prohibitive, burdens which would restrict the
(1) [1959] 6. C. R. 12.
857
3
circulation of a newspaper would not be saved by Art. 19(2)
of the Constitution.
It must-be borne in mind that the Constitution must be
interpreted in a broad way and not in a narrow and pedantic
sense. Certain rights have been enshrined in our
Constitution as fundamental and, therefore, while
considering the nature and content of those rights the Court
must not be too astute to interpret the language-of the
Constitution in so literal a sense as to whittle them down.
On the other hand the Court must interpret the Constitution
in a manner which would enable the citizen to enjoy the
rights guaranteed by it in the fullest measure subject, of
course, to permissible restrictions. Bearing this principle
in mind it would be clear that the right to freedom of
speech and expression carries with it the right to publish
and circulate one’s ideas, opinions and views with complete
freedom and by resorting to any available means of
publication subject again to such restrictions as could be
legitimately imposed under cl. (2) of Art. 19. The first
decision of this Court in which this was recognized is
Romesh Thapar v. State of Madras (1). There., this Court
held that freedom of speech and expression includes freedom
of propagation of ideas and that this freedom is ensured by
the freedom of circulation. In that case this Court has
also pointed out that freedom of speech and expression are
tie foundation of all democratic organisations and are
essential for the proper functioning of the processes of
democracy. There and in other cases this Court pointed out
that very narrow and stringent limits have been set to
permissible legislative abridgment of the right of freedom
of speech and expression. In State of Madras v. V. G. Row
(2) the question of the reasonableness of restrictions which
could be posed upon a fundamental right has been considered.
This Court has pointed out that the nature
(1) [1950] S.C.R. 594.
(2) [1952] S.C.R. 597.
858
of the right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and scope of
the evil sought to be remedied thereby, the disproportion of
the imposition and the prevailing conditions at that time
should all enter into the judicial verdict. In Dwarkadas
Shrinivas v. The Sholapur Spinning & Weaving Co., Ltd. (1)
this Court has pointed out that in construing the
Constitution it is the substance ” and the practical result
of the act of the State that should be considered rather
than its purely legal aspect. The correct approach in such
cases should be to enquire as to what in substance is the
loss or injury caused to the citizen and not merely what
manner and method has been adopted by the State in placing
the restriction. In Virendra v. The State of Punjab (2) this
Court has observed at p. 319 as follows :
“It is certainly a serious encroachment on the
valuable and cherished right of freedom of
speech and expression if a newspaper is
,prevented from publishing its own or the
views of its correspondents relating to or
concerning what may be the burning topic of
the day”.
The impugned order requires all newspapers to raise their
prices if they want to maintain the present number of pages.
The effect of raising the selling price of newspaper 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
Rs.0-2-6
(1) [1954] S.C.R. 674.
(2) [1958] S.C.R. 308.
859
while Free Press Journal and National Standard
which rank next in circulation were being sold
for Rs.0-2-0. On 27th October, 1952, Free
Press Journal reduced its price to Rs, 0- 1 -0
and within a year bad 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…Dur-
ing 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”.
Then in’ paragraph 165 it is observed
“There is another instance illustrating the
,effect of selling price on the circulation.
The two leading Tamil papers Swadesamitran and
Dinamani in Madras, anticipating towards the
end of 1950 a steep rise in the price of news-
print, came to an understanding and raised the
price of their papers from Rs.0-1-0 to Rs 0-1-
6. (These papers normally carried 30 to 36
pages per week). The increase in price from
Rs. 0- 1 -0 per copy to Rs. 0-1-6 was brought
into effect from 1st January, 1951. The
result was a drastic fall in circulation in
both their cases. Subsequently in view of
this fall in circulation they agreed to reduce
their prices to the old figure. While the
original fall in circulation came about in
three months duration one paper took more than
9 months to recover its old circulation while
the other had not done so……… It may be
mentioned in this connection that th
e
circulation of a competing paper,
Thanthi……… did not rise during the three
860
months when the two leading papers had
increased the price …….nor did it fall
when the prices of the leading papers were
lowered again. The conclusion, therefore,
appears to be that over 33,000 readers had
stopped taking any papers because the price-
had been raised;……… The period examined
coincided with an accentuation of draught
conditions in Tamil Nadu; a certain fall in
circulation all round can be attributed to
these conditions. Nevertheless, it cannot be
denied -that a change in price did have a
profound effect on the circulation of those
two papers”.
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 a newspaper even by a
small amount such as one nP. in order that its present size
be maintained would adversely affect its circulation.
It is, however, said that it is not necessary for newspapers
to raise their prices but that they could reduce their
number of pages. For one things, requiring newspapers to
reduce their sizes would be compelling them to restrict the
dissemination of news and views and thus directly affecting
their right under Art. 19(1)(a). But it is said that the
object could be achieved by reducing the advertisements.
That is to say, the newspapers would be able to devote the
same space which they are devoting today to the publication
of news and views by reducing to the necessary extent the
space allotted to advertisements. It is pointed out that
news-
861
papers allot a disproportionately large space to
advertisements, It is true that many newspapers do devote
very large areas to advertisements. But then the Act is
intended to apply also to newspapers which may carry no or
very few advertisements. Again, after the commencement of
the Act and the coming into force of the Order a newspaper
which has a right to publish any ‘number of pages for
carrying its news and views will be restrained from doing so
except upon the condition that it raises the selling price
as provided in the schedule to the Order. This would be the
direct and immediate effect of the Order and As such would
be violative of the right of newspapers guaranteed by Art.
19(1)(a).
Again, s. 3(1) of the Act in so far as it permits the
allocation of space to advertisements also directly affects
freedom of circulation. If the area for advertisements is
curtailed the price of the newspaper will be forced up. If
that happens, the circulation will inevitably go down. This
would be no remote, but a direct consequence of curtailment
of advertisements.
We would consider this matter in another way also. The
advertisement revenue of a newspaper is proportionate to its
circulation. Thus the higher the circulation of a newspaper
the larger would be its advertisement revenue. So if a
newspaper with a high circulation were to raise its price
its circulation would go down and this in turn would bring
down also the advertisement revenue. That would force the
newspaper either to close down or to raise its price.
Raising the price further would affect the circulation still
more and thus a vicious cycle would set in which would
ultimately end in the closure of the newspaper. If, on the
other hand, the space for advertisement is reduced the
earnings of a newspaper would go down and it would either
have to run at a loss or close down or raise its price. The
object of the Act in regulating the space for advertisements
is stated to
862
be to prevant “unfair’ competition. It is thus directed
against circulation of a newspaper. When a law is intended
to bring about this-result there would be a’ direct
interference with the right of freedom of speech and
expression guaranteed under Art. 19(1)(a).
Since the very object of the’ impugned law is to affect the
circulation of certain newspapers which, are said to be
practising unfair competition it is difficult to appreciate
how it could be sustained. The right to freedom of speech
and expression is an individual right guaranteed to every
citizen by Art. 19(1)(a) of the Constitution. There is
nothing in el. (2) of Art. 19 which permits the State, to
abridge this right on the ground of conferring benefits upon
the public in general or upon a section of the public. It
is not open to the State to curtail or infringe the freedom
of speech of one for promoting the general welfare of a
section or a group of people unless its action could be
justified under a law competent under el. (2) of Art. 19.
It is admitted that the impugned provisions cannot be
justified on the grounds referred to in the aforesaid.
clause.
It was, however, contended on behalf of the State that there
are two aspects of the activities of newspapers-the
dissemination of news and views and the commercial aspect.
These two aspects, it is said fare different from one
another and under cl. (6) of Art. 19 restrictions can be
placed on the latter right in the interest of the general
public. So far as it is relevant for the purpose of the
argument el. (6) reads thus:
“Nothing in sub-clause (g) of the said clause shall affect
the operation of any existing law in so far as it imposes or
prevent the State from making any law imposing in the
interests of the general public, reasonable’restrictions on
the exercise of the right conferred by the said sub-
clause . . . . . . . . . . . . .
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 Bet
out in cl. (6) of Art. 19. Therefore, the right
of freedom of speech cannot be taken away with the object
of placing restrictions on the business activities of a
citizen. Freedom of speech can be restricted only in the
interests of the security of the State, friendly relations
with foreign State, public order, decency or morality or in
relation to contempt of court, defamation or incitement to
an offence. It cannot, like the freedom to carry on
business, be curtailed in the interest of the general
public. If a law directly affecting it is challenged it is
no answer that the restrictions enacted by it are
justifiable under cls. (3) to (6). For, the scheme of Art.
is to enumerate different freedoms separately and then to
specify the extent of restrictions to which they may be
subjected and the objects for securing which this could be
done. A citizen is entitled to enjoy each and every one of
the freedoms together and el. (1) does not prefer one
freedom to another. That is the plain meaning of this
clause. It follows from this that the State cannot make a
law which directly restricts one freedom even for scouring
the better enjoyment of another freedom. All the greater
reason, therefore for holding that the State cannot directly
restrict one freedom by placing an otherwise permissible
restriction on another freedom.
Viewing the question from this angle it would be seen that
the reference to the Press being a business and to the
restriction imposed by the impugned Act being referable or
justified as a proper restriction on the right to carry on
the business of publishing a, newspaper would be
864
wholly irrelevant for considering whether the impugned Act
infringes or does not infringe the freedom guaranteed by
Art. 19(1)(a).
The only question that would then remain would be whether
the impugned enactment directly impinges on the guarantee of
freedom of speech and expression. It would directly impinge
on this freedom either by placing restraint upon it or by
placing restraint upon something which is an essential part
of that freedom. The freedom of a newspaper to publish any
number of pages or to circulate it to any number of persons
is each an integral part of the freedom of speech and
expression. A restraint placed upon either of them would be
a direct infringement of the right of freedom of speech and
expression. Perhaps an illustration would make the point
clear. Let us suppose that the enactment had said that
newspaper “A’ or newspaper “B’ (ignoring for the moment the
objection to the illustration based upon Art. 14 shall not
have more than a specified number of subscribers. Could such
a law be valid in the face of the guarantee under Art.
19(1)(a)? The answer must unhesitatingly be no, because
such a law would be recognized as directly impinging upon
the freedom of expression which encompasses freedom of
circulation and to restrain the citizen from propagating his
views to any other beyond the limit or number prescribed by
the statute. If this were so, the fact that the legislation
achieves the same result by means of the schedule of rates
makes no difference and the impact on the freedom would
still be direct notwithstanding that it does not appear so
on its face.
Here the Act by enacting As. 4 and 5 directly prohibits a
newspaper from exercising that right, should the newspaper
fail to comply with the requirement of an order made under
s. 3. This is a direct invasion of the right under Art.
19(1)(a) and not an incidental or problematic effect thereon
as
865
was found in the. Express Newspapers case(1). In that case
the challenge to certain provisions of the Working
Journalists (Conditions. of Service) and Miscellaneous
Provisions Act, 1955 on the round that it infringes the
right guaranteed by Art. 19 ,(1)(&) of the Constitution.
That challenge failed because the object of that enactment
was to secure the amelioration of the condition of working
journalists and also because the law did not have the effect
of directly interfering with the right of the newspaper
proprietors guaranteed under Art. 19 (1)(a) of the
Constitution. The distinction between direct and indirect
effect of ‘a law upon the freedom of press has been adverted
to in that case. At p. 135, Bhagwati, J., who spoke for
the Court has said :
“All the consequences which have been
visualised in this behalf by the petitioners,
viz., the tendency to curtail circulation and
thereby narrow the scope of dissemination of
information, fetters on the
petitioners’freedom to choose the means of
exercising the right, likelihood of the
independence of the press being undermined by
having to seek government aid;……… etc.
would be remote and depend upon various
factors which may or may not come into play.
Unless these were the direct or inevitable
consequences of the measures enacted in the
impugned Act, it would not be possible to
strike down the legislation as having that
effect and operation.”
That the impugned Act was intended to effect circulation and
thus directly affect the freedom of speech is discernible
also from the preamble which we way here quote. It runs
thus:
“An Act to provide for the regulation of the
prices charged for newspapers in relation to
their pages and of matters connected therewith
for the purpose of preventing unfair
(1) (1959) S.C..R. 12
866
competition among newspapers so that news.
papers may have fuller opportunities of
freedom of expression.”
Its object thus is to regulate something which, as already
stated, is directly related to the circulation of a
newspaper. Since circulation of a newspaper is a part of
the right of freedom of speech the Act must be regarded as
one directed against the freedom of speech. It has selected
the fact or thing which is an essential and basic attribute
of the conception of the freedom of speech viz., the right
to circulate one’s views to all whom one can reach or care
to reach for the imposition of a restriction. It seeks to
achieve its object of enabling what are termed the smaller
newspapers to secure larger circulation by provisions which
without disguise are aimed at restricting the circulation of
what are termed the larger papers with better financial
strength. The impugned law far from being one, which merely
interferes with the right of freedom of speech incidentally,
does so directly though it seeks to achieve the and by
purporting to regulate the business aspect of a newspaper.
Such a course is not permissible and the courts must be ever
vigilant in guarding perhaps the most precious of all the
freedoms guaranteed by our Constitution. The reason for
this is obvious. The freedom of speech and expression of
opinion is of paramount importance under a democratic
Constitution which envisages changes in the composition of
legislatures and governments and must be preserved. No
doubt, the law in question was made upon the recommendation
of the Press Commission but since its object is to affect
directly the right of circulation of newspapers which would
necessarily undermine their power to influence public
opinion it cannot. but be regarded as a dangerous weapon
which is capable of being used against democracy itself.
In these circumstances the Act and the Order cannot be
sustain d upon the ground that it merely
867
implements a recommendation of the Press Commission and was
thus not made with an ulterior object. The decision in
Hamdard Dawakhana (Wakf) v. Union of India (1) upon which
reliance was placed by the respondent in support of the
contention that where an enactment is challenged on the
ground of violation of fundamental rights it is legitimate
to take into consideration several factors including the
purpose of the legislation, the mischief intended to be
suppressed, the remedy purposed by the legislature and the
true reason for that remedy does not, therefore, arise for
consideration. Similarly since the Act taken in conjunction
with the order made thereunder operates as a restraint on
the freedom of Speech and expression of newspapers the mere
fact that its object was to suppress unfair practices by
newspapers would not validate them. Carrying on unfair
practices may be a matter for condemnation. But that would
be no ground for placing restrictions on the right of
circulation.
It was argued that the object of the Act was to prevent
monopolies and that monopolies are obnoxious. We will
assume that monopolies are always against public interest
and deserve to be suppressed. Even so, upon the view we
have taken that the intendment of the Act and the direct and
immediate effect of the Act taken along with the impugned
order was to interfere with the freedom of circulation of
newspapers the circumstance that its object was to suppress
monopolies and prevent unfair practices is of no assistance.
The legitimacy of the result intended to be “achieved does
not necessarily imply that every means to achieve it is
permissible; for even if the end is desirable and
permissible, the means employed must not transgress the
limits laid down by the Constitution, if they directly
impinge on any of the fundamental rights guaranteed by the
Constitution it is no answer when the constitutionality
(1) [1960] 2 S.C. R. 671.
868
of the measure is challenged that apart from the fundamental
right infringed the provision is otherwise legal.
Finally it was said that one of its objects is to give some
kind of protection to small or newly started newspapers and,
therefore, the Act is good. Such an object may be desirable
but for attaining it the State cannot make inroads on the
right of, other newspapers which Art. 19(1)(a) guarantees to
them. There may be other ways of helping them and it is for
or the State to search for them but the one they have chosen
falls foul of the Constitution.
To repeat, the only restrictions which may be imposed on
the, rights of an individual under Art. 19(1)(a) are those
which cl. (2) of Art. 19 permits and no other.
Coming to Writ Petitions 67 and 68 of 1961, considering that
the relief granted by us in the main petition will redress
the grievance of the petitioners in these two petitions it
will be only of academic interest to decide whether they, as
readers of newspapers, can complain of an interference with
their right under Art. (19) (1) (a). We, therefore, refrain
from making any Order on their petitions.
Upon the view we take it would follow that s. 3(1) of
the Act, which is its pivotal provision, is unconstitutional
and therefore, the Daily newspaper (Price and Page) Order,
1960 made thereunder is also unconstitutional. If a. 3(1)
is struck down as bad, nothing remains in the Act itself.
Accordingly we allow this petition with costs. ‘The
petitioners in W. Ps. 67 and 68 of 1961 as well as the
interveners will bear their respective costs.
869
